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April 06, 2009 10:55 PM UTC

Overreach Has Consequences

  • by: Colorado Pols

So we had this lawsuit, Mesa County v. Colorado, which challenged the constitutionality of the plan to freeze property tax rates that would otherwise drop artificially in order to fund public education. And the plaintiffs lost this lawsuit, by a pretty wide margin in the Colorado Supreme Court as it turned out.

Indeed plaintiffs, pushed forward by tireless backing from the Independence Institute and other right-wing advocacy groups, “lost” a hell of a lot more than just that lawsuit–in the course of rendering their decision in the case of Mesa County v. Colorado, the Colorado Supreme Court undid much of the untested assumption that had guided (some say straightjacketed) the legislature since 1992. The Durango Herald summarized this weekend:

In the opinion, five of the seven justices legally defined important language in TABOR for the first time.

Inside the Capitol, TABOR’s requirement of a vote of the people on any “tax policy change directly causing a net tax revenue gain” is famous. Until this week, lawmakers had assumed it meant anything that brought in even a penny required voter approval.

But the justices defined it in the context of another famous part of TABOR, which limits state revenue growth to the rates of inflation plus population growth. To take the “tax policy change” language at face value would eliminate the need for the inflation-plus-population formula, the justices said. Therefore, the Supreme Court in the future will say a vote is needed only for tax changes that bring state revenue above the inflation-plus-population limit.

Voters in 2005 suspended the inflation-plus-population limit until 2010. A legislative lawyer says until the suspension expires, the Legislature can repeal all the tax credits it wants. [Pols emphasis]

Wait, you mean Governor Ritter didn’t need to take Amendment 58 for example, the severance tax credit repeal, to bat against a multimillion dollar opposition campaign…at all? Bet he wishes he would have known that! And of course if Jon Caldara and Janet Rowland hadn’t decided to force the issue, we might never have known. This is key: they could have left well enough alone, and we might today still be operating on this much narrower, pre-Mesa v. Colorado interpretation of TABOR. But we’re not, and it’s a very reasonable argument that Caldara’s and Rowland’s overreach helped unmake the Taxpayer’s Bill of Rights.

Poetic justice, wouldn’t you say?


20 thoughts on “Overreach Has Consequences

  1. I don’t think that decision has really sunk in yet.  And the pols don’t want to get out ahead of the electorate on this.  I’m still surprised every time I read about the court’s decision.  And I assume most people have hardly heard about it.

    but poetic justice?  definitely.

  2. So when a new TABOR amendment that further restricts government spending and clarifies this is floated and put on the ballot, will that be poetic justice?

    1. I think this is a little sad, different meaning of sad and for a different reason than you.

      So we have a loophole for the budget being negotiated right now.  It’s about to close itself.  Anyone floating the idea to go forward with Ritter’s A-58, for instance, is basically supporting a Republican governor and a majority in the House (at the very least).  Frankly, raising taxes on a technicality, in this economy, is a political death sentence.

      1. but I do.

        I might be wrong, but I think it would be a lot easier to sell the voters a tax increase than it would be to raise taxes in the legislature using this ruling as their basis.

        People want to vote to approve tax increases, and that desire isn’t nullified by a court ruling.

        Any elected official who sought to raise taxes through repealing tax credits would be doing so at their own risk of political backlash–though they would certainly be within their legal rights according to this ruling.

        We’re supposed to be making Wadhams’ and Penry’s jobs harder, not easier.

        1. Trust that the people you elect will do the right thing, versus cynically tying their hands in the presumption they won’t.

          Accountability comes at the ballot box as you correctly suggest, which should be the best check against abuse of the power to tax there is.

          That’s how it’s supposed to be, TABOR or no TABOR. I prefer no TABOR and a government that can deal with the challenges facing us.

          1. Get rid of TABOR and hold our elected representatives accountable. That is the way the founders of our country and state intended it to be.

          2. I’m for TABOR reform. I would love to see a ballot initiative that would do exactly what you’re saying. Now only would I vote for it, but I would work my ass off to make sure it was passed. Sorry if I wasn’t being clear enough on that.

            What I’m against is doing it in such a way that it could be tainted by either the Republicans, or by what Haners described above (not that I think the latter is likely.)

            A vote by the people installed the taxpayer approved tax increases, and I believe only a vote of the people should remove it.

            Just because it would be more convenient doesn’t mean it should be done. We can do this the right way.

            1. has removed it. Statewide voters approved Ref C. It took the Mesa County Commissioners and the Independence Institute to bring to light what voters actually approved in 2005.

              1. I’m not arguing with the court’s interpretation. Obviously they’re smarter than me.

                But are you really saying that you think the voters will find any tax increases made in the legislature as legitimate? If I’m understanding the court’s ruling correctly, then the legislature has until 2010 to raise taxes however they want as long as it’s removing a credit, rather than raising a rate past the point of inflation.

                What is the logic behind not making that permanent? After 2010, it will just go back to the way things used to be, and then in a few years we’ll have the exact same budget crisis all over again.

                When Ref. C was first on the ballot, everything about it was sold as “temporary”. Hickenlooper was in those silly commercials jumping out of a plane, saying that exact thing. Do you think voters would have approved it if it said “Vote for this, and we can raise taxes all we want–as long as it’s just removing a tax credit!”

                All I’m saying is that any TABOR reform should be both permanent, and come with a mandate of the people; not just the approval of something nobody knew would have such far-reaching implications.

                I completely agree with JeffcoBlue, R36 and MADCO’s sentiments that pols should be held accountable by the voters for the tax increases they vote for, but let’s grant them that power the right way.

                1. with unintended consequences — or hidden landmines, depending on your perspective. It should come as no suprise that legal wrangling around TABOR might have some of its own unintended consequences. We live by TABOR, we live by rulings on TABOR … the TABOR folks can’t point to the legal system when it suits them and get petulant when it doesn’t.

        2. If that’s another way of saying elected officials are responsive to what voters want- that seems like a good thing.

          I don’t believe anyone is going to start proposing all kinds of tax increases just because.  Partly because it’s politically stoopid, mostly because despite the rhetoric, that’s never the goal.

          And to further the point- check back when the TABOR timeout expires.  If there were a bunch of serious tax increase proposals, then I’ll be wrong.  But I doubt it.

      2. I think people would accept a tax increase on the wealthy and removing the credits for O&G as necessary in this tough economy. Especially the O&G part as it’s removing “credits” which sounds very reasonable when the budget is being hammered.

        1. Contrary to the impression left by O&G campaign ads, severance taxes aren’t a direct pass-through on Excel gas bills. It’s a part of the total cost of gas, which is set by the market.  So, even for the gas consumed in CO versus exported out of state, the severance tax would be borne by producers, not passed on to utility customers.

          1. You didn’t ask me, but I believe the O&G campaign materials were very effective, and were not refuted by proponents.  I think that if people understood that they could stick it to the fat cats, and the fat cats didn’t have a way to pass it on, it would have been a slam dunk win.

    2. I’d predict that a majority of Colorado voters would be just as willing to pass a new more restrictive TABOR amendment as voters in the rest of the country have been to pass TABOR like restrictions at all.  Ie- not very.

  3. The overreach is all coming from the Democrats, they’ve all been drinking the Progress Now Kool-Aid.

    Voters passed Ref. C based upon the pledge from the Legislature, Owens, et al that the increase in revenue over ten years would fill the budget hole and fund higher ed.  Voters took them for their word.

    Every fee conceivable has been raised to the point of usury.  The A-B limit has been gutted.  The Supreme Court has given the Governor and Legislature a pass on following the one thing about TABOR that still polls in the 80s…voter approval of tax increases.  Now they’re threatening to CUT higher ed by $300 million.

    The issue of fiscal responsibility that has been off the table for almost 20 years because of TABOR is now on the table again not because of Republicans, but because of Democrats.

    It won’t take much for voters to start to ask exactly where the Ref C money went.  It won’t take much for voters to get upset at taxation by fee.

    Do Democrats honestly think that the Boston Tea Party wouldn’t have happened if they’d called the Tea Tax a fee?

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