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 lawmakersâ€™ ability to increase taxes on the grounds that it goes against the U.S. Constitution.
Herb Fenster, a Republican who calls himself a â€œconstitutional originalist,â€ said in a phone interview Thursday that 1992â€™s Taxpayerâ€™s Bill of Rights, or TABOR, effectively inhibits the state legislature to function the way the United Statesâ€™ 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 Coloradoâ€™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.
â€œA real originalist, no matter how conservative he or she is, would say, â€˜Yes, thatâ€™s right. We donâ€™t have a popular democracy,â€™â€ 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.
â€œWeâ€™ve stripped it (the legislature) of its fiscal authority, so you go to Article 4, Section 4 of the Constitution, and I think itâ€™s a perfectly good question to ask,â€ said John Straayer, a CSU political science professor who specializes in state and local government.
Many experts say Coloradoâ€™s model is unsustainable and leaves state programs that are not mandated to grow â€“â€“ which includes higher education â€“â€“ 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 Coloradoâ€™s fiscal conundrum.
The attorney plans to file the suit by the end of the month, and said that, while itâ€™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 Fensterâ€™s project would face a lot of opposition, as voters are skeptical of handing power over to the legislature.
â€œI think on something of this magnitude, the odds might be against him,â€ Straayer said.
If Fenster wins the suit, he said, the court would declare the amendment â€œvoid,â€ which is one of the few ways in which the constitution can change.
But even if Fensterâ€™s lawsuit is successful, Straayer said, a large number of similar measures in Coloradoâ€™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 firstname.lastname@example.org.