OBSERVATIONS AND RECOMMENDATIONS ON THE PENDING PROPOSED TEXAS CONSTITUTIONAL AMENDMENTS
by David Van Os
A word on the Constitutional Amendment process
The Constitution of the State of Texas is the charter that establishes the relationship between the people of Texas and their institutions of government. It is the fundamental application of self-government for the people of Texas in all aspects except for matters covered by the United States Constitution and laws of the United States.
Constitutionalism is deeply rooted in the Texas soul. When the Republic of Texas entered the community of nations as a sovereign republic in 1836, it became only the second nation in modern world history, after the United States of America, to establish self-government through a written constitution. When the people of Texas go to the polls in general elections to approve or disapprove amendments to their Constitution, they are writing the compact among themselves as to how they shall govern themselves as Texans. Great care should be taken in doing so.
A Texas Constitutional Amendment begins as a proposed Joint Resolution in either the Texas House of Representatives or Texas Senate. The House or Senate Joint Resolution must pass both chambers of the Texas Legislature with 2/3 majorities before it can be proposed to the people in the general election. Then the voters by statewide popular vote decide whether or not to adopt the proposed Amendment.
The current Texas Constitution was adopted in 1876. At that time, after 10 years of Reconstruction government, the people of Texas wanted a weak central government with strictly limited powers as a reaction to the assertions of strong executive power by the Reconstruction governors. Therefore they adopted an extraordinarily populist state constitution that, on paper at least, provides considerably more protection for individual liberties than the Bill of Rights of the U.S. Constitution, and contains much greater economic protection for the individual against the concentrated economic powers of banks, corporations, and monopolies than does the U.S. Constitution.
Indeed, in this respect the Texas Constitution of 1876 is squarely in line with the earliest, strong populist traditions of the Republic of Texas and the early Statehood days. For example, under early Texas Constitutions corporations were prohibited from engaging in the business of banking, and no corporation could be chartered to do business in Texas unless 2/3 majorities of both houses of the legislature passed a bill granting a charter.
It is because the drafters of the 1876 Constitution sought to design a weak central state government that the Constitution contains a large amount of detail and specificity. The powers of government were described in great detail in order to keep a tight rein on government. In other words, the Texas Constitution was designed intentionally to micro-manage state government in order to keep the people tightly in control of their government. This explains why there are so many amendments of the Texas Constitution. Many aspects of state government are spelled out in such detail in the Constitution that the only way to change them is to amend the Constitution itself.
A word on letting the State borrow money through bond issues
Several of the Constitutional Amendments on the November 6 general election ballot propose to authorize the State to raise money for various projects by issuing and selling bonds. Why do these require Constitutional Amendments? Because Article III of the Texas Constitution prohibits the State of Texas from going into debt.
A “bond” sold by the State is a document reflecting a loan of money to the State. When a bond is purchased from the State, the purchase money is a loan to the State and the purchaser is the loaner. The bond evidences the loan. The State repays the loan with interest. The payments of interest and repayment of principal to the bondholder, i.e., repayment of the loan, are made out of the general funds of the State; in other words, out of tax dollars.
Thus, the sale of bonds by the State creates debts of the State. This is why it requires amending Article III, Section 49 of the State Constitution, which prohibits state debt, in order to permit the State to issue bonds.
I respectfully submit to you, my friends, that we the people have already had way too much of the Bushite borrow-and-spend philosophy. Raising State funds by selling bonds is nothing more than a way for legislators to avoid responsibility. It passes the buck to future generations. It does not avoid spending tax money; it simply defers expenditures to future State treasuries – with interest. It is an exercise in the ultimate fraud on the part of legislators – they tell the voters, “I didn’t increase spending and I lowered your taxes so re-elect me;” while in truth they not only did raise taxes for future generations because the bonds will have to be repaid out of future treasuries, but they raised future taxes more than they would have been raised for the same expenditures today, because the future taxpayers will not only repay the principal amounts of the bonds, but will also pay huge amounts of interest on the loans. It is Bushite fiscal policy to the core –“I will gladly mortgage your future if you will let me pander and lie to you today”.
I am definitely not a supporter of the Grover Norquist, “I want to shrink government to the size of a bathtub”, philosophy. As a taxpayer and a citizen, I am always willing to pay my fair share of taxes, and to pay more taxes if necessary, to promote the legitimate common good of our society as determined by the consent of the governed exercised through the will of the democratic majority of elected representatives. In my view, if expenditures of public dollars are good and worthy, then they are worth funding with present tax dollars, including tax increases if necessary. If the government to whose existence a democratic majority gives its consent wants to ask the taxpayers for more funding for expenditures it believes to be worthy of our society, then it should have the honesty and respect for the taxpayers to make the request openly and up front. It should not use the cover of selling bonds to pretend that it is not asking the taxpayers for more.
There is another bad part to financing government through borrowed money. Primarily wealthy investors purchase the bonds, and primarily the working middle class pays off the bonds through its tax burden. Thus is more and more money transferred from the working middle class to the wealthy investor class. It is not stupidity or incompetence that motivates the Bushite philosophy of borrow-and-spend government. The Bushite power and economic elite love nothing more than watching the working middle class’s tax dollars stream into the bank vaults of the elite in the form of the interest paid on government bonds.
For these reasons, I respectfully urge my fellow Texans to vote NO on most of the proposed Constitutional Amendments permitting the State of Texas to incur debt through the issuance of bonds. The specifics are set out below.
Proposition 12 – I begin with Proposition 12 because it is the worst of the worst. In this proposition, we are being asked to amend Article III, Section 49 of the Constitution in order to permit the Texas Department of Transportation to sell 5 billion dollars worth of bonds. This is the same agency that today, this very day, is cynically and arrogantly using your and my tax dollars in a high-pressure marketing campaign, designed by a political consulting firm, to convince us that we want toll roads; in complete disregard of the fact that government is supposed to follow the will of the people, not the other way around. This is the same agency that intends to tear up our beautiful Texas with the most gigantic land grab in history, the Trans-Texas Corridor, so that Texas will turn from a state into a highway and the people and farms of Texas will turn into the highway’s butlers. This is the same agency that Slick Rick Perry uses as his personal toy for the pleasure of the special interests, both domestic and international, whose moneys are expected to continue funding the political ambitions of Slick Rick and his new patron, Rudy Guliani (and it is such a coincidence that the international corporate law firm of Bracewell Guliani is legal counsel to CINTRA). Let’s put it this way – if you trust TXDOT and Rick Perry, then by all means do cast your vote to amend the Texas Constitution to allow TXDOT to indebt your children to paying off 5 billion dollars more money for TXDOT to build toll roads and the Trans-Texas Corridor with. But if you don’t think TXDOT and Rick Perry have earned your trust, then get off your duff and tell everyone you can think of to vote against Proposition 12.
And the rest
Proposition 1 – The legislature has already transferred Angelo State University from the Texas State University System to the Texas Tech University System. To do that did not require a Constitutional Amendment. This proposed amendment would ensure that public funds Constitutionally appropriated for Angelo State University would go with Angelo State to the Texas Tech System. It is a logical proposition and deserves a Yes.
Proposition 2 – This one would amend Article III of the Constitution to authorize the Texas Higher Education Coordinating Board to issue an additional 500 million dollars worth of student educational loans. “It is an axiom in political science, that unless a people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self government.” The Texas Declaration of Independence, March 2, 1836. We must keep college education attainable and accessible for working middle class Texans for the sake of democracy and liberty. With the terrible increases that we have experienced in public college and university tuition rates under Bushite “government is a private business” philosophy, the burdens on existing college loan programs are increasing exponentially. This proposition is unlike most of the proposed bond issues in that the loans will primarily be paid back by the borrowers (the student loan recipients) rather than by the taxpayers. A small percentage of the borrowers will default, but the cost of a small percentage of defaults is a worthy risk in return for achieving the educated and enlightened society for which the founders of Texas risked all that they had. Please vote Yes on Proposition 2.
Proposition 3 – Supporters describe this proposed Constitutional Amendment as a simple clarification of Article VIII of the Constitution to ensure that nobody will suffer a huge increase in their property tax appraisal rate from one year to the next. However, the actual proposed Amendment is worded awkwardly and ambiguously. The placement of the phrase, “or a greater percentage”, is awfully loose draftsmanship. The lawyer in me says, “Don’t trust this phrasing.” The informed citizen in me says, “Why in the world would anybody give the Craddick Legislature the benefit of the doubt when it comes to amending the Constitution with language that seems vague and ambiguous?” I don’t, and I respectfully urge a vote of No.
Proposition 4 – Another bond proposition, this one to amend the Constitution to permit the State to sell 1 billion dollars in bonds to fund various expenses, all very loosely defined, for several state agencies. The 2007 Legislature had a fiscal surplus. It could have funded everything contemplated in this proposed bond authorization directly out of this year’s treasury. Everything I said above about passing the buck to future taxpayers applies here. NO.
Proposition 5 – Article VIII, Section 1 of the Texas Constitution requires that all taxation be uniform. This proposed Amendment of Article VIII would permit legislation to be passed to authorize municipalities of less than 10,000 population to give certain commercial property owners five years’ worth of freezes in tax appraisal rates for participation in certain downtown revitalization programs funded by grants from the Texas Department of Agriculture. Under this proposition, certain property owners would get the benefit of government grants to rehabilitate their commercial property, and at the same time would be free from increases in the properties’ tax appraisal rates resulting from the increases in their properties’ market value generated by the government-funded improvements. Does this proposition sound to you like an offer of good times for the right cronies? It does to me. When one property owner doesn’t have to pay his fair share, the burden gets spread unequally and unfairly to everybody else. The people of Texas who adopted our Constitution in 1876 were wise in requiring that taxation be uniform. They didn’t want the taxation system to get corrupted by cronyism or favoritism, and neither should we. Stick with the original plan for uniform taxation. Vote NO.
Proposition 6 – This proposed Amendment would authorize the legislature to pass a law exempting from property taxation one motor vehicle that is used for both business and personal purposes. It is a longstanding Texas taxation principle that equipment used for the making of money in business is subject to taxation. Should businesses get exempted from paying taxes on vehicles that they own and use for business purposes because the vehicles get used for non-business purposes a small amount of the time? If you think this shouldn’t happen, what about making a small concession to let business owners exempt one such vehicle from the tax rolls? This one is a close call to me, but I come down in favor of it because I think the primary beneficiaries will be small business owners. YES.
Proposition 7 – This proposed Amendment would enable property owners whose property has been taken by the government through forcible eminent domain to buy back the property from the government at the same price the government paid for the property, if the government decides it no longer needs the property and is willing to sell it back. In other words, the government would not be able to profit off the property by requiring the property owner to pay for increases in market value that have occurred over time. Eminent domain is too often abused and this amendment is a small step in the right direction. YES.
Proposition 8 – This proposition is described as an amendment to clarify certain procedures relating to home equity loans. The wording of the actual proposed Amendment does not offer any significant new protection to consumers. The bank lobby is strong in the Craddick legislature, and the Republican legislators who sponsored this proposition are not known to be consumer watchdogs. It is a safe bet that the banks and their lobbyists gave the green light to this proposition. Don’t trust it. NO.
Proposition 9 – This proposition would enable the legislature to give disabled veterans with 100% service connected disabilities a complete exemption from property taxation on their homesteads. Even a Craddick legislature could not say no to this proposition and there is virtually no known opposition to the amendment. Individuals who become totally disabled as a result of dreadful injuries suffered through military service in Iraq are the worst victims of Bush’s lies. YES.
Proposition 10 – This one is pure housekeeping. It is an amendment to delete all references to the political office of Inspector of Hides and Animals. The office is obsolete. No Texas county any longer has an Inspector of Hides and Animals. While this Amendment is not necessary and would not justify the expenditure of money to conduct a Constitutional Amendment election if it were the only proposition on the ballot, as long as we are spending the money anyway we might as well pass this amendment. YES.
Proposition 11 – This would amend the Constitution to require the legislature to conduct a record vote most of the time on votes for final passage of bills. It is implausible that in a democracy the people would not have the ability to know how the elected members of the legislature voted in the exercise of lawmaking, but currently the Texas Constitution does not require record votes. While all votes in the legislative process need to be recorded – including votes on amendments for example, not just votes on final passage – adopting this Constitutional amendment to require that at least final passage votes be recorded would be a much needed first step. YES.
Proposition 12 – TXDOT has the gall to ask the voters to give it 5 billion dollars in bond-selling authority. See discussion above. NO, NO, a thousand times NO.
Proposition 13 – Article I, the Bill of Rights, of the Texas Constitution, Section 11, provides to every person accused of a crime the right to bail, except in capital cases where the proof is evident, and a few other narrow exceptions. This proposed Amendment would modify Article I, Section 11, to add another exception to the right to bail, by giving judges the authority to deny bail in certain family violence cases, where the accused has allegedly violated a court order or condition of release, regardless of whether the crime of which he is accused is a felony or misdemeanor. In my opinion, we should not be amending the Bill of Rights. It is very popular right now to “throw the book” at persons accused of family violence. But we have fundamental rights set forth in the Bill of Rights precisely in order to bind ourselves to fundamental principles even in the face of exigencies of the moment. The power of a judge to deny bail to a person accused of a crime is a power to imprison without trial by jury. It is a power to obliterate the fundamental presumption of innocence until proven guilty by jury trial. We should resist the temptation to dilute fundamental rights that trace back to the Magna Charta. I respectfully urge a vote of NO.
Proposition 14 – The Constitution was amended in 1965 to mandate the retirement of judges and justices upon reaching age 75. This proposed Amendment would allow judges and justices who reach mandatory retirement age during the middle of a term to which they were elected, to serve out that term. I am in favor of this one because it promotes democracy to enable the will of the voters to be fulfilled. YES.
Proposition 15 – This Amendment of Article III of the Texas Constitution would authorize the issuance of up to 3 billion dollars in bonds for a new Cancer Prevention and Research Institute, to research the causes and prevention of cancer. There is no doubt in my mind that it would a good thing to have this. However, I object to the borrow-and-spend philosophy. The State of Texas has a fiscal surplus and could pay for this project out of general revenues without selling bonds. The interest on 3 billion dollars in bonds will be 1.6 billion dollars. Thus the project is not a 3 billion dollar project, it is a 4.6 billion dollar project, to be paid for by future taxpayers. No explanation has been offered as to why the legislature did not fund this project directly out of the existing fiscal surplus. I submit that the explanation is the political convenience of passing the responsibility for spending decisions off to the future. The Texas Cancer Prevention and Research Institute is a worthy project for Texas. It is worthy of being paid for directly out of existing general revenues, rather than engaging in the scam of selling bonds. The corporate law firms that prepare governmental bond issues pull in very large fees in one of the most atrocious rackets in the legal-governmental world. Those same law firms often make large political donations out of their law firm PACs. This proposed bond issue is very likely another example of the hogs wallowing deep in the public troughs while claiming all kinds of feel-good notions to gain themselves entry. Tell the legislature to come back in 2009 and fund this project straight up in the open, as it deserves. Vote NO to passing the buck.
Proposition 16 – This proposition would authorize the Texas Water Development Board to sell up to $250 million worth of bonds to expand an existing program to assist economically impoverished areas in obtaining clean and safe water. I have reservations about this proposition because it is borrow-and-spend. But I cannot vote “no” on it because clean water is an absolute necessity of life and the proposed bonding authority is in a relatively small amount in the fiscal context. I respectfully urge a vote of YES.
That’s all folks.