Just who’s in charge?

Tony Gagliardi
Tony Gagliardi

Who’s in charge of the American republic? A case out of the federal district court of Colorado could answer that question if the Supreme Court takes the matter up next spring.

In 1992, Coloradans voted to amend their state constitution to impose restraints on government power to tax and spend. The Colorado Taxpayer Bill of Rights (TABOR) has since given citizens the final say on new or increased taxes and spending. That right is now under threat from Kerr v. Hickenlooper, a lawsuit calling into question TABOR’s constitutionality. A federal appellate decision allowing this lawsuit to proceed is likely to reverberate throughout the nation.

Controversial from its inception, opponents of TABOR were concerned it would make it more difficult for government to pursue costly new programs or increase funding for existing programs. But the people spoke definitively when they adopted TABOR, because it’s their tax dollars at stake and they believed government exists to serve their interests.

Having lost in the court of public opinion, TABOR opponents have turned to lawsuits. They first brought suit in state court, arguing TABOR’s fiscal limitations conflicted with the constitutional requirement the state provide adequate funding for public schools. Never mind that TABOR allows schools to receive continued funding at existing levels with annual adjustments for inflation and population growth. TABOR even allows for new or increased taxes when the citizens of the community approve the measure in a vote.

So it was hard for opponents to seriously argue TABOR denied adequate funding for anything. It simply impedes the ability of special interest groups to pressure politicians into raising taxes or spending levels, which gets to the heart of the issue. TABOR opponents dislike the notion citizens have the ultimate say on taxes and spending. But is that really a basis for a legal challenge?

They lost their argument in the Colorado Supreme Court, but that’s not the end of the story. Now, they’re pressing a federal judge to strike down TABOR on the wild theory the people of Colorado — in exercising their right of self-governance — have somehow rendered their state government “anti-republican.”

In March, the federal Court of Appeals for the Tenth Circuit held the lawsuit could proceed. As such, the citizens of Colorado are now to stand trial for allegedly usurping “core legislative powers” from their government.

But if government exists to serve the people, it’s necessarily the prerogative of the people to decide the role of government in their lives. The TABOR legal challenge flips that foundational principle on its head in a manner that would make the people subservient to their state legislature.

The truly concerning thing is that in allowing this lawsuit to move forward, the Tenth Circuit has opened the door for ideologically motivated activists to advance similar lawsuits against taxpayer protections throughout the country.

Clearly, a case of such national magnitude should not be decided by a lower court, which is why the Small Business Legal Center of the National Federation of Independent Business and a coalition of 19 other concerned groups are asking the U.S. Supreme Court to hear the case — now. We hope the nation’s top court will reaffirm that citizens are still in charge of their republic.