BAIT, SWITCH, OR KILL SWITCH?

taxes.pngSpending other people’s money can be such a thrill, particularly when there is lots of it to spend. On the other hand, when somebody else is spending your money, it is not so much fun. So it is good to place restrictions on those folks we delegate to spend our money for us. The problem? How do we keep the “thrill” seekers from evading those restriction, even the ones they supposedly placed upon themselves?

Victoria Cobb is the President of The Family Foundation. Here is an email she sent out last week.

Kill Switch

Victoria Cobb, President
Tuesday, November 11, 2014

If you’ve ever worked in an office where there are lots of closed door meetings, you know what can happen over time.  Trust diminishes, divisions arise, and eventually, productivity declines.

What happened yesterday in Richmond was a classic example of that, only it was on a much bigger stage, with issues that affect all of us being decided behind closed doors, with little or no transparency.  And because this is how the General Assembly has operated in dealing with budgets and judges, few citizens trust the outcomes.

Regardless of whether or not the cause was intentional or an honest mistake in budget drafting, lawmakers yesterday had to once again fix the state budget in order to ensure that our taxes will go up, and money from those higher taxes will go where they “promised” it would go – to transportation.   The details of the mishap are long and confusing, but in a nutshell, when the General Assembly increased taxes in 2013 to pay for transportation projects, they did so by assuring anyone who would listen that the money would always go to transportation.  Some legislators even stood on the floor of the House of Delegates and said that they would vote against any budget that redirected the new tax money.  When The Family Foundation questioned that guarantee in 2013, we were harshly chastised by Republican leaders at the time.

But then, for whatever reason, less than two years later, the new budget had money from that tax hike redirected to cover other areas of the budget due to revenue shortfalls.  Such a redirect should have triggered a “kill switch,” ending the tax hike.  How it happened is still a bit of a mystery and what you believe depends on who you trust.  Whatever the case, yesterday, lawmakers had to quickly “fix” the problem and move the money back to transportation or face losing the tax hike they fought so hard to pass.

The problem with all of this is that many of the budget negotiations and decisions that are made take place behind closed doors, outside the scrutiny of the press and public.  And, much of the detail is left to unelected and unaccountable House Appropriations and Senate Finance staff.  In this year’s case, because the new budget was updated at a special session in September, lawmakers and the public had no time to actually read the document – everyone had to “trust” that it did what they were told.  Only it didn’t.

For several years The Family Foundation has supported more transparency when it comes to the budget process.  One helpful change would be to give lawmakers 48 hours to review the budget after it comes out of conference (where just 6 legislators from each chamber craft a budget, generally in secret).   This simple bill would go a long way in helping the public to regain some “trust” in the budget and our elected officials.  Would it mean that legislators might have to stay in town an extra couple of days?  Maybe.  But that seems a small price to pay to rebuild trust in our government.

Another bill we’ve supported would require budget negotiators (conferees) to detail for other members the exact changes to the budget they’ve made meeting behind closed doors, specifically the differences between their negotiated budget and the budgets the House and Senate adopted prior to the conference committee meetings.

In 2015, we plan to make budget transparency a top priority.  Here’s hoping that legislators have learned a lesson from this year’s budget debacle.  The more open the doors the better.

Yesterday, Delegate Bob Marshall sent this email.

No Recorded VOTES on Transportation Fund Diversion and Gas Tax Increase!

Dear Friends,

TRANSPORTATION FUNDS RESTORED:  The good news is that $50 million in new transportation taxes raised under HB 2313 for transportation, which had been diverted to non-transportation uses, were restored in the recent budget session.

GAS TAX HIKE STARTS JANUARY 1, 2015:   The bad news is our Republican Speaker ruled the amendment offered by myself and Delegate Berg, to stop the 5 cents per gallon gas tax hike set to start this January 1, not germane.

The Speaker also blocked a direct up or down vote to restore the “kill switch.” The “kill switch”was a promise to the public implemented as part of his tax increase bill (HB 2313) guaranteeing that should transportation taxes ever be diverted, the taxes would be “killed.”

Speaker Howell’s HB 2313 tax increase, which passed in 2013, increased the sales tax and several other taxes in Northern Virginia and Tidewater.  The bill at first reduced the gas tax from 17.5 cents per gallon to 3.5% of the wholesale price as of 2/20/13, when gas prices were at their highest.

It also increased Virginia’s gas tax if Congress did not pass the “Market Place Fairness Act” which authorized Virginia to collect taxes (3.5% to 5.1%) from non-Virginia retailers selling in Virginia.

We now pay a 3.5% gas tax.  In January that will increase to 5.1% .  Based on gas prices of $3.17 per gallon, the gas tax will be 16.17 cents per gallon, just under the 17.5 cents prior to enactment of HB 2313.  However, HB 2313 also increased the sales and several other taxes in 2013 to generate more revenue.  Bottom line: we will be paying more come January!

My 11/10/14 amendment to Virginia’s Budget (HB 5010), would have prevented the automatic gas tax increase for the next two fiscal years unless approved by the Assembly on a separate vote in 2015 or after.

OBJECTION to AMENDMENT:  Appropriations Committee Chair, Del. Chris Jones, objected to my amendment on grounds of “germaneness.”  For an amendment to be germane, it must relate to the matter at hand.  Surely Chairman Jones knew that his own budget bill, HB 5010, contained $351.9 million in new revenues from the gas tax.

The Speaker said, “Since the floor amendment addresses a subject matter beyond the scope of HB 5010, I’m going to rule that the floor amendment is not germane.”  Again, $352 million in revenues contained in HB 5010 were generated by the Speaker’s own 2013 law and clearly referenced in the Budget bill, so germaneness was not the real problem.  They simply did not want to go directly on record and vote on it.

I appealed the ruling to the House of Delegates, as is provided for in the Rules. My appeal failed 88-2.  Only Delegate Mark Berg and I voted to overrule the Speaker’s decision.

The 88 delegates who sustained the Speaker’s improper ruling excused themselves from having to go on record on increasing our gas taxes about five cents a gallon starting January 1.

“KILL SWITCH’ DISABLED:   The second amendment which myself and Delegate Berg offered to HB 5010, would have reinstated the “kill switch” to ensure that transportation taxes would cease if diverted by the state or localities in Northern Virginia and Tidewater.

Earlier versions of the current budget held back $30 million in new transportation revenues to be spent on other uses.  That amount held back was increased to $50 million.  These diversions did not flip the “kill switch” because the “kill switch” had already be neutered in an earlier version of the budget!

Again, the Republican leadership avoided a direct up or down vote on my amendment by using a parliamentary motion to “pass by” my amendment on a “voice vote” so no one’s vote would be recorded!  The result:  Virginia and its localities can divert future transportation funds to non-transportation purposes without killing the taxes although the “kill switch” promise was then part of Speaker Howell’s 2013 law.

ACTION ITEM:  We were all outraged at Jonathan Gruber, the MIT professor and major architect of Obamacare, who proudly  manipulated and deceived the public, with a smug “I know better than you” attitude while he referred to citizens as “stupid.” Such attitudes have no place in government, including in Richmond.

Although there were required recorded votes in the House of Delegates and Senate on increasing a collection of taxes when HB 2313 passed, there has not been a direct vote to increase our fuel taxes, or a direct vote to suspend the “kill switch.”  I believe “we the people” deserve better.

Check out the video of the debate on HB 5010.

Please ask your delegate why he or she voted to sustain a clearly erroneous non-germane ruling from the Speaker to prevent a vote on my amendment to cut the gas tax increase.   Also ask why he or she did not demand a record vote to reinstate the “kill switch” to prevent the diversion of future transportation money to other uses.

Thank you so much for your help!  Please share with your friends.

Sincerely,

Delegate Bob Marshall

HAVE OUR STATE GOVERNMENTS BECOME WIMPY?

sick with feverThese days I am not very excited about politics. I still see the issues as extremely important, but I don’t have any genuine Conservatives running locally that I can support.

I still support the Republican Party, but the Republican Party is not doing anything meaningful. They are just waiting for disgust with President Barack Obama and anyone they can associate with him to win the election for them. It is hard to generate enthusiasm for a political party that is so fearful of standing for and fighting for anything.

To illustrate, let’s consider the following. Here is an email I got from Delegate Bob Marshall on Wednesday.

Marshall, Black and Berg Request Travel Ban from
Ebola Prevalent Areas

Dear Friends,

Yesterday Senator Dick Black, Delegate Mark Berg, MD and I sent a letter to Governor Terry McAuliffe urging him to seek travel bans similar to those that have been implemented in thirteen African nations which have banned travel from Ebola prevalent areas to their countries.

We urged Governor McAuliffe to use the police powers of Virginia to protect our citizens and residents from exposure to Ebola even if it means a timely court challenge against passenger airlines or the federal government if they continue to permit entry into Virginia of passengers flying from Ebola affected areas.  We also asked him to take similar measures to protect our seaports.   We reminded him that similar Government travel restrictions were used to limit Severe Acute Respiratory Syndrome (SARS).

Please check out the letter and contact Governor Terry McAuliffe to urge him to:

Use your gubernatorial powers to protect me and the other residents of Virginia from exposure to Ebola.  Please take the necessary steps to ban travel from the affected nations to Virginia, both through our airports and through our seaports.

Thank you for your help!

Sincerely,

Delegate Bob Marshall

Three members of our General Assembly wrote and signed a letter.  Just three.

Will our Democrat governor do anything? Probably not.  McAuliffe fights for taxes, special privileges for victim groups, and big spending, but he does not seem much interested in protecting our God-given rights.

What is astonishing is why our leaders have not imposed travel restrictions to protect themselves and their own families? Do they think themselves somehow immune from the plagues that afflict the rest of humanity. It seems that is the case, but we should know better.

I wonder if we live too much in an unreal world. Do we regard real life as something akin to reality TV? I doubt we are so foolish. Nevertheless, we have a tendency to regard death as too distant to touch us.

I remember reading a story about Union soldiers, their first brush with combat during the Civil War. When they came fire, ambushed, they just stood there too startled to move. What was running through their minds? Was it disbelief that someone could actually shoot at them? Only after they got over the shock of seeing the bodies falling around them did the remainder seek cover.

The Union soldiers were young; they had never experienced combat or been under fire. They had not been trained to react appropriately, and they had no time to react. What is our excuse? Contained in a backward region of distant Africa, the Ebola epidemic has been going on for months, growing.

Do we have an irrational sense of invulnerability? What will happen if Ebola starts to spread here? When we realize we too can suffer the same plagues that afflict the rest of humanity, will we panic or will we turn to God? Will we repent for our foolish hubris? How many of us have to die before that happens?

OCCASIONALLY WE GET GOOD NEWS!

Here is an email I got from Delegate Bob Marshall on Friday.


House of Delegates Law Suits
to Protect Marriage and More!

Dear Friends,

Thanks to your good efforts Delegate Cole’s HR 566 passed 65-32 last night in modified form by authorizing the Speaker to act on behalf of the House of Delegates to defend Virginia’s Constitution or statutes in cases of dereliction by the Governor or Attorney General.

The provisions of HR 566 mandating that the Speaker go to court were replaced by language granting the Speaker the authority to go to court on behalf of the House of Delegates specifically in the areas of Marriage, Medicaid and Right to Work. A generic provision was also included which gave the Speaker the authority to go to court in cases not enumerated where the Governor or Attorney General attack state laws or fail to defend them.

In the case of marriage, HR 566 included a provision authorizing the Speaker to go to state court to remove Attorney General Mark Herring from the Bostic case where Mr. Herring has sided with plaintiffs in attacking the constitutionality of Virginia’s 2006 voter approved one-man, one-woman Marriage Amendment to the VIrginia Constitution.

While HR 566 authorizes the Speaker to appoint counsel for litigation, it does not address the question of compensation for legal representation. So, counsel could be appointed pro bono, privately paid or compensated with general operating funds appropriated for the House of Delegates.

The US Supreme Court has recognized the constitutional and legal prerogative of legislative bodies to defend statutes.

In INS v. Chadha (462 U. S. 919 from 1983) where the practice of a one House of Congress veto of Executive actions was challenged, the Court said, “We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. See Cheng Fan Kwok v. INS, 392 U.S. at 210, n. 9; United States v. Lovett, 328 U.S. 303 (1946).”

The situation described in by the US Supreme Court in INS v. Chadha is precisely the circumstance of Attorney General Mark Herring who is attacking Virginia’s Marriage Constitution Amendment on behalf of plaintiffs in Bostic v. Rainey where plaintiffs seek to have Virginia’s one-man, eon-woman Marriage Amendment declared unconstitutional.

Please contact Speaker Bill Howell and urge that he proceed to secure counsel to go to Virginia state court to have Mark Herring removed from Bostic v. Rainey, and also obtain counsel to defend Virginia’s Marriage Amendment in federal court.

Speaker Howell maybe contacted at (804) 698-1028 or delwhowell@house.virginia.gov.

Thank you for your continued help!

Sincerely,

Delegate Bob Marshall

 

 

WHY GOVERNOR MCAULIFFE’S “LINE ITEM VETO” IS UNCONSTITUTIONAL

Because Delegate Rob Bell provides such an excellent explanation of why Governor McAuliffe “line item veto,” I decided to post his email too.

No You Can’t, Governor

Today Governor McAuliffe announced he would line item veto budget provisions that prohibit him from expanding Medicaid.

Here’s why the Governor can’t do what he wants.

Last week, the Assembly passed a budget that put a condition on Medicaid spending: “no general or nongeneral funds shall be appropriated or expended” to expand Medicaid under Obamacare until a vote by the General Assembly.  This condition is what Governor McAuliffe wants to veto.

However, in the Brault case, the Virginia Supreme Court explained that if a budget includes a spending item that comes with a condition, the condition cannot be separately vetoed.  To exercise his line item veto for these conditional budget items, a Governor must veto both the condition and the spending.

This makes sense: for a bill (like the budget) to become law, it is supposed to pass the House and Senate.  If a budget item passed the legislature with restrictions, then it didn’t pass on its own – it only passed with the restrictions on it.  If the Governor could strip out the conditions with a veto, it would leave behind a spending item that had never in fact passed the House and Senate.  To quote the U.S. Supreme Court, such a veto “would not be negation of an item or items of appropriation by veto but, in effect, affirmative legislation by executive edict.”

McAuliffe could veto the condition on Medicaid spending, but only if he also vetoed Medicaid spending itself.  This, obviously, is something he would never do, since his goal is to expand the program under Obamacare.

So what’s next?  On Monday, the General Assembly will meet and Governor McAuliffe’s veto can be ruled out of order, which means the veto will not be included in the final budget law.  Governor McAuliffe could then file action in court to force inclusion of his veto, and we would have to fight him in court.  To prevail, Governor McAuliffe would have to prove that he vetoed the condition and any spending it restricts.  Given the above court rulings, he should fail, and the budget restrictions on Medicaid should stand.

In short, his veto would be ruled unconstitutional.

Sincerely,

Rob Bell
Delegate, 58th District