Here’s the background:
Scholars call such restrictions “tax and expenditure limitations” or “TELs.”
Because most modern “progressives” favor virtually unlimited government, most of them hate TELs. “Progressive” officials and activists wage incessant war against TELs. They find ways to circumvent them. They bring lawsuits and persuade liberal judges to limit or void them.
Colorado’s Taxpayer’s Bill of Rights
The nation’s most widely known TEL (at least after California’s Proposition 13) is Colorado’s Taxpayer’s Bill of Rights, or TABOR (pdf). TABOR imposes several fiscal restrictions. Most famously, it requires public votes on some (not all) proposals to hike taxes, spending, or debt. In other words, TABOR subjects certain legislative financial decisions to mandatory referenda.Colorado’s voters added the Taxpayer’s Bill of Rights to the state constitution in 1992. Opponents claimed TABOR would destroy the state, but exactly the opposite happened. Colorado emerged from an economic recession to become one of the richest and most prosperous states. Prosperity swelled the tax base, so Colorado state and local governments have been awash in revenue.
Colorado’s experience was consistent with the findings of many—inadequately publicized—research studies: Reducing government’s share of the economy stimulates economic growth; increasing government’s share of the economy retards economic growth.
Like other TELs, the Taxpayer’s Bill of Rights is under constant assault. Legislative bodies and judges have lacerated it and circumvented it. Many of its protections are now gone.
The Lawsuit’s Bizarre Foundations
The court should have dismissed this lawsuit immediately. First, few, if any, of the plaintiffs had legal standing to bring it. Second, the Supreme Court has long ruled that “republican form of government” cases are for Congress to decide, not the judiciary. Third, the Supreme Court respects initiative and referendum procedures. Fourth, TELs are a longstanding fixture of most state constitutions. The plaintiffs offered no explanation why other TELs are valid but TABOR is not. Fifth, claiming the U.S. Constitution doesn’t permit restrictions on legislative fiscal powers is absurd because that very document restricts legislative fiscal powers (pdf).The ‘Republic Versus Democracy’ Dichotomy
The foundation of the plaintiffs’ complaint was that there’s a sharp distinction between a “republic” and a “democracy.” The plaintiffs argued that allowing the people to check the legislature’s fiscal powers converted Colorado into a democracy, and a democracy can’t be a republic.Despite its lack of factual basis, the “republic versus democracy” canard proved durable. In the late 19th century, opponents of direct democracy (initiative and referendum) resurrected it. They maintained that allowing the people to vote on laws or taxes turned states into “democracies” and made them unrepublican. This was a ridiculous argument because before the 19th century, nearly all republics featured institutions of direct democracy. One example was the Roman Republic, the longest-lived republic in history (509–27 B.C.E.).
The Case That Would Not Die
As baseless as the anti-TABOR lawsuit was, we at Colorado’s Independence Institute took it very seriously. We anticipated that unscrupulous liberal jurists might seize on it as a way to destroy TABOR. If this happened, TELs in almost every other state would be at risk (pdf).Our concern was justified. The case came to exemplify how the left wastes judicial resources in political battles.
However, on Dec. 13, 2021, the Court of Appeals finally took Gorsuch’s advice. Various judges hearing the case already had decided that most of the plaintiffs had no standing. Now, the Court of Appeals ruled that the only remaining plaintiffs—local governments—couldn’t claim the protection of the guarantee clause or Colorado’s enabling act.
Technically, the Court of Appeals dismissed the lawsuit “without prejudice,” meaning that the plaintiffs can bring it again. But as Chief Judge Timothy M. Tymkovich pointed out in his concurring opinion, the decision’s practical effect is to bar the plaintiffs from doing so.
Citizens in both Colorado and other states can breathe more easily: This particular threat to popular governance is over.