Millionaire’s Tax shouldn’t make ballot
Plan rich with unrelated items, constitutional issues
The real question posed by the so-called Millionaire’s Tax ballot question is, can you fool some of the voters some of the time? The question for the state’s Supreme Judicial Court, which heard the case yesterday, is whether that’s an appropriate way to treat the voters at all.
The Fair Share Amendment, as its proponents prefer to call it, would impose a 4 percent surtax on all Massachusetts residents with taxable income over $1 million — in that, it’s simply a variation on the now constitutionally-prohibited graduated income tax.
But wait, as they say on those infomercials, there’s more. Proceeds from the tax, estimated to be around $2 billion a year, would then be earmarked for spending on education and transportation, subject to appropriation by the Legislature. The latter clause thrown in to at least try to make it constitutionally acceptable.
The graduated income tax has been put before voters five times since 1915 and every time soundly defeated. This time its progressive proponents — led by the usual collection of unions, including not surprisingly teachers unions — knew they needed a sweetener — something that could convince enough voters of its worth. Or more precisely something so worthy that it would make voters overlook the camel’s nose under the tent aspect of approving a graduated income tax.
And so the earmarking of those proceeds for education and transportation was baked into a question that would be put to voters in November.
There are, however, more than a few serious
legal problems with putting that kind of mishmash on the ballot — a notion that was certainly not getting by several members of the high court yesterday.
“There would appear to be three separate public policy decisions here,” that voters are expected to make, said Justice Scott Kafker.
In fact, he noted that in previous rulings on initiative petitions, the court had found that even a question combining efforts to protect animals from abuse and closing greyhound tracks were so unrelated as to be inappropriately on the ballot. (A redrafted question dealing only with the dog tracks eventually passed.)
“What about log-rolling,” Kafker pursued. “Could they have added pension reform or solar energy” to the ballot question, he asked a lawyer for the proponents.
Justice Frank Gaziano followed a similar line of questioning, “So you could take out education and put in, say, affordable housing.”
Justice Elspeth Cypher also brought up the fact that voters won’t have the last word.
“Do you think voters will understand in this context what ‘subject to appropriation’ means. Will they understand that it [the revenues raised] could go nowhere?”
To which attorney for the proponents, Kate Cook, responded with some candor, “That’s not our expectation.”
Oh course not — not with all those eager-beaver unions happy to share in the proceeds.
And while it’s always problematic to guess which way a judge is leaning from a round of questions, it certainly seemed Chief Justice Ralph Gants was out there marching to his own drummer:
“The key issue, is it fair to say yea or nay? ... Do you wish a tax increase to go to one of two purposes?”
But as Kevin Martin, attorney for a coalition of business groups opposing the ballot question, put it, “The danger here is not necessarily from this particular initiative but the precedent it sets.”
And the possibility that it would “encourage every special interest group in the commonwealth to try and get some piece of public spending set aside for itself in the Constitution, where the Legislature cannot touch it.”
And then, as Kafker noted, do we risk the possibility of “creating a situation like California” where 40 percent of the state’s general fund must go to education.
“What if instead of a millionaire’s tax we raise everyone’s taxes by 4 percent and devote it entirely to education?” Kafker said.
That’s the precedent Martin alluded to.
If this question goes on the ballot in this form, there is nothing to prevent that from happening.
This isn’t at the end of the day one for the voters to decide; it’s one for the court to do what Attorney General Maura Healey failed to do — prevent this from reaching the ballot in the first place.