Saturday, July 12, 2003 | 3:44 a.m.
The state Supreme Court, in a ruling that will be derided as crazy and hailed as courageous, has supplanted the dominant group of Session '03, the Assembly Republican holdouts, who have been derided as crazy and hailed as courageous.
In one day the justices achieved what Gov. Kenny Guinn had declared six months ago as a verity -- he averred that those legislators who do not come along on taxes are "irrelevant" -- and then endured a half-year of the word being gleefully or angrily shoved down his throat.
The shocking opinion, which rendered the two-thirds requirement for taxes at least temporally irrelevant, too, is the perfect denouement to this political travesty that has played out in the Carson City theater of the absurd. There reality and illusion have become indistinguishable, the inane has been adjudged brilliant, Chauncey Gardners have been portrayed as Winston Churchills.
That is, after all, the place where a group of these Assembly Republicans have been lionized as anti-tax heroes when the inescapable truth is that most of them have been willing to support hundreds of millions in new revenue, albeit not as much as Guinn and the Democrats.
So on the one hand, I chuckle as the Warholian clock ticks down for some of the Assembly Republicans, as their strutting upon the stage as stars turns to cringing as mere extras. I smile thinking about how my rabid friends over at the Review-Journal editorial page, in the offices of the Las Vegas Chamber of Commerce and in the Nevada Republican Loon Caucus must be dealing with this painful deus ex machina. And I am gratified that the broad-based business tax I have advocated for a decade and a half will become a reality, thanks to the Supreme Court.
But then reality intrudes. And the truth is that the opinion is the most tortured since the high court reinvented the definition of calendar days to allow then-Gov. Bob Miller to have what seemed to many a constitutionally prohibited third term.
Worse, the precedent it sets is awfully dangerous. Next session, for instance, when hundreds of millions in taxes will be needed anew, the tax advocates can just delay until June 30 passes and the two-thirds, once again, magically disappears?
And the court's decision will give sustenance to conspiracy theorists, who will believe they have the incontrovertible evidence that gaming controls the high court, that Guinn and his casino backers knew this would happen months ago as a fail-safe and this has all been an elaborate charade, that no one should have any faith that any popular vote cannot be subverted by juice. That is an extraordinarily sad effect of this decision, but one likely to provoke unsettling fury among the masses, resulting in ill-conceived and opportunistic ballot initiatives and misguided electoral retribution.
Some will argue that because the opinion is so narrowly constructed -- that is, it applies only to this session and the failure to fund the education budget -- that its general applicability will be limited. But the arguments in the opinion neither inspire confidence nor are necessarily sui generis.
As much as it pains me to say so, the opinion makes no valid constitutional points, cites no real important supporting case law and sounds more like a political manifesto than a legal document.
The seminal argument is ludicrous: "Due to the impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority, we conclude that this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education."
I acknowledge up front that I despise the two-thirds requirement, believing the founding fathers would blanch at such perversion of the concept of majority rule and that it only exists because an ambitious assemblyman named Jim Gibbons wanted something on the ballot with his name on it. But to imply that the supermajority is some kind of minor legislative rule -- such as one that doesn't allow senators to eat at their desks -- is to not just downplay a constitutional amendment that twice achieved overwhelming electoral majorities. It is, to use the legal argot, arbitrary and capricious.
But there's more from the court that raises questions about its desire to achieve a certain result rather than apply the law. The opinion actually argues that because revenues were needed in 2003, as opposed to when no major tax increases were enacted in the previous three sessions, the two-thirds became unworkable as the Gang of 63 "left its constitutional obligations unfulfilled." So because it's harder when taxes are needed, the court should just erase the requirement? If it weren't in black and white, I wouldn't believe it.
The opinion also includes this inadvertent comic gem: "Finally, constitutional provisions should be interpreted so as to avoid absurd consequences and not produce public mischief." Methinks the court's pot is calling the legislative kettle black.
As Justice Bill Maupin points out in his dissent, the two-thirds and the education funding provisions of the Constitution are "not inherently in conflict." Indeed, there is tension, but, as Maupin further illustrates, the impasse has not been reached since education funding does not evaporate until the end of this month. So why not just admonish lawmakers and tell them to get it done by Aug. 1, lest they be found in contempt?
In the short run, I'd expect that the Assembly will not overreach and pass some hybrid of the payroll tax and the franchise tax (based on gross receipts) and the Senate will have a tough time not going along. But the long run is more difficult to foretell.
I will laugh for awhile because a business tax, sorely needed for years, will become a reality. But I don't think my happiness will last long as the consequences of these means to this end will not be justified.
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