II has filed an amicus curiae (”friend of the court”) brief with the U.S. Court of Appeals, shooting holes in the plaintiffs’ claim that allowing the people to check the state legislature’s financial powers is somehow “unrepublican.” The national think tank, the Cato Institute, also signed on.
In addition, the National Federation of Independent Business (NFIB) filed its own amicus brief utilizing the kind of information presented by II in its Issue Paper on the lawsuit, The Attack on Colorado’s TABOR: The Threat to Other States.
As regular readers of this site know, a group of plaintiffs representing government interests has sued the State of Colorado, claiming that the Taxpayer Bill of Rights (TABOR) in the state constitution violates the U.S. Constitution. Even though the claim is an exceptionally weak one, last year a federal district court allowed it to proceed.
That ruling is now on appeal to the U.S. Court of Appeals for the Tenth Circuit.
Although the plaintiffs’ immediate attack is on Colorado’s TABOR, the underlying theory of their lawsuit is far broader. Their theory is that in order for a state to comply with the U.S. Constitution’s requirement that a state have a “republican form of government,” its legislature must have unrestricted power to tax, spend, and borrow.
However, nearly every state constitution restricts its legislature’s power to tax, spend, or borrow. So the plaintiffs’ theory, if victorious, would lead to legal challenges to almost every state constitution. States like Oklahoma, Michigan, and South Dakota, which permit the people to vote on tax increases, would be vulnerable—but so would states like Montana and Texas, which permit the people to vote on new state debt. Even balanced budget rules, which restrict short-term debt, would be vulnerable. So also would be state constitutions that permit popular votes or impose other controls on purely local taxes.
In a new Independence Institute Issue Paper, I team up with former intern (and CU law student) Zak Kessler to document the extent of the potential damage. The title of the paper is The Attack on Colorado’s TABOR and the Threat to Other States.
If you are exposed to enough politics, sooner or later you’ll hear the old saw that the U.S. is “a republic and not a democracy.” Along with that saying goes the following claim: Allowing voter initiatives and referenda is unconstitutional: If a state lets voters enact laws or veto tax hikes, the state is too democratic to meet the Constitution’s mandate that it have a “republican form of government.”
A new Independence Institute Issue Paper, which I authored, examines those assertions in detail. The Paper shows that both are essentially myths.
The nation’s best-known measure requiring voter approval of most tax hikes is Colorado’s Taxpayer Bill of Rights (TABOR), adopted by the voters in 1992. This Issue Paper is published in response to a legal attack on TABOR: A group of government apologists has sued in federal court claiming that by limiting legislative control over fiscal measures, Colorado has violated the U.S. Constitution.
In a nutshell, the new Issue Paper finds:
* The American Founders did not firmly distinguish between a “republic” and a “democracy.” Some used the two words as if they were synonymous. Some adopted the view of Montesquieu that there were two kinds of republics: (1) Those controlled by a few (aristocracies) and (2) those controlled by the many (democracies).
* Dictionaries of the time defined “republic” as merely a popular government, as opposed to a monarchy. One encyclopedia-type dictionary included an article tracking Montesquieu’s definitions.
* In drafting and debating the Constitution, the Founders talked a lot about republics. In most of the governments they identified as republics (like the Athenian and Roman), citizens voted on all laws.
* Various Founders stated explicitly that in republics the people could make laws directly as well as through representatives.
* The only kind of democracy the Founders thought “unrepublican” was what Madison (following Aristotle) labeled “pure democracy.” This was a theoretical form of government without officials, and where the mob ran everything in defiance of the rule of law. Other terms for the same thing are “mob rule,” “mobocracy” and “ochlocracy.”
* The dominant purpose of the Constitution’s mandate that states have republican forms of government was not to prevent popular votes at the state and local level. (In fact, referenda already were being used in some states.) The dominant purpose was to prevent any state from becoming a monarchy.
* The twin myths—that the Founders drew a sharp line between “republics” and “democracies” and that citizen lawmaking is unrepublican—did not arise until the 1840s, when conservatives invented and promoted them in response to disturbances in Rhode Island. In fact, until about 40 years ago, it was mostly conservatives who made such arguments. Beginning in the 1970s, liberals adopted them while opposing measures that give the voters “a say in what they pay.”