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and the
Citizens Economic Research Foundation
Post Office Box 1147 ●
Marblehead, Massachusetts 01945 ●
(508)
915-3665
“Every Tax is a Pay Cut ... A Tax Cut is a Pay Raise”
44 years as “The Voice of Massachusetts Taxpayers”
— and
their Institutional Memory — |
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CLT UPDATE
Wednesday, February 7, 2018
SJC
hears challenge of Grad Tax petition
Justices of the Massachusetts Supreme Judicial Court
(more
information)
|
Supporters of a constitutional amendment to tax only the
highest earners in Massachusetts, generating funds for
education and transportation, encountered some skeptical
Supreme Judicial Court justices on Tuesday who questioned
the constitutionality of the proposal. Initiative
petitions must only contain subjects that are "related or
which are mutually dependent," according to the state
Constitution, and the justices of the state's highest court
spent much of their Tuesday morning questioning whether the
proposed ballot question meets that requirement.
"You're connecting a progressive income tax to paying for
education and transportation," Justice Scott Kafker told
Kate Cook, an attorney for proponents of the so-called Fair
Share Amendment. "Those seem to be three separate major
policy decisions." ...
[Juliana Rice, deputy chief of the attorney general's
Government Bureau] argued that the question's tax and
spending provisions are interrelated.
"This comprehensive whole that's being presented -
everything moves in the same direction: a large broadly
based tax to support broad policy areas, leaving the
specific spending choices up to the Legislature," Rice said.
Calling transportation and education "twin pillars of a
thriving community," Justice David Lowy wondered whether a
voter might support increasing spending in those areas while
opposing tax hikes and thus leave the voting booth
"frustrated."
Five of the seven justices on the court were nominated by
Gov. Charlie Baker, who has declined to take a stance on the
proposed tax, which other elected Republicans have vocally
opposed. Unlike ordinary bills, the citizen initiative for a
constitutional amendment would not go before the governor
for his approval so he could remain a bystander throughout
the process.
Lowy, Cypher and Kafker are Baker nominees while Chief
Justice Ralph Gants was appointed by former Gov. Deval
Patrick. Cook was Patrick's chief legal counsel.
Justice Barbara Lenk, who was also appointed by Patrick,
was not present for Monday's arguments. The court last year
announced that Lenk "will not be present for oral argument
through at least the end of this calendar year" so that she
can attend to "some non life-threatening health issues."...
The effort to install a tax in the state's constitution -
the oldest functioning written constitution in the world -
began years ago....
Critics point out that unspooling a tax embedded in the
constitution would require a similarly lengthy process. The
constitution currently requires that incomes derived from
the same class of property be taxed "at a uniform rate."
Prior efforts to make a progressive income tax were
defeated by voters in 1962, 1968, 1972, 1976 and 1994,
according to opponents.
State House News Service
Tuesday, February 6, 2018
Justices weigh bid to derail income surtax ballot question
The SJC’s two newest justices, Elspeth Cypher and Scott
Kafker, appeared skeptical that the different parts of the
proposal are closely related enough, asking several pointed
questions of the lawyers defending the proposal. Kafker, for
instance, said that under the logic of the tax’s backers,
many policy issues, including pension reform and renewable
energy, could be included in the ballot question....
Cypher raised the possibility that voters could be
confused by the proposal because the Legislature could
decide to devote all of the tax’s revenue to education, and
none to transit. “There’s no clear answer coming as to how
these things relate,” she said....
One of the business-group leaders who filed the legal
challenge, Christopher Anderson of the Mass High Tech
Council, said the justices’ questions show they’re skeptical
the proposal’s elements are related.
“I think the effort is to try to get their hands around
how to unwind the proponents’ claim that this is a unified
social mobility question and find grounds to knock it out on
that relatedness question,” Anderson said.
One of the SJC’s justices, Barbara Lenk, did not attend
the hearing because of an ongoing health issue. She can
still cast the deciding vote in the event of a tie.
Boston Business Journal
Tuesday, February 6, 2018
SJC justices question design of millionaires tax proposal
Perhaps the proponents behind this income tax surcharge
thought that promising money for transportation and
education would help the proposal’s chances at the ballot.
If that’s the case, the strategy could backfire if the
Supreme Judicial Court ends up deciding that they made their
proposal too wide-ranging to go before the voters.
The Boston Globe
Tuesday, February 6, 2018
Business groups make their case against millionaires tax
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....
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....
“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....
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.
The Boston Herald
Wednesday, February 7, 2018
Millionaire’s Tax shouldn’t make ballot
Plan rich with unrelated items, constitutional issues
By Rachelle Cohen
Kevin Martin, an attorney representing the
business group, argued before the Supreme Judicial Court
yesterday that allowing the ballot initiative would
undermine the Legislature’s authority when it comes to
spending and taxes.
He added that allowing the proposed
amendment to appear on November’s ballot would “encourage
every special interest group in the commonwealth to try to
get some piece of public spending set aside for itself in
the constitution, where the Legislature could not touch it.”
The money raised through the tax would go
toward education and transportation programs, but those
opposed to it say in court documents that the state charter
forbids initiative petitions from being “used to embed
spending earmarks in the Constitution.”
Martin also argued that the initiative
improperly combines unrelated subjects by forcing money
raised through the tax to be spent only on education and
transportation.
But Kate Cook, an attorney for those
supporting the proposal, argued the tax would help boost
“chronically underfunded” services, and that it didn’t run
afoul of the state constitution.
State Attorney General Maura Healey
certified the 2018 question and defended the initiative.
“We vigorously defended our certification
decision today before the Supreme Judicial Court, and we
appreciate the Court’s careful consideration of the issues,”
Healey spokeswoman Emily Snyder said. “We are hopeful that
the voters will have the opportunity to vote on this ballot
question in November.”
The Boston Herald
Wednesday, February 7, 2018
SJC hears arguments for and against ‘millionaire tax’
And as Justice Scott Kafker noted, voters
are being asked three distinct questions: 1) whether to
impose a graduated income tax, 2) whether to spend the funds
on education, and 3) whether to spend the funds on
transportation.
“The public is having to make three
different choices, and they don’t seem to be operationally
related, except that they were related by the sponsors,”
Kafker said. He also pressed lawyers on whether, had the
petitioners devoted the revenue to, say, pensions, solar
panels and health care, the subject matter in the initiative
would still be sufficiently “related,” a question no one
really managed to answer....
“Whether to amend the Constitution so we
have a graduated income tax is an extraordinary public
policy question,” said Kevin Martin, attorney for the
plaintiffs. “It’s an independent public policy issue which
deserves independent consideration by the voters of the
commonwealth.” ...
Kate Cook, a lawyer for the petitioners,
argued that the question represents a “unified public
policy,” and said education and transportation were selected
to benefit from the additional revenue “because we believe
they are the key to social mobility,” and are traditionally
underfunded.
But Justice Elspeth Cypher pushed back,
noting that the policy is “only unified if you see it that
way.”
And as Justice Scott Kafker noted, voters
are being asked three distinct questions: 1) whether to
impose a graduated income tax, 2) whether to spend the funds
on education, and 3) whether to spend the funds on
transportation.
“The public is having to make three
different choices, and they don’t seem to be operationally
related, except that they were related by the sponsors,”
Kafker said. He also pressed lawyers on whether, had the
petitioners devoted the revenue to, say, pensions, solar
panels and health care, the subject matter in the initiative
would still be sufficiently “related,” a question no one
really managed to answer.
In campaigning for this initiative
supporters made little secret of the strategy — couple an
unpopular tax increase (Massachusetts voters have repeatedly
rejected a graduated income tax) with more popular spending
initiatives that voters would have trouble rejecting.
It is now up to the court to determine
whether playing cute is constitutional.
A Boston Herald editorial
Wednesday, February 7, 2018
Defining ‘related’ is million-dollar question
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Chip Ford's CLT
Commentary
Yesterday the state Supreme Judicial Court
heard arguments for and against allowing the latest
incarnation of a Graduated Income Tax to appear on the
November ballot. The questions posed by the justices
were probing, even promising but, as seasoned court-watchers
are well-aware, they do not determine the outcome or even
hint at it.
The attorney defending the ballot question,
Kate Cook, argued the tax would help boost “chronically
underfunded” services.
Juliana Rice, deputy chief of the attorney
general's Government Bureau —
who defended the constitutionality of the question that her
boss Attorney General Maura Healey approved
— admitted that the state
currently spends $10-$11 billion on transportation and
education. That's a quarter of the entire state
budget — 25% of $40
billion. But still it's not enough! And
we all know
how much Massachusetts wastes on transportation costs
alone.
Justices of the court seemed most focused on
the "log-rolling" aspect of the challenge: the
comingling of unrelated subjects within a single petition.
There are
a number of other grounds that opponents have argued
that should disqualify the proposed Grad Tax constitutional
amendment from going to the ballot, but the unrelated
subjects challenge seems of have gotten most of the
attention. Maybe that's enough to kill it.
The Pioneer Institute issued a
news release yesterday, "Pioneer Institute and the Tax
Foundation File Amicus Brief in Graduated Income Tax Ballot
Initiative Case."
PioneerLegal, Pioneer Institute’s public-interest
law initiative, together with the Tax Foundation,
has filed an amicus brief with the Supreme Judicial
Court in support of the Massachusetts High
Technology Council and others, in the case
Christopher Anderson et al. v. Maura Healey.
The plaintiffs assert that Proposition 80, a ballot
initiative to install a graduated income tax for
Massachusetts, violates the state constitution and
should not be allowed to appear on the
Commonwealth’s November ballot....
I can't understand why some of our allies
are intent on relabeling this abomination "Proposition 80."
It was explained to us that 80% reflects the percentage of
income tax increase on millionaires. We were asked to
adopt the term early in our mutual opposition but declined,
for a couple of reasons.
First, as a proposed constitutional
amendment, if it makes it onto the ballot it will likely be
Question 1. That has nothing to do with "Proposition
80" and can only serve to confuse less- or un-informed
voters.
Second, voters have consistently defeated a
Graduated Income Tax, five times over five decades. A
sixth proposed graduated income tax has a long
lineage of disapproval, failure, defeat. Voters have
never heard of or had to vote on a "Proposition 80."
Why would anyone who wants to defeat this graduated
income tax want to rebrand it for its proponents,
call it something new — provide
it with a different image?
At CLT we'll stick with the tried-and-true,
with the known and proven, with our past successes:
It's just another graduated income tax scheme with
lipstick, another Grad Tax divide-and-conquer scam.
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Chip Ford
Executive Director |
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State House News Service
Tuesday, February 6, 2018
Justices weigh bid to derail income surtax
ballot question
By Andy Metzger
Supporters of a constitutional amendment to tax
only the highest earners in Massachusetts,
generating funds for education and
transportation, encountered some skeptical
Supreme Judicial Court justices on Tuesday who
questioned the constitutionality of the
proposal.
Initiative petitions must only contain subjects
that are "related or which are mutually
dependent," according to the state Constitution,
and the justices of the state's highest court
spent much of their Tuesday morning questioning
whether the proposed ballot question meets that
requirement.
"You're connecting a progressive income tax to
paying for education and transportation,"
Justice Scott Kafker told Kate Cook, an attorney
for proponents of the so-called Fair Share
Amendment. "Those seem to be three separate
major policy decisions."
"We see this as a unified policy," Cook
contended. Transportation and education are "the
keys to social mobility" and they are
"chronically underfunded government services,"
Cook told the justices.
"Whose unified public policy is it?" Justice
Elspeth Cypher asked later in the proceedings.
Hoping the seven-member court will stymie
proponents' efforts to put the surtax before
voters in November, a group of business leaders
sued Attorney General Maura Healey last year,
arguing she had erred in certifying the question
as eligible for the ballot.
If the state's highest court rejects the
objections raised by the cadre of business
leaders, voters in November will decide whether
to lodge a 4 percent surtax on incomes over $1
million into the constitution, raising an
estimated $2 billion to be spent on education
and transportation.
The proposed amendment improperly bundles the
unrelated subjects of taxation with both
transportation and education spending, usurps
the Legislature's control over the budget, and
improperly appropriates spending through a
citizens' initiative, Kevin Martin, an attorney
for the business leaders, argued.
Political opponents of the proposal have argued
lawmakers, who adjust spending priorities each
year, could use the overall increase in revenue
to fund areas of government unrelated to
transportation and education. Juliana Rice,
deputy chief of the attorney general's
Government Bureau, made a similar argument that
the Legislature would retain control over state
coffers and the question would not usurp
lawmakers' jurisdiction over state spending.
The state currently spends $10 billion to $11
billion on transportation and education, said
Rice, who defended the constitutionality of the
question.
Rice argued that the question's tax and spending
provisions are interrelated.
"This comprehensive whole that's being presented
- everything moves in the same direction: a
large broadly based tax to support broad policy
areas, leaving the specific spending choices up
to the Legislature," Rice said.
Calling transportation and education "twin
pillars of a thriving community," Justice David
Lowy wondered whether a voter might support
increasing spending in those areas while
opposing tax hikes and thus leave the voting
booth "frustrated."
Five of the seven justices on the court were
nominated by Gov. Charlie Baker, who has
declined to take a stance on the proposed tax,
which other elected Republicans have vocally
opposed. Unlike ordinary bills, the citizen
initiative for a constitutional amendment would
not go before the governor for his approval so
he could remain a bystander throughout the
process.
Lowy, Cypher and Kafker are Baker nominees while
Chief Justice Ralph Gants was appointed by
former Gov. Deval Patrick. Cook was Patrick's
chief legal counsel.
Justice Barbara Lenk, who was also appointed by
Patrick, was not present for Monday's arguments.
The court last year announced that Lenk "will
not be present for oral argument through at
least the end of this calendar year" so that she
can attend to "some non life-threatening health
issues."
The constitution tells state officials to
"cherish" education, and Gants questioned
whether that principle might come into play in
determining the constitutionality of the
proposed amendment.
"The Legislature would have to spend $2 billion
because of its constitutional obligation to
education," Gants ventured.
Lawyers from the governor's office, the Senate
president's office, and former Supreme Judicial
Court Justice Robert Cordy were in the gallery
of the John Adams Courthouse for Monday's
arguments, as was Rep. Jay Kaufman, a chief
proponent of the ballot question.
The effort to install a tax in the state's
constitution - the oldest functioning written
constitution in the world - began years ago.
Volunteers in 2015 collected roughly 155,000
signatures – far beyond the 64,750 threshold –
to place the matter before the House and Senate,
which jointly approved of sending it to the
ballot in 2016 and then again in 2017 with
roughly 70 percent support each time.
Constitutional amendments must pass in two
successive legislative sessions before appearing
on the ballot.
Critics point out that unspooling a tax embedded
in the constitution would require a similarly
lengthy process. The constitution currently
requires that incomes derived from the same
class of property be taxed "at a uniform rate."
Prior efforts to make a progressive income tax
were defeated by voters in 1962, 1968, 1972,
1976 and 1994, according to opponents.
Supporters say the tax would raise roughly $2
billion specifically designated for
transportation and education - helping improve
roads, bridges and classrooms - while opponents
contend it would drive top earners out of the
state and harm small business owners who take
pass-through income.
In a statement, Martin said Tuesday's arguments
were the first time the Supreme Judicial Court
has taken up a case regarding an initiative
petition to amend the constitution since 1937.
"Their questions to both sides were thoughtful
and probing, and we await their decision,"
Martin said in the statement.
Boston Business Journal
Tuesday, February 6, 2018
SJC justices question design of millionaires tax
proposal
By Greg Ryan
The state’s highest court considered Tuesday
whether the proposed “millionaires tax” should
be allowed to go before voters later this year,
with multiple justices questioning if the
different parts of the proposal are related
enough to pass constitutional muster.
The leaders of five of the state’s business
advocacy groups are challenging the measure
before the Supreme Judicial Court. The proposal
would impose an additional 4 percent surtax on
Massachusetts residents making $1 million or
more annually. The revenue from the tax is
supposed to fund two items only, education and
transportation. Opponents argue that higher
taxes will scare away businesses, though
supporters counter that better schools and
transit will improve the Bay State's business
climate.
The business leaders have contended the proposal
is unconstitutional in several ways, but much of
the hearing Tuesday focused on one of their
arguments: That the measure’s three components —
higher taxes on the wealthy, more funding for
schools, and more funding for transit — have
nothing meaningful connecting them. The state
constitution requires a ballot measure’s
subjects to be related.
The SJC’s two newest justices, Elspeth Cypher
and Scott Kafker, appeared skeptical that the
different parts of the proposal are closely
related enough, asking several pointed questions
of the lawyers defending the proposal. Kafker,
for instance, said that under the logic of the
tax’s backers, many policy issues, including
pension reform and renewable energy, could be
included in the ballot question.
Cypher and Kafker were appointed to the SJC by
Gov. Charlie Baker last year. To win the case,
the business leaders must persuade a majority of
the court’s seven justices to side with them.
Kafker asked one of the lawyers defending the
measure, Kate Cook of Sugarman Rogers Barshak &
Cohen, to point to a previous SJC ruling that
supports her position. He mentioned two ballot
questions the court struck down because its
elements weren’t related enough: A 2016 proposal
to get rid of Common Core standards for
Massachusetts schools, and a 2006 proposal to
ban dog racing.
“Those seem to be three separate policy
decisions,” Kafker said of the current proposal
to impose the surtax in order to fund education
and transportation.
Cook cited SJC rulings that upheld ballot
proposals that opponents argued featured
unrelated elements: The 2016 measure legalizing
recreational marijuana, and another that same
year putting restrictions on animal confinement.
A third justice, David Lowy, responded that he
wasn’t sure about that comparison, since all of
the elements of the marijuana question dealt
with marijuana, and all of the elements of the
other question related to animal confinement.
Cook maintained that the elements of the
millionaires tax proposal shared at least two
things in common. Transportation and education
both relate to “social mobility” in
Massachusetts, she said. Both subjects are also
seen as chronically underfunded, she added.
Cook argued that as long as the ballot question
doesn’t confuse voters or “misuse voters’
assent,” it should be allowed to proceed, based
on previous SJC rulings.
Cypher raised the possibility that voters could
be confused by the proposal because the
Legislature could decide to devote all of the
tax’s revenue to education, and none to transit.
“There’s no clear answer coming as to how these
things relate,” she said.
The SJC’s chief justice, Ralph Gants, did say
that he could see the proposal boiling down to a
single question: Whether voters want a tax
increase to be spent for one of two purposes.
After the hearing concluded, Steve Crawford, a
spokesman for Raise Up Massachusetts, the group
behind the proposal, held up Gants’ observation
as proof of the proposal’s simplicity. “Our
question is four sentences. It’s not designed to
confuse people,” Crawford said. “We hope that
the court will see that.”
One of the business-group leaders who filed the
legal challenge, Christopher Anderson of the
Mass High Tech Council, said the justices’
questions show they’re skeptical the proposal’s
elements are related.
“I think the effort is to try to get their hands
around how to unwind the proponents’ claim that
this is a unified social mobility question and
find grounds to knock it out on that relatedness
question,” Anderson said.
One of the SJC’s justices, Barbara Lenk, did not
attend the hearing because of an ongoing health
issue. She can still cast the deciding vote in
the event of a tie.
The Boston Globe
Tuesday, February 6, 2018
Business groups make their case against
millionaires tax
By Jon Chesto
If the business groups challenging the
millionaires tax win their legal battle to block
the ballot question, they might have the
now-defunct greyhound industry to thank.
That’s because the Supreme Judicial Court
justices who heard arguments for and against the
question today zeroed in one aspect — the
“relatedness issue.” They pointed to earlier
precedents by invoking memories of a 2006 ballot
question to end greyhound racing as well as one
they nixed in 2016 involving classroom
curriculums and testing.
The “millionaires tax” would increase the income
tax on any earnings above $1 million from 5.1
percent to 9.1 percent, based on today’s rate,
and direct the extra funds to transportation and
schools. As much as $2 billion a year is on the
line.
One way the biz groups hope to knock the
question off the ballot is by arguing it
contains unrelated matters — a tax increase and
two different spending initiatives. That could
violate a requirement that ballot questions be
focused on related issues, in part to prevent
packaging popular concepts with controversial
ones. That’s what the happened in the 2006
ballot question, which included measures to
expand existing penalties against animal cruelty
in addition to the greyhound racing ban. The SJC
ruled against that one. But dog-racing opponents
returned with a narrower question that made it
to the ballot two years later and became the law
of the land.
Perhaps the proponents behind this income tax
surcharge thought that promising money for
transportation and education would help the
proposal’s chances at the ballot.
If that’s the case, the strategy could backfire
if the Supreme Judicial Court ends up deciding
that they made their proposal too wide-ranging
to go before the voters.
The Boston Herald
Wednesday, February 7, 2018
Millionaire’s Tax shouldn’t make ballot
Plan rich with unrelated items, constitutional
issues
By Rachelle Cohen
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.
Rachelle Cohen is editor of the editorial
pages.
The Boston Herald
Wednesday, February 7, 2018
SJC hears arguments for and against ‘millionaire
tax’
By Bob McGovern
The state’s highest court is considering whether
a so-called millionaire tax can appear on this
year’s statewide ballot or whether the
Legislature — and not Massachusetts voters —
should have final say in matters concerning
public finance.
The proposed constitutional amendment, which
would impose a 4 percent surtax on incomes over
$1 million, is being attacked by a group of
business owners who argue it violates the
state’s charter.
Kevin Martin, an attorney representing the
business group, argued before the Supreme
Judicial Court yesterday that allowing the
ballot initiative would undermine the
Legislature’s authority when it comes to
spending and taxes.
He added that allowing the proposed amendment to
appear on November’s ballot would “encourage
every special interest group in the commonwealth
to try to get some piece of public spending set
aside for itself in the constitution, where the
Legislature could not touch it.”
The money raised through the tax would go toward
education and transportation programs, but those
opposed to it say in court documents that the
state charter forbids initiative petitions from
being “used to embed spending earmarks in the
Constitution.”
Martin also argued that the initiative
improperly combines unrelated subjects by
forcing money raised through the tax to be spent
only on education and transportation.
But Kate Cook, an attorney for those supporting
the proposal, argued the tax would help boost
“chronically underfunded” services, and that it
didn’t run afoul of the state constitution.
State Attorney General Maura Healey certified
the 2018 question and defended the initiative.
“We vigorously defended our certification
decision today before the Supreme Judicial
Court, and we appreciate the Court’s careful
consideration of the issues,” Healey spokeswoman
Emily Snyder said. “We are hopeful that the
voters will have the opportunity to vote on this
ballot question in November.”
The Boston Herald
Wednesday, February 7, 2018
A Boston Herald editorial
Defining ‘related’ is million-dollar question
Supporters of the proposed “Millionaire’s Tax”
have been clear on their goals. They want the
wealthy to contribute even more of their
earnings to the state treasury. They want more
money for education. They want more money for
transportation.
That they lumped all of these hopes and dreams
into a single constitutional amendment, set to
go before voters in November, may be what
ultimately sinks this proposal.
In oral arguments before the state’s highest
court yesterday, a lawyer for five business
groups suing to disqualify the question from the
ballot made a compelling case that, as conceived
and as written, the proposed amendment fails the
constitutional test.
The plaintiffs argue that the initiative — which
would enshrine in the state Constitution a 4
percent tax on earnings over $1 million and
kinda/sorta devote the proceeds to fund
education and transportation — improperly lumps
unrelated subject matters into a single
question, which is not allowed under the
Massachusetts Constitution. The groups also
argue that the initiative violates the
constitutional ban on “specific appropriations”
by initiative petition, and is improper because
it seeks to impose a tax rate via the
Constitution, which the Legislature is unable to
amend.
“Whether to amend the Constitution so we have a
graduated income tax is an extraordinary public
policy question,” said Kevin Martin, attorney
for the plaintiffs. “It’s an independent public
policy issue which deserves independent
consideration by the voters of the
commonwealth.”
Indeed, the arguments yesterday largely centered
on the issue of relatedness, and whether the
question meets the requirement that the
initiative contain “only subjects ... which are
related or which are mutually dependent.”
Kate Cook, a lawyer for the petitioners, argued
that the question represents a “unified public
policy,” and said education and transportation
were selected to benefit from the additional
revenue “because we believe they are the key to
social mobility,” and are traditionally
underfunded.
But Justice Elspeth Cypher pushed back, noting
that the policy is “only unified if you see it
that way.”
And as Justice Scott Kafker noted, voters are
being asked three distinct questions: 1) whether
to impose a graduated income tax, 2) whether to
spend the funds on education, and 3) whether to
spend the funds on transportation.
“The public is having to make three different
choices, and they don’t seem to be operationally
related, except that they were related by the
sponsors,” Kafker said. He also pressed lawyers
on whether, had the petitioners devoted the
revenue to, say, pensions, solar panels and
health care, the subject matter in the
initiative would still be sufficiently
“related,” a question no one really managed to
answer.
In campaigning for this initiative supporters
made little secret of the strategy — couple an
unpopular tax increase (Massachusetts voters
have repeatedly rejected a graduated income tax)
with more popular spending initiatives that
voters would have trouble rejecting.
It is now up to the court to determine whether
playing cute is constitutional. |
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