Costly legal battle over taxes was unnecessary

By Thomas Mitchell
It was a senseless and futile gesture, but our Democratic lawmakers and governor were just the ones to do it.
Despite the fact Nevada voters in 1994 and 1996 amended the state Constitution to declare “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form,” the 21-member state Senate approved the extension of taxes and fees that were supposed to be curbed with a 13-8 vote, one vote short of the constitutionally mandated two-thirds. Gov. Steve Sisolak signed the tax extensions into law.
The eight Republican senators who voted against the tax extensions and
three companies that would have to pay the higher taxes have sued in
district court in Carson City, asking the court for a temporary restraining order and a permanent injunction against enactment of the laws.
The Democrats charged ahead with tax and fee extensions after their
compliant Legislative Counsel Bureau (LCB), the lawmakers’ lawyers,
issued an opinion that a two-thirds vote was not necessary since the
taxes were not being “raised” but merely allowed to continue at a rate
that was scheduled to be reduced, paying no heed to the fact the bills
in question “generate” public revenue. Asked nearly the same question
in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary.
When Republicans first threatened to sue, Sisolak confidently stated,
“We’ve got legal opinion from LCB that, you know, a simple majority is
what’s needed. I’ve been in government for 20 some-odd years, and if
you don’t trust your attorneys, you’ve got a problem. So I’m confident
that the attorneys gave us a good opinion. We’ll move forward from
there.”
After the suit was actually filed, a somewhat less assured Sisolak was
quoted by the press as demurring, “I remain absolutely committed to
taking action if necessary following the court’s decision to ensure
our schools continue to receive the total amount of funding approved
by the Legislature for the … biennium.”
According to the governor’s executive budget at the end of that
biennium there is expected to be a rainy day fund balance of $415.2
million, more than enough to cover the $98 million that the extension
of the modified business tax rate and the $7 million that the $1
Department of Motor Vehicles technology fee extension are expected to
generate.
The modified business tax extension is scheduled to begin being
collected on Oct. 1 and the technology fee was set to end on July 1,
2020.
So, what was the point in pushing the constitution-ignoring legislation?
Senate Republican Leader James Settelmeyer said in a statement
released to the media after the suit was filed, “We have checks and
balances for a reason and eroding the two-thirds requirement is an
unprecedented disregard for the constitution and creates a dangerous
precedent. While there was ample money to fund education and other
vital programs, Sisolak and (Senate Democratic Leader Nicole)
Cannizzaro acted recklessly and their behavior created an unnecessary
constitutional crisis at the expense of over 23,000 small business in
Nevada.”
The lawsuit itself makes abundantly clear the stakes involved here:
“This action involves an issue of significant public and statewide
importance as it seeks to uphold and protect the constitutional
amendment proposed by citizen ballot initiative adopted and
overwhelmingly approved by Nevada voters in 1994 and 1996. As provided
in Article 1, Section 2 of the Nevada Constitution, political power is
inherent in the people. Government only has power from the consent of
the governed, and the residents and citizens of the State of Nevada
twice voted strongly in favor of amending the Nevada Constitution to
add the two-thirds requirement, and the two-thirds requirement has, at
least prior to 2019, been applied consistently to legislative bills
extending sunsets by the Nevada Legislature.”
The Republican senators and three companies, of course, are asking for
recovery of reasonable attorney fees and costs. So, the taxpayers are
likely to get stuck with all the costs from both sides.
The suit further noted that lawmakers “had enough money to fund the
State’s budget without the public revenues created, generated or
increased as a result of the changes to the payroll tax …”
So the passage with less than two-thirds votes was senseless, and,
once the courts correctly rule that a two-thirds vote was
constitutionally necessary, it will have been futile.

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