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A Constitutional Change Taxpayers and Businesses Should Pursue
By: Joel Fox


As taxpayers and businesses consider the political landscape during and after the coming election year, they might want to think about making a small but powerful change to the state constitution. Article 2, Section 9 (a) grants the people referendum power to challenge bills passed by the legislature and signed into law by the governor. However, the constitution prohibits the use of referendums for tax levies. Excising that prohibition from the constitution would add an important taxpayer protection by potentially giving voters the final say over taxes.


In the next election cycle, a major push will be made to get enough tax friendly politicians elected to the legislature to scale the two-thirds vote barrier required to levy taxes. Democrats think that capturing two-thirds of both houses of the legislature is possible in the next election. They may be right.


According to Allan Hoffenblum, editor of the respected Target Book, which follows the California electoral scene, "It appears that redistricting may be favoring Democratic candidates, which could give the Democrats an opportunity to capture two-thirds of both houses in 2012."


On top of that, the Service Employees International Union has made no secret that it plans to use its influence in Republican leaning districts to elect Republicans who may be more tax friendly.


Last year, public employee unions marched from Bakersfield to Sacramento carrying a list of proposed tax increases on individuals and businesses that totaled $40 billion.


After watching the budget battle this year, if tax increase interests capture two-thirds of the legislature, there is little doubt that tax increases will be a certainty.


Some might argue that if the voters choose legislators that support tax increases then the voters must approve of the legislators' actions to raise taxes. Not necessarily.


As I have pointed out a number of times on this page, there are two electorates in California - one that votes for its elected representatives and one that votes directly on issues. Often the two are not in sync.


There are numerous examples in which the legislature would make a different decision than the voters as proven by the results of a number of ballot initiatives. Since this commentary deals with the right of the people to be final arbiters on taxes, let's cite tax examples when this occurred.


We know the legislature of the time did not support Proposition 13 but the people did. In 1996, the voters passed the "Right to Vote on Taxes Act," Proposition 218. Legislators had a number of opportunities to pass a similar measure, especially dealing with taxes disguised as benefit assessments, which was corrected by Prop 218. Ross Johnson introduced the bill in the legislature only to have it turned back in committee even though the Democratic chairman of one committee noted the problem with assessment districts. In the last statewide election, voters put their stamp of approval on Proposition 26 requiring a two-thirds vote on fees, something that would never pass the legislature.


In fact, you could go back nearly 100 years to the progressives who championed the initiative, referendum and recall. They formed the League to Protect the Initiative to fight off attempts supported by legislators to make it more difficult for the people to deal with tax matters through the initiative process.


 Forget about going back 100 years. There is the modern issue under the recently passed Proposition 25 that if revenue increases are rolled into budget trailer bills they can avoid a referendum.


In protecting their interests, taxpayers and businesses have different concerns and motivations than legislators.


Businesses could be a particular target of tax increase efforts. The argument will be made that taxes are isolated on a particular industry and "someone else is paying the tax."


Even if the constitution was changed and taxes were raised, it would still be a difficult task to refer a tax measure to voters. Proponents of a referendum have a short 90 days to gather the necessary signatures and certainly not all tax increases would be referred. If there were a true emergency, it is extremely doubtful that money would be available to quickly qualify a referendum.


However, this constitutional change would give the ultimate word on taxes to voters. The people have shown over the years that they want to have the power to control taxes.


If taxpayers and businesses want to be sure to have a voice on potential tax measures they should seek a change in the constitution now.


Joel Fox, Editor of Fox & Hounds and President of the Small Business Action Committee