Let’s put another stake in Herb Fenster’s TABOR lawsuit shall we? As if there weren’t enough stakes in the heart of this silly lawsuit, we’ve got perhaps the largest, most rusty stake yet courtesy of Senior Fellow Rob Natelson. As you might remember, Vincent Carroll cited Rob many times in his Denver Post editorial on the TABOR lawsuit, but we did not get a chance to hear directly from Rob himself until his post on his blog here and then this Colorado Springs Gazette guest column, TABOR Does Not Violate the U.S. Constitution. There is no greater authority on the founding era understanding of terms, phrases, legal jargon, and our Constitution than Rob Natelson. His op-ed rips the lawsuit to pieces and leaves the reader knowing that the founders had no beef with TABOR (nor our initiative and referendum process). Additionally, Rob sat down with one of my minions to do an iVoices.org podcast on this subject. You can listen to that podcast over on iVoices.org.
Archive for May, 2011
Recently published works by Independence Institute writers cover a wide variety of topics, from taxpayer subsidized health coverage for kids and the dreaded “Amazon” tax to the cost of recidivism and the true meaning of a “republican” form of government. Let’s get to to it.
Over at the Health Policy Solutions website, health care blogger and research associate Brian Schwartz makes the case that parents of kids covered under Colorado’s Child Health Plan Plus (CHP+) should value their children’s health more than they value booze, candy and cigarettes.
Then in the Salida Mountain Mail newspaper, guest writer Ari Armstrong wonders how many inadvertent tax scofflaws have been created by Colorado’s “use tax.” As Ari writes, “By the very nature of the use tax, there is no good way to enforce it. It is a nuisance tax that turns otherwise good residents into tax criminals.”
Also check out the Denver Business Journal, where I explain why “Colorado taxpayers should want parolees to succeed.” From back in April, but only recently moved out from behind the DBJ’s subscriber wall.
And over at the Colorado Springs Gazette, Independence Institute constitutional scholar Rob Natelson utterly destroys the myth that Colorado’s Taxpayer Bill of Rights (TABOR) violates the U.S. Constitution. So devastatingly good, that it is re-printed here in its entirety:
Some old myths never die.
One of the most durable, although demonstrably false, is the claim that citizen initiatives and referenda violate the U.S. Constitution’s requirement that states retain a “republican form of government.” This myth is the basis for an ill-advised lawsuit against Colorado’s Taxpayer Bill of Rights (TABOR).
While serving as a law professor at the University of Montana, I spent several years trying to run down evidence supporting this claim. I published my findings in three major articles. In a nutshell, what I found is that there’s no “there” there.
We have a great deal of evidence about what the Constitution’s adopters meant by the “republican form of government.” But virtually all of it tells us that state-level initiatives and referenda are constitutional.
Among the evidence are dictionaries from the Founding Era. None of their definitions of “republic” excludes direct citizen lawmaking. The same is true of usages in the written works the Founders relied on and cited.
When drafting and debating the Constitution, leading Founders did extensive historical research. They learned that most prior republics featured extensive direct citizen lawmaking. These included, for example, ancient Sparta, Carthage, pre-imperial Rome, various Swiss cantons, and ultra-democratic Athens. Leading Founders regularly called all those governments “republics.” Founders such as James Wilson and Charles Pinckney specifically stated that in a republic the legislative power can be either in the people directly OR in their representatives.
Indeed, when the Constitution was being debated, it was the purely representative republic, not the directly-democratic republic, that was the novelty. Purely representative forms had existed more often in limited monarchies than in republics.
Many of the Founders were cautious about democracy, and for this and other reasons they opted for a purely representative form at the federal level. But they did not impose that system on the states. Founders such as James Madison assured the people that states were free to experiment with different republican forms. Direct democracy remained a prominent feature of American government, most notably the New England town meetings, and most states eventually adopted additional forms of citizen lawmaking.
The section of the Constitution relied on by the anti-TABOR lawsuit, Article IV, Section 4, certainly was not targeted at citizen democracy. It was targeted at monarchy—and perhaps at the kind of aristocratic elitism epitomized by this very lawsuit.
So where did the myth arise? It apparently was invented in the 1840s, when two rival governments in Rhode Island each charged that the other was not “republican.” Advocates for one government claimed the other was not republican because it was too democratic. The myth was developed further in the late 1800s by conservatives opposed to initiative and referendum, and more recently by liberals opposed to tax-limiting measures.
Those propounding the myth usually rely on two Madison quotations from the Federalist Papers. The quotations invariably are wrenched out of context, and sometimes selectively edited, to suggest that Madison believed republics had to be purely representative. If true, Madison would have contradicted all other Founders addressing the issue. Yet it is not true. What Madison actually was saying was that a type of mob rule identified by Aristotle (and called, in English translation, “pure democracy”) was not republican. Madison clearly thought a republic could feature direct citizen lawmaking, since in Federalist No. 63 he referred to ancient Athens, Sparta, and Carthage as “republics.”
The anti-TABOR lawsuit has been filed in federal court. It should be dismissed summarily, because the U.S. Supreme Court repeatedly has re-affirmed that whether a state is “republican” is for Congress, not the federal judiciary, to decide. But the merits are equally straightforward: Under our Constitution, the people of each state may allocate the state legislative power between themselves and their legislative representatives as they please. Indeed,
Colorado could adopt much more direct democracy than it has in TABOR, and still qualify fully as “republican.”
There is almost no better venue for unintentional comedy than politicians proposing economic policies. Today’s laugh out loud award goes to Denver mayoral candidate Michael Hancock, who with one really bad idea, earned himself TWO references to socialist economic planning in one newspaper article. Somehow Chuck Plunkett of the Post was able to contain his laughter long enough to write a fairly objective article on Michael Hancock’s plan for “creating jobs.” Two words: urban. gardens. The wave of the future my friends. Not plastics. Urban gardens. As the article points out, don’t dismiss urban gardens just yet, both Soviet Russia and modern day Havana, Cuba are on board with this moneymaker.
Let me see if I can understand this. Michael Hancock’s solution to the recession marred by low employment is… subsistence farming that would be subsidized by the state? If growing our own food will make us richer, why not make all of our own clothes too? Urban textile factories, cool! It would be great. We could spend from sunup to sundown growing our food and making our clothes, only to have at the end of the day just enough to eat to make it alive to the next day. How fulfilling! We’d sit around a couple of candles at night after a hard day’s work, talking about how awful we had it before with all those evil luxuries, cheap consumer products, and bourgeois vacations. After all, who wants to buy a head of lettuce at the store for one dollar when you can spend weeks growing your own lettuce???
But seriously, I’m getting tired of hearing the “jobs plans” of politicians. They all reek of make-work nonsense. The assumption they make is that the job is the end. No, Mr. Politician, the job is the means to the end. The end is production. Don’t forget this simple fact: creating jobs is easy. All we have to do is make all capital goods, machinery, and new technologies illegal. Then millions of new jobs would open up to the currently unemployed. We could outlaw shovels and big earth diggers too. This way we could employ hundreds of people to dig ditches using only spoons. So many jobs can be had if we only roll back the clock 100 years! Let’s party like it’s 1899! Full employment and massive starvation!
For a complete economic demolition of this horrible idea, check out Ari and Linn Armstrong’s piece in the Grand Junction Free Press. Their article on the silliness of “keep it local jobs programs” was coincidentally printed on the same day as this crazy urban farming scheme and addresses the same economic fallacies.
One final thought. Michael Hancock can make this right. It’s not too late. Yes, he has gotten some bad press because of this ridiculous idea, but that could all be water under the bridge if he publically apologies to Frederic Bastiat. I urge you Mr. Hancock – do the right thing.
Often I’m asked what the hell it is we do here at the Independence Institute. I’ve been president for over a decade now, and much of that decade was spent trying to figure that out myself. In under 10 minutes, our graphic design Goddess Tracy made this video about the work we do here at Independence. It covers all of our policy centers and does a great job explaining our mission – straight from the horses’ mouth. Check out the video here so the next time someone asks you what we’re doing over here in our decrepit rusty tower, you’ll know what to say.
The old saying that politics makes strange bedfellows came to mind after reading Vincent Carroll’s op-ed this morning in the Denver Post. In the column, Vincent points out that anti-TABOR forces are drawing heavily from the Founders in their lawsuit that alleges TABOR is unconstitutional. In particular they quote James Madison from his Federalist No. 10. The argument is that Madison, along with the other Founders, rejected “direct democracy” in favor of representative democracy. And look, it’s even in the Constitution itself – “The United States shall guarantee to every State in this Union a Republican Form of Government.” The lawsuit argues that our Taxpayer Bill of Rights is a form of direct democracy as it requires a vote of the people to raise taxes and debt.
Leaving aside my argument that this lawsuit is not really about TABOR but more about our petition process, it’s a bit ironic that big government elites all of the sudden fancy themselves constitutional scholars taking on the important fight to secure our founding documents from perversion and ignorance. So I’m supposed to believe that tax and spend, no limits on government, elitist, living constitutionalists are now walking hand in hand with James Madison and Thomas Jefferson? Strange bedfellows doesn’t even begin to describe that phony alliance.
Our Constitutional scholar Rob Natelson doesn’t buy it either. As is always the case with Rob’s research, he visits the 18th century writings to discover the truth. What Rob finds is that the Founders used the word “republic” in a different way than the lawsuit’s proponents lead us to believe. “They all define ‘republic’ as merely ‘commonwealth’ or ‘a government controlled by more than one person,” says Rob. Not only that, the governments the Founders looked to for inspiration and guidance employed elements of direct citizen action. For example, the early Roman state had a republican form of government and yet legislation came out of popular assemblies where citizens voted in person. In his op-ed, Vincent quotes heavily from Senior Fellow Rob Natelson as he makes the case that the Founders would have had no beef with our citizen initiative process in general and our Taxpayer Bill of Rights in particular.
The evidence is convincing: this lawsuit will go nowhere. It’s unfortunate that in the next policy fight our big government opponents will have all but forgotten their affection for the Founders and our founding era documents. I predict this love affair is a one time occurrence. Mere puppy love – fickle and fleeting.
Since the moment it was passed, politicians have been trying to circumvent TABOR and its restrictions on taxes and debt. Sometimes their attempts fail, but sometimes they are wildly successful. Take for example the 2009 FASTER legislation. This bill created the Colorado Bridge Enterprise – a government owned business tasked with fixing and maintaining bridges within the state. If that sounds eerily familiar to what CDOT is supposed to do, it should. FASTER was a quick way to bypass the restrictions that CDOT would face in raising money to repair bridges. In other words, FASTER was a quick way to grab taxpayer money without asking us first.
How did FASTER manage to do that? Easy. It established a new tax, I mean “fee” in the form of higher vehicle registration costs for every single car registered in the state. It amounted to about $23 per car, per year totaling almost $100 million. The evidence that this “fee” increase is actually a tax is quite overwhelming. Which means that this tax increase is flagrantly unconstitutional. In just a couple of pages, Tom Ryan makes the case in this Independence Institute Issue Backgrounder, Colorado Bridge Enterprise: A Case Study in Contravening Colorado’s Constitution.
In addition to looting taxpayers to the tune of almost $100 million in new car registration “fees,” FASTER raised $300 million in debt – also without asking. It’s the old double end-around TABOR: raising unconstitutional taxes AND debt! As Richard Sokol tells it in this Issue Backgrounder, on December 1, 2010, the citizens of Colorado were put on the hook for $300 million dollars… and counting. FASTER was an attempt to repair and maintain Colorado bridges. The car registration tax increase was going to collect around $100 million. Evidently, $100 million was not enough. Richard Sokol explains,
…with a payment of $1.9 million to Wall Street-based bond dealers, the Colorado Bridge Enterprise issued $300 million of debt. Of this amount, $43 million matures in 2027, and $257 million matures in 2040. The interest rate on the debt is about 6.1 percent. The Enterprise will pay about two-thirds (4.0 percent) of the interest rate, and the federal government, through the taxpayer-funded Build America Bond subsidy, pays the rest. So, without a vote of the people, a CDOT Enterprise has issued $300 million in debt that will not be paid off for nearly 30 years.
Pretty slick huh? Loot current taxpayers to the tune of $100 million now and loot future taxpayers for at least $300 million later.
This deceptive story was too juicy to leave for just two Issue Backgrounders, so we had both Tom Ryan and Richard Sokol on my TV show Devils Advocate last week to share the awful details of this scam.
Let’s not forget that what FASTER did to taxpayers was soooo 2009. The hot new trend is to repeal TABOR through the courts. Why attempt to circumvent TABOR with accounting gimmicks and legal fictions when you can just rip it straight out of our state constitution? (Along with every other citizens initiative that was approved since the dawn of time). It’s a bit ironic that some of the same folks who love direct democracy when it comes to political elections, somehow disdain “direct democracy” when it comes to a citizen petitioning their government. David Harsanyi points out in The Blaze that proponents of repealing our electoral college because it’s just too damn representative, also favor getting rid of our initiative process because it’s just too damn… democratic? Huh? Rep. Andy Kerr might want to explain that one to us because I still don’t get it.
By now I’m sure you’ve heard about the lawsuit challenging the constitutionality of TABOR. Yeah, we laughed out loud too. Since this lawsuit has no chance of going anywhere, it makes me think this charade is all just a PR stunt. What better way for anti-limited government forces to get together and hurl stones at TABOR than to use the media’s giant public platform? Because once you get right down to it, this isn’t about TABOR at all. This is about trying to kill the citizens initiative process – yet again.
Our initiative process has had more attempts on its life than all the mafia dons in the Godfather series combined. Yet this new stunt attempts to undercut not just future attempts at petitioning our government, like the recent SCR-001 and HB 1072 does, it attempts to rescind all previously passed constitutional amendments as well! Because what this lawsuit is trying to prove is that having a petition process where citizens can gather signatures to put initiatives on the ballot is “direct democracy” and not “representative democracy.” In other words, our state constitution is unconstitutional.
I’m not sure the lawsuit’s proponents really understand the far reaching effect that this lawsuit could have. No TABOR. No term limits. No automatic increases in K-12 funding. No campaign finance reform. No ethics in government. No merit selection of judges. No sunshine law in government.
And those are just some of our state constitutional amendments. What about our local, municipal government amendments? Better still, if successful, this suit would invalidate all initiatives in all states. Um. Good luck guys.
Look for II to assist the State in defending TABOR and the initiative.
This past legislative session was pretty ugly for citizens. And especially ugly for energy ratepayers. But one of the few silver linings to emerge was a bill that could serve as a beacon of transparency for years to come. The bill is HB 1002 sponsored by Rep. BJ Nikkel and Sen. Mike Kopp. Rep. Nikkel worked with CDOT to “develop and maintain a publicly accessible, searchable, online database of its revenue and expenditure data.” Translation: taxpayers can see how CDOT is spending their money. Transparency must be in vogue again because the bill passed unanimously! Transparency Czarina Amy Oliver caught a sneak preview of the website and said that this new CDOT transparency website is what our state transparency website (TOPS) was supposed to look like – but TOPS failed miserably. Hopefully the success of the CDOT website will encourage reforms in the awful state transparency website and encourage other departments to take on the honorable task of showing us citizens where they spend OUR money.
Tune in to Devil’s Advocate this Friday night as I am joined by Rich Sokol of Legacy Capital Group and Tom Ryan of Analyst Strategy Group for an examination of how the 2009 FASTER legislation has allowed Colorado to issue $300 million of new debt without bothering to ask permission from Colorado voters as required by the Taxpayer’s Bill of Rights (TABOR). That’s Friday, May 27 at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30 PM.