(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)