1 for the Money

Interpreting Amendment 1 can be quite a balancing act. On Monday, Fitzhugh Havens took the fall.

Three years ago a tiff between the E-470 authority and Arapahoe County resulted in a lawsuit over how the authority raised and spent money. The state Supreme Court eventually ruled that under the then-new Tabor Amendment, the authority would now have to ask voters for permission to sell hundreds of millions of dollars' worth of bonds to finish the highway project.

To E-470 executive director Steve Hogan, the implications of such a public referendum were mind-boggling. "This project is in four counties, parts of seven different cities and stretches 46 miles," he says. "Who would vote on whether to finish the project? What is our constituency?"

Such a vote could easily doom the project. For instance, Hogan notes that residents of Arapahoe County, whose segment of the road was completed in 1991, would have little incentive to vote in favor of borrowing more money to complete Adams County's portion of the road, many miles away.

Fortunately for the highway authority, when Bruce wrote the Taxpayer's Bill of Rights, he left an out for certain self-sustaining government agencies. After some legal wrangling, it became clear that the E-470 authority, which pays its own way through tolls, could qualify--but only if it agreed to the government equivalent of self-castration.

This past January the highway authority asked the state legislature to take away its power to tax. "It was maybe the first time a government has gone back to lawmakers to be stripped of its taxing powers," says Hogan. The payoff came three months ago, when an Arapahoe County judge declared E-470 exempt from Amendment 1. Hogan says he anticipates selling between $400 million and $1 billion worth of new bonds--without voter approval--within two years.

The most common way local governments try to step outside the boundaries of the Tabor Amendment's financial restrictions, however, is to ask voters for permission to keep their unexpected tax windfalls. "It's the heartbreak of excess revenue," says Broadwell. Despite their heartbreak, many elected officials have not been shy about making the request.

Local governments have asked voters for permission to keep their extra money 189 times during the past four years, according to the Colorado Municipal League. And, contrary to the loud anti-government-growth message delivered by the passage of Amendment 1, taxpayers have overwhelmingly--in 91 percent of the cases--agreed to let government keep it.

Broadwell describes the pattern as "a kind of collective shrug. People are saying that as long as you're not raising our taxes, go ahead and keep the windfall." But that doesn't explain why, during the same time period, voters have often agreed to higher or new taxes.

The apparent contradiction between the public's Tabor Amendment vote and the subsequent decisions to give local governments more money have analysts from the state Department of Local Affairs, the Colorado Municipal League and Colorado Counties, Inc., poring over election results like tea leaves, trying to make sense of what Amendment 1 meant. The big picture remains fuzzy, however.

"Voters will not approve having their taxes raised for new golf courses," offers Lucia Smead, a special districts elections officer with the state's local affairs department. She also says tax questions have a better chance of flaming out on the eastern plains than they do elsewhere in the state.

Beyond that, though, the analysts remain baffled. Why did voters in Colorado Springs permit the city to keep its extra money in 1994 but not in 1995? Why did the voters of Berthoud and Delta shoot down ballot measures requesting permission to keep excess revenue in 1994 but then approve almost identical measures the next year?

Some officials believe the answer is simple: Coloradans were bamboozled in 1992. "I don't think people understood what they passed when they voted for Amendment 1," says Hunt, the Archuleta County manager.

Another explanation is ballot fatigue. This theory holds that citizens are confused by the short, technical ballot descriptions that describe incredibly complex taxing and spending questions, resulting in erratic voting. "There are times when I read these ballot initiatives--and I do it for a living--and I have to put it down and say, 'What are they talking about?'" concedes Smead.

For his part, Douglas Bruce agrees that the high success rate for "de-Brucing" measures means voters are dazed. But he contends that local governments are deliberately creating that confusion. Most of the keep-the-excess-revenue measures have been in small towns, he points out, where voters are less savvy. "We don't have a person in Georgetown to remain vigilant," Bruce says. "There isn't anybody who has read Amendment 1 in Fruita.

"It takes people a while for people to understand they can vote for a tax refund," he adds. "And the government usually words the ballots with something innocuous like, 'We got some extra money--can we keep it?' without saying the second half, which is, 'Or would you like a refund instead?'"

Such initiatives place millions of dollars at stake, as well as local governments' ability to plan their finances. And whenever the stakes are this high, at least one thing is predictable: lawyers. In that sense, at least, the effect of Amendment 1 has been easy to forecast.

"Tabor," huffs Hunt, "has definitely been the legal profession's savior." Adds Broadwell, "There's a small army of Denver attorneys who specialize in Amendment 1."

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