A tale of three constitutional amendments
As the Legislature completed its work on Concord in June 6, three significant constitutional amendments were considered, among other measures. When I wrote the first draft of this column, I expected all three to be passed on to the voters. Only one was.CACR 12 received the most press and probably was the most difficult to fashion. This was the constitutional amendment to change the Supreme Court’s so-called Claremont decisions on educational funding, which said that adequate education funding was a state responsibility.Fierce opponents of state responsibility for education wanted a complete allocation of the responsibility to the Legislature without any recognition of state responsibility for funding, while others who favored targeting also wished to keep the recognition that the state had a role in public education.While it passed the Senate easily, CACR 12 failed to get 60 percent of the House vote, with almost all Democrats and many extremely conservative Republicans voting against it — the former because they thought it overturned state responsibility to all school children and the latter because they thought it did not.In failing to pass this, the stage was set for further debate and accusations of leadership failure both by Gov. John Lynch and Speaker William O’Brien, both of whom supported the compromise amendment and failed to persuade enough of their troops to pass it.*****CACR 6 provided that a three-fifths vote is required to pass legislation imposing new or increased taxes or increase rates, license fees or to authorize the issuance of state bonds.While the Legislature previously has been able to pass legislation by a 50 percent majority, this requirement for a super majority would have been enshrined by the amendment in the constitution, taking flexibility away from the Legislature unless it can muster a 60 percent vote. This amendment failed to get enough House votes to go further, leaving the traditional majority power in place.CACR 13 provides that “no assessment, rate or tax on income earned by a natural person shall be levied by the State of New Hampshire except taxes in effect on Jan. 1, 2012, and adjustments to the rate of such taxes.”This amendment completely removes the discretion of the Legislature to impose any kind of tax on “personal income of a natural person” that does not exist now. Assumedly, that allows the interest and dividends tax to continue while disallowing an income tax or other taxes on personal income, whatever that means. This amendment passed both houses of the Legislature with the required super-majorities and will go to the voters, who would be wise to reject it.On their surface, these amendments appear to allow for consistency in that they would keep spending on education, taxes and fees lower than they might otherwise be, and it is certain that was the intent of many if not most of the proponents.On a more sophisticated level, they seem to be inconsistent.CACR 12 would have given the Legislature control and flexibility in educational funding and allocation of funds as well as in setting educational standards. This is a recognition that the Legislature should have authority over and flexibility concerning educational matters. Conversely, the same legislators, at least in large measure, seem to be saying that future legislatures cannot be trusted with the rate of taxes and fees or the imposition of new ones. This is an interesting contradiction, since the same argument for legislative flexibility and control in CACR 12 seems to be denied in the latter two amendments.Taking flexibility away from the Legislature to pass budgets and do the public business is a bad idea. Tax caps in local communities, while popular at some level, have proven to be a “meat ax” approach. One merely has to look at the havoc wreaked in Manchester during its current budget to know how terrible an idea such straitjackets are as public policy.Also, CACR 13’s effect would be to leave business taxes, property taxes and other existing taxes as the only means for additional revenue, if it is needed. Such increases would put a disproportionate burden of taxation on the business community that would resist them greatly. However, that would result in the business community and Legislature being asked to pick between taxes and services, and often the services are needed.Maybe we can conclude that it is wise to require a super-majority before amendments are sent to the voters, and it is wise to require even a larger number of voters to approve before the state Constitution is changed.Another possible conclusion is that the voters should look very carefully at who they send to the Legislature to vote on these and all measures, so bad ideas are rejected quickly and good ones pass.Brad Cook, a shareholder in the Manchester law firm of Sheehan Phinney Bass + Green, heads its government relations and estate planning groups. He also serves as secretary of the Business and Industry Association of New Hampshire.