TN Constitution Ain’t Broke, Don’t Need Much Fixin’

(Note: This is an unedited version of a column written for Sunday’s News Sentinel..)
The old adage, “If it ain’t broke, don’t fix it,” could be wisely applied to the vast majority of Tennessee’s aging state constitution. There are now 41 resolutions that propose fixes officially awaiting consideration of the 107th General Assembly when it returns in January.
One proposed amendment, promoted by anti-abortion activists, was given legislative approval earlier this year after years of effort and will go before the voters in a 2014 referendum.
Like the amendment or not, the proposal known as SJR127 does provide an example of something that was reasonably perceived as broken being fixed. The breakage occurred, from the standpoint of the activists, with a 2000 state Supreme Court decision interpreting the state constitution to provide a strong right to an abortion, though the subject is not mentioned within the venerable document.
Some of the other pending proposals have no such foundation. They are pure political pandering and/or posturing.
One example is the most-discussed of the pending proposals, namely a measure to prohibit a state income tax. In this matter, state courts have consistently ruled that a state income tax is already prohibited. So it ain’t broke.
Yes, there have been attorneys general opinions stating that, with carefully structured language, an income tax could conceivably be fashioned to win the approval of the state Supreme Court.
That, of course, would require a majority of the state Legislature eager to enact a state income tax and a court willing to ignore precedents. Both, frankly, are inconceivable given the current state of state affairs.

For years, similar ban-the-income tax constitutional amendments have been around and have been rejected – in part because some legislators, including conservatives, thought the move both unnecessary and possibly having unintended consequences.
Today’s Republican legislators – and a good chunk of the remnant Democrats – seem to have abandoned such objections because an income tax is so hugely unpopular – and opposing it so hugely popular — they fear a political opponent would attack them for even mentioning them.
One Republican legislator conversationally explained that enactment of the amendment would be meaningless and therefore harmless, but it’s good politics.
Much the same could be said for one of the few constitutional amendments pushed by Democrats, a prohibition on future increases of state and local sales taxes. In this case, there is no constitutional limitation – in the document’s language or in court decisions – to restrict future sales tax increases.
But, again, it’s inconceivable in our current state of affairs that – with the combined state and local sales tax rate already at 9.75 percent and highest in the nation – anyone is going to be pushing for an increase in the sales tax rates. So why not pass that as well?
Well, there are those unintended consequences that may be inconceivable today.
Should some situation arise 20, 30, 40 years hence that requires increased expenditure of state funds generally acknowledged as necessary – yes, hard to conceive, but let’s pretend for a moment – legislators of the future would find themselves in a straightjacket.
Let’s imagine a new statewide property tax, which, by the way, is explicitly authorized by the state constitution.
The latest constitutional amendment proposal, offered last week by Sen. Brian Kelsey, R-Germantown, who is also a leader in the anti-income tax effort, would ban any annual increase in state spending beyond the increase in the state’s economy as a whole. (There’s another doing the same. Several proposals in the 41 pending are duplicates.)
This is basically an expansion of a current constitutional provision, called “the Copeland cap.” As things stand now, the Legislature can get around the cap by passing a bill that explicitly states the limitation is being passed. In other words, the politicians have to think about it and vote on it – and they have voted to bypass several times.
In other words, the Copeland cap isn’t broken. Our state has very fiscally sound budgeting and has for decades. Fixing is not needed, especially with those unintended consequences – say when major slashing in the state budget occurs one year and the new, mandatory cap forces continuing cuts to education and other crucial programs in following years.
Some other ideas for constitutional amendments arguably would fix the broken – say, for example, changing the constitutional mandate for election of judges to specifically allow a judicial appointment system.
But most are just political wishful thinking with little change of passage – say, for example, term limits for legislators.
The various tax and spending limitation amendments are all founded on the proposition that future legislators can’t be trusted. But somehow, one suspects our current legislators, as a group, think they are trustworthy enough to remain in office without limits – maybe even until something unexpected happens.
(Note: Edited version of this column HERE)

3 thoughts on “TN Constitution Ain’t Broke, Don’t Need Much Fixin’

  1. mickey

    I can not believe that people are calling for Term Limits for Congress.
    Here are some reasons that this is a bad proposal.
    First off, the Founding Fathers discussed and debated Term Limits when they were drafting the Constitution. Alexander Hamilton wrote in the Federalist, No. 72, “Nothing appears more plausible at first sight, nor more ill-founded upon close inspection.”
    Next, is the issue of a lame-duck congressman, what incentive would they have to follow the Constitution? Would they be easier prey for lobbyists? Do you remember the lame-duck special session of Congress back in 1994, when a lot of congressmen lost their seats, but they came back in November after the election and voted and passed GATT? Most Americans were against this treaty, and the elections had been held already, and the congressmen who were voted out did not have to worry about facing re-election.
    Some say it is too hard to vote out ‘bad’ congressmen. Well remember House Speaker Tom Foley? Yep, voted OUT, beat by a political Novice. House Ways and Means committee chairman, Dan Rostenkowski, voted Out. The voters Term-Limited them!
    Oh and remember the election of 1992, we got 124 NEW freshmen members of Congress… remember the 1994 election, 87 new Representatives and 11 New senators. And the voters did this without term-limits.
    I would even say that term-limits would make some of us lazy. Right now we have a congressman’s voting record to view to see if we want to re-elect them or not. But if there were term-limits, then some might say, well it doesn’t really matter if my congressman is doing bad, he will be term-limited next time anyway. People want a quick fix.
    Another point with term-limits, congressmen will be ‘new’ at the game and will have to rely on their staff more and more. These congressmen’s staff will be in high demand and then staff personel will start to wield their power, because the congressmen will need them to ‘get things done’. And these office staff are not voted into office by the voters, so we will have no voice in this.
    And if you think there will not be career politicians, you might want to think again. After the politicians make their rounds from the house and perhaps the senate, where will they go? They will look to the executive branch, as there are plenty of federal jobs in the various executive departments. So once the congressman is term limited, he may want to help the current president with a bill or two so that the congressman can get that cushy job.
    And speaking of Term-Limits and the President…. How is that working out for you? We have Term-Limits for Presidents, but has that helped us have better Presidents?
    I think the internet will help us become better voters because we will have the advantage of doing our own research, analysis, and comparison. We will have more dialog with our elected officials and with each other. We can have our own virtual town-hall meetings, our own soap-box and we can help each other stay informed on our current congressman and together hold his feet to the fire.
    But in the long run, I don’t think the issue is Term-Limits, it is a Constitutional Convention. Term-Limits is just a sound-byte that the establishment is trying to hook unthinking voters into wanting to change the Constitution. They have been trying for years to force the states to call a Constitutional Convention. Once is was for Equal Rights, then it was for a Balance Budget, next even a Line-Item veto, now, it is the Term-Limit issue. The laymen here in the trenches are unhappy with the government and term-limits seem to be a ‘easy’ way to fix the problem. Make no mistake about it, they want to rewrite our constitution, and make you think we need just a little change here or there. And remember, those that voted for the current elected officials would vote you a new constitution. Will they vote a better one in than the one we have now? I don’t think so. Don’t Do IT!

  2. Moderate Democrat

    I think you have stated believing Republican propaganda. The state Income Tax has never been “wildly unpopular.” When it was being seriously considered, the fors and againsts were almost even despite tons of misinformation coming out from the anti side.

  3. Tom Humphrey

    The House floor vote was 45 yes, 49 no and 4 blue lights (present but not voting, aka abstain). Never came to a vote in the Senate.
    And, yes, that House vote was pretty close. As you say, it followed an intense anti campaign. but it also followed an intense pro campaign). There were 8 republicans who voted for IT, and all but one are now no longer members of the legislature. Republicans now have a virtual super majority of the legislature and all of them ran for election or reelection declaring themselves opposed to IT; so did roughly half of the remant Democrats.

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