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August 02, 2015 08:24 AM UTC

Hickenlooper Steps Up To Sell TABOR "Baby Step"

  • 19 Comments
  • by: Colorado Pols

UPDATE: Although the Denver Post story this weekend represents this proposal as a “revamp” or “fix” to the 1992 Taxpayer’s Bill of Rights, commenters note correctly that this is merely a proposed exemption of revenues from the 2009 hospital provider fee from TABOR. The proposal would prevent the fee from busting TABOR’s revenue caps, allowing the state to keep the money.

Not that TABOR’s zealous defenders will like it any better, of course.

—–

Gov. John Hickenlooper.
Gov. John Hickenlooper.

As the Denver Post’s John Frank reports, Gov. John Hickenlooper is putting his money where his mouth his–or is it putting his mouth where he wants your money to be?–by proposing a small “tweak” to the 1992 Taxpayer’s Bill of Rights (TABOR) that would allow the state to retain several hundred million dollars to fund needed projects:

On the first day of a new statewide tour, Gov. John Hickenlooper found an appropriate venue in this high mountain town for his push to revamp how the state spends money.

The Democrat stood on stage at the historic Tabor Opera House in Leadville and made a lengthy pitch for an overhaul to TABOR — the Taxpayer’s Bill of Rights.

Hickenlooper wants to exempt the hospital provider fee from state revenue collections under TABOR because it pushes Colorado over the constitutional cap, prompting taxpayer refunds next year even as the state struggles to adequately fund priority areas.

If the fee were removed from TABOR, Colorado’s revenues would fall under the cap and the state would have $200 million more to spend on road projects and classrooms, the governor said.

To be clear, this is not the “grand bargain” that would undo the fiscal chokehold of the combination of TABOR with other constitutional spending caps and mandates to let our elected officials do their jobs as prescribed by the same state (not to mention federal) constitution. The hospital provider fee was passed in 2009 under Gov. Bill Ritter in order to qualify for additional federal matching funds for Medicaid. The program has been very successful, but that success has come with the side effect of pushing the state beyond TABOR’s dreaded revenue caps.

Despite a backlog of funding priorities and money cover them, it’s necessary to hold a statewide vote to simply allow those funds to be retained and used by the state. For citizens who don’t understand TABOR, there’s a widespread assumption that our better economy means more revenue that the state can then use to pay for all the stuff we depend on every day–roads, schools, health care.

But in Colorado, that’s just not the way it works.

“I think giving people the real facts is half the battle,” he said after the first events. “To make sure they understand that … it’s going to crowd out, over the next few years, hundreds of millions of dollars from the things all these people want from their state government.”

We’ve heard some grumbling that Hickenlooper “squandering” an opportunity for a much more comprehensive solution for a smaller-scale proposal like this might make it harder down the road for such a “big fix” to pass muster. But we honestly think that the battle to unwind TABOR’s deviously complex restrictions on raising revenue in our state is a longer-term problem than Hickenlooper or anyone else can solve by 2016. The political backing doesn’t yet exist to make a wholesale repeal viable, and the projections of looming and persistent shortfalls in the future aren’t close enough yet to be real to voters. There is more work to be done educating the public, and more harm that needs to be seen with voters’ own eyes.

In the meantime, Gov. Hickenlooper is doing what he can. The arguments that he’s making for this small-scale proposal apply to the big questions as well–and either Hick or his successor will benefit from his touring of the state to tell this story when TABOR’s judgment day finally arrives.

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19 thoughts on “Hickenlooper Steps Up To Sell TABOR “Baby Step””

  1. I think the Post article was confusing and led to some confusion here.  I may have missed something, but last I heard, there is no tweak to TABOR and, as far as I know, no requirement for a statewide vote in order to get the change that Hick wants in place.  What Hick offered in the last session (HB15-1389), and I don't think the plan's changed, is to move the hospital provider fee collections into a state enterprise (essentially, a self contained state business), which would make the revenue exempt from the TABOR cap.  It's a common thing for governments to do– see if your city has a golf or some other fun enterprisesmiley.  I believe he's stumping for it to get some pressure on Republicans to pass it next year.

    This isn't a change to TABOR, just a change to government structure that has the effect of "sliding out" a significant chunk of general revenue so that increased revenues can fill the hole while still remaining under the TABOR cap and being available for other uses rather than refunds.

    1. I believe you are correct. Not a tweak to Tabor but a way to define the hospital provider fee so it isn't subject to TABOR. A good baby step in the direction of rationality. Trading roads that we can drive without damaging our cars or schools our kids can attend without leaking roofs or no heat for enough money to buy an extra latte or two a month was a horrible idea in the first place. But it's in the constitution so this kind of stuff is about all we can do about it until a sufficient percentage of the voting population wakes up one day no longer as dumb as a pile of rocks so we can get TABOR the hell out of the constitution. Not holding my breath on that one. Not in a world where the Donald is a serious candidate for anything.

  3. Hey Pols, "Grand bargain" is "Bad verbiage".

    Let's take sensible steps to remove the anti-democratic and anti-social effects of Doug Bruce and his anti-productive (I say "government hating") laws.

    Strangling government does not make it work better, it strangles it.

    Taxing citizens and corporations fairly for the fair use of resources and fair investements in a modern society with advanced infrastructure and access for all is Smart and Conservative and Democratic in the best sense of all those words.

    Let’s not abandon common sense just because there’s a loud and noxious element of society that long ago abandoned any notion of the thing.

  4. Since the Supreme Court kicked TABOR back to the 10th circuit appeals court, it's supposed to be viewed in light of the Arizona redistricting decision.

    In the Arizona redistricting decision, the Supremes basically said that AZ can have a bipartisan redistricting commission and shouldn't let partisan-dominated legislatures draw voting district lines.

    So I'm kind of baffled on what this means for TABOR – AG Coffman is defending it. When will the 10th Ct. Court hear it?  And if the Supremes say AZ should have an independent commission deciding redistricting, is the precedent then that CO could have an independent TABOR commission?

    Or is it more along the lines of "Let the voters choose", and don't put laws in place that eliminate that choice", which is what the TABOR lawsuit was about in the first place?

    Legal eagles, your opinions, please – I think the Supremes decision ultimately weakens the TABOR model. Am I right or wrong?

     

    1. Another way to view the Supreme Ct decision in AZ is that voters don't have to decide every little matter before them (i.e., AZ redistricting), nor do their elected reps have to individually decide them, and can delegate the process as they see fit.But  because TABOR is in the CO constitution, it stays until we vote it off. Maybe that's what the Supremes said – "We're not taking care of this for you."

      I hate to say it, but I have to agree with davebarnes and his legislator genitalia metaphors and solution:

      Put a one-line issue on the ballot. "Repeal TABOR".
      Sell that.
      It will fail.
      Go to step one and repeat until it passes.

    2. Nobody is really sure what the USSC's direction to the 10th circuit to reconsider their opinion in light of the decision in Arizona State Legislature v. Arizona Independent Redistricting Commission means.

      It could mean that the 10th Circuit should come to the same conclusion it already has (that the opponents to TABOR had standing to sue), as one of the questions in the Arizona case was whether the legislators suing the commission had standing (had experienced an injury sufficient) to sue.

      It could mean that the same conclusion (that the Arizona legislature had standing) should be interpreted to mean that the General Assembly as a body has to decide to sue, rather than individual legislators, in which case the 10th Circuit should dismiss the case until it is brought by the entire legislature (not a chance in hell unless the composition changes significantly).

      It could also mean that the Court is suggesting to the 10th Circuit that they should dismiss the case in light of the Arizona case's determination that the term "legislature" encompassed the people, who are the source of legislative power, when it was used in the Time, Place, and Manner Clause under which the Arizona legislature brought the action.  In essence, the argument that TABOR prevents the citizens of Colorado from having their guaranteed "representative government" (see the Guarantee Clause) fails on its face as TABOR was put into place by the ultimate popular representatives, the people themselves.

      Supplemental briefs, instructing the 10th Circuit on how the sides believe it should rule in light of the Arizona case, were due last Friday.

      1. I don't know how you could read either of the first two interpretations into the SCOTUS instructions. Arizona did not change the state of the law regarding standing which was used by the 10th Circuit allowing the suit to go forward.

        The clear decision reached in the Arizona case is that the citizens, through I&R, have the ability to act as "the Legislature" when it comes to Constitutional language – that the power of the government derives from The People, not from government itself. Sending the case back to the 10th Circuit is a signal from SCOTUS that they are at least unsure based on the appeals court's ruling whether the suit would survive this new standard.

        2. Because the GVR order from the Supreme Court was based on a request to determine whether the 10th Circuit properly determined if the litigants had standing to sue.

          From the petition by the defendants (supporting TABOR):

          The questions presented are as follows:

          1. Whether, after this Court’s decision in New York v. United States, 505 U.S. 144 (1992), Plaintiffs’ claims that Colorado’s government is not republican in form remain non-justiciable political questions.

          2. Whether a minority of legislators have standing to challenge a law that allegedly dilutes their power to legislate on a particular subject.

          I don't recall if a portion of the Arizona case  dealt with non-justciability that would relate to this case, so the question as to whether a minority of legislators have standing seems to be the pertinent one.  The 10th Circuit said yes, but based on an application of Coleman v. MIller, which allowed  a group of legislators standing, and as distinct from Raines v. Byrd, which did not.

          Arizona State Legislature changed the standard for making this decision.  From the opinion:

          In Raines, this Court held that six individual Members of Congress lacked standing to challenge the Line Item Veto Act[…]

          In concluding that the individual Members lacked standing, the Court “attach[ed] some importance to the fact that [the Raines plaintiffs had] not been authorized to represent their respective Houses of Congress[…] [emphasis mine]

          The Arizona Legislature, in contrast, is an institutional plaintiff asserting an institutional injury, and it commenced this action after authorizing votes in both of its chambers [again, my emphasis]

          Coleman, as we later explained in Raines, stood “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.

          1. But the TABOR lawsuit was a bipartisan one, even if the total number of legislators signing on was not a majority. They at least had Leader Hullinghorst signed on. Maybe that doesn't affect "standing". I don't get the standing arguments, so I'll leave that alone.

            However, SCOTUS clearly said that the People are the force that gets to decide matters in a representative democracy.

            Justice Ruth Bader Ginsburg wrote the Court’s opinion, which was joined by Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Dictionaries in print around the time that the Constitution was drafted, the Court pointed out, defined the word “legislature” as “the power that makes laws.” And in Arizona, the power to make laws rests not only with the official body of elected representatives, but also with the voters themselves, who have the power under the state constitution to pass laws and constitutional amendments through initiatives – just as they did in this case.

            So, if the "standing" arguments are sorted out, then the weight of the SCOTUS decision is "Let the voters decide", and it is anti-TABOR.

            (No matter what Jonathan Lockwood thinks)

            1. So, first let me say that I really enjoy the information, questions, and energy you bring here, mamaj.

              Standing isn't anything fancy (except the word itself).  In order to ask a court to take something up, the entity asking has to have been (or will be) directly harmed and the court has to have the power to redress that harm.  That becomes much more complex in practice as the courts have to determine if, as in this case, a legislator is harmed when she can't just vote for a tax increase or to issue a bond.  There's a metric crapton of law around this question because of all sorts of odd circumstances that come about.

              While the plaintiffs (opposing TABOR) may come from different parties (and also different types of legislative bodies), they are not "a legislature" that is being constrained by TABOR.  That may be OK (that's what the 10th Circuit has to decide), but it may also be that it's not– it may require a legislature (meaning the General Assembly, voting to undertake a lawsuit) to pursue the case.  That's what I think the Supreme Court is saying, but we'll see what the 10th Circuit thinks since they're the ones that matter.

              As for The People, if SCOTUS is to be taken at its word, as delivered in Arizona State Legislature, I think it's bad news for the lawsuit rather than good.  The voters did decide, and they decided on TABOR.  I think that the recent case hints that the people are The Republic and that a system that allows direct democracy, therefore, is inherently a republican form of government (where the people represent themselves).  This is exactly what happened when folks voted for TABOR, and I think that the courts cannot then allow legislators to claim the loss of an integral power if it was taken from them by the people themselves to be decided by those people.  We have to remember that nothing about TABOR stops taxation or bond issuance, it just complicates them by requiring everyone to have a say.  I'm not sure how that isn't OK under the standard expressed in Arizona State Legislature for redistricting.

              1. I agree with both of your points here. None of what SCOTUS did in sending the TABOR suit back to the 10th Circuit is good for the challengers. Either they don't have standing because they don't represent the Legislature, or they don't have a claim to a "republican" form of government because The People can be the Legislature. Double whammy in favor of TABOR.

                Let's face it – if we want to ditch TABOR, we have to do it the same way it was enacted. Put repeal on the ballot until it passes.

  5. Sorry, just repealing TABOR in one fell swoop is not so easy. Since people figured out after 1992 that TABOR was a monstrous cluster-you-know-what and not just a simple "right to vote on taxes" issue, Coloradans approved the Single Subject measure shortly thereafter. Problem is, TABOR as a whole has multiple subjects, so you would need either multiple ballot measures for each subject, or possibly an exemption from single-subject, to repeal the whole thing. Hopefully we've learned some lessons from past ballot campaigns, but my first thought is that the more complex people make their initiatives, the more possibilities you give voters to dislike just one part so they vote "no." IMO (I will never claim to be humble), people who hope to get rid of TABOR will need to pick and choose their battles wisely so what does make the ballot either passes or has a shot at near-majority voter support to build credibility for the next time. Sorry this was so late and that it isn't satire. 

    1. Tabor is a state constitution amendment. Couldn't it be repealed with the single subject being the Tabor amandement? Not that I think repeal is likely any time soon.

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