TaBOR: Colorado Learns a Valuable Lesson in Responsibility

Recently, I wrote about the reaction of the Kansas legislature to a court ruling striking down a law as unconstitutional that punished a gay man for 17 years for a crime that straight people could receive a maximum sentence of 15 months for.

Said one member of the legislature, “You have the court substituting its moral judgment for the moral judgment of the people, as expressed through the legislative body. I think it's making a bold statement about judicial power.” Adding, “The Legislature has to make moral distinctions between groups of people based on their conduct. That's what lawmaking is all about.”

It seems that for the Right, state legislatures are the Voice of the People and to preserve Democracy and ensure that legislatures are not overturned by “unelected and unaccountable judges” constitutional amendments are needed to defending against the activist courts.

That is, until the legislatures fail to deliver the conservative goods, and then they are beholding to “special interests” and only a public referendum can honor the Will of the People. And, just to be safe, better to write right into the Constitution whatever the conservative goal du jour is.

There is a reason, of course, why constitutions are best left to general principles and basic government structure and policy relegated to mere laws. If you write a bad idea into your constitution it’s harder to undo. Seems that the Will of the People and their best interests don’t always coincide, not the least because the People have repeatedly shown themselves manipulatable by lies, fears and high production value advertising.

So in 1992, the People of Colorado were convinced to pass and write into their constitution the Taxpayers Bill of Rights (TaBOR). Its very complexity and specificity made it a poor candidate for a constitutional provision. But in essence it restricted total revenues for any given year to previous year’s allowable level plus the combined rate of population increase and inflation. The allowable amount from the previous of the year is the lesser of actual revenues or the allowable amount from the year before that. This is coupled with a provision that allows voters to keep any “excess” revenue or create additional increases in taxes or tax revenue only when the voters decide in a referendum. The voters may also choose to suspend the TaBOR requirements for a set number of years in a referendum. The net effect is that tax rates and revenues may not rise from year to year without explicit voter approval, but they may fall. And since, like most states, Colorado is constitutionally required to have a balance budget, TaBOR had the desired effect of preventing any spending increases, unless the voters approved.

Proponents heralded it as a return to Democracy and restoration of Freedom. No longer would the stranglehold of “special interests” (read “liberals and poor people”) determine how or how much the taxpayers’ money is spent. At first, signs looked promising. During the 1990s, Colorado enjoyed robust economic growth. With an increase in population of 30% over the decade and a rapid expansion of the electronics and telecommunications industries in the state, Colorado’s economy grew at a substantially higher rate than the national average. Proponents took this as a sign that TaBOR worked.

Referenda to keep “excess” taxes generally failed at the state level, though some succeeded at local levels. (TaBOR applies to all levels of government in the state.) The Voice of the People has been heard! One exception at the state level was Amendment 23. Passed in 2000, 23 required annual increases in K-12 spending – at first at inflation plus, then just at the rate of inflation – and allowed the state to keep as much “excess” revenues as needed to cover that.

It was in 2000, however, that population growth tapered off, the electronics and telecommunications industries began to contract, employment levels started to fall and the previously robust economic growth began to fall to far below the national average. TaBOR ran up against the rocky coast of a recession. Since each year’s revenue is hitched to the last, there is a ratcheting effect on revenues during recessions and no provision for restoring revenue levels during a recovery. And the requirement that any “excess” revenues be “returned” to the taxpayers meant that no “Rainy Day” fund could be established. Now saddled with a constitutional mandate to increase K-12 spending, with no “excess” taxes to cover that (or not enough) and no provision to raise tax rates to make up the difference (except a referendum), K-12 funding began to gobble up a greater and greater share of the state’s revenues. Services began to suffer. Some 73% of Colorado’s roads are now in “poor” condition. From 2000 to 2004 Colorado experienced the nation’s fourth highest increases in both overall and child poverty rates.

It seems that all of those government services people like - education, road repair, assistance to the poor, etc. – cost money. It also seems that it’s a wise idea to squirrel away “excess” revenues in the good times (the Clinton years) as a buffer during the lean times (it’s not GWB’s fault). However, Coloradans found themselves in the nexus of the peculiarly American paradox: we want more government services than we are willing to pay for. It is an article of faith on the Right that government has an inexhaustible supply of Waste. But most state’s have already chopped away as much waste as their political processes will allow. And stuff costs money.

Colorado also fell prey to the increasing urge among conservatives around the country to carve into their constitutions the conservative agenda. Perhaps they sense that eventually their ideas will fall out of favor and so want to make them as permanent as possible while they can. More likely, it’s driven by the same palpable anxiety that makes them want to take away the rights of lesbians and gays. TaBOR can be read as a collective shout of frustration, rage and fear against the growing sense of disempowerment many people are feeling. They sought to reclaim control of government and their lives from unnamed “special interests”. And they forget that they are the ones making the preponderance of demands upon government for increased service levels.

And then they remembered.

So Colorado voters on Tuesday said “yes” to Referendum C, allowing the state to spend an estimated $3.7 billion more over five years on roads, healthcare and higher education. They appear to have narrowly defeated Referendum D, a companion measure that would have allowed the state to immediately borrow $2.1 billion for road repair through bonds.

Now one would think that TaBOR’s proponents would be glad. The system worked. The state needed more money and the People voted to authorize that. Power to the People! One would think that. But one would be wrong.

Grover Norquist had this to say on his Americans for Tax Reform website.

Young Republican children years from now will be scared in campground campfires by stories about Bill Owens - the tax-cutting Republican who magically turned into a tax-increase bad guy...and they will not be able to sleep all night.

Bill Owens, the Republican Governor of Colorado and a proponent of TaBOR committed the sin of supporting Referenda C and D.

Douglas Bruce, the author of the Taxpayer's Bill of Rights was more blunt. (Yes, it is possible.) “I'm sorry that after 13 years of freedom ... Colorado voters have decided to vote themselves back into slavery,” Bruce said on Tuesday night.

It seems that nothing, not the Courts, the Executive, the Legislature or the People, can be trusted to reliably do the “right” thing. And each is subject to conservative opprobrium when they fall from conservative grace. Perhaps it’s time for hard right conservatives to admit, it’s not the Constitution nor the People nor Freedom nor Democracy they value. It’s themselves. And anyone or any governmental body that proposes to “take” their money to educate someone else’s damn kids will feel their wrath.