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Natelson: Proposition CC rife with ballot language abuse

The Colorado Constitution’s Taxpayer’s Bill of Rights (TABOR) requires voter approval of most tax and debt increases. It also requires referenda on proposals to waive spending caps.

TABOR’s drafters knew that when officials want a proposal to pass, they sometimes manipulate how it is described on the ballot. For this reason, TABOR prescribes standard wording for tax and debt referenda.

But TABOR does not prescribe standard wording for spending cap waivers. One reason may be that TABOR was supposed to limit spending cap waivers to four years in length. But in 2002 the Colorado Court of Appeals misconstrued TABOR to permit spending cap waivers in perpetuity. This gave money-hungry politicians powerful incentives to skew ballot language in deceptive ways. Ballot language abuse has become a Colorado scandal.

In a prior column I detailed how the ballot language for Jefferson County Issue 1A misleads voters. In this column, I examine the ballot description for state Proposition CC.

If passed, Proposition CC would abolish permanently TABOR’s spending caps for Colorado state government. This is how its ballot language describes it: “Without raising taxes and to better fund public schools, higher education, and roads, bridges, and transit, within a balanced budget, may the state keep and spend all the revenue it annually collects after June 30, 2019, but is not currently allowed to keep and spend under Colorado law, with an annual independent audit to show how the retained revenues are spent?”

Unfortunately, this wording is deceptive in several ways.

First: The phrase, “Without raising taxes” is flatly untrue. Although CC, if adopted, would not raise nominal tax rates, it certainly would raise taxes. Tax burdens are affected by factors other than nominal rates—factors such as allowable deductions, credits, and refunds. CC would abolish refunds payable in cash or tax credits, thereby raising Coloradans’ state tax burden substantially.

Second: Ballot language is supposed to tell you how the measure would change existing law. No one expects it to expound on what would not change. Thus, if the “Without raising taxes” phrase were true, it nonetheless would be irrelevant and distracting. Its only function seems to be to inject a campaign statement into a supposedly-neutral ballot.

Third: The phrase “public schools, higher education, and roads, bridges, and transit” leads the voter to believe he or she is mandating that Proposition CC money go toward those items. But there is no such mandate. Because CC is a statute rather than a constitutional amendment, it does not prevent future legislatures from spending the money anywhere they want. Moreover, nothing prevents lawmakers from cutting expenditures for those items and then “backfilling” the cuts with Proposition CC funds. Legislatures do this sort of thing all the time.

Fourth: The title says additional revenue from CC would “better fund . . .” certain activities. This phrase also is deceptive. If Proposition CC’s money goes to the items listed, then they are more heavily funded. But they are not necessarily better funded.

Why is this? Because experience shows that added funding often does not improve programs—and, in some cases harms them. This may sound counter-intuitive, but it is a fact. For example, as anyone familiar with history of federal “economic stimulus” programs knows, sudden spending hikes may expand the public debt burden and promote waste and corruption rather than improve the economy.

Prop CC’s revenue supposedly would be directed, in part, to K-12 schools and to higher education. Would that leave those programs “better” funded? Not necessarily.

Although education bureaucrats may try to convince you of the contrary, there is substantial evidence that, beyond a certain minimum spent everywhere, there is little connection between government expenditures and K-12 student learning. And higher education has received massive increases in direct and indirect federal aid in recent years—but few objective and knowledgeable observers would claim this has made higher education better. Instead, federal aid has driven up tuition and encouraged colleges and universities to dissipate money on luxury buildings, bureaucracy, and political agendas.

Because more funding is not necessarily better funding, this part of the CC ballot title is also deceptive.

Fifth: The phrase “an annual independent audit to show how the retained revenues are spent” is written to convey a false sense of security—and thereby encourage a “yes” vote. However, the audit does not control how the money is spent. If Prop CC had a time limit and the legislature had to ask voters to renew Prop CC after the audit, then perhaps the audit might have some value. But Prop CC has no time limit. It is permanent. No matter what the auditors report, the spending goes on in perpetuity.

Sixth: The phrase “within a balanced budget” suggests that the legislature need not balance its budget now, but that Prop CC would require a balanced budget. But the Colorado Constitution (Article X, Section 16) already requires a balanced budget. In fact, the balanced budget rule has absolutely nothing to do with Prop CC. The reference to a balanced budget in the ballot language clearly serves only to campaign for a “yes” vote.

Finally, the ballot description fails to inform the reader about facts any responsible voter would like to know. By way of illustration, it does not tell voters that Prop CC would permanently abolish the refunds they are entitled to under the Taxpayer’s Bill of Rights. It does not tell them that future legislatures could spend the money however they want. It does not tell voters how much money the state already spends or how much Prop CC would add.

An honest title for Prop CC would read very differently from the one now on the ballot. An example might be, “May the state retain all the revenue it collects so as to increase state spending beyond the level otherwise permitted rather than refunding excess revenue to taxpayers as mandated by the Colorado Taxpayer’s Bill of Rights?”

Rob Natelson, a retired constitutional law professor, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute. He has extensive experience in ballot issue campaigns.

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