Bacon's Rebellion

Courtesy of Jeff Schapiro, in today’s Richmond Times Dispatch:

On Page 104 of the Republican transportation bill, there’s a reference to a section of state law that doesn’t exist.

This is no small screwup. The bungled language designates for roads an uncertain source of cash: $57 million to $108 million from stiff fines on lousy drivers.

Because of the blunder, the money goes into a black hole.

More of the blunders with the Transportation Compromise bill (AKA Bill Howell’s Tax Increase) have been documented in this blog previously. For example:

1. The Single Object Rule
2. Another Reason to Worry About the GA Transportation Plan
3. Building Roads With Regressive Taxes
4. The Equal Protection Clause

Given the many legal and constitutional questions surrounding this bill, one can’t help but wonder: Can’t our representatives in the General Assembly get anything done right?

Makes one wonder how many other bills get enacted into law with similar problems and legal questions that aren’t known or reported because they’re not receiving enough attention?

The current edition of CQ Weekly highlights the Bush administration’s flirtation with a mileage fee as a substitute for gasoline taxes. It is not yet official policy to seek a shift in the funding source for federal highway programs, but the administration is underwriting experiments in Oregon to test the feasibility of technology to administer such a tax. (See my recent column, “The Oregon Solution” for context.)

A chip installed in a car would track the number of miles the car is driving; a one-way signal would turn off the chip when the car left Oregon. Every time the car refueled, the chip would calculate the mileage and transmit it to the pump. The tax would be charged based on the number of miles driven.

Writer Kathleen Hunter quotes Janet Kavinoky, a transportation lobbyist for the U.S. Chamber of Commerce, which has backed efforts to revise the gas tax: “A gas tax is a proxy. You have different vehicles on the road with different levels of fuel efficiency. Regardless of their fuel efficiency, they are still using the road.”

That’s always been my logic: Motorists should be taxed to fund road maintenance based upon how much wear and tear they put on the roads. I’m surprised that the Virginia Chamber of Commerce hasn’t adopted the mileage-tax idea for the Old Dominion, just as I’m surprised that Virginia Republicans have failed — in spectacular fashion with the Transportation Abomination called HB 3202 — to embrace the user-pays ideas of the Bush administration.

Hunter surfaces one objection to the mileage tax that I find semi-persuasive. By taxing people on the basis of miles driven rather gasoline consumed, the mileage tax would reduce the incentive for people to shift to more fuel-efficient cars – a goal of both environmentalists and those who advocate energy independence.

That is a legitimate point, but I would respond as follows: Shifting to a mileage tax is one step among many that would make human settlement patterns more transportation efficient. In the long run, it will take a combination of both gasoline-stringy automobiles and more efficient human settlement patterns to reduce energy consumption to a more sustainable level.

The Equal Protection Clause, of the Fourteenth Amendment to the United States Constitution, provides that “no state shall… deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause can be seen as an attempt to secure the promise of the United States’ professed commitment to the proposition that “all men are created equal” by empowering the judiciary to enforce that principle against the states.

A fundamental principle behind this clause is that when two people are accused of having committed the same offense, they should receive equal punishment, all other circumstances being similar. Another way to say this is that the punishment for the same offense shouldn’t differ based socio-economic class, residence, gender, race, etc.

The Traffic Abusers provision of HB 3202, calls for drivers convicted of misdemeanors to pay the customary fines, plus some outrageous civil penalties in excess of $1,000 that will be collected over a three year period. Furthermore, drivers with more than eight demerit points on their driving record will be subjected to additional civil penalties that will be collected annually.

If HB 3202 is enacted into law, the Virginia Department of Motor Vehicles (DMV) will be responsible for issuing notices and collecting the surcharged civil penalties. However, HB 3202 is silent as to how these penalties will be collected from drivers that commit traffic infractions in Virginia but who are licensed in another state.

The Virginia DMV has no authority over drivers from other states. The courts will be able to collect the traffic fine and perhaps the civil penalty due for the first year, but will be unable to collect the civil penalties in succeeding years, unless the offender pays them voluntarily.

Additionally, the fact that the DMV will have no access to the out-of-state driver’s history, they will be unable to assess or collect the additional penalties called for under HB 3202 from out-of-state drivers that have more than eight demerit points on their records.

These disparate treatments of out-of-state vs. in-state drivers place the traffic abuser provisions called for under HB 3202 on a collision course with the equal protection clause. If this bill gets enacted, any Virginia driver facing these civil penalties could and should challenge them in federal court.

Examiner.com quotes Del. David Albo, R-Springfield, with this plaintiff cry: “It’s like people are trying to come up with a million different reasons to oppose the bill so it will die.”

The General Assembly transportation package may well meet its death through a thousand small cuts — many of which have been expounded upon by Bacon’s Rebellion contributors and readers. But there’s one big reason… a guillotine of a reason… for opposing the bill: It doesn’t move Virginia any closer to a user pays system.

First there is the economic argument against HB 3202: If you give something away for free, people will want more of it. If you sever the connection between the cost of building and maintaining roads and the people who drive on them, you will get more people driving farther on roads. In other words, you will make worse the very problem — traffic congestion — that you purport to solve.

Then there is the moral argument against the bill: Why should citizens who drive less be compelled to subsidize those who drive more? Why should citizens who engage in socially virtuous behavior — walking, bicycling, car pooling, telecommuting or riding the bus — be bilked to pay for those whose behavior is socially burdensome? All of the road-funding plans in play would punish the saints, reward the sinners and change no one’s behavior for the better.

One of the arguments I hear against the gasoline tax, a quasi-user fee, is that it would “hurt those who can least afford it.” Oh… So, Joe Sixpack cannot afford to pay a highly visible 10 cents a gallon when he fills his pump, but he can afford to pay a host of penalties, fees and taxes that either affect him directly or indirectly?

Let’s examine that proposition more closely. If Joe Sixpack pays at the pump, at least he has the option of altering his behavior to pay less of the tax. If he chooses, maybe he can ride the bus or carpool with a buddy — saving money and relieving congestion in doing so. By contrast, when the taxes, fees and levies are so diffused and embedded in the general cost structure of the economy, there is no evading them, no incentive to change behavior, and no congestion relief.

Until our lawmakers confront this basic reality, the entire conversation about transportation in Virginia — on both sides of the partisan aisle — is intellectually bankrupt.

The authors of the General Assembly transportation package and the Governor’s Office are talking past each other. The disagreement: the meaning of a passage in HB 3202 and its impact on local governments.

Gov. Timothy M. Kaine says the bill would require Northern Virginia localities availing themselves of new regional taxes to take over planning and construction of secondary roads from the state. The Fairfax County supervisors apparently read the legislation the same way. But Del. Clay Athey, R-Front Royal, a lead architect of the bill, insists it ain’t so.

The Governor bases his interpretation on “Line 329,” which spokesman Kevin Hall says “couldn’t be more clear.”

Here is what Line 329 (and surrounding lines) says: “The funds under this subsection shall be conditioned on the following: … that for any county imposing all of the fees and taxes … all state secondary road construction funding due such county shall be transferred to such county, and the county shall assume full responsibility for planning and constructing secondary roads pursuant to 33.1-75.3.”

Here’s what I think is happening. Kaine and the Fairfax supervisors are giving this reading to the bill: Localities must take over responsibility for all secondary roads. Athey (I think) interprets it to mean that counties take over responsibility for construction of secondary roads funded by the new taxes and fees, leaving room for the Virginia Department of Transportation also to build new secondary roads.

There isn’t a disagreement over what the language should say, only what they think it does say. The entire controversy could be cleared up by amending the language of the bill to eliminate any ambiquity. But that might actually require feuding parties to communicate by means other than the mass media. Someone needs to pick up the phone and straighten this out.

One of the most egregious provisions of the Transportation Compromise bill (AKA Bill Howell’s Tax Increase), is the provision calling for fines and penalties on abusive drivers. The thinking has been that abusive drivers cause accidents, which cause delays and thereby contribute to the transportation gridlock.

Two House Delegates from Northern Virginia, Dave Albo (R-Fairfax) and Tom Rust (R-Herndon) have been on a single-minded pursuit of enacting super penalties on abusive drivers that can be used to fund transportation. For three years now, they have been reintroducing similar versions of a bill that will raise traffic fines and penalize repeat traffic violators with additional penalties–bills that been plagued with constitutional and legal questions. (For example see “Taxing Drivers” or “Why Not A Ticket for Tax Abuse.”)

Albo and Rust started out proposing that anyone with four points on their driver’s license be required to pay up to $700 a year in additional penalties. Getting four points nowadays is easy; you can be an example driver and all it takes is one moving violation to get enough points classifying you an “abusive driver” under the Albo/Rust definition.

Based on the outcry generated about the bill’s retroactive provisions (penalties applied retroactively are illegal both under the U.S. and Virginia constitution) they had to relent and increase the outstanding points from four to eight. Furthermore, before existing points would be counted, one needed to get one additional citation after July 1, 2007.

What is missed in the discussion over the definition of “traffic abusers” or “abusive drivers” is the fact that another section of the same bill calls for levying unheard of penalties for even one minor traffic violation. For example, if a driver with a perfect record gets a moving citation he or she will face fines and penalties well exceeding $1,000–regardless of their prior driving record. The only break they get is that they’ll pay the additional penalties called for in this bill over a three year period.

In other words, you can have a perfect driving record over let’s say 20 years, but you’re still going to get saddled paying fines and penalties exceeding $1,000 for a minor moving violation–all in the name of solving our transportation gridlock. Needless to say, these sort of penalties are regressive and will have a severe impact on low and moderate income families (many of whom are minorities). How can the GOP claim that it is cares about low and moderate income families and minorities when it passes this type of legislation?

These sort of bills bolster the Democrat argument that the GOP is the party of the rich and doesn’t care about the poor or working middle-class families.

More next on equal protection–our fundamental legal principle that we’re all equal under the law…

One of the regional taxes embedded in the General Assembly’s transportation funding package is a five percent service fee on automobile repairs. I suppose the logic is that the levy can be characterized as a “user fee” on automobile owners rather than a tax, which it really is.

This tax is very worrisome. Applying a fee for services is a Rubicon that Virginia has not yet crossed. As a correspondent who works for a major state trade association points out: “We have not applied taxes to services provided in Virginia. This precedent of applying fees on a service is a dangerous one, opening the door for taxes on lawyers, accountants, or day-care.”

Everyone in the service sector of the economy — and that includes writers like myself — ought to be afraid… very afraid.

Here are the latest twists in the ongoing transportation saga: On his radio talk show, Gov. Timothy M. Kaine threatened to veto the General Assembly’s transportation bill if lawmakers reject his proposed amendments. Summarizes the Associated Press:

Kaine said he has three areas of concern to address in the 30 days he has to amend or veto legislation: Making sure the regional plans are workable and palatable to the local governments that will have to implement them; ensuring rural areas get their share of road aid and meeting an annual commitment to use general funds to service about $2.5 billion in transportation debt.

Also, read the coverage in the Virginian-Pilot and Times-Dispatch.

The Washington Post story emphasizes that local governments in Northern Virginia are not happy with the legislation, which would require them to take over responsibility for planning for and building secondary roads as a condition for raising some $400 million a year through regional taxes and fees. The Fairfax County Board of Supervisors approved a resolution Monday calling on Kaine to veto the bill if the provision remained. Prince William and Loudoun Counties also are likely to rebel.

But the GOP transportation package is a delicate thing, which could fall apart if Kaine tries to amend it, warns Del. Clay Athey, R-Front Royal. The plan, a compromise formed by Republicans, was passed in the only form that could be approved by both the House and the Senate, he told the Winchester Star. (Story available only to registered users.)

Update: Gov. Kaine needs to get his story straight, Del. Athey tells the Northern Virginia Daily. “The governor probably ought to read the bill before he goes running around the state telling people how bad it is,” Athey told reporter Garren Shipley.

HB 3202 doesn’t force anyone to take over secondary roads, said Athey, the primary author of the bill’s land-use sections.The legislation would allow the state’s nine urban counties with populations greater than 90,000 to take over their road systems if they so choose. If they do, they’d get the money and equipment that the state has been using as well as its employees.

In some cases, counties would get more money than the Virginia Department of Transportation is spending on them now, Athey said.They’d also get the right to impose impact fees on areas outside of the Urban Transportation Districts that counties would begin to maintain.

Kaine spokesman Kevin Hall responds that Athey needs to read his own bill. Line 329 “couldn’t be more clear.” Here is the most recent version of the bill. Does anyone know which line is “line 329”?

I’m glad to be back blogging on BR! It’s a time consuming process, but I missed being away. Thank you Jim for inviting me to re-join the premier blog on VA politics.

A lot has been written about the GOP Transportation Compromise that squeaked through the State Senate on a 21 to 19 vote. Jim Bacon called it “Transportation Abomination.” I prefer referring to it as “Bill Howell’s Tax Increase,” but the discussion on taxes will have to come later.

In the meantime, I have yet to see any in-depth analysis of some of the provisions called for in this bill, particularly some legal issues that arise from this legislation and the manner in which it was packaged into one mammoth bill.

Article IV, Section 12 of the Virginia Constitution addresses the “Form of Laws.” It states:

No law shall embrace more than one object, which shall be expressed in its title. Nor shall any law be revived or amended with reference to its title, but the act revived or the section amended shall be reenacted and published at length.

Speaker Bill Howell, the patron of HB3202, has tried to explain away this requirement by saying that its single object is “congestion mitigation.” But the Constitution requires that the one object behind the bill be expressed in its title.

The title of HB 3202 has nothing to do with congestion mitigation—it doesn’t even mention the word congestion. The bill’s title is: “Transportation funding; authority to certain localities to impose additional fees therefor [sic], report.”

So what is the single object that this bill embraces? There are so many parts to this bill one is hard pressed to summarize them all. It purports to do a little of everything, such as raising taxes, promoting an efficiency study, calling for economic development, increasing traffic fines, granting new taxing authorities to localities, and the list goes on…

I don’t mean to be presumptuous or give Gov. Kaine any ideas, but the Republican Party of Virginia (RPV) is trying to make an issue if the Governor amends or vetoes the transportation compromise bill. Instead, all Gov. Kaine has to do, is return the bill back to the legislature since it fails to meet the single object rule as required by our Constitution. That will deflate the PRV’s bubble and will expose Bill Howell’s Tax Increase for what it really is—an abomination!

In any case, even if the governor does not read the BR blog, I’m certain that certain patriots are standing in the wings and plan to challenge the constitutionality of this bill in the courts. It is indeed mind-boggling, that Virginia’s law and order party consistently manages to come up with bills that are designed to evade or outright ignore basic legal and constitutional requirements.

More on additional legal issues with this bill in my next post.