Plaintiffs: TABOR May Violate U.S. Constitution

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Colorado has the nation’s toughest restrictions on state taxing and spending. And now a suit in federal court says that may violate the U.S. Constitution. Three dozen current and former elected officials from across the political spectrum are asking the court to overturn TABOR--the Taxpayer Bill of Rights. Colorado Public Radio’s Ben Markus has more.

Under TABOR the state can’t raise taxes without a vote of the people. It also restricts spending. Norma Anderson is a former GOP majority leader of both chambers of the Colorado legislature.

Anderson: No other state legislative body has a TABOR.

She says that’s because it violates the U.S. Constitution by shifting budgetary responsibility to voters rather than elected officials. Anderson is joined by 33 other current and former political leaders as plaintiffs against the state challenging the constitutionality of TABOR.

Anderson: And this is about representative government, and TABOR has taken representative government away and that’s what it’s about.

TABOR was passed by voters in 1992. Former state lawmaker Douglas Bruce--who’s currently under indictment for tax evasion--was its chief proponent. Calls and e-mails to Bruce seeking comment on the legal challenge weren't returned.

Lead attorney on the challenge is former Democratic State Senator Mike Feeley. He says yes...TABOR’s nearly 20 years old, but now is the time to question its constitutionality.

Feeley: Well I think that the realization of the insidious nature of some of the effect of TABOR has taken a while to understand. I think that now there’s a critical mass of individuals represented by the plaintiffs in this case who are willing to say, ‘this doesn’t work.’

Without the ability to tax, the legislature passed a $250 million cut to public education. And many other government services have been curtailed.

But curtailing government is a good thing, according to Mark Hillman a former state senate majority leader and state treasurer. He supports TABOR and says this legal challenge is a distraction from the real problem: government overspending on things like Medicaid and public pensions.

Hillman: But those are things that the proponents of this lawsuit don’t really want to address. They would much rather just have more money in the pot rather than make decisions that might be inconvenient or politically unpopular.

Hillman adds that the political tides haven’t shifted much since the taxing restrictions were put in place in 1992.

Hillman: And I would wager on any election day that if you asked the people whether they want to keep the ability to vote on tax increases they would say, 'yes.' They don’t want the legislature unfettered access to their pocketbooks.

There are other states with tax and spending limits. But Paul Teske a public policy expert at CU Denver, says TABOR stands out from the rest.

Teske: Before TABOR, Colorado was kind of an average-spending state and in the 20 years now almost since TABOR we’ve become a very low-spending state on just about everything -- and a low-tax state.

That effect is seen most acutely in education, where districts are cutting what are already tight budgets. William Breger is on the board of education for School District 70 in Pueblo. He’s also a plaintiff in the lawsuit against TABOR. He says tough choices are fast approaching if state funding for education continues to lag. He says any fat the district could trim is gone.

Breger: We’re not, we’re down to not cutting fat. We’re cutting muscle and bone. What we end up doing now is cutting programs that are a benefit to our students.

The state attorney general is reviewing the lawsuit but says it will vigorously defend TABOR.

*Corrected to more accurately reflect Hillman’s position. A previous version of this story incorrectly gave the impression that he is for the recent cuts to education.