April 09, 2020

TABOR passage likely to spark debate over implementation

AUGUSTA – Voter approval of the proposed Taxpayer Bill of Rights in Maine’s general election on Nov. 7 might not settle the debate over the merits of the citizen initiative to curb government spending and make increasing taxes more difficult.

But it would refocus the basic argument from whether the measure should become law to how such a law should be implemented.

That task could generate more debate itself.

As one guide, look back to June 2004, when voters endorsed a citizen initiative backed by the Maine Municipal Association to increase the state subsidy for public schools from 42 percent to 55 percent.

Subsequent legislation scheduled increases in state aid to public schools over four years, set limits on municipal, school district, county and state government spending and boosted Maine’s existing tax relief programs.

Gov. John Baldacci signed the reform measure on Jan. 21, 2005. In that case, the Legislature moved relatively quickly and its imprint was relatively heavy.

Now, let’s assume the Taxpayer Bill of Rights is enacted next month. What would happen next?

“You mean, after it gets out of the legal challenge?” joked Sen. Bill Diamond, D-Windham, a former secretary of state.

“It wouldn’t go out the same way it was written,” said Rep. Earle McCormick, a Republican from West Gardiner on the Legislature’s Taxation Committee, while adding that he foresaw no significant post-enactment alterations.

Proponents, including anti-tax activist Mary Adams and the Maine Heritage Policy Center, have warned all along that the proposal would be attacked by critics seeking to sow doubt about it.

And indeed, a well-financed coalition heavily backed by the National Education Association is energetically opposing the measure after successfully mobilizing to defeat another anti-tax referendum two years ago, and part of the opponents’ message is that the TABOR initiative will have unintended negative consequences.

But setting aside whether the claims of the proponents are sound and whether the questions raised by opponents are sincere, passage by the voters would launch a new adventure in complexity.

After extensive debate within the Legislature’s Taxation Committee earlier this year before the bill was passed along to voters, some central points remain in dispute.

The two sides, for instance, disagreed then and now on whether the provisions of the proposal could force units of government to actually cut their budgets.

The pro-TABOR side insists the initiative would set reasonable spending limits with no cuts required.

For one thing, TABOR backers say, taxes or fees could still be raised to finance additional spending – if the governing body for a municipality, school district or other governmental unit approves by a two-thirds majority and a majority of voters concurs.

Also, proposal proponents say, curbs on spending are not meant to force state or local governments to spend less than they currently do. Even if the proposal’s formulas point in that direction, TABOR would at its most stringent hold government to flat funding.

Not so, maintain opponents, who point to a May analysis by the Maine Heritage Policy Center that spoke of forcing “local governments to re-examine and reduce their current level of spending and taxation” and warn that true cuts could be necessitated in many places.

Moreover, opponents say, the override voting scheme undermines the concepts of local control and majority rule by putting budgetary decision-making on autopilot and – due to a supermajority requirement – making it unfair.

As if anticipating a court fight, both sides have produced legal opinions addressing contested points.

In the end, says pro-TABOR campaign spokesman Roy Lenardson, anything more than routine tweaking in the Legislature is unlikely.

“Our goal is to make it work,” Lenardson says. If some legislative rewriting were thought to be needed, Lenardson suggested TABOR backers would be cooperative.

“I’m at a loss to say who’s going to sue for those cuts,” he says.

For Geoff Herman of the Maine Municipal Association, “there’s a very long list of problems … so tweaking is a funny word to use.”

Population-based formulas, he suggests, would harm parts of the state.

It took a long time to get here, and the statewide discussion may be about to expand.

Eighteen months ago at a Taxation Committee hearing, Maine lawmakers heard testimony on the proposal in what was recognized at the time as a likely warm-up for a referendum campaign.

Designed to limit growth in government spending, the TABOR initiative would link expenditures to increases in population and inflation or, in some cases, to the assessed value of property.

The proposal calls for excess revenues to be returned to taxpayers and to a rainy day government fund.

Maine’s top enforcement officer has already opined that some provisions of the proposal are unconstitutional.

Attorney General Steven Rowe, in a letter to House Speaker John Richardson, D-Brunswick, earlier this year, said TABOR seeks to implement changes that cannot be made by statute and only by a constitutional amendment.

The initiative seeks, for example, to surrender part of the Legislature’s power of taxation to voters and a minority of the members of the House and Senate and to restrict the Legislature’s exercise of emergency lawmaking powers, Rowe wrote.

“Accordingly, we believe that a court would likely find that these provisions of the TABOR initiative violate Maine’s Constitution,” Rowe wrote.

Meanwhile, the Maine State Chamber of Commerce board meets this week to consider options that could include endorsing the proposal with qualifications or opposing it while putting forth an alternative.

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