Jerry W. Calvert
Suppose you lived in a country where there were three legislative assemblies, all with the authority to make law. The first, elected by the people by the majority vote principle, is composed of representatives, citizen-legislators, who deliberate, debate, and make law by majority vote. The second legislature, embodied in the direct democratic devices of the initiative and the referendum, is the voting public themselves who, by the same basic democratic principle of decision by majority, pass upon proposed constitutional amendments and proposed statutory laws. Finally, there is a third legislature in this country. Rarely used and therefore not as well understood as the first two, this third body is different because it gets to act as if it were representing a majority, but unlike them, it is in fact only required to represent the actual preferences of a small minority of the voting public. It is also different because, unlike the other legislative bodies, there is no extended public debate and deliberation before a vote is taken. Rather it exercises its power by the simple expedient of getting a minority of adult inhabitants who are legally eligible to vote to sign a petition by whatever means of persuasion the individual petition-gathers choose. Next, this third legislature is different because its authority is purely negative. It may only act to suspend a law duly passed by the vote of the first legislative assembly of elected representatives. And finally, it is unlike the first two in that it claims an implicit right not to adhere to constitutional restrictions that apply to the actions of elected legislators and to the people acting through the initiative and referendum.
Such is precisely the situation we face here in Montana. In January 1993, the 52nd Montana Legislative Assembly met in regular session. It faced a central problem of reconciling spending obligations with revenue to bring the budget into balance as required by the State Constitution. In response to this duty, a bipartisan majority coalition of legislators submitted a retail sales tax proposal to the people in a June special referendum vote. But in anticipation that the sales tax referendum might be rejected, the legislative majority enacted a major reform of the state personal income tax which would take effect only if the sales tax was rejected. In the June special election the voters overwhelmingly rejected the sales tax option, and thereby triggered the income tax reform alternative that then went into effect on July 1, 1993, to provide the needed revenue to cover the general fund spending approved by the Montana Legislature.
But Montana is one of 25 states that provide for what is called the popular referendum vote or the petition for referendum. Under this device, a minority of voters (ranging from 2% to 15%) can petition to have an enacted law put to a public vote. Of these states, 18, including Montana. suspend the contested law until a referendum vote has taken place, usually at the next regularly scheduled election (Magleby, 1984). In Montana, a public referendum vote will take place upon petitions gathering signatures equivalent to 5% of the vote for governor in the last election while 15% is required to also suspend the challenged law. Consequently, in Montana and 17 other states a small minority of actual voters can itself act as a legislature by suspending a law enacted by the assembly of representatives elected by and constitutionally representing a majority of the people. And it can do so apparently without regard to the constitutional duties and expectations under which the Montana Legislative Assembly is required to act.
But in 14 of the 18 states suspension provisions exempt certain subjects from legislation by minority. These include such things as general fund appropriations, general fund revenue bills, emergency legislation, laws deemed necessary for the preservation of peace, public safety, and public order, and laws defined as necessary to maintain the ongoing operations of state government (Bott, 1990). In Montana the only subject explicitly excluded from the suspension-referendum process is "an appropriation of money" (Art. III, Sec. 5-1, 2).
A University of Montana law professor, Rob Natelson, who led the charge against the state sales tax referendum in June, saw his opportunity to stop the income tax reform bill as well in the suspension-referendum language of the Montana Constitution. He therefore organized a statewide petition effort which gathered enough signatures by October 1993 to suspend the income tax pending a public vote in the November 1994 general election. As a consequence of suspension by a minority, the state budget was now suddenly out of balance and Governor Marc Racicot saw no other alternative but to call the legislature into special session in November 1993 to rebalance the budget by cutting appropriations to match the unexpected revenue shortfall.
There are 46 spending categories/programs in the state general fund, but almost 80% of it is accounted for by four--social services, the public schools, college and university funding, and corrections. Hence the bulk of the estimated $72 million in cuts to rebalance the budget came from these sources.
One consequence is the further erosion of the quality of higher education in this state. Prior to the latest round of budget cuts imposed on the Montana University System, the state already ranked near the bottom in per capita state spending for higher education (Montana ranked 38th in 1991). Montana among the 50 states also ranks last in average faculty salaries, last in instructional expenditure per FTE student, last in research expenditure per FTE faculty, and 47th in library expenditure per FTE student, according the National Center for Education Statistics of the U.S. Department of Education (1993). What is particularly ironic is that the state also ranked 5th in the nation in total enrollment in relation to population and is apparently efficient in the use of its very limited commitment of money to higher education, ranking 12th in the proportion of total higher education expenditures devoted to the instructional budget.
But contrary to such facts, Professor Natelson has been telling a fairy tale that Montana is a high-tax/high-spending state, a Godzilla Government oppressing the Poor Taxpayer. The fact that the statistics he used to produce this picture were selective and sometimes wrong misses the point. He has marshalled data in a manner designed to convince a number of people that what they are already inclined to believe is in fact God's Truth.
Given his antipathy to government, it is therefore surprising that Professor Natelson wants to "reform" government by "reinventing" it. But the means he has employed to force a reexamination, the suspension of the state income tax, are contrary to specific sections of the U.S. and Montana Constitution and that is why a lawsuit was filed by Helena businessman Alan Nicholson, myself, and several others challenging government-by-minority embodied in Art. III, Sec. 5-1, 2 of the Montana Constitution.
In Nicholson et al. v. Cooney et al. (Cause No. 93-657) the plaintiffs/appellants charge that the suspension provision violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and that it also violates other sections of the Montana constitution which requires that the legislature maintain a balanced state budget (Art. VIII, Sec. 9), excludes "appropriations" from the suspension/referendum process (Art. III, Sec. 5-1), and states that the tax power of the state legislature may neither be suspended or surrendered away (Art. VIII, Sec. 2). Suit was filed in Helena District Court on October 18, 1993. On December 17, 1993, Judge Thomas Honzel rejected arguments advanced by Nicholson and the other plaintiffs/appellants and ruled on behalf of Secretary of State Mike Cooney, representing the State's interest, and co-defendant Rob Natelson and his anti-tax lobby, Montanans For Better Government. Plaintiffs filed notice of appeal with the Montana Supreme Court and submitted briefs detailing the relevant constitutional issues on February 18, 1994. A Montana Supreme Court hearing on these constitutional issues is expected in late April or in May with a decision later in the year. The remainder of this essay will summarize the arguments that are being advanced by Nicholson et al.
First and foremost, the plaintiffs argue that the suspension provision of the Montana Constitution violates the "one person, one vote" requirement of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. Beginning with a series of cases challenging the malapportionment of Congressional and state legislative districts in 1963-64, the U.S. Supreme Court has firmly established that almost any institutional arrangements which insure government by minority are constitutionally suspect. In Gray v. Sanders, 372 U.S. 368 at 381 (1963) the Court said: "The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among all those who meet the basic qualification." Using the same reasoning, the Court in the following year ruled that state legislative districts must be equal in population to insure that a majority of people would elect a majority of legislators (Reynolds v. Sims, 377 U.S. 533). In Reynolds the Court concluded that "Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in substantial fashion diluted when compared with the votes of citizens living in other parts of the state." And extending the same "one person, one vote" principle to local elections the Court said in Hadley v. Junior College District, 397 U.S. 50 at 55 (1970): "[T]he crucial consideration is the right of each qualified voter to participate on an equal footing in the election process." Finally, Associate Justice John Paul Stevens, concurring in Karcher v. Daggett, 462 U.S. (1983), reasoned: "The Equal Protection Clause requires every State to govern impartially. When a State adopts rules governing its election machinery or defining its election boundaries, those rules must serve the interests of the entire community.... If they serve no purpose other than to favor one segment--whether racial, ethnic, religious, economic, or political--that may occupy a position of strength at a particular point in time..., they violate the constitutional guarantee of equal protection...."
In the present appeal, plaintiffs are urging the Montana Supreme Court to extend the "one person, one vote" principle to the suspension/referendum process. Not only does the suspension provision allow government by this and that transitory single issue minority, but it provides no means by which the majority of Montanans or even an equivalent minority can counter-petition to void an attempted suspension of a law. Further, it dilutes the votes of the majority by permitting the signatures of a minority of voters in a scatter of state legislative districts to act as if they were the majority.
In their response, defendants try to argue that since the "one person, one vote" principle was derived from cases involving the apportionment of electoral districts, it therefore has no application here. Further, all the "one person, one vote" rule does is mandate that each person's vote weigh the same in the selection of candidates, and it does not necessarily have anything to do with insuring government by majority rule. But surely as night follows day, if one's vote is to be counted equally, then the logical goal being sought by such a requirement is majority rule. Indeed, it is fact that malapportionment prior to Reynolds institutionalized permanent minority government which triggered the challenges to population disparities in political districting in the first place. The "one person, one vote" is not the cause of these challenges, it is the result. The cause was found in the government by minority which violates the requirements of equal protection. The "one person, one vote" rule is a specific application of that requirement. Plaintiffs are simply asking that the legal principle articulated in Reynolds and other cases now be extended to the Montana referendum process as well.
Plaintiffs/appellants secondly argue that the Montana Constitution's balanced budget requirement that "Appropriations by the legislature shall not exceed anticipated revenue" also bars the majority of the people, acting through the initiative and referendum, from doing so, and especially should prohibit a minority of petition signers from acting unconstitutionally. In this instance the outcome, a suddenly unbalanced budget, was also intentional. It represents a clear desire to force the legislature to cut appropriations and in the process somehow "reinvent" government.
Given the unbalancing effect and given the implicit motives of the suspension's backers, it is clear that suspension is not just about taxes, it is about appropriations, but appropriations (as we have said) are off-limits under the Montana Constitution. Plaintiffs assert that suspension of
Consider the following example. A minority of the legislature is dissatisfied with a general revenue bill. But the constitution permits a minority of legislators to sign a petition suspending the bill until the whole legislature meets or until all the people vote in a public referendum. In the meantime, this minority of legislators has intentionally produced an unconstitutional result. They are indifferent to the balanced budget requirement because they really want to cut taxes and force reductions in appropriations. Such a process would not be tolerated under the Equal Protection Clause nor under the balanced budget requirement of the Montana Constitution. Plaintiffs believe a minority of Natelson petition signers should not be allowed to be a "super-Iegislature" that is above the law either.
Finally, Nicholson and the others who have appealed to the state supreme court argue that Secretary of State's certification of suspension of a tax by a minority of petition signers constitutes a "surrender" of the state's power to raise revenue in violation of Article VIII, Section 2 of the Montana Constitution.
Plaintiff/appellants believe that the suspension provision of the Montana Constitution has put at risk the very principle of government by majority and the continuance of representative democracy as we have known it. If the right of an intense minority to suspend a general revenue bill that is otherwise presumptively constitutional is held valid, the authority of elected representatives will be fundamentally put at permanent risk. Under it, every responsible action by the legislative majority to provide appropriate revenue for public services like education, law enforcement, highways, social services, and corrections will be subject to second-guessing and veto by an intense minority who by their actions deny that any common good can be realized through government.
Natelson and his followers seem to believe that individual citizens or minorities of citizens have the right to veto any tax they disagree with and impose spending cuts on any governmental programs which in their view do not serve their immediate and narrow self-interest. But neither the state nor U.S. Constitution imply a right not to pay taxes. Rather our political system is based on belief in a democratic and republican community that has been freely chosen through revolution and subsequent constitution-making. Tom Paine observed in Common Sense (1776) that: "Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one." Thus, Paine urged, we create democratic governments to protect our common interests which we alone as solitary individuals cannot easily do, and we pay for it through taxation by giving up some of our property "to furnish the means for the protection of the rest; and this [we] are induced to do so by the same prudence which in every other case advises [us], out of two evils to choose the least."
But on Planet Natelson there is the very denial of a common interest, common purpose, and common community. On this world, the inhabitants claim the right to keep all of their property for their private use. With it they purchase what they can afford including such basic things as food, shelter, and self-protection. It is a Hobbesian world of "all against all" in which "them that has, gets" and those without will do without. In this world, there are no fast highways, no education for all children, and no safety except that which can be purchased by hiring private guards and turning homes into fortresses.
And also symptomatic of that denial, we find the law professor giving his intellectual imprimatur to two more extreme constitutional initiatives, proposed Constitutional Initiative 66, giving voters the authority to approve or disapprove almost any revenue increase proposed by the state legislature or local elected officials, and
In conclusion, Professor Natelson and his supporters are the carriers of the true faith that all taxes, well, almost all taxes, and all government, well, almost all government, are bad. I urge Professor Natelson and his supporters to run for elective office, there to explain and defend their ideas in the public forums of this state, and if elected, experience the responsibility of governing.
Bott, Alexander. (1990). Handbook of United States Election Laws and Practices. New York: Greenwood Press.
Magleby, David. (1984). Direct Legislation: Voting on Ballot Propositions in the United States. Baltimore: Johns Hopkins.
U.S. Department of Education. (1993). State Higher Education Profiles. Washington: National Center For Education Statistics.
Zimmerman, Joseph. (1986). Participatory Democracy: Populism Revived. New York: Praeger.