Colorado Lawyer to Challenge Spending Cap, Saying It Destroys Representative Government

August 5, 2009

An attorney in Colorado plans on challenging that state’s spending and tax cap:

Ever since Herb Fenster transferred to his law firm’s Colorado office from the nation’s capital 15 years ago, he’s always thought something was wrong with the state’s voter-approved Taxpayer Bill of Rights spending limit. Something about it, the constitutional attorney thought, just didn’t jibe with the constitutional provisions about effective state legislatures.[…]

According to Fenster, a legislature’s ability to tax, arguably its greatest power, makes it an effective body, and therefore, removing that power is in violation of Article IV, section 4 of the U.S. Constitution.

More here from Tax Analysts (subscription required), and here, here, and here. The provision Fenster cites is the “Guarantee Clause” of the Constitution, which reads: “The United States shall guarantee to every State in the Union a Republican Form of Government….” Fenster notes that in 1849, the U.S. Supreme Court essentially ruled that the clause was not enforceable judicially, and left it to the political branches. I think Fenster is right to think that was wrong, but he and I would disagree about the TABOR law:

Attorney Joe Henchman isn’t one of them. As tax counsel and director of state projects for the Washington, D.C.-based Tax Foundation, Henchman said Fenster is giving Colorado’s TABOR law too much credit. He said the amendment approved by voters in 1991 didn’t take the ability to tax away from the General Assembly so much as it gave final approval to the voters.

Also, the Colorado legislature has powers other than its taxing ability, and the state itself was founded on some precepts of direct democracy, rather than a republican form of government. Like other Western states, it’s relatively easy to get a measure placed on the ballot, including constitutional amendments.

There are “two big flaws with his argument,” Henchman said. “The first one is why that article is in the Constitution. If you go back and look at pretty much everything written about it, it was about giving the federal government some way to remove a despotic government from power. If one state were to install a dictator, the federal government could remove it. The argument would be that initiatives somehow equate to a despotic form of government, and I think it would take a lot to prove.”

He said the second argument stems from decisions by the Colorado Supreme Court that have upheld initiatives as being a part of a republican form of government.

That latter case, where Colorado’s Supreme Court upheld citizen initiatives as an important part of republican government, is Bernzen v. City of Boulder, 525 P.2d 416 (Col. 1974).

I think it’s an exaggeration to say that because the legislature doesn’t have absolute power over taxation, it has been deprived of its power to tax. Legislatures are restrained by constitutions in many other areas: that is the whole point of constitutions, I would argue. That citizens don’t give legislators complete control over everything is an essential part of representative government, not a destruction of it.


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