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.
Comments
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The general assembly shall by law define "increase in personal income", "increase in inflation" and "general budget expenditures" for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness.
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The committee recommended removing from under the cap more than $2 billion per year in contributions to pension plans and other retirement benefit programs — items that never have been exempted from the cap.
And as Republicans argued this couldn't be done, Bye and Walker said they understood there probably would be a lengthy discussion about legal interpretations of the cap as a final budget plan is negotiated with the Malloy administration over the next seven weeks.
“The spending cap is not well defined,” said Sen. Robert Kane, R-Watertown. “I’ve been in the legislature seven years, and I’ve never heard a proper definition from either side.”
The ranking GOP senator on appropriations added he would like to see the cap studied, but in order to better impose the fiscal controls voters sought more than two decades ago.
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It seems to me that the problem is not so much a lack of clarity or "definition" in the Nutmeg Constitution's Article XXVIII, but a lack of intellectual honesty in the Connecticut electorate and its politicians. Maybe we need an Article XXXI that says the Legislature, the Executive, and the Judiciary will not dissemble, prevaricate, or lie when interpreting the terms of the previous 30 amendments attached to the previous 14 articles. Maybe if we have a really comprehensive progressive constitution in Nutmegistan we can institute honesty and patriotic virtue in the Electorate and its corporate management.