TABOR & THE CONSTITUTION

Attorney General Steven Rowe has raised constitutional concerns about the citizen’s initiative Taxpayer Bill of Rights, known as TABOR. These questions should be a central part of the debate over the spending restrictions.

TABOR may not go forward in November if a recent court decision that ruled some of its signatures arrived too late to be counted by the secretary of state stands. An appeal is pending and the state constitution certainly seems to favor the TABOR supporters (a legislative task force, coincidentally, recently tried to solve the conflicting laws that helped give rise to this problem). But whether the current ruling stands or TABOR supporters prevail, the issue is popular and the supporters well organized – it will be before voters, if not this year then next.

Rep. Sean Faircloth of Bangor raised the question of TABOR’s constitutionality last winter before his caucus and to leadership; Mr. Rowe’s opinion broadens some of the issues raised by Rep. Faircloth, producing several possible constitutional problems with the initiated bill. These go to the heart of how government operates.

TABOR works by limiting state spending increases to changes in inflation, as measured by the Consumer Price Index, and population. Any increases in revenue must be approved by two-thirds of each house of the Legislature and, in the unlikely case that one third of the Legislature could not be mustered to oppose a revenue source, by a majority of voters at the next election.

These provisions, says the AG’s opinion, run afoul of, for instance, the state constitution’s Article IX, Section 9, which says, “The Legislature shall never, in any manner, suspend or surrender the power of taxation.” The article sees the Legislature’s duty to raise revenue as so important to the operation of government that it precluded Maine from handing it over to someone else or bargaining it away. Giving the public the final word on new revenues may do that.

Also, says Mr. Rowe, the Legislature is unduly limited under Article IV, part 3, because the initiative constrains its authority to enact emergency legislation by subjecting the legislation to popular vote. And the initiative binds the ability of future legislatures to raise revenues by adding a referendum process, among other problems.

TABOR leader Mary Adams says her side’s lawyer currently is busy preparing for the signature hearing, but will respond to the AG’s opinion in a couple of weeks. No doubt that response will be thorough, but Maine might, like Colorado, the state upon which Maine’s TABOR is based, require a constitutional amendment to enact this reform. After all, TABOR represents a change in the form of Maine government, from rule by simple majority on revenue questions to rule by two-thirds.

Maine has tinkered with tax reform and relief for more than a dozen years without accomplishing much. Though statutory and constitutional changes are quite different in how they may be altered as experience demands, the state needs to consider the tough standards and effects of TABOR and should find ways to develop a clearer sense, well before the November elections, of how the courts are likely to interpret the measure’s constitutionality.