Patrick McSweeney



 

Untouchable?

 

Proponents of the Hampton Roads sales tax referendum swear the revenues will be used for the transportation projects they say it will. But there's no constitutional basis for such a claim.


 

Hampton Roads voters are being asked to approve a 22 percent increase in the sales tax on November 5. First, they deserve complete and honest answers to all of their questions. That’s the burden assumed by legislators when they submitted the question to the people. It’s a burden legislative proponents haven’t met.

Even worse, the voters have been misled. The question on the ballot is itself inherently deceptive.

The question is whether the sales tax will be increased from 4 ½ cents to 5 ½ cents “with the revenues to be used solely for regional transportation projects and programs specified in Chapter 853 of the Acts of Assembly of 2002.” This question presupposes that the tax revenues will be spent on projects that may never receive the necessary federal permits. It assumes that the legislature cannot or will not redirect the revenues to other projects or purposes as future circumstances warrant.

This ballot measure is a creation of the legislature.  There is no provision for such a referendum in the Constitution. The 2002 session of the General Assembly cannot by statute legally bind any future session to spend revenues in a particular way, even if the voters of Hampton Roads approve this measure.

Some of the proponents, including at least one legislator, insist that the projects cannot be changed without another referendum. Where is the legal opinion justifying such a remarkable claim? The voters deserve to know whether the Constitution prohibits a change without another referendum vote.

The proponents have refused to address the concern of many, including some legislators, that the revenues generated by the tax are state revenues that the Constitution mandates be deposited in the State Treasury and released only in accordance with appropriations enacted by the General Assembly. No appropriation can be effective for longer than two years and six months.

Voters are being induced to approve this ballot measure by language promising to use the revenues solely for specified projects. It is a promise that legislators have no constitutional power to make. Providing for a referendum vote does not change the essential character of Chapter 853. It is merely legislation that can be repealed or amended by the General Assembly at any time in the future.

The proponents contend that, once bonds are issued, the General Assembly can’t touch the sales tax revenues. There is no basis for that contention. The bondholders will have no recourse against the Commonwealth. Their only recourse would be against the Hampton Roads Planning District Commission, which will issue the bonds. The General Assembly is constitutionally prohibited from dedicating tax revenues to secure bonds of any kind. Only the voters at a statewide referendum can approve tax-supported debt.

Although the proponents insist that all alternatives were considered, they never addressed a financing alternative used in Northern Virginia where landowners and businesses who will benefit enormously from a project pay all or most of the costs. Further, the rejection of toll financing has never been fully explained. A report published on October 29 by a national nonprofit organization, the Surface Transportation Policy Project, faulted proposals such as the Hampton Roads ballot measure for using a sales tax as opposed to tolls or a gasoline tax to fund transportation projects because of the regressive nature of a sales tax.

Voters should reject this flawed tax proposal for one reason, if for no other: The proponents have failed to give voters complete and honest information.
 
-- November 4, 2002

 

 

 

 

 

 

 

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