TABOR & Federal Tax Reform in the Age of Citizens United

No question, I am pro-participatory democracy, having spent the vast majority of my legal career working to make campaigns, elections, government records, and the legislative process more transparent and accessible for citizens. In 1992, the TABOR (Taxpayer Bill of Rights) Amendment was passed based on that same promise: that citizens of Colorado should have a say and participate when government is making important decisions about tax policy and when taxes should be used for government services. Therefore, (TABOR continues to promise today) legislators cannot raise taxes without seeking voter approval directly at the ballot box, regardless of the state of government services or revenue forecasts. But like many 1990's era decisions, changing conditions and times can affect the staying power of this approach in 2017. What has been a flaw all along in TABOR is now as increasingly out of date as wearing MC Hammer pants in today’s post-Citizens United world.

As we saw in the special session that just ended, TABOR does not require Colorado voter participation in the removal of a tax, even when the imposition of that tax was approved through a popular vote. Now, the situation to be addressed in the special session was a legislative error where the tax revenue was removed by mistake, but many legislators blocked a fix (at least for now) claiming a TABOR vote was required to re-institute the approved tax. What is the question of voter intent here or the voter participation that is seeking to be protected?

A bigger problem is the tax policy made in the state capitol every day very intentionally by state legislators. Various industries, business, and other lobbying groups of all stripes can work directly under the Golden Dome to get favorable tax cuts from the Colorado Legislature without voters having any say in the matter. The influence of such groups is only heightened after Citizens United because there are now more ways for interested individuals or groups with deep pockets to affect state legislative elections both before and after elected officials make decisions on tax cuts and policies. The tax code is where value judgments are made, and giving tax cuts for a certain type of business or endeavor - from movie productions to oil and gas - takes revenue out of the state general fund which then affects the ability to remove taxes on goods that working Coloradans need, like diapers. Instead of considering whether a tax giveaway would be rejected at the ballot box by voters (like legislation to increase, re-institute or change a tax), legislators are only faced with Citizen United-enabled possibility of well-funded primary challenges or independent groups with negative mailers from the denied interest lobby.

Similar to the federal tax reform plan that is now proposed and being considered in Congress, it is not usually small ordinary citizens that have the ear of government when tax cuts are being proposed. But you can be sure a slew of large wealthy organizations and trade associations will be weighing in on the federal tax plan and in 2018 campaigns thanks to their ability to spend freely (and in many cases without disclosure) after the Citizens United line of cases. I can honestly say I’ve seen more energy and healthcare industry SuperPACs than working families or child-care-tax-cut-user ones. So much for helping ordinary citizens participate and speak up and influence what happens with their tax money and their government’s tax policy.

In the modern money in politics era, TABOR is a hollow promise of citizen participation. Colorado voters do not have the same participatory power during tax cut decisions, nor can they help determine the tax policy of what types of industries or entities should get tax cuts. Instead the only time voters get a say is when the government wants to raise sales taxes or a similar type of regressive proposal that often could hurt individual citizens more than larger companies or industries. (Assuming a proponent can raise the funds needed for a statewide ballot measure after business-funded changes in Amendment 71 last year exponentially raising the cost of such efforts). If TABOR stands for true citizen participation in tax policy we should all be able to weigh in before any tax giveaways are made, not just on half of tax policy.

Perhaps Colorado needs to get rid of those parachute pants and rethink how Colorado voters can have meaningful participation in the values reflected in our state's tax policy in the modern era instead of accepting a “u can’t touch this” attitude towards TABOR reform and tax cut policy decisions.

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