Littwin: Hick boldly goes to court, aiming to take a rake to the fiscal thicket
Fair and Unbalanced
First, the bad news. Whatever you’ve heard, John Hickenlooper’s bold move to loosen the stranglehold that TABOR and Gallagher have on Colorado’s funding will almost certainly not eliminate the stranglehold.
With luck — with maybe a lot of luck — it could give struggling fire and library districts, particularly those in rural areas of the state, a bit of breathing room and a bit more money, both of which many districts desperately need.
If Hickenlooper’s direct appeal to the state Supreme Court works — and, at this point, no one has any idea — it could conceivably provide some small momentum toward post-TABOR fiscal sanity in Colorado, not that I’d bet much on that outcome.
You may remember the fiscal thicket that a long-ago, freshly minted Gov. Hickenlooper set out to resolve. Well, as we know, the thicket has grown only thicker over Hick’s tenure, which isn’t exactly the legacy he was hoping for.
As one person involved in the process, going for a different metaphor, told me, “This is not a silver bullet that, as some are saying, Hickenlooper has been holding onto for eight years. Even with victory, however you define that, it wouldn’t come close to solving the larger problem.”
So, what exactly has Hickenlooper done with this move in the waning days of his administration, a time in which boldness perhaps comes more easily? (Libertarian Jon Caldara was quoted on 9News as saying that this was an outrageous move by Hick to appeal to progressives in his potential run for president, which could make sense if anyone outside of Colorado had ever heard of TABOR — they haven’t — or if Hick’s path to the nomination meant going even half-Bernie — it doesn’t.)
But it turns out there is a strange bit of business in Colorado’s Constitution — rare among the states and rarely used, in any case — allowing the governor to submit questions, called “interrogatories,” directly to the state’s Supreme Court in order to settle conflicts in constitutional law.
The conflict here is between Gallagher, which sets property tax rates, and TABOR, which among many other things, requires a vote in order to raise taxes. The conflict, Hickenlooper says in his court filing, diminishes tax revenue around the state and is preventing some “local governments from funding even limited essential services.”
If the court is to answer the interrogatories — and it can choose simply not to — it will have to buy the argument that the conflict between the amendments is causing a crisis that requires the court to act.
It’s an interesting move that has been kicking around for a few years. I’ll give a brief explanation of what it means — not that I really understand all the ins and outs — but the essential thing that you need to know is that since TABOR passed in 1992, virtually every attempt to fix the mess it caused has only made matters more complicated.
But here goes. In 1982, Gallagher was voted into the Constitution, setting a ratio between residential property taxes collected (45 percent) to commercial property taxes (55 percent). It doesn’t seem to matter that, given the massive increase in housing prices, particularly in metro Denver, the tax collection ratio is now, to use the fiscal terminology, way out of whack.
What Gallagher also did was set the assessment on non-residential property at 29 percent of value, while letting the residential rate float up or down, whatever was needed to keep the 45 to 55 ratio in place.
And then 10 years later came TABOR, which, it seems, is fine with property assessments going down, but not so much going up, which can apparently be interpreted as a tax hike. At least that’s the way the Legislature has interpreted it. As far as I understand it, the court has never been asked to rule on it. But if there is a tax hike — this we know — there needs to be a vote of the people. And now the residential assessment rate, originally 21 percent, is down to 7.2 percent. I would say, do the math, but who the hell can?
Many larger counties have de-Bruced, which I’m not going to try to explain because I’d have to explain Doug Bruce, but it can eliminate the need for votes on raising certain taxes. But for most rural counties, Gallagher has meant a fall in revenue over time. At this time, Hickenlooper says, the fall has been crushing.
So now it’s up to the court, which has many options. It could just ignore the governor. It could rule there is no real conflict. It could rule that, whereas the Constitution requires a “solemn occasion” in order to act on the interrogatory, the times aren’t solemn enough. I wonder if using a sad-faced emoji would have helped.
It could rule that, in fact, there is a conflict and that TABOR has effectively overruled Gallagher. No one expects this to happen. Or it could rule — and this, I’m told, would be seen as the best-case scenario by Hickenlooper — that there’s a problem here and that the Legislature should resolve it and find a way to “recapture” funds that were lost over the years because of the conflict.
Jared Polis’ team was informed of the move, of course, but even if the court does rule in Hick’s favor, that won’t change the need for something to be done about TABOR’s restrictions. If you’re looking for a surer bet, it’s that during Polis’ term as governor, he will put something on the ballot addressing TABOR. And the stranglehold. And the thicket. Maybe he’ll even find a silver bullet.
Mike Littwin runs Sundays in the Aspen Times. A former columnist for the Rocky Mountain News and Denver Post, he currently writes for ColoradoIndependent.com
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