Sometimes you have to feel sorry for what a good lawyer silently puts up with — for example, a judge asking a silly question that must be taken seriously.
Consider the unfortunate position that Colorado Assistant Attorney General Megan Paris Rundlet found herself in this week. She was in federal court defending the Taxpayer’s Bill of Rights from a lawsuit that claims it is incompatible with a republican form of government — and therefore unconstitutional — because it strips lawmakers of authority to raise taxes without voter consent.
Exactly a century ago, Rundlet pointed out, the Supreme Court ruled that it was up to Congress, not courts, to decide whether a state’s initiative and referendum process violated the mandate that every state adopt a republican form of government. Yet her reminder was not, shall we say, greeted with gratitude by Judge William Martinez.
According to an article by The Post’s Tim Hoover, Martinez insisted the anti-TABOR plaintiffs “are not challenging the citizens’ initiative ballot process in Colorado. If your argument is this case is the same case as (in the earlier ruling) … I don’t see it that way.”
Martinez then put Rundlet on the spot: Could a court declare voters had gone too far, he wondered, if they passed an initiative that abolished the legislature?
We’ll let Hoover pick up the story: “There was a long pause before Rundlet replied. ‘My answer to that would be “no,” ‘ she said, adding that Congress would first have to decide whether that violated the republican form of government.”
Now, that’s a solid off-the-cuff response by Rundlet, since it preserves the principle she was defending: this is a political question beyond the jurisdiction of the courts. But a more uninhibited answer might have gone something like this:
“Come on, judge. Coloradans are no more likely to abolish the legislature than they are to pass a measure setting up a monarchy with Tim Tebow as king. Coloradans know they can’t put every legislative issue to a popular vote. And they’ve never done anything remotely as radical. The legislature is in session right now and it’s very busy.
“But if you’re asking whether pure popular democracy is compatible with republican government as the Founders understood it, then the answer is, ‘It depends.’ Colorado’s population today is two-thirds larger than all 13 colonies combined in 1776, so of course the Founders might have been staggered by the idea of popular democracy on such a scale — which, remember, absolutely no one in Colorado has proposed.
“Meanwhile, though, the Founders admired many historical governments — in Athens and other cities — in which free citizens (a more restricted category than today, of course) approved a much wider variety of pending legislation than occurs anywhere in America.
” ‘Democracy’ and ‘republic’ were not clashing concepts in the Founders eyes, your honor, despite what the plaintiffs seem to think and despite a single lament by James Madison in Federalist No. 10 about ‘pure democracy.’ If there were more evidence available for this lawsuit’s peculiar claim, you can be sure you’d have seen it.”
Martinez to the contrary, the anti-TABOR plaintiffs are in effect challenging the foundation of many ballot measures. As the attorney general’s office explains in one of its court filings, “Plaintiffs have offered no principled, non-political, non-ideological basis for asserting that raising taxes is a power more important to state governments than any other of their plenary powers.”
So if TABOR violates the guarantee of republican government, then opponents of other citizen-passed measures are sure to make a similar case. For example, the anti-TABOR litigants also complain about the measure’s spending limits. But if spending limits undermine republican government, then surely spending mandates do too. So goodbye Amendment 23, for starters.
This week’s hearing was only to consider a motion to dismiss the lawsuit, so Martinez’s hostility toward one of the state’s key arguments doesn’t mean he’ll eventually overturn TABOR. But it’s not a good sign, either, for those who resent the plaintiffs’ paternalistic theory that too much democracy is intolerable.
E-mail Vincent Carroll at vcarroll@denverpost.com. Follow him on Twitter @vcarrollDP
