What form of government is Colorado? A. monarchy B. oligarchy C. republic D. democracy. This is the question in Kerr v Polis, a 10-year-and-counting legal case brought to the federal 10th Circuit Court by 33 plaintiffs, including the Colorado Association of School Boards, Boulder County, Westminster City Council, and former state Sen. Andy Kerr, who’s now a Jefferson County commissioner.
There’s only one issue that unites such a disparate array of people: TABOR, or the Taxpayer's Bill of Rights, passed through the long efforts of former state Rep. Douglas Bruce and his anti-tax friends. TABOR passed as an initiative in 1992, having failed a couple of times before. Its effect is to put any tax increase from any political division or subdivision in Colorado in front of voters for approval.
That’s where the question of what kind of government Colorado is wiggles into the Kerr v Polis case. The US Congressional Enabling Act of 1875 created the basis for the territory of Colorado to become the state of Colorado. Section 4 of the Enabling Act says that Colorado can become a state if it adopts the Constitution of the United States and writes and confirms a constitution that’s “republican in form.” The republican constitution passed and the new state was accepted by President Ulysses S Grant in 1876. Thus, Colorado became the Centennial State.
This Enabling Act statement is critical to Kerr v Polis, as it’s a fundamental premise of the case that TABOR violates the structural and collective foundation of a republican form of government. That is, a republic is not direct democracy. It forms a collective in which individuals vote for representatives who address their issues in the Colorado General Assembly every year.
The plaintiffs in Kerr v Polis argue that they are injured parties as representatives of the General Assembly and various subdivisions of state government. The plaintiffs’ case claims they are not able to perform the function of government that makes everything else work: tax.
But, says the defendant, in this case the state of Colorado, these plaintiffs don’t have “standing,” or the right to sue, because they are either individuals or representatives of subdivisions of the state. According to the state’s argument against the case, the only entity that has standing on the merits is the General Assembly, and it so far has not undertaken to join the suit. According to both sides, the General Assembly is “in the wings,” eager to jump in, apparently depending on how the “standing” issue comes out in the federal 10th Circuit Court decision.
10th Circuit federal judges asked why the General Assembly hasn’t joined the case yet. The reason is ambiguous but probably has to do with the configuration of the General Assembly. Only recently have anti-TABOR Democrats taken over the majority of both chambers, and only this year will state House and Senate seats be redistricted, thus making a hook-up with the case more likely because, well, what the hell?
What’s at stake with these arcane but essential arguments about Colorado? According to plaintiffs, the ability of the legislature to tax citizens is critical in a republic. Without this function, the General Assembly and subdivisions of government such as school boards cannot take care of the needs of Colorado for a healthy transportation system and an adequate public education program.
This year, the General Assembly is presenting a 197-page transportation bill for projects for better roads, bridges, and tunnels and to prepare for climate change. The legislation is chock full of fees, not taxes, to cover the costs of the infrastructure. As Republicans in the legislature assert, fees have been the Democrats’ TABOR go-around.
The school finance bill just showed up in the state Senate. It puts $7.7 billion towards public education in 2021-22, a jump from $7.2 billion in 2020-21 but just a get back to even with the $7.6 billion in 2019-2020.
These are the problems with TABOR. It forces the legislature to go into contortions to get money it needs to make Colorado run, such as for roads and bridges. And it doesn’t allow the state to be responsive, as it must be during challenges such as COVID and the Great Recession, to its fundamental responsibility to adequately educate its children.