Initiative Process Faces Test in U.S. Court of Appeals

Joel Fox
Editor of Fox & Hounds and President of the Small Business Action Committee

A case has reached the United States Court of Appeals, 10th Circuit, challenging the initiative process as a violation of the United States Constitution’s Article IV Section 4 that reads in part: “The United States shall guarantee to every State in this Union a Republican Form of Government.” California’s famous Proposition 13 made its way into a footnote in papers submitted by the Colorado governor’s attorney in defending the initiative power.

Attempting to undercut the initiative process by arguing that direct democracy violates the U. S. Constitution is as old as direct democracy in this country. In 1912, a telephone company in Oregon used the argument to challenge a tax imposed by voters. The court determined then, as it had in previous dealings with the Guarantee Clause going back as early as 1849, that what constitutes a Republican Form of Government is a political question.

The current case was promoted by the 20-year old Colorado Taxpayers Bill of Rights initiative, known locally as TABOR. The measure, written by a former Californian named Doug Bruce who once ran for a California assembly seat in Los Angeles County, requires a vote of the people on all tax measures. A 2005 amendment confirmed by voters added spending controls.

The suit challenging TABOR filed by five current legislators, along with ex-legislators and special interest advocates, argues that the initiative dilutes “core” legislative powers dealing with taxing and spending and injures legislators ability to carry out their jobs. They claim TABOR has caused a “slow, inexorable slide into fiscal dysfunction.”

Colorado governor, John Hickenlooper, in his official capacity, is the defendant in the case. His attorneys argue that the voters in adopting the initiative in 1910 “reserved to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly.”

They also note that after “exhaustive research” they were unable to find one law or government action that was invalidated for being “non-republican.”

Of course, that doesn’t stop those who want to see the initiative process curtailed. The argument that government’s “core” mission is undone when taxing and spending powers are affected could be expanded to cover other missions that government officials see as core functions such as education and welfare.

In California, changes to the initiative may soon be offered up by the legislature. Those changes are more along the lines of amendments to the initiative process rather than trying to do away with a particular initiative or the initiative power.

Those hoping that a decision for plaintiffs in the Colorado case could ultimately undo California’s Proposition 13 may be disappointed. The governor’s attorneys referenced Proposition 13 in a footnote: “Plaintiffs believe it is TABOR’s direct democracy provisions that violate the Guarantee Clause. Their theory would therefore leave intact other strict limits on legislative taxation power, such as California’s supermajority requirement…”

Of course, the section cited refers to legislative taxing powers. On the local level in California, voters have a say on tax matters, so the Colorado case is worth watching.

The case will soon go to trial and test the over 150-year record of courts holding that the Guarantee Clause is not a justiciable question.

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