Having read Bill Hudson’s six-part series on public financing, as an Archuleta County property taxpayer who just received this year’s bill I have a comment – and questions. I’ll address those two separately.
First, my compliments to Mr Hudson on his explanation of Certificates of Participation (COPs), and how they have been used to circumvent the Colorado TABOR law to divert my tax dollars from maintaining roads and bridges to public building projects the voters rejected. If all contemporary news reporting were this clear, concise — and relevant to our actual lives — we’d all be better informed. Thank you, Bill.
Having now been educated on the subject of COPs, I have questions.
For instance, what happens if we, the taxpayers, simply say we ain’t makin’ no more payments on the COP? Stay with me here.
Back in my undergrad days, I learned about realpolitik – a German word for “real or actual politics” —defined as “politics based on practical and material factors rather than on theoretical or ethical objectives”. Examples of realpolitik in practice range from US President Andrew Jackson, to Soviet dictators Joseph Stalin and Mao Zedong.
Back in 1830, Jackson signed into law the Indian Removal Act (IRA). It was one of the more reprehensible laws ever passed by Congress.
Under the IRA native-American tribes east of the Mississippi could be relocated to lands in the west set aside for them by the government — by force if necessary. It eventually lead to the infamous ‘Trail of Tears’ relocation of the Cherokee from their traditional homes in the southeast to present-day Oklahoma.
Among the fallout of the IRA was the prosecution of a white missionary, by the State of Georgia, for “residing within the limits of the Cherokee Nation… without a license or permit” from the governor of the State. The objective of the law was to prevent missionaries from assisting the Cherokee in resisting the IRA.
When missionary Samuel Worcester was indicted under that Georgia law his case ended up in the United States Supreme Court. The Court ruled in favor of Worcester — holding that a Georgia state law was unenforceable within the territory of the Cherokee nation that had been created by treaty.
In an illustration of realpolitik, President Jackson is alleged to have said “John Marshall has made his ruling, Now let him enforce it!”
Marshall was the Chief Justice of the Supreme Court, and the quote was supposed to refer to Jackson refusing to use allow federal marshals to compel Georgia officials to comply with the Court’s ruling. There is no proof Jackson ever actually said that — but the point of the story at the time was that the Court supposedly has no “real” power to enforce its own rulings.
(As an aside, though the holding in Worcester has been narrowed since it was decided, the fundamental idea of a limited sovereignty of “Indian nations” is still recognized as late as 2020. I wrote about it here.)
Leaving the realm of Jackson’s likely mythological utterance, actual more recent statements express the sentiments of those who see politics in “real” terms.
Joseph Stalin believed he understood “real” political power. In 1935, while conversing with French Premier Pierre Laval, Laval questioned how the Pope might react to Stalin’s Marxist hostility to religion. Stalin’s alleged response was “The Pope? How many divisions has he got?” — reflecting his belief that “real” political power was based on military, rather than spiritual, force.
Chinese dictator Chairman Mao shared Stalin’s opinion about actual force being the ultimate political power. In 1927, when he was leading the communist insurgency he pronounced that “Political power grows out of the barrel of a gun!” That’s about as “real”, rather than “theoretical or ethical”, as it gets.
So what does all that history, true and mythical, have to do with public buildings financed with COPs in Archuleta County? Reality versus the theoretical.
According to Bill Hudson, COPs do not violate the TABOR because “Colorado courts have ruled that this “lease/purchase” scheme is not a “long-term debt” because, in theory, the government entity could stop leasing the building and walk away.”
Let’s put a hypothetical scenario based on that theory to the test of realpolitik.
Suppose the government occupants of a facility financed with a COP choose a third option. They quit making payments to the banks holding the COP — but don’t “walk away”. Instead they continue the occupancy.
According to law, the banks would have the legal right to evict the occupants. But if push comes to shove, who’s gonna enforce that eviction? Ordinarily eviction is enforced by the County Sheriff… using force if necessary.
But what if a Sheriff, who agrees with the County government decision, channels the mythological Andrew Jackson quote and says, “The Judge has ruled. Now let him enforce it!” — and refuses to execute the eviction?
Or suppose the custodian of the detention facility financed by a COP is the County Sheriff himself, and says he ain’t vacating. What are the banks gonna do with their eviction notice? Ask the Governor to send in the State police or National Guard?
Then what?
Will the banks take over management of the jail — including the cost of caring for all the inmates? Or are the inmates evicted too?
The same sort of questions arise if other government offices formally housed in the old County Courthouse are relocated to a facility financed with a COP. If the County quits paying the banks, but refuse to just “walk away” what are the banks gonna do? Shut down all County government functions?
That is local politics “based on practical and material factors”. Realpolitik.
Considering that banks may be in the unique position of being less popular with the public than government, it’s hard to say how those scenarios would end. But it would sure be fascinating to watch the bankers get symbolically “run out of town on a rail”.
I don’t advocate any of those scenarios! I’m merely asking what happens if the County runs out of money to divert from other county departments to keep up the COP payments?
And please tell me I’m not the first — or only — person to ask that question!