13: What Reform Plans Would & Wouldn’t Do
Our three-day series of guest op-eds about major proposals for political reform last week here, here and here, generated a wave of thoughtful Calbuzzer comments, many focused on Prop. 13.
Several progressives expressed concern that neither the set of initiatives put forth by California Forward, nor the constitutional convention package sponsored by Repair California, would amend the Prop. 13 framework on taxation in a way that would allow dramatic political change.
The issue was raised most directly by Calbuzzer “David” who wrote:
The heart of the state’s dysfunction is the ability of simple majorities of voters to impose supermajority requirements in perpetuity. For instance, Prop 13’s 2/3 requirement on taxes was itself imposed by less than a 2/3 majority. Any “constitutional reform” which leaves this atrocity in place is not a true reform, but simply rearranging the deck chairs on the Titanic. Since the current con-con proposals explicitly prohibit changing the 2/3 rule, they are yet another waste of time for a state that is rapidly running out of it.
Amid considerable debate and discussion on the site, however, a key difference emerged between the two sets of reforms:
The ballot measures submitted by California Forward would specifically prohibit changing the Prop. 13 requirement for a two-thirds vote needed to raise taxes, either in the Legislature or locally. But the convention agenda outlined in the Repair California initiative expressly would allow delegates to study and, if they saw fit, to propose to voters a reduction of the supermajority requirement.
Alert Calbuzzer Adrian Covert was the first to call attention to this little-noticed element of the convention initiatives. Covert, who blogs over at pacificvs.com wrote:
The Constitutional Convention proposals…specifically put all vote thresholds on the table. By voting in favor of a convention, voters will in-fact be giving convention delegates a clear mandate to do so.
The guy’s right on a very important point.
The concon package includes two proposed initiatives; the first seeks voter authorization to convene a convention, while the second broadly defines the issues to be considered by the delegates. In the second initiative, Section 83130 (a) (3) states that the convention is authorized to address:
Spending and Budgeting, including the budget process and related requirements, the term and balancing of a budget, voting thresholds, mandated spending and ways to increase fiscal accountability and efficiency.
In other words, the convention could, if it so chose, propose an amendment to alter the two-thirds rules on raising taxes. This reading of the measure was confirmed for us by Clint Reilly, who’s running the Repair California campaign. The group is a political spin-off of the Bay Area Council, whose CEO, Jim Wunderman, got the convention idea started.
To be clear, this is the only element of Prop. 13 that would be in play in either reform package. The convention specifically cannot deal with the Prop. 13 system for determining property taxes:
Section 83130 (b) The convention may also propose to change any statutory provision directly related to the proposed constitutional revision or amendment. The revision, any amendment, or any related statutory provision proposed by the convention may not include new language, or alter existing language, that (1) directly imposes or reduces any taxes or fees; (2) sets the frequency at which real property is assessed or re-assessed; or (3) defines “change in ownership” as it relates to any tax or fee . . .
When we first read this, it seemed to us that it left room to allow convention delegates to propose amending Prop 13 to put in place a split roll system, which would assess commercial property at a different (higher) rate than residential.
We thought the language on this was unclear so we interviewed Steve Miller of Hanson Bridgett who drafted the section. He told us it was worded to keep the convention from taking up the split roll. So that’s the word from the horse’s mouth.
Bottom line: As written, neither of the major reform packages aimed at the 2010 ballot leave much room for changing Prop. 13, but the constitutional convention leaves the door open for one major amendment that could have widespread political impact.
Proposition 13 is only one facet of the overarching issue of taxation. The attempt to erase the supermajority threshold for raising taxes by so-called “progressives” (I prefer to call them socialists), is an effort to eradicate the current protections against unreasonable seizure. The concept of the supermajority is one that is rooted in the protections against mob rule. This same fundamental is used in jurisprudence in the management of our justice system: The distinctions between a preponderance (simple majority) and beyond-a-reasonable-doubt come to play before significant penalties are extracted. It is this latter constraint that we, as a society, use as a metric to levy punitive actions. Taxation for the most part is a form of punitive taking that is not applied equally to all segments of the population. The supermajority protections are there to protect the minority segments of our society from being unfairly targeted by simple majorities and simple-minded politicians.
I have no doubt that you will be writing more about these initiatives in the future. So I’d like to request that you ask Steve Miller this question:
Why did you take split roll and the definition of ownership change off the table? WHY? What makes these aspects of Prop 13 sacrosanct?
That seems to me to be a mistaken interpretation of Section 83130. The reference to “voting thresholds” is in a subparagraph titled “Spending and Budgeting,” and is given as an example of a subject authorized for discussion within that category. The term “spending and budgeting” refers to how you disperse revenues that already have been collected. How you raise revenue is a different subject altogether.
That is how it would most likely be understood by a court applying standard methods of legislative interpretation. It would probably be held to refer to voting thresholds dealing with spending and budgeting (e.g., the 2/3 rule to pass a budget), but not to all voting thresholds on all subjects (such as the 2/3 rule to raise taxes).
I note also that the Fact Sheet on the official website for Repair California declares that their measure prohibits discussion of “social issues or other issues related to increasing taxes.” That’s pretty clear.
I can understand why those campaigning for the concon might want to give multiple, and even contradictory, impressions on what their measure permits. After all, some voters will be against the concon if it permits revision of the 2/3 rule on taxes; others will be against it if it doesn’t. The language of their actual initiative, however, strongly suggests that it doesn’t.
Thanks David. Amid conflicting interpretations, we gotta’ go with what the sponsors of the measure say their intent is. The bottom line on many initiatives, of course, often ends up being more work for lawyers.
If the sponsors intended to authorize changes to the 2/3 rule on taxes, they could have simply said so. It could have been listed as an authorized subject for the convention. Instead, the only reference to voting thresholds is in a subsection which appears to refer only to the 2/3 rule on budgeting. Given the profile of this issue, I find it hard to believe this is an error in drafting.
I think a reasonable reading of “Buget and Spending” includes both “income and spending”. The current constitution defines “a budget for the ensuing fiscal year containing itemized statements for recommended state expenditures and estimated state revenues” and it clearly distinguishes between “the budge” and “the budget act”.
I think you’re right that if the convention changes the 2/3 rule for taxes then there will be a court challenge. I don’t know how that will turn out.
In response to “The ballot measures submitted by California Forward would specifically prohibit changing the Prop. 13 requirement for a two-thirds vote needed to raise taxes, either in the Legislature or locally”. This is not correct. (I heard a representative of Cal Forward address this last night.) The the Cal Forward propositions do not change that vote, but they don’t prohibit changing it. If some other initiative changes it there is no conflict with the Cal Forward iproposals.
Our point, slightly misstated in our post: the Cal Forward proposal reiterates that a two-thirds majority is needed to raise taxes. Obviously, it can’t prevent a constitutional amendment that would change the vote needed back to a majority.