State's lockbox proposal may be unenforceable

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By John Horak

I first heard the idiom “fool me once shame on you, fool me twice shame on me,” in a 1967 episode of Star Trek in which Engineering Officer Scott was duped into responding to a phony distress signal planted by the Klingons – only to have the Klingons try the same thing again.

These words reverberated with me as I drove home from a Feb. 9 forum at UConn Law School convened by the MetroHartford Alliance to discuss the state's 1992 constitutional spending cap and the proposal to enact another constitutional spending provision – the so-called transportation fund “lockbox.”

The lockbox would secure funds (make sure they are used as intended and not diverted to other expenses) raised for Gov. Malloy's proposed 30-year transportation infrastructure improvement plan Let's Go Connecticut!

The lesson Scott learned from the Klingons is one that Connecticut voters should heed because the only reasonable inference to draw from the remarks of elected officials at the UConn forum (Richard Balducci and Attorney General George Jepsen) is that the constitutional cap was a well-camouflaged ruse. Accordingly, when it comes to the lockbox the question is whether we will shame ourselves by being fooled twice.

The answer appears to be “yes.” More on that later.

Balducci was Speaker of the House in the 1991-1992 legislative session, and, as he said at the forum, “spending caps” were used as a bargaining chip in 1991 to induce legislators to vote for the then new personal income tax. In 1991, the legislature enacted a statutory spending cap and drafted and approved the constitutional version for placement on the Nov. 2, 1992 ballot (where voters approved it with an 80 percent majority).

The constitutional cap was needed because a statute can always be amended or repealed by future legislators willing to renege on a past promise – which is not the case with controls imposed by the constitution (which is also the theory behind the lock box).

Jepsen's topic at the forum was the constitutional cap. He is familiar with the topic because he was in the state Senate in 1991-1992; and, in November of last year, he issued an Attorney General's opinion letter concluding that the cap is not legally enforceable.

His reasoning: The constitutional cap (as drafted by the legislature in 1991 and approved by voters in 1992) is circular in that it requires the legislature to define economic measuring terms used in the cap with a 60 percent majority vote (which it has refused to do) – such that the cap will not be enforceable until this happens.

Jepsen's opinion differs from a 1993 opinion letter from then Attorney General Richard Blumenthal, which concluded the cap is enforceable as written.

My disquietude with the speakers' semi-casual treatment of the constitutional cap and the people who voted for it caused me to re-read Jepsen's 2015 opinion in detail – and in doing so it dawned on me that his conclusion is based on the fact that the constitutional cap was drafted (by the legislature) purposefully to be unenforceable. In other words, the voters who approved the cap thinking otherwise did so with legislature's wool pulled firmly over their eyes.

This conclusion is self-evident if you connect the dots in the record of the 1991 House and Senate debates, on which Jepsen relies as a basis for his opinion. He writes that during the “debate on the proposed amendment, legislators discussed the requirement that the General Assembly define the amendment's key terms and recognized that these definitions were essential prerequisites to the amendment taking effect.”

He then quotes Rep. Shaun McNally to the effect that the cap “provides the potential for future spending control … [it] does not provide any guarantees.” At the UConn forum he noted the continuing antipathy for spending controls of any type among legislators (which I interpreted to mean they intend never to define the terms).

The sleight of hand upon the voters is also self-evident from the relevant voting percentages. A 75 percent vote was needed in the House and Senate in 1991 to approve the text of the constitutional cap before it could be put on the Nov. 1992 ballot. The vote in favor was 100 percent in the Senate and 97 percent in the House.

So, despite these overwhelming percentages ostensibly in support of enforceable spending controls, legislators did not then, and never have, mustered a 60 percent vote to fix the problem by defining the terms (which are the same terms as in the statutory cap).

I voted for the cap in 1992. Not wanting to be fooled twice I reviewed the most recent version of the proposed text of the constitutional “lockbox,” and found that it lacks not only precise definitions, but the essential elements needed to ensure enforceability – such as giving the court's jurisdiction to intervene if the legislature breaks its word and a clear statement of who would have standing to sue to compel enforcement.

To put it simply – this is a sieve and not a locked box and our state leaders should be ashamed of themselves for trying to pull the wool over our eyes a second time. Any readers who voted for the spending cap in 1992 and who share my concerns about being fooled again should beam them up to their legislators with a demand for intellectual honesty.

John M. Horak has practiced law at Reid and Riege P.C. in Hartford since 1980. His opinions are his own.

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