05/24/2012 06:27 pm ET Updated Jul 24, 2012

TABOR Migraines

The humorous proverb that any community too small to support a single lawyer can always support two, characterizes the competing constitutional challenges now working their way through Colorado's state and federal courts. The conservative Mountain States Legal Foundation announced this week that it would be challenging the Legislature's FASTER program, which is currently funding road and bridge repairs with an added vehicle registration fee authorized by Democratic majorities at the Capitol during the Ritter administration. Mountain States makes the plausible claim that this imposition of a "fee" constitutes a violation of Colorado's TABOR restrictions, which require voter approval of any tax increase. The truth be told, the Legislature has been engineering Rube Goldberg contraptions to avoid TABOR limitations for 20 years.

Most of the state budget's shrinking support for higher education is passed to colleges and universities in the form of individual grants awarded to resident students as subsidies toward their tuition. Not one dollar of these moneys is ever in the actual possession of college students, but passes directly from Colorado's Treasurer to our institutions of higher learning. This shell game allows the larger institutions to wriggle out of their constitutional handcuffs, which would apply if these were accounted for as state revenues. They can operate, instead, as TABOR "enterprises." Capital construction projects have adopted a similar fiction, substituting Certificates of Participation (COPS) for traditional government bonding. TABOR requires bond issues receive approval from voters, so the COPS route, which entails a lengthy (20-30) lease obligation with the entity constructing and/or owning the facility, has funded projects like the new medical school in Aurora to the parking garage at the Capitol.

Evidence that these legal devices amount to the same thing as bonding is the fact that COPS are designed and brokered by local bond houses. Of course, COPS ultimately cost taxpayers more than traditional bond issues would. This extra expense fills the wallets of the usual suspects in the one percent. (Joe Sixpack is afforded zero opportunity to purchase a COP). Once FASTER was approved, Russ George, Bill Ritter's Republican overseer at the Department of Transportation, used his new revenue stream to sell FASTER bonds. Ostensibly this permitted an accelerated repair of deficient bridges, but, at least in part, it made it that much more difficult for legislators to change their mind about the registration fees. If the Mountain States legal team successfully overturns the funding mechanism, presumably the Legislature will have to pay off these existing bonds from another revenue source. Or, God forbid, ask voters for their approval.

Several months ago a coalition of Democratic legislators and attorneys, including former Congressman David Skaggs, filed a lawsuit challenging the constitutionality of the TABOR amendment under federal law. The brief version of their argument hinges on the claim that TABOR denies Colorado residents the Republican form of government guaranteed to them under our federal constitution --- that, by denying the Legislature the authority to raise taxes, TABOR infringes on powers properly exercised by legislators in a Republican form of government. There is a certain irony in the fact that the same progressive movement that introduced the initiative and referendum early in the last century is now seeking to overturn a result of the voters' exercise of these rights at the ballot box. Nonetheless, this argument also sounds somewhat plausible.

I don't know whether the Mountain States lawsuit constitutes a direct response to this challenge, but, between them, perhaps we can establish some legal clarity on how to proceed as an electorate. TABOR, which includes provisions that are rapidly closing a vise on state spending, will soon undermine the quality of services provided to taxpayers. It's a Rube Goldberg monstrosity of its own. No amount of statutory ingenuity can fend off TABOR's fiscal depredations indefinitely. Ultimately, Colorado voters will need to restore rationality to the management of state budgets. Short of a constitutional convention that rewrites all the rules, this may prove impossible. You don't need to be a CPA to understand that spending and revenue restrictions don't belong in our constitution. Untrustworthy as politicians may be, someone has to be entrusted with balancing and representing the public interest -- and, that someone probably shouldn't be the general public. After all, this is reasonably complicated stuff. It's why we hold elections in the first place!