What rule of law?

Legislator signals intent to circumvent the Nevada Constitution

By Geoffrey Lawrence
  • Tuesday, June 16, 2009

Arguments that the U.S. Constitution is a "living" document have always been intriguing. The expression "Living Constitution" has often been invoked to justify activist jurisprudence by alleging that the meanings of the Constitution's words change over time. Just coincidentally, the changes in meaning always appear to align precisely with the personal viewpoints that judicial activists want imposed on society — even when those viewpoints directly conflict with the Constitution's formerly established meaning.

This "creative" approach empowers those who want "change" unencumbered by the constitutional restraints that otherwise would force even government officials to obey the law.


Apparently, this virus has now even infected the long-time dean of the Nevada Senate and current minority leader, Bill Raggio.

Last week, Gov. Gibbons vetoed Senate Bill 143, which would have provided $500,000 to fund an interim study on the state's overall tax structure and make recommendations on "stable" revenue sources. Such a study had been sought by the Democratic leadership, which has been adamant that "revenue stabilization" should come in the form of a new broad-based business tax such as a corporate income or gross receipts tax. (The use of the term "stabilization" as a euphemism for "higher revenues" becomes apparent when one considers that the Federal Reserve Bank of Kansas City has determined the corporate income tax to be the single most volatile source of state revenues.)

Following Gibbons' rejection of Senate Bill 143, Raggio commented to the Reno Gazette-Journal that "contingency funds will be available to pay for the study." The senator also was quoted by the Las Vegas Sun as saying "that a tax study will cost $300,000 to $500,000, money that could come from the Interim Finance Committee's contingency fund."

Such use of the IFC's Contingency Fund, however, would be an abuse of power by lawmakers.  This issue goes beyond the merits of any individual funding measure such as a tax hike/stabilization study. The purpose of the Contingency Fund is to provide for agency cost overruns for specific purposes such as increases in electricity or fuel costs. And while legislators have systematically abused the Contingency Fund over the years in order to fund their own pet projects — even if those projects were explicitly defeated through the legislative process — the unconstitutionality of such uses of the moneys has long been an open secret in informed circles throughout the state.

In this respect, Raggio's tax hike/stabilization study has simply become the latest poster boy in a long train of abuses and usurpations of power by Nevada's governing elite. The funding measure was vetoed by the governor, and that veto was not overturned by a two-thirds majority in each legislative house. Hence, the motion should legally be dead. However, Raggio is turning to the legislature's slush fund in order to finance a measure that was legitimately defeated in an open, constitutionally prescribed process.

Such end-runs around the Nevada Constitution have been the Legislature's dirty little secret for decades. During each session, the politicians posture publicly about tight budgets and limited resources. But then between the sessions, when the public is paying little attention, the historical pattern has been for executive agencies to come in the IFC back door and receive virtually all the taxpayer dollars they want.

These expenditures, unapproved by the full body of the Legislature, are almost certainly unconstitutional under the equal-protection clause of the U.S. Constitution. Voters in legislative districts unrepresented on the 21-member Interim Finance Committee are not receiving equal representation, as required by the 14th Amendment.

We have come to a pretty pass when even nominally conservative lawmakers such as Sen. Raggio will get out in front of the public and plump for a thoroughly casual relationship to the Silver State's fundamental law.

However, that is what happens when lawmakers become personally identified with the government, rather than the governed. As many studies have shown, the longer one's incumbency in office, the more likely is this identification to occur.

"L ‘etat, c'est moi," said Louis XVI — "The state, it is me."

This is why government needs limits on its powers.

Geoffrey Lawrence is a fiscal policy analyst at the Nevada Policy Research Institute.

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