Opinion: Trying for a Constitutional End-Run Around the Governor

Carl Golden | July 10, 2014 | Opinion
It may be an idea born of frustration, but enacting laws by putting constitutional amendments on the ballot is a shortsighted solution

Carl Golden
The frustrations of the Democratic legislative leadership are quite understandable. Despite holding majorities in both houses, and following an election in which voters opted to maintain the party’s grip, their major initiatives have been thwarted by a governor who relishes wielding his veto power and a Republican minority steadfastly united in sustaining him.

The Democrats’ emerging alternative, though — bypassing the executive by placing amendments to the Constitution on the ballot to enact their policies — is misguided.

The Constitution is the framework spelling out the powers and authority of the three branches of government, maintaining their separation and establishing limits on what each is permitted to do.

It is a document of some detail, certainly, but it was never intended to be utilized as a backdoor mechanism to write laws, a power granted specifically to the legislative branch.

The Constitution establishes the process by which the branches of government function; it does not dictate what that process ultimately produces.

The current Constitution is approaching 70 years old and has been amended by voter referendum more than 50 times, ranging from the legalization of casino gambling to providing for a commission to draw legislative and Congressional district boundaries.

The Democratic leadership’s latest suggestion to embed in the Constitution higher individual rates for the state income tax to be applied temporarily to a specific class of taxpayers — only those earning one million dollars a year or more — is an overreach.

Using the Constitution to gain short-term political advantage comes perilously close to government by plebiscite, to formulating and enacting public policy based on the results of the latest public opinion poll.

Establishing tax rates via the Constitution is the camel poking its nose into the tent, opening the way for any number of other issues that might be stalemated between the Legislature and the governor to be dealt with in the same fashion.

Senate President Steve Sweeney, for example, was enraged over the veto of his Sandy Bill of Rights legislation as well as the proposal to reduce the magazine capacity of semi-automatic weapons. Following the logic of the tax increase amendment recommendation, these two issues should be put to referendum.

It’s an absurd notion.

When the constitutional convention delegates crafted the document in 1947, they established a strong governor’s office — arguably the most powerful in the nation.

At the same time, in an attempt to avoid a rush of proposed amendments — some potentially frivolous — they provided for a fairly arduous process by which the Constitution could be changed. A three-fifths vote of the Legislature is required to place a proposal on the ballot and, if that number can’t be reached, it is necessary to approve the proposed amendment in two consecutive legislative years.

It is not unreasonable to conclude that the Constitution drafters understood that amending it should not be taken lightly and that safeguards should exist to avoid using the process to secure a political end — arguably the goal of those who support writing income tax rates into the document.

Should the Democratic leadership succeed in its quest to put the tax surcharge to referendum, the earliest opportunity for it to appear in the ballot is November 2015. If it cannot summon the necessary three-fifths vote and is forced to settle for a simple majority, the two-consecutive-year provision comes into play and the earliest the question could appear is November of 2016.

Enshrining an amendment in the Constitution removes the flexibility of both the Legislature and the governor to respond quickly to changing circumstances, requiring repeal or further amendment — a process which could take a year or more. Tax policy is particularly sensitive in this context.

If, for instance, it is determined that the surcharge amendment either is no longer necessary or can be reduced, those subject to the higher rate will be forced to continue to pay it until the next general election at the earliest.

Moreover, by including the surcharge on incomes over $1 million in the Constitution, those rates are locked in while those on lower incomes can be changed by an act of the Legislature, creating via the Constitution two distinct classes of taxpayers.

The possibility exists as well that a referendum to repeal the surcharge or reduce it will fail in a popular vote, thus maintaining a level of taxation that the Legislature has concluded is no longer necessary or fair.

Perhaps the most far-reaching Constitutional amendment in recent history was that which authorized casino gaming in 1976. The referendum, in addition to empowering the Legislature to permit casinos to operate in Atlantic City, specified only that the tax revenue derived be dedicated to programs for senior citizens and the disabled.

It left all other details — the number of casinos, the rate of taxation, hours of operation, licensing requirements, type of games, and so on — to the Legislature. The language of the amendment was a clear understanding that including such provisions in the Constitution would hamstring any efforts to adapt to changing conditions in a timely fashion and only the Legislature was capable of doing so.

The same belief should apply to the attempt to establish tax rates as a Constitutional provision.

The merits of a tax surcharge are solely in the eyes of the beholder. Democratic legislators have decided the wealthy should pay more. Gov. Christie has decided they should not. And, as long as the governor maintains his iron discipline on Senate Republicans in support of his position, his view will prevail.

The legislative process is often contentious, messy, and frustrating. Navigating it while confronting an intransigent chief executive of the opposite party is difficult and many times futile.

It is, though, preferable to using the Constitution as a substitute for it.