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.