Feb 112010
Authors: Aaron Hedge

A prominent Washington D.C.-based lawyer plans to file a federal lawsuit against the state of Colorado over a controversial state amendment that limits lawmakers’ ability to increase taxes on the grounds that it goes against the U.S. Constitution.

Herb Fenster, a Republican who calls himself a “constitutional originalist,” said in a phone interview Thursday that 1992’s Taxpayer’s Bill of Rights, or TABOR, effectively inhibits the state legislature to function the way the United States’ governing document intended it to.

The measure was voted into the state Constitution as one that would reduce the size of the legislature and foster a more popular government in that it grants decision-making power over tax increases to Colorado’s broad voting community.

But Fenster said few people realize that the framers of the Constitution envisioned a republic, which, by definition, is a representative democracy that requires lawmakers to make legislative decisions for the people.

“A real originalist, no matter how conservative he or she is, would say, ‘Yes, that’s right. We don’t have a popular democracy,’” he said.

TABOR has been blamed as an integral piece in a long line of state legislation that requires legislators to spend more on certain state programs, while limiting their ability to bring in more money from taxes.

“We’ve stripped it (the legislature) of its fiscal authority, so you go to Article 4, Section 4 of the Constitution, and I think it’s a perfectly good question to ask,” said John Straayer, a CSU political science professor who specializes in state and local government.

Many experts say Colorado’s model is unsustainable and leaves state programs that are not mandated to grow –– which includes higher education –– behind financially.

Fenster, who works for a Washington D.C.-based firm called McKenna, Long & Aldridge, is a self-identified advocate for education issues and said the idea for the TABOR litigation was inspired by Colorado’s fiscal conundrum.

The attorney plans to file the suit by the end of the month, and said that, while it’s early to tell what the outcome might be, it will probably be difficult, as a ruling that TABOR is unconstitutional would come before a long appeals process, which could end in the U.S. Supreme Court.

Straayer said Fenster’s project would face a lot of opposition, as voters are skeptical of handing power over to the legislature.

“I think on something of this magnitude, the odds might be against him,” Straayer said.

If Fenster wins the suit, he said, the court would declare the amendment “void,” which is one of the few ways in which the constitution can change.

But even if Fenster’s lawsuit is successful, Straayer said, a large number of similar measures in Colorado’s fiscal policy could be affected by the ruling.

A 1982 constitutional law called the Gallagher Amendment, for example, placed a cap on property taxes.

Projects Editor Aaron Hedge can be reached at news@collegian.com.

 Posted by at 5:25 pm

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