As the state legislature debates Senate Bill 228, a bill seeking to eliminate the 6 percent growth limit on the state’s General Fund, questions are already arising about whether the lawmakers can make such a move without voter approval. Also at hand is the issue of whether or not a lawsuit would arise should the bill pass this session.
Colorado's Taxpayers Bill of Rights, known as TABOR, requires voter approval for any net increase in government revenue, contains a section that reads, “other limits on district revenue, spending, and debt may be weakened only by future voter approval.” Republicans are saying this includes the 6 percent limit, also know as Arveschoug-Bird, which means that voter approval would be required for its elimination. Democrats, meanwhile, argue that the 6 percent limit is not actually a limit at all. SB 228's sponsor, Sen. John Morse, D-Colorado Springs, has taken to calling the 6 percent limit an “arbitrary allocation formula.”
Barry Poulson, one of the original collaborators on TABOR and a senior fellow at the Independence Institute, agrees with Republicans. “TABOR constitutionalized Arveschoug-Bird,” said Poulson. “That is exactly what the intent of TABOR was.”
Former Supreme Court Justice Jean Dubofsky, on the other hand, appeared at a recent press conference arguing Arveschoug-Bird actually allocates how money is spent rather than limiting the amount collected from taxpayers. Therefore, Dubofsky says, Arveschoug-Bird could be eliminated with merely a statutory change that would not require a vote of the people.
Morse’s bill has already passed through the Senate and is on its way to the House for debate. Insiders are predicting it will ultimately pass due to a Democrat majority in both chambers, and many are looking to the Independence Institute to step up and challenge it in court.
“Last time around it fell on our shoulders,” said Jon Caldara, president of the Independence Institute.
In 2007, the Independence Institute and Mesa County Commissioners filed a lawsuit under the TABOR against the State Board of Education and Gov. Bill Ritter over a property tax increase, which was ruled unconstitutional in Denver District Court. It was appealed to the Colorado Supreme Court, which has yet to rule on the case.
Caldara says there is no doubt in his mind that eliminating the 6 percent increase statutorily is unconstitutional, but he would not say weather the Independence Institute plans to challenge it.
“The Colorado Supreme Court is known nationally as, arguably, the most partisan supreme court in the county,” he said. “[It] has yet to rule in favor of TABOR. In fact, they’ve taken every opportunity they can to rule against it. From that point of view, why ask and respect the people when you’ve go the legislature and the court in your pocket?”