Legal system rewards bad legislative behavior
John M. Horak
The Connecticut constitution is the supreme law of the state, and the General Assembly is subject to its directives.Â
However, this principle may have been turned on its head in a Nov. 17, 2015, opinion letter of Attorney General George Jepsen in which he concludes that a spending limit added to our constitution in 1992 has âno legal effectâ because, in essence, the General Assembly has chosen to ignore it. When this same issue was presented to former Attorney General Richard Blumenthal in 1993 he reached a different conclusion: The constitutional spending directive to the General Assembly cannot be rendered meaningless by a refusal to abide by its terms.
If Jepsen is correct there is, in effect, no legal limit on how much the legislature can spend, and the 80 percent of voters who approved the constitutional amendment in 1992 might as well have stayed at home.
These dueling legal opinions deserve taxpayer scrutiny as the legislature slogs its way through its self-inflicted financial crisis.
As a first step, it is important to understand that attorney general opinion letters are not law â they are reasoned predictions of how the courts would decide the issue if it ever got there. These letters are chapters in the spending-cap saga, but not the epilogue; and, as explained below, there is reason to believe the courts would finish the story by agreeing with Blumenthal.
Connecticut was in a fiscal crisis in the early 1990s, and a personal income tax was the solution. However, many legislators were concerned that future legislators would not be able to restrain themselves with this new tax revenue, so a spending cap was proposed to ameliorate the concerns and get the votes to pass the tax bill. The grand bargain was new tax revenue in return for a legally enforceable ceiling on spending increases. There were two ways the cap could be imposed, and both were used to seal the deal.
First, in 1991 the legislature approved a statute in which it essentially imposed a spending cap on itself. This statute is self-contained in that it defines the economic measuring terms needed to calculate allowable spending. However, the statute did not provide sufficient assurances because a statutory cap is âno cap at allâ in that a statute adopted in one legislative session can be eliminated or changed in a future session (with the normal 50 percent majority vote). Relying only on the statute to limit future spending would be like trusting a scofflaw to put handcuffs on his wrists and allowing him to hold the key.
Second, concerns about the limited efficacy of the statute led to the 1992 constitutional amendment described above. The constitutional cap is not self-contained. It does not define the measuring terms needed to compute the limit, but directs (it uses the word âshallâ) the legislature to do so â but with a 60 percent majority vote, not the normal 50 percent majority. There is simple genius in the 60 percent requirement in that it forces legislators to build consensus; it compels a party holding a 50 percent majority to reach across the aisle and compromise to get the extra votes needed to get to 60 percent on spending decisions.
Finally, we are still talking about this now because the legislature has never defined the measuring terms with a 60 percent majority â and the legal consequences of this omission, this gap in Connecticut law, is what Jepsen and Blumenthal wrestled with in their letters.
As stated above, Jepsen concluded that the constitutional amendment is of âno legal effectâ because of this legislative failure. His opinion relies on dicta (written thoughts on an issue not before the court) in a 1996 Supreme Court case on the issue of whether there is a âconstitutional right to a spending capâ that a taxpayer can sue to enforce â not whether the legislature can dodge a constitutional directive by omission (a failure to act).
The bigger problem with his conclusion is that it ignores a legislative conflict of interest: A party with a 50 percent majority has every reason not to obey the constitutional directive because doing so allows it to adopt its spending agenda without the need to reach across the aisle to get the votes needed to reach 60 percent. His opinion gives a 50 percent majority incentive never to obey the constitutional directive, as it can get what it wants by amending the statutory cap as needed to run up the tab (which, coincidentally, is what it did in June).
In 1993 Blumenthal deferred to the constitution's position at the top of the hierarchy and concluded that the legislature's inaction cannot be interpreted to, in essence, write the constitutional amendment out of the constitution. His reasoned conclusion: The statutory definitions of the measuring terms as approved in 1991 remain in effect, but the 60 percent requirement applies to any attempt to modify them, which means the majority's modification to the statute in June is unlawful.
The irony in this saga is that the 1992 amendment was intended to prevent the type of fiscal crisis we have today; and the tragedy is that in the midst of the crisis the legal system seems ready to reward bad legislative behavior by giving âno legal effectâ to the spending handcuffs the people added to the constitution 23 years ago.
John M. Horak has practiced law at Reid and Riege P.C. in Hartford since 1980. The views expressed are his own.
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