SADOW: Violating The Law To Raise Your Taxes At Louisiana’s Legislature?

As the Louisiana Legislature embarks upon its version of spinning plates on top of poles, serious confusion stills reigns about just how procedurally this may be accomplished, to the detriment of success in this endeavor.

The metaphor refers to the House’s task in attempting to pass legislation beginning tomorrow allowing for budget construction next week. Part of the strategy relies upon scaling back tax breaks, and it is reported that “that it can trim tax breaks or temporarily end them with just a majority vote.” If that is being recounted accurately, there’s at least one serious problem with that strategy.

The Constitution flat out prohibits a permanent “repeal” of a tax exemption without a two-thirds majority vote of each chamber (and then would require gubernatorial assent, although a veto could be overridden by the same two-thirds majorities), but says nothing about a reduction of an exemption. Nor do a series of attorney general opinions, the latest relevant one 22 years old, address this specific question. For whatever reason, a numerically large faction of House members believe the concepts of “repeal” and “reduce” different enough that they can freelance the former having explicit addressing by the Constitution and the latter ignored by it, and by virtue of this not being mentioned in it specifically as an instance of requiring a supermajority to accomplish therefore defaults resolution of this issue to the typical simple majority rule.

Which defies common sense. It’s more conceptually correct, if not closer to the spirit intended in the text, to consider a “reduction” as a “partial repeal,” and thereby becomes addressed by the supermajority requirement. Nonetheless, if enough legislators want to chance it and pass a budget relying on simple majorities only in reductions of tax exemptions, they may try, believing that potential litigation could take months to resolve, the financial situation could settle by then, and, if defeated judicially, they would have other options to compensate for the loss of this at that point.

Except that they may encounter a political obstacle trumping the constitutional and judicial. Gov. Bobby Jindal has declared that he will veto removal of exemptions that have the effect of raising aggregate taxation levels (meaning not offset by reductions elsewhere). It takes a law, so Jindal will have a say, and, guess what, this takes that two-thirds vote to override. Legislators could double-dog dare him by doing nothing in either the regular or a special session (depending on the speed and timing) or repassing the same things, but Jindal’s position would be strengthened by his claiming a moral authority to veto such pieces of legislation not because of his tax pledge, but because they violate the Constitution.

Then there’s the suspension strategy, as the Legislature may suspend laws for up 60 days past the next regular session’s ending by majority vote, requiring only a resolution and therefore no veto possibility (confirmed by the well-constructed attorney general opinion above, which comports with a commonsensical reading of the Constitution). However, as previously noted, this strategy is unlikely to avoid requiring two-thirds majorities at some point in the process as well, because the money involved is likely to be declared nonrecurring or “one-time” and/or needs to pass through the Budget Stabilization Fund. And then there’s Jindal’s additional threat to veto a budget dependent upon suspensions, although coming to this would make it easier to box him into a corner politically and accept it.

So legislative leaders should discard the notion that they will not need supermajorities at some point to get stuff done without large cuts to health care and higher education. More time spent on building the necessary coalitions while factoring in Jindal’s options to those will produce a much higher policy payoff than by using resources trying to find ways to skirt the Constitution.



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