A federal judge in Denver has allowed a legal assault on TABOR to go to trial. The suit, backed mostly by current and former Democratic office-holders, alleges that the Taxpayer Bill of Rights – passed by Colorado voters in 1992 – violates the U.S. Constitution by undermining its guarantee that each state have a republican form of government, and does so by unduly limiting the legislature’s taxing authority. Judge William J. Martinez, an Obama appointee, ruled this way despite previous case law holding that…
“The enforcement of the provision in § 4 of Art. IV of the Constitution that the United States shall guarantee to every State a republican form of government is of a political character, and exclusively committed to Congress, and as such is beyond the jurisdiction of the courts.”
Among the state legislators who are – in a sense – suing their own constituents are Colorado state Senate Majority Leader John Morse, D-Colorado Springs, and House Minority Caucus Chair Lois Court, D-Denver.
State Rep. Mark Ferrandino, D-Denver, the House Minority Leader (who would likely become Speaker of the House should the Democrats retake the majority in the fall elections) is not a party to the lawsuit. He is, however, a critic of TABOR and his advocacy against it is worth recalling.
In 2009, Maine considered passing a measure similar to TABOR (it failed 60% – 40%). Seen in the video above, Ferrandino addressed the group opposing that measure:
“The main reason for TABOR is to shrink government. It’s not to keep taxes low, it’s not to create jobs. It’s to shrink government. Because, if you grow by inflation plus population, you have stagnation. You’re just growing with what’s going on in the econ-, with what’s going on in population, and keeping up with – not even the economy. Because in the economy, there’s productivity growth, which is usually 1-3%, so every year, you’re shrinking each year, away from what the economy is. Eventually, you can’t do basic services for government.”
If government productivity grew at the same rate as the rest of the economy, then inflation + population would keep its regulatory share the same. However, there’s no particular reason to think that just because a business is more productive, the government responsible for regulating it needs to grow in proportion. And, if the government’s purchase of goods and services took full advantage of the private sector’s productivity gains, it could “buy” as much per citizen using that formula, as well.
The logical outcome of Ferrandino’s claim would be that since government productivity grows more slowly than the rest of the economy, it is entitled to an ever-growing portion of state GDP. For most of us, that would be a reason to have the government do as little as possible. But for Ferrandino, it’s not a bug, it’s a feature.
The converse of Ferrandino’s argument is also worth considering. If the purpose of TABOR is to limit government, then the purpose of those seeking to overthrow it through the courts is to expand it, against the wishes of the citizens of Colorado.