Opinion: The Legislature is trying to end TABOR without putting it on the ballot

I was surprised by a recent move in our Legislature by some Democrats who are pursuing House Joint Resolution 25-1023. This resolution, if passed by both houses, would initiate a lawsuit in state court to invalidate Article X, Section 20, of our state constitution, commonly known as TABOR.

Their objective apparently is to disempower our ability to vote on state-level tax increases, a power that we voted for ourselves over three decades ago. They want to do this without having to put it on the ballot so we get the final say.

The politicians’ position is based on the U.S. Constitution’s Article IV, the “Guarantee Clause,” which requires that states have “a Republican Form of Government.” Their argument is that this does not include “direct democracy,” like citizen-sponsored initiatives. Although the resolution specifically targets TABOR, this could end up being applied to other direct democracy votes, because the arguments would be the same.

My first research was to look at which states allow citizen votes on initiatives and which do not. There’s a great map on the Ballotpedia.org website. It shows 26 states that allow citizen constitutional amendment, initiatives, and/or referendums, versus 24 states that don’t allow any. The states with these powers are mostly in the west and central parts of the country, and those without are mostly in the east. It’s hard to imagine the chaos that would be created if all these states’ citizen amendments, initiatives and referenda were magically invalidated.

I also checked Constitution.congress.gov to see its commentary on Article IV. According to the website, one of the founder’s objectives was to “prevent states from establishing monarchial or despotic forms of government.” And the Supreme Court has “largely declined to hear challenges based on this Guarantee Clause” as they are “generally political, and not judicial, in character.”

The Supreme Court’s reluctance to interfere with whatever structure the various states have chosen seems to explain why this Resolution aims to take this issue to state court. I suspect that the proponents think they might get further than by handing it to the Supreme Court.

My personal feeling is that more democracy is better. And direct democracy is the only antidote to elected officials thinking that they are above those they represent. Not that it’s perfect. Remember the quote attributed to Winston Churchill, “Democracy is the worst form of government, except for all the others …”

Locally, this tension is playing out with the lawsuit over Boulder’s attempt to use flood control fees to fund the South Boulder Creek dam. TABOR allows legitimate fees to be increased without a vote. And the City has been raising these fees over the last few years. 

The City’s flood control fees are set proportional to a property’s impervious surface, which is used as a measure of that property’s contribution to flood and stormwater. (The City code’s language specifies that charges are proportional to total lot area for single-family houses. But based on my water bill and others I’ve checked, the actual charges are based on impervious surface irrespective.)

The problem is that the water in South Boulder Creek above the proposed dam comes almost 100% from the 136 square mile watershed outside Boulder. And almost all the runoff from inside southwest Boulder doesn’t go into South Boulder Creek, but goes north and east down Viele Channel, Bear Creek, etc., and thus totally bypasses the dam. So, I don’t think there is any legitimate basis for charging folks within Boulder to pay for building the dam using these fees. 

Without TABOR, people have no solid legal basis for challenging fees that use their money to mitigate a problem that they have not created. The basic rules for fees are that they are charged to mitigate an impact created by or to provide a benefit to the fee payor. The fee must have a “rational nexus” between the fee and the impact or benefit, and the fee must be “roughly proportional” to the cost of mitigating the impact or providing the benefit. 

The City might be able to design a fee that would survive a serious legal test. But in my opinion, given the very wide variety of situations in Boulder in terms of who causes flooding, who benefits from flood control projects, and how much of either or both they create or receive, it makes a lot more sense to simply ask for voter approval of a (property?) tax. And involve the citizens so they can contribute to the logic and scale of whatever ends up being proposed.

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