My e-zine column today, “The Tribune of the People,” is a follow-up of a brief blog post I made five days ago. I take a closer look at Patrick McSweeney’s Dulles Toll Road lawsuit pending in the state Supreme Court.
To refresh your memories: In 2007 the General Assembly created unelected, unaccountable “regional transportation authorities” with the power to raise taxes. The Attorney General’s office signed off on the constitutionality, and no one considered McSweeney’s lawsuit against the law to be much more than the irritating buzz of a gadfly. But McSweeney fought his case to the Supreme Court, which ruled unanimously in his favor, forcing lawmakers to get back to work on more ingenious ways to fleece the public.
Now McSweeney has another case before the Supreme Court, this one challenging the authority of the governor’s office to transfer control over the Dulles Toll Road to the Metropolitan Washington Airports Authority (MWAA). This, too, violates the state Constitution, McSweeney contends because (a) the toll, to be used to pay for the Metro rail extension to Dulles, is really a tax, and (b) the governor has no power to delegate taxing authority, a prerogative of the legislature, to anyone else. The MWAA and its board dominated by Virginia and D.C. appointees has the power, McSweeney argues, to raise tolls/taxes on Virginia commuters as high as they want to pay for the rail project — and there is no way to hold the accountable.
Victory in this lawsuit seems less certain than the first. There are sticky issues regarding the right of the plaintiffs (two Northern Virginia commuters) to sue, sovereign immunity, exceptions to sovereign immunity, and the rule of self-execution. In oral hearings the other day, two judges questioned McSweeney aggressively, suggesting that they are skeptical of some of his arguments. But McSweeney still appears to have a shot at winning the five other judges.
The lawsuits are important because they set the constitutional parameters of the transportation debate: The Governor and General Assembly can’t slough off the dirty work of raising taxes to unaccountable, unelected entities like transportation authorities. If lawmakers want to raise taxes, they have to take the heat from voters, who have made it repeatedly clear in polls and referenda that they oppose tax hikes for transportation.
I dub McSweeney the “tribune of the people” for his role as protector of citizens against the depredations of Virginia’s political patricians. Most Virginians have never heard of McSweeney, whose lawsuits have drawn only a fraction of the media attention they deserve. But they owe him a huge debt of gratitude. Even if he loses this round, McSweeney has put the political class on notice: Craft your legislation very, very carefully. Don’t overreach.
