Hal Bidlack
I’ll admit that as I sat down to write today’s missive my first thought was to offer some angry rant on the recently leaked Supreme Court (SCOTUS) opinion overturning Roe and Casey. I’d like to muse about whether a certain three new justices should resign or be impeached for lying (to Republican senators) about their public and private assertions that Roe was settled law.
I’d like to rage about the people who just couldn’t bring themselves to vote for Hillary in 2016, because, you know, her emails, resulting in the three Trump SCOTUS appointments noted above. I’d like to further fume about the fact that we must now accept that the Supreme Court is now, clearly and fully, a partisan branch of government, and that’s a shame.
But I’m not going to write about any of that… (Ed: whew).
Instead, I’d like to talk about a small and highly technical legal issue winding its way through our court system (Ed: better…?).
A recent Colorado Politics story noted that the Colorado Supreme Court is now considering a law suit that challenges the legality of a measure voted into law by 58% of Colorado voters, the Colorado Paid Family Leave and Medical Leave Insurance Act (FAMLI).
What’s the complication, you might ask, given the very strong voter support?
Well, of course, it’s TABOR.
If I were back at the Air Force Academy still teaching political science, I’d use TABOR as a great example of an idea that sounded good, but when actually enacted had a whole slew of unintended consequences. I don’t intend to re-litigate that crazy addition to our state’s constitution, but simply said, it is an anti-government provision hiding in sheep’s clothing, as it pretends to be a brake on reckless government spending.
The measure that the good people of Colorado voted on, Proposition 118 — the FAMLI Act, passed last November by a wide margin. The Act basically tries to catch Colorado up with most of the rest of the civilized world. The law creates a right for up to 12 weeks of paid leave for new parents, families facing a medical crisis, families of military members deployed overseas, survivors of domestic abuse, sexual assault, stalking and other bad things. The law is certainly complicated and will be phased in, but the basic core of the idea is to help families during tough times. You know, family values.
But a construction company in Grand Junction sees things differently and seeks to employ TABOR as a means of preventing these needy Colorado families from seeing dime one. As you may recall, TABOR puts limits on the taxing power of the state government. Just how much and in what way those limits exist are still being argued. The proponents of the FAMLI Act state that the costs levied on payrolls is a fee to pay for a specific program. Such fees are therefore not tax increases and therefore are not impacted by TABOR. The construction company sees it different, apparently arguing that any fee is actually a tax and therefore not allowed under TABOR.
The State Attorney General sees it differently. The State is arguing that a premium on wages is allowed, because there is a service (the leave) that directly comes to the employees involved. Further, the State argues that TABOR only applies to income tax law changes, which this fee does not touch.
I’m not a lawyer, and so have no expert opinion on this issue. I do, however, have a gut feeling that helping fellow Coloradans in crisis is a good and honorable thing to do, much like, well, nearly everyone else globally. Of the 41 countries that are members of the Organization for Economic Cooperation and Development, only the United States does not offer some form of family leave. Heck, of the roughly 193 nations on Earth, only six others do not offer such leave. The other countries not offering leave are: Papua New Guinea, Suriname and five tiny island nations in the Pacific Ocean including Micronesia, the Marshall Islands, Nauru, Palau and Tonga. Is that the standard we want to follow?
One’s view on TABOR reflects, I suspect, one’s attitude toward government at large. One of the siren songs of the Republican Party has been the call to reduce or nearly eliminate the government at all levels. And yet, when in power, the GOP tends to increase the reach of government. The SCOTUS decision on abortion is yet another example of the GOP wanting a government to be large enough to peek into your homes to make sure you are not doing something that they consider wrong or immoral. We see Republican state legislatures passing laws that forbid the teaching of certain parts of our history, banning books that might teach critical race theory (which, again, is NOT being taught outside of a few law schools). They’ve passed over 30 laws to reduce the ability of citizens to vote, while yelping about non-existent voter fraud (and they know they are lying). But I digress…
The Colorado Supreme Court will have to rule on the technicalities of the FAMLI Act regarding TABOR. I don’t know what they will do, but I am happy that it is our state’s high court, and not the SCOTUS, that is making this ruling.
We’ll soon know if Colorado will be keeping company with the 186 advanced nations of the world, or if we prefer the company of Suriname and alike.
Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.