With TABOR, Democrats hate it, conservatives love it, and Republicans get hurt

The Taxpayer’s Bill of Rights is big and complex; it affects the very core of governmental authority — the power to tax, borrow, and spend. Unsurprisingly, Democrats hate it, most Republicans love it. Surprisingly, Democrats benefit politically, Republicans suffer.

Formally, TABOR requires a vote of the people to raise taxes, incur debt, or spend excess government funds. Practically, it makes all three much harder. So Democrats hate TABOR. To use their rhetoric, they blame it for underfunding critical government programs or limiting investment in necessary governmental infrastructure. The Democratic Party is generally unified in this approach, and good luck finding a Democratic leader who staunchly supports TABOR. (Although in response to this column, one will surely come out of the closet.) Every year there seems to be a budget shortage, and every year the blame is laid upon TABOR’s doorstep. Indeed, Democrats have successfully demonized the very word “TABOR,” to the point where many dislike TABOR, yet staunchly defend their right to vote on taxes and spending.

TABOR’s opponents have had the most success in the courts, which have punched major holes in the TABOR framework. (To be sure, they’ve gotten an assist from the law’s sometimes convoluted language and unexpected consequences.) For example, without a vote, governments can raise “fees” for a specific government service, yet use those fees to pay for stuff other than the promised service. And “fees” include things like charges to property owners for city street lights. In both instances, these fees are really taxes in disguise.

And to get around a public vote on debt increases, courts have exempted complex financing schemes known as “certificates of participation,” in which a government sells off core assets (like police and fire stations), and then rents them back to what are effectively bondholders. Even our local federal courts have gotten into the act, willing to consider TABOR a violation of the Republican form of government, thus sidestepping a century of well-established law.

Unlike Democrats and the courts, conservatives love TABOR. They rarely support tax increases or additional borrowing, and for them TABOR imposes fiscal discipline and forces government to live within its means. And Colorado has avoided the ongoing fiscal crises that have plagued other states like Illinois or California. Plus, it’s hard to argue against the public’s right to vote on taxes and debt. And if taxes are necessary, people can simply approve them.

To be sure, these categories aren’t perfect and exceptions exist. But scratch a Democrat, and underneath you’ll see a TABORhater. Scratch a conservative, and you’ll find a TABOR-lover.

But what about Republicans? They’re the ones who have paid the political price. Most are conservative; they argue that Republicans will hold the line on taxes and spending, while Democrats will raise your taxes and spend without restraint. And this is usually true. But in Colorado, it doesn’t matter much. Our state government (and most local governments) can’t raise taxes without voter approval. So TABOR has removed one of the Republican’s most potent political arguments. Today, voters can oppose Republicans and support Democrats, with little fear taxes will go up. Everything else is mostly noise — few people care about the arcane world of fee assessments or certificates of participation.

Additionally, TABOR frequently leads to Republican civil war. Most agree that people should vote on tax increases. But what happens when it’s time to vote? Republicans are more than willing to tear one another apart politically. Most memorably, in 2005 Colorado’s Republican governor supported two tax and bond ballot questions, launching an angry Republican civil war. And the Republican gubernatorial candidate who tried to straddle that divide faced a crushing defeat in 2006. We’ve seen similar circular shooting squads on the federal level, when George W. Bush faced a conservative backlash over increased spending.

It’s unlikely this dynamic will change. Although weakened, the Taxpayer’s Bill of Rights has withstood over two decades of relentless attack, court challenges, and threats to repeal it. The basic provisions remain intact. And changes to the ballot initiative process make it even harder to remove TABOR from Colorado’s constitution. So expect the continued irony, as Democrats attack TABOR with a unified voice, while Republicans usually support it, yet lose political strength and occasionally blow up their coalition in the process. Scott Gessler is a former Colorado secretary of state and a Denver attorney.