WPC joins amicus defending people's right to enact fiscal restraints on lawmakers

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Aug 3, 2015

Washington Policy Center (WPC) is a strong defender of the people's right of initiative as well as their power to enact fiscal restraints on lawmakers to help promote sustainable budgeting. This is why we are happy to sign on to the amicus brief in the case of Kerr v. Hickenlooper currently before the U.S. 10th Circuit Court of Appeals for reconsideration at the direction of the U.S. Supreme Court. 

The American Bar Association provides this summary of the case

Colorado state legislators sought to invalidate key provisions of the Colorado Taxpayers' Bill of Rights (TABOR), claiming that those provisions interfered with their constitutional voting abilities and thus violated the Guarantee Clause of the federal constitution. Colorado Governor John Hickenlooper, the named party tasked with defending TABOR, argued that the legislators' claims ought to be dismissed for lack of standing, and as nonjusticiable under the political question doctrine. 

The Tenth Circuit found that TABOR had caused actionable injury to the legislative plaintiffs by depriving them of their unique ability to affect Colorado tax policy by their votes, and (upon quick findings of causation and redressability) held that those plaintiffs possessed both Article III and prudential standing. The court held that a case-by-case approach to the political question doctrine was required by Baker v. Carr, and that the legislative plaintiffs' Guarantee Clause claims were not barred as nonjusticiable by any of the six factors detailed in that case. 

The potential impact of this original ruling on voter approved fiscal restraints of any kind on lawmakers across the country was very troubling to us which is why WPC signed on to an amicus in the case when it was before the U.S. Supreme Court. On June 30, the Supreme Court granted our petition and vacated the prior judgment and remanded the case back to the 10th Circuit for further consideration in light of the ruling in Arizona State Legislature v. Arizona Independent Redistricting Comm?n (2015).

In that ruling the Supreme Court held (in-part):

While exercise of the initiative was not at issue in this Court’s prior decisions, there is no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking . . . 

The Framers may not have imagined the modern initiative process in which the people’s legislative power is coextensive with the state legislature’s authority, but the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. It would thus be perverse to interpret ‘Legislature’ in the Elections Clause to exclude lawmaking by the people, particularly when such lawmaking is intended to advance the prospect that Members of Congress will in fact be ‘chosen . . . by the People of the several States.’ 

The new amicus to the U.S. 10th Circuit notes: 

What is more, in emphasizing the animating principle of the Constitution (i.e. the foundational theory that “the citizens are in charge”), Arizona made abundantly clear that the Plaintiffs-Appellees (or “TABOR’s Opponents”) cannot possibly prevail in this litigation. The Court went out of its way to emphasize that ultimate political power rests with the People of each State and that they act consistent with republican principles when making law though direct democratic measures. Since Arizona definitively rules out the only potentially viable standards that TABOR’s Opponents have suggested, this case must be dismissed as raising a non-justiciable political question.

Here is our statement of interest in Kerr v. Hickenlooper from new amicus brief:

The Washington Policy Center (WPC) is an independent, non-profit, think tank that promotes sound public policy based on free-market solutions. Headquartered in Seattle with satellite offices and full-time staff in Olympia and Eastern Washington, WPC publishes studies, sponsors events and conferences and educates citizens on the vital public policy issues facing Washingtonians. Washington Policy Center has long championed legislative fiscal discipline reforms such as taxpayer protections like TABOR, balanced budget requirements, and debt restrictions to help improve the fiscal health and sustainability of Washington’s budget. WPC is also a strong defender of the people’s right of initiative and referendum and believes the declaration of Article 1, Section 1 of the State’s Constitution could be adversely impacted by this case: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”

Although Washingtonians can't amend the state constitution via the initiative process (like voters in Colorado did with TABOR) voters here have consistently used ballot measures to send the Legislature a message on tax and fiscal policies (such as the five time approval of the supermajority requirement for tax increases). It is encouraging to see the U.S. Supreme Court acknowledge the people's right of initiative to send these type of messages and enact laws. Hopefully the U.S. 10th Circuit Court will take the not-so-subtle hint and dismiss the case.