With the support of a legal brief drafted by former state Supreme Court justice Jean Dubofsky, SB 228 overcame initial concerns that it would unconstitutionally lift caps on spending without the voter approval mandated by TABOR, Colorado’s Taxpayers Bill of Rights.

It then outlasted an historic GOP filibuster in the Senate, moving to the House amazingly intact.

There, it benefited from the navigation of Marostica and Court and was lifted by Gov. Ritter’s support for amendments on two of the thornier points opponents raised in considering the bill. The amendments increased the state’s “rainy day” fund and put aside money for transportation funding.

Now law, the bill will restore budget decision-making power stripped nearly two decades ago by the state’s so-called Arveschoug-Bird provision, a formula which automatically transferred revenue out of the state’s General Fund each year for transportation and state building construction projects. As state revenues dwindled with the recession, Arveschoug-Bird effectively protected transportation and capital construction at the expense of all the other programs run by the state, including those providing health care, public safety, job retraining, special education and childcare.

The Arveschoug-Bird formula was in effect choosing pavement over people, as some observers put it. Today, the reign of Arveschoug-Bird effectively came to an end.

Will that mean that somehow, despite the parameters set by TABOR, spending will balloon, as SB 228′s GOP detractors have argued? Will it mean more-enlightened spending? Will it translate to greater lawmaker accountability to Colorado voters?

Stay tuned.

Gillespie bases his thought-piece on an Economist article, which he interprets as providing evidence of the budget sanity and winning battle going on here against taxing and spending. He refers readers to the Independence Institute for further investigation.

Laugh.

He clearly knows not a single thing about the Colorado budget woes so brilliantly on display this past legislative session. The “rainy day fund” he believes saved the day for us here and which he suspects TABOR made possible by instituting “fiscal discipline” is in fact the tobacco tax fund raided when an earlier plan to raid workers compensation insurer Pinnacol was taken off the table.

The tobacco tax fund was no rainy day fund. It was a fund voted on by the citizens to pay for vital preventive health programs and services. The tobacco fund was robbed this year. It had to be robbed. And some other fund will be robbed next session because, as all of us who live in the state have come to know, the state budget created by TABOR does not work.

TABOR is a good idea, on some level, from the perspective that emphasizes the citizens’ right to direct control of government. It makes Republicans feel good and gives Reason editors something to bloviate about, clearly. But it doesn’t work — or it only really works at turning lawmakers on both sides of the aisle into workaround artists.

The Economist article that has Gillespie Colorado dreaming also mentions the Arveschoug-Bird 6 percent “cap” or “allocation strategy,” etc. Whatever you want to call it, Gillespie doesn’t know that Arveschoug-Bird was essentially denounced by its co-author as clumsy and ill-conceived and was overturned this year by a bill bravely cosponsored by Democratic state Sen. John Morse and Republican state Rep. Don Marostica.

Gillespie and his cheer-leading readers should know that Arveschoug-Bird limited discretionary General Fund revenues for almost all the programs in the state, in fact working to decrease those funds substantially. The 6 percent provision ratcheted down the General Fund each year revenues dipped and kept it down for years even as the population in the state increased and the needs for services expanded.

Gillespie says “state budget woes are almost always the result of spending problems, not revenue issues” and that may be so. We certainly do have “spending problems” in Colorado, only not necessarily the kind Gillespie is referring to.

We have the kind that sees our relatively wealthy state spending at the kind of low level on social services — schools, health care, childcare, Pre-K, public security, job training, unemployment benefits, veterans care– that places Colorado in a class with the struggling states of the old south.

That may sound like plain old bleeding-heart nonsense to Reason’s readers. But you can bet Nick Gillespie and none of the other Reason writers or editors live in Alabama or are dreaming of moving there any time soon.

Sponsored by Colorado Springs Democratic Sen. John Morse and Loveland Republican Rep. Don Marostica, the bill inspired exasperated attacks in the Senate that culminated in an historic GOP filibuster, where members of the minority party argued the bill was an unconstitutional attack on voter-mandated spending limits and that it would drain the state’s transportation fund.

But the bill’s proponents, especially Morse, argued persuasively that business as usual was no longer good enough, that proposing temporary fixes every year to fund state programs other than transportation would simply not do. He argued that lawmakers needed to reclaim the responsibility to allocate the state’s shrinking revenues.

Senate Bill 228 repeals the so-called Arveschoug-Bird 6 percent formula, which automatically drops a certain percentage of revenue into the state’s transportation and construction fund each year. But there are no special funds for other essential state programs — for education, health care, public safety and job training programs, for example. Indeed, as SB 228 supporters have argued, nearly all of the other programs in the state have been left to share out money from the state’s discretionary General Fund.

In addition, by calculating the annual amount for the General Fund as a percent of revenue generated the previous year, the old 6 percent formula has meant that it takes years to climb out of recession-level funding, forcing lawmakers to make difficult public-sector cuts even as private-sector employment climbs, stalling across-the-board recovery in Colorado.

Morse and Marostica’s bill enjoyed support from big names at the Capitol, including Gov. Bill Ritter, Speaker Terrance Carroll, House co-sponsor Rep. Lois Court and former Supreme Court Justice Jean Dubovsky.

Although no amendments to the bill were introduced in the Senate, anticipated compromises were made in the House. The final version includes provisions that upped the state’s rainy-day fund and that continued to specifically provide funding for transportation and state construction.

Budget analysts applauded the work of the bill’s sponsors and supporters.

A statement issued by Colorado Fiscal Policy Institute Program Director Kathy White celebrated the bill and the coalition that came together to pass it:

For years, Colorado has fallen prey to outdated fiscal policy that imperiled our ability to withstand and recover from economic downturns. This bill is an important step that will help us make quick, strong recoveries and move us closer to having all of the state’s priorities on a level playing field.

Instead of relying on the failed fiscal policies of the past, the Legislature’s support for SB 228 shows that a broad coalition of different stakeholders can work together to fix what is broken.

Although the ground covered by advocates of the bill in turning attitudes and winning support in just the two months since it was introduced is remarkable, the battle to make it law is not over. The House-amended version now moves back to the Senate where it must be approved again — a process known as concurrence. SB 228 will certainly again face opposition by Senate Republicans, who may try to further amend it.

Republican lawmakers have threatened to challenge in court the constitutionality of the bill should it pass.

As The Denver Post reported Tuesday, the bill, which passed out of the Senate last week, is headed in the House directly to the Transportation and Energy Committee, a revealing legislative path.

Although SB 228 generally concerns the state budget and was introduced by Morse in February to the Senate Finance Committee, the bill seeks to repeal a 1991 provision that automatically allocates revenues beyond 6-percent growth per year to state road and building projects.

In a recession, when there’s little or no growth, the 6-percent cap dips significantly, shrinking the state budget year to year and effectively extending recessionary hardships in the state long after other parts of the country have recovered.

Morse and the bill’s supporters have argued that SB 228 aims to place responsibility for prioritizing state projects back into the hands of elected officials, who would have to answer why, for example, they are choosing to fund health clinics or jobs programs instead of bridges or university research centers.

Although Republican senators strongly opposed the bill as an unconstitutional degradation of fiscal responsibility, the 10-hour filibuster they mounted to register their opposition focused almost entirely on the tax dollars the bill might take away from the road construction projects planned for their districts.

The debate underlined the reality of how government spending priorities have been established in the state.

“It’s earmark government,” deadpanned Scott Downes, communications director at the Colorado Center on Law and Policy.

That SB 228 went not first to the House Finance Committee, but to Pueblo Democrat Buffie McFayden’s Transportation and Energy Committee, makes the point even stronger. And McFayden, to her credit, was unabashed in admitting as much.

This from the Post:

Republicans fought the bill bitterly in the Senate, saying it was unconstitutional and would steal highway dollars. It passed on a straight party line vote in the Senate, but some of the Republican arguments there have found traction with House Democrats.

McFayden and others have said they would prefer the bill preserve some kind of funding for transportation and capital construction projects. She also said it might make sense to add language creating a rainy day fund.

McFayden said there’s been no shortage of suggestions on how she might modify the bill. Heavy contractors and business groups have opposed the bill because of its effects on highway funding.

“We’ve been the hardest lobbied committee in the House,” she said.

“It may be the long way round, but as long as [SB 228] keeps advancing, Colorado has a better shot at a quick and strong recovery from the recession,” said Downes.

At the site, Stapleton admits only that he’s a Colorado “real estate businessman” and an “experienced real estate investor.” He doesn’t say that his other first cousin, Neil Bush, was also at one time a “Colorado real estate businessman,” the one who headed the famously corrupt Silverado Savings & Loan in the 1980s, which went belly up after serving as basically a front company for Neil and his moneybag “Colorado real estate investor” pals Bill Walters and Ken Good.

Nor does Walker, who was named after his famous cousin, mention that he was married (to a woman named Jenna Bertocchi, another Jenna in the family) in Kennebunkport, Maine, three years ago as hundreds of peace protesters marched outside the ceremony held at the Bush-family’s “Walker Point” compound.

If Stapleton’s anti-SB 228 site is any indication, the man is pure Bush. As the “author” of the site, he seems to know nothing personally of SB 228 except that knee-jerk Republicans are supposed to oppose it. He rehashes in bold strokes the exact talking points aired repeatedly and to little effect by the GOP senators who have stood against the bill the past month, and he used the Senate Republican email list to spread news of the launch of the site.

Here’s a taste of all he has to offer:

The endless crusade at the Capitol for ways to grow government and spend your tax dollars marches forward. On March 17, the State Senate approved SB228, a bill that has a singular purpose—unchecked growth of government spending.

Not a word of that paragraph is true, except that SB 228 was approved yesterday. Read it again aloud with a Dubbya-style Texas drawl, though. It sounds better that way.

State Sen. John Morse at the podium is joined by his House colleague Rep. Don Marostica and former Supreme Court Justice Jean Dubovsky at a Feb. 19 press conference. (Photo/Wendy Norris)

Opponents of SB 228 in the Senate, including anti-tax Republicans who said it violated Colorado’s Taxpayer Bill of Rights amendment, tried to kill the bill through a 10-hour filibuster two weeks ago on its second reading and by adding amendments that would have essentially neutralized it. Those efforts, including an unusual move by Minority Leader Josh Penry, R-Fruitia, to introduce an amendment during the bill’s final reading on Tuesday, all failed.

In the end, Morse was able to stand his ground on the bill and didn’t make any compromises with Senate Republicans so the legislation could be handed off to House co-sponsors Don Marostica, R-Loveland, and Lois Court, D-Denver, as unchanged as possible.

“We wanted [House members] to see the bill intact, to understand what we’re trying to do with it,” Morse said.

Marostica said the intention now was definitely to “slow the process down” so that a careful compromise can be reached in the House.

“So far I haven’t seen a deal that will work … but I have put out calls to constituents and colleagues,” he said. “We’ll consider [the bill] carefully.”

Referring to the rainy-day fund and set-asides for transportation pursued in the last week by the GOP senators opposing the bill, Marostica said that “there’s room [to talk] about all of that.”

Court said that despite the partisan battle waged in the Senate, the bill was a practical way to “strengthen representative government” by returning the responsibility to elected officials to choose which programs to fund each year and at what levels.

“I’m a ‘D’ and he’s an ‘R’,” she said pointing to Marostica. “This isn’t about partisan politics.”

In opening the rally, Morse quickly shifted the focus to Marostica.

“The best thing I did was to choose Rep. Don Marostica to co-sponsor this bill,” he said not a minute into his prepared remarks.

Marostica nodded his head in response as scattered applause and hoots bounced around the lobby.

“We have misinterpreted our constitution for 18 years,” Morse also said. “That’s a lot of history, and it takes a lot to say we made a mistake.”

Budget reform bill 228 passed the Senate this morning after roughly three hours of back and forth on the chamber floor, where GOP senators renewed the same objections they voiced to no effect during the vote held two weeks ago — objections that the bill is unconstitutional and will lead to greater taxes and big government, et cetera.

Today, though, the GOP refuseniks apparently agreed beforehand to hammer at one specific talking point. They took turns speechifying that 228 would turn Colorado into California by unleashing a mad spending spree on entitlements that would run up a crippling deficit.

California is a fantasy to the GOP senators, a cliche not of beaches and beauties but of irresponsible governance and a disgusting, perhaps contagious, generalized licentiousness. To those of us who have lived in the Golden State — the land of Richard Nixon and Ronald Reagan as well as of the Jerrys Brown and Garcia — the senators’ bogeyman California is a joke.

It might surprise them to learn, for instance, that the famous Austrian-born Republican governor of California does not think the Colorado of formulaic budget-spending limits is the model to follow if he is going to rescue his state. In fact, Schwarzenegger is now on a campaign to save California by trying to rid the state of the Colorado-style budget formulas that have dictated for decades how much California can spend and on what programs, formulas like Colorado’s Arveschoug-Bird provision that prevent saving and smart spending and reduce lawmaker accountability, formulas that put in place general fund caps that have removed flexibility to adapt to changing economic realities.

This morning Sen. Shawn Mitchell, R-Broomfield, said SB 228 would “throw the budget open to California-style train wrecks.”

Sen. Greg Brophy, R-Wray — always Watson to anybody else’s Holmes — said SB 228 would “grow the entitlement side of government — that dependency side, that entitlement side that’s been kept in check … that is what has expanded in California. We cannot have that kind of fiscal train wreck in this state.”

By entitlements Brophy can only mean everything other than roads and capital construction that is financed through the state’s general fund, things like police and fire departments and job training programs and schools — things that have clearly grown and developed beyond all reason in California, as Brophy, who has spent so much time studying California’s school system, surely knows.

This is the release sent out by the Republican governor of California’s office in January, as the ridiculously failed California budget became national news:

FACT SHEET
STABILIZING CALIFORNIA’S BUDGET

California must reform how it budgets and spends taxpayer dollars. For a generation, the state’s budget has swung in and out of balance as a result of discrepancies between fluctuating tax revenues and auto-pilot spending. This system is not stable, responsible or in anyone’s best interest. Since taking office Governor Schwarzenegger has successfully spearheaded efforts to take budget-balancing ploys off the table and increase state savings.

[...]

* California’s budget problem is chronic, and driven by two factors:

1. The state historically spends all the money it takes in during years of high revenue growth, leading to unsustainable spending levels in the long run.

2. California has not slowed spending growth fast enough. Automatic formulas will increase spending in FY 2007-08 by 7.3 percent, unless we take action now. Each month California spends $600 million more than the state takes in.

* The majority of spending in the budget is set on auto-pilot. Currently about 90 percent of the budget is tied up with contracts and statutory requirements.

* This “feast-or-famine” cycle and automatic spending threatens the state’s long-term fiscal stability and leaves the most vulnerable residents victim to erratic, unpredictable assistance. Californians deserve better. Since the system itself is the problem, the system must be changed.

Can someone somehow project this release overhead in the House chamber as Colorado lawmakers arrive to debate SB 228? Hanging it there in the air wouldn’t prevent tired objections, of course, but it might help set apart the performance art from the policy making and take any annoying half-baked California references off the table.

(Photo/Eric J. Lubbers, Flickr)

Depending on the Senate schedule, the bill’s sponsor, Sen. John Morse, D-Colorado Springs, and a growing list of supporters are planning a noon rally at the Capitol either to send the bill off to the House with a bang or to bolster support for its passing in the Senate. Outspoken Republican Rep. Don Marostica, R-Loveland, who sits on the Joint Budget Committee, is SB 228′s House sponsor and plans to attend the rally with Morse today.

Passing the bill out of the Senate will be the latest success for Morse’s surprisingly resilient bill. SB 228 has inspired passionate support and opposition since it was introduced in February. Based on a new legal interpretation written by former state Supreme Court Justice Jean Dubofsky, the bill made it through a packed Senate committee hearing and then emerged victorious from a historic GOP filibuster in the chamber. With each hurdle cleared, SB 228 has gained increased momentum.

The budget reform measure has gained speed recently, for example, when opponents admitted that the state’s current budget formulas need fixing and also from the increasing perception among the public — perplexed by Republican responses to the Obama stimulus package — that the free-market anti-government philosophy of the right is ill-suited to deal with the present economic crisis.

In negotiations with Morse last week, Senate Minority Leader Josh Penry, R-Grand Junction, an early vocal critic of SB 228, proposed simply overriding the Arveschoug-Bird provision Morse’s bill seeks to repeal. Penry suggested that instead of repealing Arveschoug-Bird, lawmakers could agree to override it for a number of years in order to resupply the dwindling general fund. Viewed as a half-measure, Penry’s proposal apparently made no headway with Morse nor any of the mounting numbers of supporters he is calling out today for the rally.

Likewise, the 10-hour filibuster that met the bill on second reading in the Senate two weeks ago was meant to demonstrate the seriousness of GOP opposition but turned instead into a satire of “silly season” partisan-deadlock government. Members of the Republican caucus accused Democrats of manipulating chamber rules, and, in a strange turn, GOP members ended up making a marathon case for big-government-style earmark spending on pet projects, including an endless list of bridges and roads and community college buildings, which they claimed would go unfunded should Morse’s bill pass.

“Yeah … the GOP relationship to transportation [that night], I think it was pretty apparent it was not a committed relationship,” said Scott Downes, communications director for the Colorado Center on Law and Policy and the Colorado Fiscal Policy Institute. “The week before the filibuster, the same group voted against FASTER,” he said, referring to the state’s expanded transportation funding bill.

“[Republican Sen. Greg] Brophy was saying [SB 228] jeopardizes any hope of fully funding roads,” said Downes. “But what does that mean? Does he want to spend the $2 billion that transportation asks for each year to the exclusion of everything else?”

That’s probably not what Brophy wants, but he was not alone among the Republicans unsteadily stepping through the framework they had established to oppose Morse’s bill.

Sen. Shawn Mitchell, R-Broomfield, at one point during the filibuster referred to the “other programs” that he said would take funding away from the “vital transportation projects” he was pushing. At the speaker’s podium, Mitchell at one point seemed ready to clarify and expand on his arguments, saying he was opposed to funding the “other programs, like …” but then left off before actually listing those programs.

In Mitchell’s hometown and in cities and voting districts throughout the state, the “other programs” Mitchell and his colleagues keep referring to include all variety of health care, education, child care, special education and environmental sustainability programs, as well as public safety, economic development, business services, veterans’ job training, clean energy programs and more.

Mitchell knows that even hard-core conservatives want to see veterans trained for jobs, for instance, and businesses developed in their communities. Mitchell knows that it’s state tax revenues that fund those programs in thousands of ways, directly and indirectly.

In Mitchell’s hometown of Broomfield, local Economic Development Corporation CEO Don Dunshee said that his office has been getting calls from all over the country, from businesses looking to participate in Colorado’s clean-energy industry, which has been celebrated by President Obama as a prime target for the federal stimulus funding to be channeled through the state.

Dunshee said he is proud of the fact that his office is funded privately, but he acknowledges that some state tax revenues help his work.

“Oh yeah, we’ve probably got six bids out from local businesses for state funding to send workers to our local Front Range Community College for job training. That’s the kind of thing the state pays for, of course,” he said.

Downes said that Republicans opposing SB 228 have made a tactical error, explaining that political posturing has resulted in a bad-faith argument that people can see through.

“A lot of what the opposition is saying is pure fiction. TABOR is the cap on spending and SB 228 does nothing to erode TABOR. … SB 228 doesn’t raise taxes at all.

“And this choice [the Republicans] have set up in opposing this bill, pavement versus people,” said Downes. “It’s a false choice.” Under SB 228, he said, “lawmakers will choose how much to spend on roads and how much to spend on hospitals and high schools. It’s not one or the other.

“People are going to be needing more help than ever. The human costs of the present budget allocation is what you have to look at, and the present law automatically shifts millions away from fundamental programs and services while also shrinking the budget every year, even while we need those services to move people and the state toward increased viability.

“SB 228 has gone further than we anticipated,” he said. “Maybe it’s snowballing and will gain even more support in the House.”

(Photo/Bob Spencer, The Colorado Independent)

What happened to Senate Bill 228, Colorado’s budget reform legislation? After reframing the debate on the state budget, energizing lawmakers for and against, spawning a GOP Senate filibuster and trashing the voice of sponsor Sen. John Morse, D-Colorado Springs, SB 228 slipped offstage — reportedly to star in back-room bargaining sessions.

Reports of the deals Republican opponents of the bill are now proposing underline the momentum the bill is gathering and the strength of the case its proponents have made.

But you wouldn’t know that by reading the glib and tendentious op-ed penned by The Denver Post’s Dan Haley this week. “Bummer, dude,” as Haley says.

Haley’s op-ed works entirely within the framework constructed by opponents of the bill, setting forth from the doomsday assumption that SB 228 illegally repeals the state’s 6-percent cap on spending and that it will therefore end in California-style spiraling deficits and fiscal calamity.

Quick: What separates us from California?

Besides palm trees. And, well, Nevada and Utah.

Answer: A 6-percent state spending cap.

If you think Colorado’s $630 million shortfall is bad, try living in California, where the shortfall is $42 billion and taxpayers may get an IOU this year instead of a state refund.

And they have to live in California.

Bummer, dude.

Or maybe not. The state’s Taxpayer Bill of Rights (TABOR) has effectively set the state budget. SB 228 would merely repeal the 1991 Arveschoug-Bird provision, which Morse has argued persuasively is not a cap at all — no matter how many times detractors such as Haley insist it is — but merely an allocation strategy that dictates how much money can flow into the state’s general fund. It is out of the general fund that the state pays for virtually all of its programs — all except transportation and capital construction projects, which automatically benefit from revenue beyond the annual 6-percent increase allowed to the general fund.

Morse wants to place all the state’s projects back on a level playing field and put the onus on lawmakers to choose each year between funding, say, health care and job training or highways and bridges.

“That’s what we’re here to do,” says Morse, “to respond to changing realities and the needs of our constituents.” Morse has argued until literally losing his voice that we’re currently being ruled by “an arbitrary formula” and not for the better. The Arveschoug-Bird provision not only dictates where money goes but works to ratchet down funding by recalculating the general fund budget each year. Fact is that the Arveschoug-Bird 6-percent general fund annual “increase,” in bad times, is a decrease. In years like this year, as tax revenues dive, the fund falls to levels it will take a long time to raise, long after the economy rebounds.

Now, suddenly, as SB 228 speeds toward the House, Republican leaders seem to agree.

In Wednesday’s badly headlined piece “Alternate ideas halt debate on budget cap,” Post reporter Tim Hoover details Senate Minority Leader Josh Penry’s, R-Grand Junction, wrestling match with the new reality.

Leaders from both parties met Tuesday in the office of Senate President Peter Groff, D-Denver.

[Penry] proposed using an existing override provision in Arveschoug-Bird instead of repealing it. With a two-thirds vote, lawmakers can exceed the 6 percent general-fund-growth limit.

Penry proposed overriding the limit for several years, allowing the general fund to grow when state revenues rebound in years to come.

The final Senate vote on 228 is scheduled for Monday. Maybe all parties will be ready for it then.

Don Marostica, R-Loveland, is the bill’s sponsor in the House.

—
Update: On Friday, the Post published another editorial on SB 228, this one written as the official view of the paper. Less glib than Haley’s “California nightmare” piece, this one muddles through weakly, unable to take a stand on the heart of the matter and willing instead to prolong the state’s budgetary agony.

The title says it all: “A few years of budgetary sanity?”

Note: No one who knows what they want to say writes a headline in the form of a question. It seems clear the Post doesn’t know what to think on this issue.

To begin with, the paper keeps referring without reflection to Arveschoug-Bird as a spending cap. But that’s the question at the center of the debate. Have the editors been listening? Friday’s editorial buys into opposition threats that passage of SB 228 will end in costly litigation and so, the editors reason, it’s better for now just to embrace the kind of half-solutions that see the state dragged along each year by a limping Frankenstein’s monster of a budgetary plan — a patched-together mess brought back from the dead every new fiscal year and paraded in public to frighten and shock intelligent people of every political persuasion.

As the editors concede, SB 228 will not raise taxes by a dime. It doesn’t repeal a spending limit. But the editors can’t take a stand and swerve from one end of the discussion to another.

A central problem with the Democrats’ original plan is that it depends on an interpretation of state law that suggests lawmakers could repeal the 6 percent cap on their own. Opponents say the matter must be settled by a vote of the people because the cap was locked into place by the Taxpayer’s Bill of Rights, and that if Democrats repeal Arveschoug-Bird without a popular vote, they will take the matter to court.

We would much prefer that lawmakers reach consensus, build a coalition and take a proposal to the people. We would rather see a statewide vote settle the matter, as it would avoid the courts and remove any doubt about legality.

Would voters buy such a plan? We see no reason why not. After all, it wouldn’t raise taxes and so wouldn’t affect their own finances one way or the other.

Does the bill blow a spending cap and expand government? Or does it not? Where do the Post editors come down on that key question?

Whether SB 228 is constitutional is very much an open question, but its Democratic and Republican backers are betting it is. Unlike the Post editors, they’re ready to take the plunge and risk a lawsuit if it means restoring the budgetary sanity even the bill’s staunchest critics have clearly come around to admitting is lacking at present.

Known as the 6 percent provision, or Arveschoug-Bird after its original sponsors, the measure says that general fund appropriations can grow by only 6 percent each year. Money over that 6 percent is spent, but it can only be spent on transportation and capital construction.

It’s like having money in your pockets, but being told that the money in your left pocket can only be spent on a new car, while you have to pay for everything else—food, housing, health care, education, and more—with just the money in the right pocket.

Some will question whether the General Assembly can repeal Arveschoug-Bird. And the answer is yes, yes the General Assembly can.

The 6 percent provision simply limits how money is spent, not how much. Under current statute, in a good year, money over and above the 6 percent is still spent, but it’s mandated to be spent on important but inflexible areas, like transportation and capital construction. This hampers vital priorities like education, health care, public safety, higher education, local economic development, and safety net services such as job training.

Although TABOR requires that “limits on district revenue, spending, and debt” cannot be “weakened” without voter approval, the repeal of Arveschoug-Bird would not increase state revenues or spending. Therefore, the General Assembly has the authority under TABOR to repeal Arveschoug-Bird.

We have to keep in mind that for nearly two decades the state has been relying on an interpretation of TABOR from Legislative Legal Services, the legislature’s in-house lawyers, and that Legislative Legal Services takes an approach—as most any attorney takes—of avoiding a lawsuit for its client, in this case the legislature. However, that does not mean that the Legislative Legal Services’ interpretation is correct.

Additionally, after years and years of the legislature transferring money between different funds without going to the ballot, sending SB 228 to the ballot now would set a dangerous precedent. It would essentially mean that any financial transaction would require an election, forcing voters to choose between highways and health care, or between hiring teachers or prison guards. That’s what legislators were elected to do, and SB 228 makes sure they are held accountable for those decisions.

For years, we’ve heard from state officials, policymakers, advocates, opinion leaders, and community leaders alike, that Colorado can’t fulfill vital investment responsibilities because of our outdated constraints. Arveschoug-Bird came about in 1991, at time when even the authors of the provision admit they saw nothing but economic growth ahead for Colorado. Today though, there are economic realities that did not even exist eighteen years ago. Families and businesses must adapt to changing economic factors, and it’s long past time that state government adapts to the 21st century.

Critics of SB 228 falsely claim that repealing Arveschoug-Bird will lead to an explosion of government growth and turn Colorado into California. However, if the 6 percent were repealed, government cannot grow because the TABOR revenue limit would still be in place, meaning government would still only be able to spend what it takes in under the TABOR limit, just as it does now. Moreover, in California, 90 percent of the state’s budget is out of the legislature’s hands, and instead dictated and mandated by formulas, including a trigger for transportation spending.

Repealing Arveschoug-Bird does not raise taxes, it does not increase spending, and it does not eliminate nor weaken the TABOR limit for overall spending or the requirement of voter approval for tax increases.

What repealing this outdated provision does is ensure that we can maximize federal recovery dollars, avoid making current cuts permanent, and strengthen our long-term fiscal health so that we can get out of this recession quicker and so all Coloradans can get back on their feet.

Jean Dubofsky is a former Colorado Supreme Court Justice.