by Karen Shanton
Tucked into Article IV, §4 of the U.S. Constitution is the following promise: "The United States shall guarantee to every State in the Union a Republican Form of Government." This obscure and tricky-to-interpret promise – known as the Guarantee Clause – could upend a two-decade-old constitutional amendment in Colorado.
In 1992, Colorado voters added the Taxpayer's Bill of Rights (TABOR) to their state constitution via the initiative process. This amendment, which was sought by small government advocates as a check on government expansion, effectively shifted tax-levying powers from the state legislature to the electorate. Under TABOR, tax increases are limited to the rate of inflation plus population growth; heftier bumps must be okayed by voters.
TABOR's opponents argue that this shift has hamstrung Colorado's government. Without the ability to raise revenue, they argue, legislators can't fulfill their obligations to constituents – including a state constitutionally-mandated duty to provide a "thorough and uniform system of free public schools throughout the state."
This has prompted a bipartisan group of elected officials, educators and private citizens to bring suit against the measure. In their brief for Kerr v. Hickenlooper (2011), the plaintiffs contend that TABOR caused a "slow, inexorable slide into fiscal dysfunction" in the state. By preventing the legislature from functioning effectively, they argue, TABOR violates the Guarantee Clause and a closely-related clause in the Colorado Enabling Act of 1875. (The Colorado Enabling Act admitted Colorado to the Union on the condition that it form a constitution that was "republican in form.")
Historically, Guarantee Clause-based challenges have not fared well in the courts. In Luther v. Borden (1849), the U.S. Supreme Court dismissed a Guarantee Clause-based claim as a 'political question,' to be settled by Congress rather than the courts. With a few early exceptions [see, for example, Minor v. Happersett (1875)], this 'political question doctrine' has been the standard ever since. Justices routinely invoke the doctrine to rule Guarantee Clause cases 'nonjudiciable,' or not decidable by the courts.
However, the argument in Kerr is different from previous challenges pressed under the Guarantee Clause. In Luther in 1849, the plaintiffs claimed Rhode Island's charter government lacked the authority to govern the state. Similarly, in another landmark Guarantee Clause case – Pacific States Telephone and Telegraph Company v. Oregon (1912) – plaintiffs claimed citizens lack the authority to make laws. In an attack on Oregon's newly-minted ballot initiative process, they argued that republican government is representative government; only citizens' representatives, not citizens themselves, have the authority to make laws.
The issue in cases like Luther and Pacific States is one of rightful authority: does a particular group have the authority to govern in a republican system of government? That is not, however, the issue in Kerr. Though TABOR was passed by ballot initiative, that is not the basis for the plaintiffs' argument against it; their argument doesn't turn on the legitimacy of citizen legislating. Instead, their objection is to TABOR's effects. By stripping the state legislature of the ability to raise revenues, they argue, TABOR renders it ineffective. And, without an effective legislature, Colorado lacks a truly republican system of government.
In a ruling released on July 30, U.S. District Judge William Martínez emphasized this difference between Kerr and cases like Pacific States, noting that,
Plaintiffs… seek only to invalidate one particular measure passed via the Colorado voter initiative process: TABOR… The Court cannot conclude that a challenge to the effects of TABOR itself should be equated with a challenge to the entire voter initiative process.
Drawing on this distinction and the six criteria standard for political questions introduced in Baker v. Carr (1962), he concluded that the political question doctrine does not apply in Kerr. This led him to rule the case judiciable and deny the defense's motion to dismiss it.
With this ruling, Kerr will proceed to trial, with Judge Martínez ruling on the merits of the case. The next stop would then be the Tenth Circuit. Should Judge Martínez rule against TABOR – and the Tenth Circuit back him up – court watchers expect the case to be taken up by the U.S. Supreme Court.
The narrow focus of this case on the taxing authority of the Colorado Legislature, confirmed by Judge Martínez's decision, suggests that it is not likely to have an immediate impact on other states. Other states impose limits on their legislatures' taxing and spending authority but none go as far as Colorado's requirement that all tax increases go to a vote of the people.
However, it could have an effect on other states' future policy decisions. Though they have thus far been unsuccessful, libertarian groups have pushed legislation similar to TABOR in a number of other states. A ruling against Colorado's TABOR would deal such efforts a devastating blow. Whether you support limits on taxing authority or oppose them, that possibility makes the current case in Colorado one to watch.
Karen Shanton is a public fellow of the American Council of Learned Societies on assignment to NCSL for two years.