State attorney general calls TABOR unconstitutional

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AUGUSTA – Efforts to enact a taxpayers’ bill of rights have suffered another in a line of setbacks.

The Maine Attorney General’s Office issued an advisory opinion on Wednesday saying that important elements of the proposed legislation would violate the state’s Constitution.

Earlier in the week, a superior court judge ruled that the secretary of state erred when he accepted about 4,000 late signatures from TABOR supporters last fall.

The decision is being appealed to the Maine Supreme Judicial Court, which will hear the case on April 25. The ruling, if allowed to stand, would prevent the question from appearing on this November’s ballot.

If enacted, TABOR would limit spending increases for state and local governments to the rate of inflation and population growth. It would also require a two-thirds vote of the Legislature to impose any tax or fee increase or to exceed the spending limits and mandate that the action be approved by voters.

The advisory opinion was requested by Speaker of the House John Richardson, D-Brunswick, and delivered Wednesday.

According to the Attorney General Steven Rowe, the initiative unconstitutionally usurps the taxation authority of the Legislature.

Article IX, section 9 of the Maine Constitution states: “The Legislature shall never, in any manner, suspend or surrender the power of taxation.”

Citing case law, Rowe wrote that the simple statement “creates a strong and sweeping prohibition.”

“It is important to distinguish between what this bill purports to do – that is, provide voters with an automatic right to approve or disapprove every measure to increase tax revenue – and the exercise of the people’s power to legislate,” Rowe wrote. “This opinion is not suggesting that the people lack the right to attempt to veto revenue legislation … or to initiate a repeal of a particular revenue bill. … However, the TABOR initiative seeks to fundamentally alter the power vested in the Legislature by giving voters the right to veto every measure that increases tax revenue.”

Further, Rowe stated, the requirement for a two-thirds vote for non-emergency legislation is a partial – though significant – “surrender” or “suspension” of the Legislature’s power of taxation.

Rowe also argues that TABOR attempts to create a new referendum process by requiring every net increase in state revenue and every expenditure of revenue in excess of the spending cap be approved by voters. According to Rowe, a new referendum process can only be created through a constitutional amendment, not through a statute such as TABOR.

Finally, TABOR’s attempt to redefine what is and is not emergency legislation is unconstitutional, and its efforts to bind future Legislatures to the terms of the statute are unenforceable, Rowe wrote.

In practical terms, his opinion doesn’t change what happens next or carry the force of law.

It does, however, foretell the arguments that could be used to challenge TABOR if it becomes law.

The Supreme Judicial Court will either overturn the lower court ruling sometime after April 25, clearing the way for TABOR to be on the ballot, or it will uphold the ruling, killing TABOR’s chances for now.

In the Legislature, the debate is over politics. Legislative leaders could decide to give the debate over TABOR attention on the calendar – and then likely vote it down – or allow it to die without action.

The outcome is the same; TABOR goes on the ballot if the Supreme Judicial Court gives it the OK.

A third option would be to attach a competing question to TABOR, creating an option for voters.

If a competing measure isn’t passed before the Legislature adjourns, then attaching a competing measure would require a special session.

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