Tax-and-spend plan unconstitutional

Ballot measure would upend state budget process

Not so long ago, this commonwealth was universally known as “Taxachusetts.” It was not a term of affection.

The state’s unemployment rate was about 10 percent — the highest of all the 11 industrial states. The secretary of Administration and Finance publicly stated that Massachusetts was “bankrupt.”

In many cities and towns, every third storefront was boarded up. On streets near the state borders, there was a “for sale” sign on virtually every other house.

The year was 1990, the year that Paul Cellucci and I were narrowly elected as governor and lieutenant governor.

The first thing we did was to repeal a recently enacted sales tax on services. During my two terms, we cut taxes 20 more times, and never raised them.

By the end of our first term, the state’s unemployment rate was 4 percent — the lowest among the 11 industrial states.

Massachusetts has always had a flat income tax, meaning everybody gets taxed at the same rate. It used to be 6 percent, now it’s closer to 5 percent. In 1994, a coalition of pro-tax groups and public employee unions put a measure on the ballot to institute a graduated income tax, meaning people making different amounts of income are taxed at different rates. It received 28 percent of the vote. It was the

time the voters of the commonwealth had voted down a graduated income tax. The other times were 1962, 1968, 1972 and 1976.

In 2013 the Legislature passed a law “indexing” the state’s gas tax to the rate of inflation, so it would go up every year. The following year, voters repealed it.

Now the public employee unions are back, to take another swing at getting a graduated income tax. They understandably want there to be more state spending so there will be more state workers paying union dues.

They’ve put a measure on the ballot to introduce a graduated income tax, but this time they put lipstick on it. They say the proceeds from the graduated income tax will go to worthy causes. They start with transportation, and road and bridge repairs — potholes. Everyone hates potholes. But they knew that wasn’t enough of a sweetener, because the voters in 2014 rejected indexing the gas tax to increase transportation spending. So they added education. They needed to get 64,000 signatures to put their proposal on the ballot, and everyone loves education.

Under the Massachusetts Constitution, this is known as combining in a single initiative “what is popular with what is desired by selfish interests.” It is clearly unconstitutional.

Article 48 of our Constitution requires that all of an initiative petition’s components must be “mutually dependent” or concern “related” subjects.

The Supreme Judicial Court, a great court on which I had the honor to once serve as a law clerk, has held that in the context of an initiative petition, ending the use of Common Core standards in public education and requiring the publication of state comprehensive assessment exams — same purpose, same field, and both included in the 1993 Massachusetts Education Reform Act — are insufficiently “related.”

The SJC has also held that shutting down the parimutuel dog racing industry and tightening penalties for animal abuse — same dogfriendly purpose, same field — are insufficiently “related.”

Compared to these cases, potholes and education are about as “related” as a fish and a bicycle.

Respect for the law and the Constitution of Massachusetts requires that the pending taxing and spending directive be ruled out of order.

In California, where ballot measures commonly decide many major issues of public policy, the California Teachers Association exercises a decisive influence over state government. There, as here, campaign finance laws impose no limits on spending to advance ballot proposals. The teachers association, over the determined opposition of a liberal Democratic governor, passed a ballot measure requiring that 40 percent of all state spending go to education (Article 98). That would wreak havoc here, where education and transportation combined account for 20 percent of state spending.

In short, if ballot proposals can determine taxing and spending priorities, neither the Legislature nor the governor will be able to fashion a budget taking into account all the needs of the people of the commonwealth.

Not exactly what John Adams had in mind when he drafted our constitution in 1781.