DAVID SKAGGS.
TRANSCRIPT of OH 1903
This radio program was recorded for KGNU’s “A Public Affair” program and aired in 2012.The interviewer is Richard Kiefer. The interview was transcribed by Dolly Gavino.
ABSTRACT: Former Congressman David Skaggs is a member of a legal team which has filed a lawsuit in federal court to restore representative democracy in Colorado, the argument being that the constitution mandates a “republican form of government,” not a direct democracy. This lawsuit is aimed at undermining TABOR, the Taxpayer Bill of Rights, passed by initiative in 1992, which strips Colorado’s legislative bodies of the power to raise revenue; revenue may only be raised by direct vote of the people. Referring to the study by the DU Center for Colorado’s Economic Future, Congressman Skaggs maintains that by sometime during the next decade, under the current tax structure of the state, revenues would be sufficient to deal only with Medicaid, prisons and a reduced amount of support for K-12 education. He discusses the value in having governmental policy created by legislators with knowledge and skills to evaluate complex governmental issues.
NOTE: The interviewer’s questions and comments appear in parentheses. Added material appears in brackets.
[A].
00:00 (David Skaggs is here. He is a lawyer, law professor, former congressman and a strategic advisor to the law firm of McKenna. Long & Aldridge. Congressman Skaggs has served three terms on the Colorado State House [of Representatives] and six terms representing Colorado in the United States House of Representatives. He is a member of a legal team which has filed a complaint or lawsuit in federal court to restore representative democracy in Colorado. I’m pleased to have you on this program this morning. Thank you.)
Nice to be with you. Thanks.
(I’m going to read just a brief bit from your complaint. This sort of summarizes, I think, what you’re after. The purpose of this case—quoting, “The purpose of this case is to seek a ruling that the TABOR amendment to the Constitution of the State of Colorado is unconstitutional because it deprives the state and its citizens of effective representative democracy, contrary to a Republican form of government.”)
(So tell us how TABOR actually deprives us of representative government?)
Well, this goes back to really the roots of the United States and the founders’ idea of what kind of government we were going to have when they were working on the Constitution
OH 1903, interview with David Skaggs, page 1 of 9 in Philadelphia in 1787. As you may remember the story, at the end of the Constitutional Convention, Ben Franklin was emerging onto the streets of Philadelphia and a local woman asked, “Dr. Franklin, what have you got for us?”
And he answered, “A republic, madam, if we can keep it.”
So this lawsuit is about keeping the republic. What does that mean? It’s not entirely clear from the founders’ writings. What we believe is contemplated in a republican form of government guaranteed by the U.S. Constitution is a representative democracy, and the legislature—or the City Council or the County Commission—legislative bodies generally—must have the effective powers to meet their responsibilities. This is not a sham where we have a kind of unrealistic exercise in legislative power but one in which we expect our representatives to be able to do their jobs. TABOR, to get to the point of the case—
(–which is the Taxpayer Bill of Rights.)
Taxpayer Bill of Rights is the—the acronym is now TABOR—
(And we’re at the 20th year, I think, right 20 –)
Passed by initiative in 1992, correct. TABOR deprives all of our legislative bodies—the State Legislature, County Commission, School Boards, what have you—of the power to raise revenue. The only way we can do that in this state now is by plebiscites—so, votes of the people. And this is not meant to at all disrespect the rights and responsibilities and intelligence of the voters but to recognize the essence of what representative democracy was intended to be about.
(Exactly what does TABOR stipulate?)
It does a number of things but the big ones are—one, no revenue raised except by vote of the people, and secondly, it proposes spending limits on all levels of government. Some of those limits can be removed by vote of the people; so thusly, the concept of de- Brucing [Douglas Bruce, initiator of the TABOR amendment] which many local jurisdictions have done. Ref C, that was passed statewide a few years ago, was a temporary de-Brucing of one of the ratcheting effects on the spending side, but nothing has been attempted or could be really on the tax-raising side.
(So these are just sort of temporary fixes then, I mean this is not—)
Those are, and then we have provisions that have been added to the constitution, most particularly Amendment 23 that provides for a continual ratcheting up of funding for public education K-12—not to suggest that that isn’t important but it does put us in a kind of fiscal vise with things pushed up from below and caps above.
OH 1903, interview with David Skaggs, page 2 of 9
(So is it our financial predicament which has really caused you fellows to produce this lawsuit, or is it more than that?)
Well, it’s hard to precisely dis-aggregate the reasons that a bunch of people decide to bring a lawsuit. I think for many of us, including me, it has to do with the fundamental philosophy of government in this country. I am proud to have been a legislator and believe that legislatures, whether at the state, or city, or federal level, actually are important vehicles for working things out in a big and complicated society where people have to debate and listen to each other and have hearings or work out compromises, and that that is the value, in fact, that Madison and the fellows in 1797 expected legislative bodies to perform. We’ve gotten rid of that with regard to the revenue side of government. Certainly the shortfalls in funding for education—higher education—any number of other things, I think, is also part of the motivation for many of our plaintiffs who are Republicans, Democrats, office holders, citizens, you name it.
05:31 (And the list of plaintiffs, I notice, is quite extensive. I mean, you’ve got like 20 or 25—)
We’re up in the 30s actually.
(Oh, really? OK.)
Most of them, I think, either have been or currently are involved in education at one level or another so if there is a leitmotif to our plaintiff’s resumes, it’s education. I had the privilege of running the Department of Higher Education for Governor Ritter for a while, and that certainly brought me face to face with the fiscal issues facing higher-ed.
(It seems like your argument hinges on the definition of republican government.)
That is right.
(And is that well defined? I mean, what do you mean by the word republican and republican government?)
Well, it is not well defined. We think it’s adequately defined. James Madison and Federalist Paper #10 goes through a wonderful exposition and explication of what a republic is, and he contrasts it quite clearly with direct democracy and goes on to spin out what he believes—and, I think, what the founders had in mind—as the virtues of representative institutions. And it has to do with that notion of bringing together a group of citizens chosen by their peers that wish to devote themselves particularly to the business of the public sphere and are prepared to take the time and apply the expertise to do that in behalf of their fellow citizens.
(It’s not possible for all of us to be an expert on every subject so with—the idea is we delegate the responsibility of understanding issues to representatives, I suppose.)
OH 1903, interview with David Skaggs, page 3 of 9
I believe that is a central concept to this, yes, sir, and it unfortunately, I think, flies in the face of some public misconceptions about government these days, no doubt derived from the lousy job that the Congress is doing much of the time and the sense that, you know, “This doesn’t take any special knack, I could do that just as well as those guys.” In fact to do it right, I think, you do have to have some expertise and devote special time and attention to public issues which tend to be pretty complicated. And again to work things out in a way that can be sustained in a diverse society, you need to bring representatives together to talk it out and figure it out and solve it.
(The notion behind TABOR, at least part of it, is that the people are better off making decisions than representatives who are beholden to lobbyists and special interests. That’s a pretty attractive idea. I mean, how do we get rid of the lobbyists and special interests?)
It is a question, I think, more of how do you keep them in proper perspective. I will actually hazard to raise a bit of a defense in behalf of lobbyists—people will say, “Well, you are one part of the time,” which is true. But when I wasn’t one, when I was a legislator, even though I spent all my time on these issues and had some staff to help me figure them out, what you certainly don’t want is a legislator making decisions sort of in splendid isolation from the realities, the consequences of what a particular bill or idea would cause. So lobbyists are sources of information. There are public interest lobbyists. There are corporate lobbyists. There are all kinds of lobbyists. But the idea is that they tell you what they think the results of your pending decisions will be, and I would hope the public would want legislators to in fact have that kind of information to help them make up their minds. So that’s just an ingredient in this messy but, I think, ultimately pretty rich process by which a bunch of people struggle with finding the right answers.
What you get by contrast, I think, with the initiative process is an oversimplification—a one-simple-answer proposition to what are often very complicated problems such as, let’s let everybody vote on taxes. Terribly appealing idea, but when you start to look at what it contemplates—
10:10 (It may be the unintended consequence—)
Yeah, yeah. For example, right now, if you talk to legislators sitting in Denver, they’ll tell you, “We can’t even consider repealing a tax that we think might be—have outlived its usefulness— because we can’t replace that tax revenue, which we desperately need to balance the budget, with something else.
(Because of TABOR.)
Because of TABOR.
(If TABOR is actually unconstitutional could our legislature just simply ignore it?)
Well—
OH 1903, interview with David Skaggs, page 4 of 9
(And just move ahead?)
I think in some sort of law school theoretical sense, perhaps so, but that would just precipitate a lawsuit that would challenge whatever they did and our lawsuit is essentially trying to do that in advance way rather than an after-the-fact way which—
(So the resolution’s going to be in the courts no matter what.)
Well, the alternative will be suggested anyhow that, “Well if you guys don’t like TABOR why don’t you go back to the people and have them repeal it?” Interestingly there was a further amendment to the state constitution passed after TABOR that provides that any amendment to the state constitution brought by initiative or referendum can be limited— must be limited to a single subject. TABOR involves several different subjects so you can’t now simply wipe it off the law books if you wanted to by an initiative. You would have to go after its several pieces. So it cleverly has been protected from simple repeal by other provisions of the constitution.
(So it takes several votes to get rid of TABOR?)
That’s the way the experts view—)
(In theory.)
Yes.
(We’ve had discussions on this radio station about the condition of the budget of the state of Colorado going forward, and there was an analysis done at the DU Center for Colorado’s Economic Future which shows that there’s a huge budget shortfall, maybe 25%, by 2025. The suggestion is that the taxing mechanism in this state needs to be changed from taxing stuff to taxing services. Does TABOR prevent that?)
TABOR prevents any change in the tax structure of Colorado except by vote of the people. So we are living now with a tax structure ossified in its 1992 form. You know there are some workarounds that the legislature’s done with fees, which are not taxes, although that gets to be a little bit of a semantic exercise, but to deal with the tax structure of this state, the only alternative under TABOR is to take it to the people. That University of Denver study that you refer to, as I recall, indicates that by the early part of the next decade, nobody knows exactly when, under the current tax structure of the state the revenues would be sufficient to deal only with Medicaid, prisons and a reduced support for K-12 education.
(Right.)
Everything else is gone.
OH 1903, interview with David Skaggs, page 5 of 9
(Of course we have a balanced budget situation in Colorado, right? So that actually won’t—we will balance the budget each year. We’re not going to not pay bills. It’s just that everything else will be reduced in its funding source I suppose.)
Right. And the constitutional requirement for a balanced budget has been adhered to through all administrations. So yeah, it’s just that the vise keeps tightening and, I think, the proposition that it would be prisons, Medicaid and something for schools really reflects what people assume to be the priorities that the then legislature would likely fund.
(If we’re dependent on a representative form of government, how do we get good people to serve as representatives? It seems like we’ve got to have good people in those positions.)
Yes, sir. Well, I think we need to change our political culture a good deal. It really is rooted, I believe, in the extent to which our population understands its own form of government and has a high regard for it and is willing to make the kind of commitments of time and attention that it takes for this to work. The founders understood right off the bat that this experiment depended upon an educated population. It’s the original reason for free public education in the United States, because we needed an educated citizenry to make a representative system of government work.
We’ve neglected that part of the K-12 curriculum in the country now for a generation- and-a-half or more so, you know, I talk to student audiences and others all the time about these things and you ask for a show of hands about how many of our age or younger or kids in school have had more than a semester of government or civics or however you want to title it in high school, and it’s not a large proportion.
So we are under-educating our population for their citizenship responsibilities. And it’s complicated business as, I think, with anything if you don’t understand it, you tend to pay less attention to it—it confuses, it perplexes and it frustrates and it creates its own sort of dynamic of cynicism and that makes fewer people, those good people that you say we need to get into office, willing to put their names forward. And then you have the media that enjoys finding something wrong with each of us who runs for office. It’s tough.
16:10 (So the incentives aren’t strong to enter public service and stay there, I suppose. I mean you’ve served many terms both in Colorado and in the—)
Well, and fortunately, we do still have very good people from all the parties that want to do this but probably not enough and, I mean, it’s not as if you do it to get rich. The rewards are not monetary.
(Unless you become a lobbyist later, I suppose, right?)
OH 1903, interview with David Skaggs, page 6 of 9
Well, and even then I don’t know that—it’s not my definition of how to make a lot of money. What I think it does require is a certain pragmatic idealism about the society. Idealism because you have to, I think, have some aspiration to public service and pragmatism because it’s, you know, it’s the real business of solving problems.
(And you do have power in public office. I mean you have the ability to effect something really significant, I suppose, right?)
I mean, absolutely.
(And in many cases.)
Absolutely.
(You’re talking about big numbers, big budgets, lots of people are affected.)
And one thing that comes to mind, especially here in Boulder, is when I was in the Congress I got to work on wilderness legislation, and what could be a more wonderful thing to have as a little bit of a legacy of public service is to have protected some of our most magnificent lands forever. So there are those sorts of gratifications that are, I think, very important to most of us.
(In your lawsuit are you seeking to get rid of the referendum or just TABOR?)
Absolutely not get rid of the initiative and referendum process, and that’s a characterization—almost a caricature that the Attorney General [John Suthers] has tried to place on our case.
(There is a slippery slope argument though, right?)
There is the argument, of course. Is it valid? No. It happened that TABOR was passed by initiative, and it happens that it requires sort of initiatives in perpetuity to deal with tax issue, but the reason we are challenging TABOR is that it has changed the fundamental structure of our government from a representative democracy to something else. Article IV, Section 4, of the U.S. Constitution guarantees to each of the states a republican form of government as you pointed out earlier. The definition of that is not laid down precisely, but we think we can show what that means. And a little known feature of Colorado law and history is something called the statehood enabling act that was passed by Congress in 1875, and that also says, “In order to become a state, Colorado has to have and maintain a republican form of government.”
(Does the decision in the Lobato—the recent Lobato case help you, and maybe you could just tell us what that case—)
Well, I’m not involved in that case as a lawyer. Basically it says that the state’s system of funding its P-12 education system violates another provision in the state constitution
OH 1903, interview with David Skaggs, page 7 of 9 requiring a thorough and uniform system of public education. At the practical level, as I understand it, the Lobato decision has found that there simply is inadequate money being put into education. Interestingly, the state Attorney General in appealing that trial court decision a few weeks ago has said that it needs to be able to show that TABOR is what gets in the way. So the connection is that TABOR blocks the ability of the state to fulfill the requirements that Lobato—the trial judge in Lobato said we have to fulfill.
20:08 (So is that a favorable—is that something favorable for your argument? Is the general financial problem part of what you’ll be arguing in the case?)
When we get to trial, then on the merits we will have a chance to demonstrate what the real consequences of TABOR have been, both in sort of theory of government terms—is it a republican form of government or not? And the practical mechanisms of decision making.
(Just to be clear, who are you—who is filing this lawsuit?)
The group of plaintiffs, 34 in number, are current office holders of the state and local and school board level, again many of them involved in education in one way or another, a number of citizens, many of whom used to hold office—many of them involved in education, and several general-purpose citizens who have felt that their rights as citizens of Colorado have been undermined by TABOR. It’s—I think of the 34 plaintiffs, 12 or 13 are affiliated with the Republican party and the remainder with the Democratic party, maybe a couple of independents.
(And your—the law firm with which you’re associated is providing the legal support.)
Well, there are teams of lawyers from two firms. The firm I’m with, McKenna Long & Aldridge, and then a team of three lawyers from Brownstein, Farber, Hyatt, & Schreck [Brownstein, Hyatt, Farber, Schreck, LLP] are also involved in the case, so both of our firms are supporting this as a pro bono matter.
(How long do you think it’s going to take to get this thing through the courts?)
My—
(Just a guess.)
I think it’s a three- or four-year case. It’s going to go up on appeal perhaps all the way to the Supreme Court at some point, so it’s going to take some time, and we’re still at the beginning.
(Has anything like this been attempted before?)
OH 1903, interview with David Skaggs, page 8 of 9
This is, as far as we know, the only sort of direct attack—certainly it’s the only time in Colorado that this has been brought to court. There are some other cases percolating around the country that deal with other similar provisions that have been passed by initiative that are kind of first or second cousins to what we’re doing.
(Because there is nothing comparable to TABOR in another state, right?)
That is right, and it’s the one reason we think we have a strong case. There’s no other state has completely deprived its legislative bodies of the power to raise revenue.
(When you look back at your experience in the 1980s, are we in better shape, worse shape? You were involved in these sorts of decisions back then. What’s the general condition of the way we’re making our financial decisions in Colorado?)
To use one of the usual metaphors, we’ve cut the fat, we’ve eliminated a lot of the muscle, we will be at the bone fairly quickly.
(Do you think state government is operating pretty efficiently now?)
Efficiency is a sort of unnecessary product of extreme financial duress. I sometimes refer to laboratory studies in which rats that are put on starvation diets do very well until they die.
(So you think we’re nearing that. Well, we’re not going to die but—)
We’re not going to die, but we need to wake up and realize that in what, I think, is this mistaken infatuation with letting the people decide how they’re going to be taxed, they not surprisingly have not wanted to be taxed enough to provide the services that they want. So legislatures need to reconcile the excess of wants with the insufficiency of means.
(Well, David Skaggs, thanks very much for joining us.)
You’re very welcome. Thanks for doing this.
24:10 [End of interview.]
OH 1903, interview with David Skaggs, page 9 of 9