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If the SJC Sticks to Precedent, the Millionaire’s Tax Initiative is Going Nowhere

Dec 13, 2017Boston Globe, Council in the News

By Jeff Jacoby

Some things Massachusetts gets right.

For 101 years the state constitution has commanded that income be taxed at a uniform rate, a shield against populist agitators whipping up class envy to raise taxes.  The constitutional ban on graduated income-tax rates keeps the Legislature from raising revenue at will by targeting one bracket at a time.  Lawmakers have to change everybody’s tax rate — or nobody’s.

A ballot initiative now being pushed by a left-wing umbrella group would change all that.  Raise Up Massachusetts wants to amend the constitution by requiring a sharp increase in the tax rate for income over $1 million.  The activists know that the state’s voters have repeatedly rejected initiatives to eliminate the state’s uniform-rate rule.  So this time there’s a sweetener: The proposed amendment decrees that all revenue raised from the new tax may be expended for only two purposes — public education and public transportation.  Unfortunately for Raise Up Massachusetts, their sweetened ballot question is illegitimate.

Political elites often scorn the whole idea of policy-making at the ballot box; they argue that voters aren’t equipped to properly weigh the pros and cons of legislation, and are too easily manipulated by slick advertising and gaudy promises.  But the initiative process in Massachusetts was designed to resist such abuse.  Article 48 of the state constitution strikes a prudent balance: It allows ballot questions to be originated by private groups of citizens — but it limits the scope of those initiatives, barring them from encroaching on matters only the Legislature may decide.

Two of those limits are especially significant: First, ballot initiatives must involve matters that are “related” or “mutually dependent.”  Second, initiatives cannot make “a specific appropriation of money from the treasury” — i.e., earmarks are not allowed.

On both grounds, the proposed millionaire’s surtax initiative fails.

Whatever else may be said about higher taxes, education funding, and repairing roads and bridges, they are obviously not intimately related.  From a legal perspective, education is unrelated to transportation, and neither of them is related to taxing the wealthy.  Even more obviously, they are not “mutually dependent.”  As several business groups — including the Massachusetts High Technology Council and Associated Industries of Massachusetts — argue in a brief submitted this week to the state’s highest court, “ an income-based surtax could exist independent of earmarks for education and transportation spending, and earmarks for education and transportation spending could exist independently of each other.”

The Supreme Judicial Court has always construed the “related” limitation narrowly.  Two years ago the justices disqualified a ballot initiative that would have ended the use of Common Core standards and required the state to annually publish the previous year’s assessment test questions.  Though the provisions dealt generally with public schooling, the SJC unanimously ruled that they were “separate public policy issues.”  It would not be fair, the court held, to place voters in the “untenable position” of having to decide “two or more dissimilar subjects” with a single yes-or-no vote.

Even if the relatedness bar weren’t in the way, there’s no getting around the ban on using the ballot to make “specific appropriations.”  The proposed amendment declares that revenue raised by soaking millionaires must be spent “only” on education and transportation.  Flashback to 1937: A proposed amendment would have mandated that revenue from a specific tax be spent “only” on “highway purposes.”  Nothing doing, said the SJC: The Legislature alone is empowered to earmark funds for specific needs, and that initiative would render the Legislature “powerless” to spend the revenue in question on “any other public use.”

Unless the SJC is prepared to overturn decades of precedent, the Raise Up Massachusetts initiative will fall. There’s little mystery about what the law requires.  A better question is why a measure so obviously flawed was ever certified by Attorney General Maura Healey in the first place.


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