"The lady doth
protest too much, methinks."
Hamlet, Act III, Scene
II
On the heels of the California Taxpayers Association releasing an excellent monograph on Understanding Proposition 26, the measure passed by voters last year to clarify what is a tax and what is a fee, the legislature is attempting to pass a tax on gasoline, which would require a two-thirds vote, as a simple majority vote "charge." SB 791 by Senate President Pro Tem Darrell Steinberg "would authorize a metropolitan planning organization, subject to majority voter approval, to impose, for up to 30 years, a regional transportation congestion reduction charge on purchasers of motor vehicle fuel."
In Section 1 of the bill, from paragraphs f thru l, the author describes how this charge is not in violation of Proposition 26’s requirement for a two-thirds vote.
Seven paragraphs arguing the measure is not a tax! Methinks the Senator protests too much.
The oft-quoted phrase from the pen of Shakespeare is
defined as one can "insist so passionately about something not being true
that people suspect the opposite of what one is saying."
Seven paragraphs that say the charge is not a tax makes you
think that is exactly what it is.
The supporters of the bill say the charge benefits those who
will pay the gasoline fee because it would be used to make capital improvements
and improve other modes of transportation to ease the way for drivers.
The test of a fee or charge under Proposition 26: Is there a
direct benefit to the fee payer? Is the fee/charge placed on the taxpayer a
fair and reasonable relationship to the taxpayer’s burdens on, or benefits
received from, the governmental activity?
In CalTax’s Prop 26 analysis, the organization suggests that
three questions must be asked of a charge to see if it qualifies as a majority
vote measure under Proposition 26.
The first question: Does the charge meet any of the
exceptions provided by Proposition 26? Question two: Does the charge
specifically benefit those who pay the charge? Three: Is the charge reasonable?
The gasoline revenue raising device in SB 791 fails on a
couple of these points.
One example: creating bicycle lanes does not have a direct
benefit for the motorist who pays the gasoline tax. Some might argue there is an
indirect benefit but that argument would fall out of the scope of Proposition
26.
Put simply, SB 791 is another attempt to get around the
two-thirds vote provision to raise taxes, a provision that the voters have
affirmed and reaffirmed in statewide votes over three decades.
If SB 791 is signed into law, I suspect the courts will side
with the voters’ desire to keep a tight reign on fees and a two-thirds vote on
taxes.