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Colorado's TABOR Challenge Carries Big Implications for Maine

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A lawsuit challenging the constitutionality of Colorado’s 21-year old Taxpayer’s Bill of Rights (TABOR) could have dire implications for constitutional restraints on spending and taxation in almost every other state, including Maine.

At issue is the very essence of republican self-government.

The case – Kerr v. Colorado – is winding its way through the U.S. Court of Appeals for the 10th Circuit.

Colorado Attorney General John Suthers is representing the state against individual plaintiffs. The plaintiffs in the case – 34 current and former state legislators and local officials, mostly Democrats – are arguing that when a state constitution or legislature permits the people to vote on revenue measures and other laws, this violates the U.S. Constitution’s Guarantee Clause (Article IV, Section 4).

Specifically, the lawsuit’s claim is that limits on the Colorado state legislature’s fiscal powers, such as TABOR, violate the U.S. Constitution’s “republican form of government” or “guarantee” clause. This argument relies on a sharp distinction between a republic and democracy to invalidate citizen’s initiatives and ballot referenda restricting the spending and taxing powers of the state legislature.

Robert G. Natelson, a constitutional scholar with Colorado’s Independence Institute, filed an amicus curiae brief for the court arguing against the plaintiffs’ view of democratic-decision making. Natelson is one of the country’s top experts on constitutional law.

“As a former law professor, I would say the case should be dismissed,” he said. “The case never should have gone beyond District Court.”

Natelson said the plaintiffs’ invocation of “republican” government is not based in an accurate understanding of the Founders’ idea of republican government.

“Free market-oriented policy makers need to understand what republican government is and isn’t,” said Natelson. “The Founders were clear about what constitutes republican government.”

In a report for the Independence Institute, he highlights the Founders’ political thought on the matter.

In that report, Natelson wrote, “Guarantee Clause challenges to direct popular lawmaking invariably have cited materials that reveal little or nothing of the Founding Era meaning of ‘Republican Form of Government’…. Although the finished Constitution contained no provision for direct citizen lawmaking at the federal level, this was not because direct citizen lawmaking was ‘unrepublican.’”

Natelson said he is reasonably optimistic about the court’s forthcoming ruling, but worried that an overly politicized court may surprise him.

The court’s verdict could have dire implications extending far beyond Colorado, as the theory the plaintiffs are arguing could be used to void safeguards in the constitutions of almost all other states. If successful, the plaintiffs’ legal theory could lead to court challenges in at least 49 states. At risk would be state caps on debt, taxes, and spending as well as required public votes or super-majorities on fiscal measures. States’ balanced budget requirements would also be at risk.

“If TABOR were to be struck down in Colorado, it would be open season on state constitutions, including Maine’s,” said Natelson.

“It would be good business for lawyers looking to sue on behalf of government entities and interest groups,” he said.

In Maine, this theory could undermine Article IX Section 14 of the Maine State Constitution, which prohibits the State from incurring long-term debt of more than $2,000,000 without a statewide vote, and Article V Section 5, which prohibits the use of proceeds from the sale of bonds for current expenditures.

Director of the Center for Constitutional Government David Crocker said the challenge to Colorado’s TABOR law was not likely succeed, but would be welcomed by Maine’s left-of-center interest groups.

“In the unlikely event that the Colorado TABOR is held to violate the guarantee clause, the case could be used to invalidate or thwart citizen-initiated legislation to curb taxation and government spending in Maine and nationwide,” said Crocker.

“I’m sure the Maine Municipal Association, the unions and the Engage Maine crowd would love it.”

By S.E. Robinson
MAINE WIRE Reporter

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About Steve Robinson

Steve Robinson the editor of The Maine Wire. A native of Dexter, Maine, Robinson is a graduate of Bowdoin College.

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