Monday, April 27, 2015

Connecticut Clipping The Constitutional Silver

A constitution is supposed to serve as a restraint on government and -- as Sam Adams and other lucid revolutionary heroes thought – the taxing power of the state.

During the high tide of despotic government, when a king or oligarch wished to spend freely from the treasury without, however, raising taxes that might disturb merchants and farmers, he resorted to clipping coins, hoping that the people would not notice the depreciation of the currency. The dodge worked for a while, but it was foolproof only for fools.


State government, as we know, cannot issue money, and so this kind of easy subterfuge is not available to governors. Only presidents and national legislators may inflate or deflate the currency. But governors are not without resources. In forming budgets, they can move accounts forward into new fiscal years or, apparently, move budget items from under the shadow of constitutional provisions, thus creating an illusion of balance.

In 1991, then Governor Lowell Weicker decided to institute an income tax. In order to make the tax palatable to legislators whose votes he needed to pass the measure, a provision capping expenditures was added to the bill. The cap, however, was not ironclad and no safer from legislative tinkering than were the various “lockboxes” held out to citizens to convince them that monies the governor and legislature had appropriated for specific purposes would be used solely for those purposes. Lockbox funds have been regularly raided from time to time, the haul deposited in the general fund to balance budget holes created by improvident spenders in the Democratic dominated General Assembly – with the concurrence of governors of both political parties.

The constitutional cap was a promissory note written into the Connecticut Constitution by legislators who established the income tax. That cap is now on the point of being effectively revoked, with the concurrence of the governor, by many of the same legislators who voted in favor of the income tax and the cap – without, however, going through the bother of repealing the constitutional cap on spending. To repeal the cap outright would be too honest, too unblinkingly straightforward, too much in keeping with the carefully defined borders of the state Constitution in this “The Constitution State.”

Cowardly legislators instead have decided to clip the constitutional silver. Theirs is a shameless, naked and undisguised effort to fool all of the people some of the time, which Abraham Lincoln thought would be less likely under a transparent republic watched over by a vigilant press.

The history of the cap itself is tortuous. First enacted as General Statutes Sec. 2-33a in 1991, the legislation stipulated, according to a brief written for the Yankee Institute by Attorney Peter Bowman, “that state spending cannot increase from one year to the next more than the greater of a) a lagged five-year average of growth in state personal income; or b) the percentage increase in inflation during the preceding twelve months.” Expenses that fell outside the cap were “a) funds earmarked for debt service; b) grants to distressed municipalities in effect on July 1, 1991; c) first year spending to implement federal court orders or federal mandates; and d) transfers of [an] unappropriated surplus at the end of a fiscal year to the Budget Reserve Fund or State Employees Retirement Fund, or to reduce state indebtedness. The General Assembly can exceed the cap if the governor declares an emergency or extraordinary circumstances and three-fifths of both houses of the General Assembly vote to do so.” The Connecticut constitutional cap, passed by voters in 1992, enforces the same strictures; the General Assembly, however, has not passed implementing legislation defining the cap’s terms.

Mr. Bowman writes that when the legislature “raises income taxes while spending more than allowed under the spending cap, taxpayers would have the right to challenge their increased tax bills in court because the increases are meant to fund illegal spending.” Spending under such circumstances would be illegal in the absence of a “declaration of emergency” by the governor, and Mr. Bowman calls upon the legislature to fully implement the 28th Amendment to the Connecticut Constitution. It should be pointed out that a budget deficit does not qualify as an “emergency” under either the statute or the Constitutional provision.


Putting aside the legal framework, the present General Assembly is morally, ethically and politically obligated to act within the spirit of its own laws, especially since there can be no doubt that the initial legislation instituting the income tax never would have passed the legislature without the assurance of a cap that could not easily be surmounted. A bill now before the legislature in essence repeals the cap by removing certain expenditures from Connecticut’s budget and sequestering them in a cap free zone. This is exactly the kind of underhanded, dishonest and unscrupulous political legerdemain loudly and rightly condemned by Mr. Malloy during his first successful gubernatorial campaign. Any legislation that enables such a foul political practice should be rejected by morally upright legislators. And should moral force fail in this regard, a suit – even though its probable success may be questioned – should be filed so that the honor of the General Assembly, the flag it unfurls before the world, may be upheld.
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