Home Transportation Scoop: Why Gov. McDonnell’s Hesitating on Transportation Bill

Scoop: Why Gov. McDonnell’s Hesitating on Transportation Bill

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by Paul Goldman

Forget Dr. Freud: he was into dreams. In Virginia right now, we have reality. There is a good legal reason – four reasons actually – for Governor Bob McDonnell’s self-evident hesitation so far about whether to merely sign the transportation tax deal or make amendments. Considering the governor and the plan’s supporters have been praising themselves for having done something “historic,” this hesitation would normally have the media in a lather speculating. The Pope didn’t play Hamlet for weeks once having won his historic place in history. He went right out among the people. Not so His Excellency, the Governor.

Why the Hamlet-like hesitation? In a few minutes, you will know.

As Mr. Lincoln said: You can fool some of the people all of the time, and you can fool all the people some of the time, but you can’t fool all the people all of the time.

So yes, maybe Gov. McDonnell’s office is telling the truth, maybe the transportation bill landed at the bottom of the pile. And yes, maybe Mr. McDonnell follows a LILO inventory management system: Last In, Last Out. This is acceptable under accounting rules.

Thus, the transportation tax deal, having been passed right at the end of the session, went straight to the bottom of the pile. But as Yogi Berra famously said: Some things are just too coincidental to be a coincidence. Moreover, I know have enough facts to formulate a better reason.

Namely: Contrary to the earlier dismissal of my op-ed in the Washington Post challenging the constitutionality of the transportation tax deal’s discriminatory, double taxation of Northern Virginia and Tidewater residents, the powers-that-be have suddenly decided that maybe Norm Leahy and I had a legit legal point or two. Or four legit points, as the case may be, namely the four regional taxes named in our piece.

That’s right: They have read the piece again, circulated it, and been told about what op-ed space didn’t permit; namely, a discussion of footnote (3) in the Marshall case. This is why the Washington Post gave the op-ed so much play.

 

Or to put it another way: The Governor’s office is now worried that one or more of those regional taxes could be declared unconstitutional by the Virginia Supreme Court. Actually, they are more than merely worried. This puts the Governor in a very “sticky wicket” as the British say. The Office of Attorney General has advised the Governor as to his office’s legal view of the constitutionality of the regional taxes.

While Democrats warn that this legal opinion is pure politics, the Governor knows this is not the case. He knows the AG’s legal opinion is based on sound jurisprudence. Thus McDonnell’s dilemma.

When I first wrote my Washington Post piece pointing out the potential constitutional problems with the discriminatory double taxation of NOVA and Tidewater residents, the powers-that-be called and said: “Nice try Goldilocks, trying to stir the pot, but the taxes are 1000% legal, slam dunk time.” Not any more: The Governor now realizes he could lose big time in the Supreme Court. Yes, he is right that at this point, everyone’s opinion is just that, an opinion.

The Supremes could rule either way; it rests in some degree on the quality of the lawyers on each side. But in terms of the Governor’s hope for a transportation “halo”, he knows the following: devastating headlines about how the Supreme Court ruled key parts of his plan unconstitutional could wipe out that halo assuming it is there of course, another question for another day.

Thus, the Governor faces the following gut call. The key parts to his package, in terms of money raised for statewide transportation projects, is constitutional. He has that in the bank as they say. Accordingly, he could sign the bill AS IS, and take his chances in court on the regional taxes.

Democrats think Cuccinelli benefits from the regional taxes being declared unconstitutional. I am not sure. Why? Because he might be better off with NOVA homeowners, for instance, having to pay an extra $1,000 on a home sale. A tax you pay gets you a lot madder than a tax you don’t pay.

That’s why I wrote my piece saying Democrats were being Nixonian: the AG’s office has to play the legal thing straight, because even Houdini can’t know for sure how the politics play out. Better to just do the law, and let it shake out with the voters. Democrats say Cuccinelli will declare the regional taxes unconstitutional due to political considerations. But again, the more I think about it, why is this necessarily his best political equation?

If I were Terry McAuliffe, I might want those regional taxes declared unconstitutional. If you look at his apparent strategy on transportation, he might be better off politically not having to carry the burden of unpopular local taxes. He gains nothing really in the big picture.

McDonnell, looking for a legacy, has to thus consider this option: Maybe he would be wiser to eliminate the regional taxes as written, amending the bill to provide local authorities the right to impose these taxes in a clearly constitutional manner. In that way, he gets his “historic” victory, avoids a potentially devastating Supreme Court crackup, and still can say he gave NOVA and Tidewater the tools they wanted.

As I say, Terry McAuliffe would love that deal, as it is win-win for him right now. So he can deliver the Democrats to support the amendments. Cuccinelli’s supporters in the GA were against the bill as written, so they will support eliminating the taxes. That’s enough to sustain the Governor’s amendments right there. The point being: McDonnell knows avoiding a Supreme Court loss on the regional taxes is all UPSIDE FOR HIM.

Why not take the lay-up?  Moreover, if the GA were to reject his amendments, McDonnell could still sign the original transportation tax deal, and take his chances in the Supreme Court. McDonnell loses nothing by proposing amendments of this nature in terms of politics or transportation policy. It is a freebie.

Where do things stand right now? McDonnell is Hamlet — To Sign or Not To Sign. The last time the Governor went his own way on a transportation tax issue, he got slammed dunked in the VA Supreme Court, losing everything. You never know what a Court is going to do, just ask Chief Justice Roberts on his heath care vote last year.

Bottom line: If Bob McDonnell thought the AG’s legal opinion would save him from having to choose, he now knows the truth: it is now, it was before, and it always will be his call. It could also prove to be the most important call in Bob McDonnell’s career.

  • DJRippert

    Paul:

    I agree with your depiction of McDonnell’s quandary vs the Virginia Supreme Court.  Kaine’s reputation was tarnished when “his” transportation bill was found to be unconstitutional.

    However, I wonder why McAuliffe would benefit from the bill being found unconstitutional.  If the bill sticks, T-Mac doesn’t need to answer questions about raising taxes for transportation during his campaign.  Cuccinelli’s portrayal of McAuliffe as a big government / big spending / high tax guy is compromised by the fact that McDonnell pushed through the new funding.

    If the taxes are found unconstitutional the matter will be put back to sleep until the 2014 General Assembly session (i.e., after the governor election).  Each candidate will have to overtly declare what they will do about the continuing transportation funding shortfall.  McAuliffe will take a cue from Deeds and tell the truth – the frozen gas tax must be replaced with a tax that inflates along with general prices.  Cuccinelli will kick the can down the road by saying that he’ll find places to cut spending in order to fund more transportation maintenance and construction.

    Deeds told the truth in 2009.  He said he’d raise taxes.  McDonnell said he’d sell the ABC stores, etc to provide transportation money.  Maybe he told the truth too.  However, Deeds gained nothing in the election by admitting that raising taxes was probably the way funding would be increased.  Why will McAuliffe fare any better?

  • kindler

    …was this the part of the bill held together with chewing gum or the part put together with scotch tape?