Column: Government tax-raising workaround is legal, but awkward

The failure of a transportation tax to qualify for the ballot this year deprived San Diego County of, among other things, an interesting test case: How well, or poorly, will citizens’ initiatives work to fund government?

The half-cent sales tax proposal was drafted by labor and environmental groups to provide early funding for the long-range, $160 billion transportation proposal by the San Diego Association of Governments.

A series of court rulings in recent years have changed the equation of raising taxes by initiative, which resulted in an unusual, somewhat awkward arm’s-length relationship between the petitioners and the officials who devised the transit-heavy plan.

Supporters say the plan could revolutionize transportation throughout the region for the better, while critics call it a boondoggle that doesn’t direct enough money toward improving roads and traveling by automobile — the current form of transportation used by the vast majority of San Diegans.

Merits of this plan aside, the potential financing of it and other government projects and operations could be the real revolution. For decades, the widely accepted legal interpretation was that raising local taxes in California for a specific purpose such as transportation required two-thirds voter approval.

Three appellate courts have upheld rulings that the high threshold only applies to measures put on the ballot by government agencies, while citizens’ initiatives to raise taxes — even for the same purpose — would now require only a simple majority.

There’s a catch. Government bodies cannot, or aren’t supposed to, be involved in the initiative process. Elected officials and government staff can be, but only as private citizens. That seems a pretty fuzzy line.

But at least outwardly, there has been a fair amount of caution about stepping over that line. If upon a legal challenge the courts determined that a citizens’ initiative approved by a simple majority was actually a government-sponsored measure, the tax could be scuttled.

While not a tax issue, San Diego’s Proposition B approved by voters in 2012 to scrap municipal worker pensions was overturned in large part because courts ruled the initiative had the city’s official imprimatur and, thus, required consultations with employee groups, which did not happen .

The simple-majority citizen tax initiatives for government taxes require a careful dance between outside groups and government officials. There were suspicions that both the SANDAG tax — let’s call it what it would have been — and the proposed San Diego hotel tax increase in 2020 involved inappropriate coordination. No real accusations, or proof, surfaced.

Still, the process has a bit of sleight-of-hand feel to it. It’s as if we’re to believe the two allied parties know through some kind of osmosis what the other wants or is doing. Some SANDAG staffers said they learned a lot about the “Let’s Go!” San Diego” transportation tax proposal from the group’s website.

If the tax made the ballot and was approved, there’s the question of what would happen if SANDAG’s grand plan changes, as might be expected in a transportation system that unfolds over a matter of decades, and tax proponents don’t like it or the initiative isn’t flexible enough to accommodate it.

This is theoretical at this point because the San Diego County Registrar of Voters determined in June that the signatures for the tax proposal fell well short. Yet, supporters said they’ll be back. This proposal was the first of a few tax increases needed for the SANDAG plan. The lower vote threshold is certain to trigger more citizens’ initiatives to raise taxes for other government agencies.

Coronado Mayor Richard Bailey sits on the SANDAG board and is a critic of both the transportation plan and the method of funding.

“It’s a terrible way to govern,” he said. “It makes politics so difficult.”

Bailey and others of a like mind said SANDAG should have put its own tax measure on the ballot, but that proposal never came to the full board. Such a measure would have required a two-thirds vote, a potential roadblock for the transportation plan.

“One of two things is true,” he said. “Either SANDAG was greatly negligent in failing to put their own measure on the ballot for a mission-critical transportation plan, or they were trying to circumvent election law, which is illegal.”

There’s another way to look at it.

Unless people crossed that fuzzy line — and no one says they actually did — the courts have stated what was attempted is allowed. That is the election law today.

Despite my earlier caveats, the SANDAG board majority and staff could have been seen as wisely backing off and letting the outside groups carry the tax ball, giving the transportation plan a better shot at needed funding.

Whether there was coordination between them is a matter of speculation, but mostly among political insiders.

Some of that suspicion arose during the effort to draft, qualify and pass Measure C, the 2020 hotel tax initiative to fund expansion of the downtown convention center, homeless programs and road repairs — all government spending projects.

A coalition of the tourism industry, labor unions, housing advocates and others drove the initiative. That was done, in part, with hopes that a majority-approval threshold would be valid if they did not achieve a two-thirds vote. The measure fell a hair short of the latter — 65.24 percent of the voters supported it — and the city is litigating whether the measure should be deemed approved.

Some San Diego city officials, especially then-Mayor Kevin Faulconer, clearly were kept in the loop on the development of the ballot proposal and their views were known to the drafters. That didn’t seem to matter to the public, as Faulconer was long identified with the proposal.

Taking a step back, there’s a disconnect that’s rarely discussed: The Legislature and governor can win voter tax approval with a simple majority, but local governments can’t.

Bailey is right about this being no way to govern. It’s a convoluted process and the laws probably should be changed. The solution is simple, although it may not have broad support: Get rid of the two-thirds threshold entirely.

Vital issues of government financing should not be determined by a third of the voters plus one, regardless of who’s making the proposal. Raising taxes should be like most other measures on the ballot: The side with the most votes wins.

Tweet of the Week

Goes to Schooley (@Rschooley), “average against the machine.”

“Is Alito going to mock Kansas now?”

Leave a Comment