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Politics and Government

The TABOR battle is reaching new levels. Critics are testing 18 ways to rewrite Colorado tax policy.

The challenge to unraveling TABOR, Amendment 23 and the Gallagher Amendment starts with finding the right ballot wording ahead of 2020 election

The Colorado Capitol, photographed on April 22, 2019. (Jesse Paul The Colorado Sun)
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Behind the scenes, the political left in Colorado is gearing up for a fight to overhaul the state’s tax system, a tangled mess of constitutional amendments that they believe holds the key to better-funded schools, less congested roads and more affordable college.

Step one to unravel the knot? Figure out what threads they’re even allowed to pull.

The Colorado Fiscal Institute has offered a whopping 18 different proposals for the 2020 ballot regarding the state’s tax system, all designed to test how many constitutional changes they can legally pack into a single ballot initiative. The state title board on Wednesday will consider whether each adheres to Colorado’s “single subject” rule, which requires legislation and ballot measures alike to fall under one topic, like transportation or criminal justice reform. The board, which the secretary of state’s office convenes, is effectively the gatekeeper for what initiatives can appear on the ballot.

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Some proposals would completely repeal the Taxpayer’s Bill of Rights, or TABOR, which has become a defining feature of Colorado tax policy. Others would just delete certain parts, like requiring voter approval for tax hikes. Some delete sentences not just from TABOR, but also other constitutional amendments governing property taxes and school finance, eliminating a restriction here and a restriction there to give state lawmakers more flexibility to govern.

One, Initiative 87, would repeal TABOR, the Gallagher Amendment and Amendment 23 — a nuclear option of sorts that gives up on untangling the state’s fiscal knot, and blows it to kingdom come instead.

Would voters approve any of them? To supporters, it doesn’t matter — at least not yet, says Carol Hedges, the executive director of the institute, a left-leaning think tank.

“Why don’t we just get rid of Gallagher, TABOR and Amendment 23? Well, I don’t know. We’re not posing the question, ‘Is that a good idea, or is that politically possible?’ ” Hedges told The Colorado Sun. “We’re just posing the question of could that be done in one single measure.”

MORE: A citizen’s guide to how spending works in Colorado

What’s a single subject for the ballot?

At times, the idea of what constitutes a single subject has been stretched to extremes, perhaps none more so than a 2017 bill that managed to overhaul a hospital fee, fund transportation and capital construction projects, and change Medicaid co-pays all under one bill title. The single subject: “Concerning the Sustainability of Rural Colorado.”

Nonetheless, the title board in January rejected a complete repeal of TABOR under the same rule. TABOR itself isn’t a single subject, the board argued, because it does so many different things.

It requires voter approval for tax hikes or government debt. It caps government growth from year to year. It prohibits real estate transaction taxes and tiered tax brackets based on someone’s income. It also directs when and how to conduct different kinds of elections. (TABOR itself was adopted before voters instituted the single subject rule, so it wasn’t bound by the same restrictions.)

The single subject ruling is under appeal to the Supreme Court in a case that’s sure to have ramifications for the institute’s 18 other proposals. But the title board’s earlier decision suggests an uphill climb in the meantime.

So if TABOR itself isn’t a single subject, how can parts of TABOR and two other amendments possibly pass the same test? Hedges’ argument is that each proposal is a variation on the same theme: “partially restoring the authority of elected officials to make tax policy.”

TABOR restricts lawmakers from raising taxes or growing government beyond a certain limit without voter consent. The Gallagher Amendment requires residential property taxes to drop under certain circumstances, limiting the ability of local officials to generate revenue for schools and other public services. And Amendment 23 requires the state to increase school funding every year by a certain amount, limiting the ability of policymakers to make budget cuts.

Lawmakers have found workarounds over the years — raising fees instead of taxes and establishing an annual deficit owed to schools, known as the negative factor. But the three amendments also led to some bizarre side effects beyond lawmakers’ control, like rising Front Range home values causing cuts to rural services, and cutting school taxes while simultaneously requiring annual increases in school spending.

MORE: Colorado lawmakers want to eliminate spending caps. Here’s how the TABOR overhaul would work.

A look at the TABOR fight ahead

The proposed 2020 ballot measures — combined with a legislative referendum in 2019 to eliminate the state’s spending caps — point to an all-out fight over the future of Colorado tax policy over the next two years, one that could have sweeping ramifications for taxpayers and the public sector.

The issue has energized both sides of the debate. And Michael Fields, who leads the conservative advocacy group Colorado Rising Action, says he expects this year’s vote to eliminate state spending caps to be close.

Michael Fields, who leads the conservative advocacy group Colorado Rising Action. (Handout)

“With Democrats taking complete control (of the legislature and governor’s office), TABOR is our backstop,” Fields said. “Nothing fires up our side like TABOR does.”

As for 2020, anyone seeking changes to TABOR would need to coalesce around a single proposal, because of the cost involved with running a competitive campaign. Some top Democrats, including Gov. Jared Polis, oppose repealing TABOR’s central tenet, voter approval of taxes. But Polis did promise changes to TABOR during his campaign for governor.

“I think any time that you’re talking about modifying or picking apart stuff, the election’s closer,” Fields says. “Full repeal? I would love to have that battle.”

Ironically, one of Hedges’ arguments for reforming TABOR at the ballot is that complicated decisions about public spending shouldn’t be put on the ballot at all. Taxes “may be one of the most complex areas of public policy that we have,” she said.

She believes last year’s dueling ballot box failures to pay for transportation projects with and without new taxes shows that voters are frustrated with the current system.

“For other complicated measures we put that responsibility with a body that has resources and is elected specifically to reflect a bunch of different opinions,” she said. “It’s called the legislative process.”

Fields has a different take-away. “On the local level, debt increases (and) tax increases pass 50% of the time because voters trust (their local officials),” he said. “They don’t trust the legislature.”


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