(Steve Sebelius) – For anyone who was there, the summer of 2003 in Carson City was a dark, ugly time. Gov. Kenny Guinn, in his second and final term, had introduced a gross receipts tax plan that landed with a thud.
The Legislature had responded by devising a tax package few liked. A group of 15 Assembly Republicans — emboldened by a voter-approved constitutional amendment that requires a two-thirds super-majority in both houses of the Legislature to raise taxes — held out and voted no. The regular session adjourned. Special sessions were called. Tensions were high. And still, no progress.
On July 1, the start of the new fiscal year, the Legislature had yet to pass a budget for education, and school officials were saying the lack of funds could delay the start of the school year. Guinn ordered his then-Attorney General, Brian Sandoval, to file a lawsuit with the state Supreme Court, seeking to compel the Legislature to do its constitutionally mandated duty. Sandoval personally walked the document over to the court building at midnight, shadowed by a few reporters.
And now, that lawsuit is at the heart of a new ad aimed at challenging Sandoval as he mounts a bid for the Republican nomination for governor.
In the campaign, Sandoval has taken a strong, no-tax position. (Although, as his conservative critics note, he has failed to sign the Americans for Tax Reform’s no-tax pledge, which his main primary rival, incumbent Gov. Jim Gibbons, has signed.) But that doesn’t stop him from talking tough on taxes. “We have to focus on the spending side of things,” Sandoval said.
The Committee to Protect Nevada Jobs begs to differ. The political action committee (PAC), headed by Dan Hart, a longtime Democratic operative and former campaign manager for likely Democratic gubernatorial nominee Rory Reid, began airing an ad on television today that says, among other things, that Sandoval sued to force the Legislature to raise taxes back in 2003. (See the ad for yourself here: Sandoval-TaxSuitAd.)
“The information that people have been getting on Brian Sandoval is somewhat incomplete,” Hart says. “And we intend to complete the picture.”
Let’s take a quick look at that completed picture:
Sandoval worked to overthrow the will of the people. After Sandoval filed the lawsuit that Guinn requested, the Nevada Supreme Court stunned the world by ruling in Guinn v. Legislature that the two-thirds requirement was at odds with the constitutional requirement to fund schools, and therefore, two-thirds could simply be ignored. It was a ridiculous ruling, ill-reasoned and widely mocked. More important, it was a course of action that Sandoval did not request in his court papers.
In the end, it was moot, when then-Assemblyman John Marvel changed his vote and allowed the tax plan to become law, so the “will of the people” remained intact. And Guinn v. Legislature was meekly reversed in a footnote to an unrelated case years later. Did Sandoval work to overthrow the two-thirds requirement? No — the state’s lawsuit simply sought to force the Legislature to do it’s work, ostensibly within the framework of the two-thirds requirement. The most that may be said is that Sandoval filed the lawsuit that led to a result that nobody could have anticipated, and that even the Supreme Court later disavowed.
Sandoval told the Legislature it must pass tax increases. This is false. In fact, Sandoval only told the Legislature it must pass a balanced budget and fund the state’s schools, which is a requirement of the constitution. Sandoval was specifically asked about taxes during a committee hearing, and said this:
“This office is not going to opine on how you accomplish balancing the budget, only that you must balance the budget by July 1, 2003. How you get there is the business of this body.” (emphasis in original)
That’s consistent with separation of powers, the state’s legal action and common political sense — why would Sandoval grab a political hot potato when he didn’t have to? But the record is clear — Sandoval did not tell the Legislature it must raise taxes.
As a practical matter, the Legislature was in the position of having to raise taxes if it were to fund the schools and balance the budget. There simply wasn’t enough money to cover the budget without new taxes, so, it could be argued that saying “you must balance the budget” was at the time akin to saying “you must raise taxes.”
Yes, it may have been possible for the Legislature to reopen already-closed budgets for other state agencies and make cuts elsewhere. Or lawmakers could have cut the schools budget that was then before them until it was small enough to be covered by available revenue (which would have gutted K-12 education). But that’s ultimately not what happened.
So, while the ad is technically incorrect — Sandoval never told the Legislature it must raise taxes — it’s rhetorically accurate to say his statement — balance the budget — was essentially the same thing as saying raise taxes.
Sandoval personally intervened and used the courts to pass an $800 million tax increase. Again, not true. Yes, Sandoval filed the lawsuit. That was his job as attorney general. (He recently criticized the current attorney general for her refusal to file a lawsuit as directed by the governor over the new health-care law.) But he only used the courts to get a writ compelling the Legislature to perform a constitutional function that it was refusing to perform. And, as discussed above, in the end it was the Legislature — not Sandoval and not the courts — that raised taxes. Again, the most that can be said is the lawsuit added pressure on the Legislature to pass a balanced budget, which in this case was akin to raising taxes.
Bottom line: The ad says things that are not true, but ironically can still be defended on grounds that it’s overall message isn’t incorrect. Worst of all, for Sandoval, the ad requires him to explain his role in the 2003 lawsuit, and in politics, if you’re explaining, you’re losing. According to Hart, the ad has plenty of money behind it, which means voters are going to see a lot about 2003. It’s a safe bet few of them will inquire deeply into what really went down. And the ad is practically Karl Rove-esque, in that it takes a Sandoval strength — a strong pledge not to raise taxes — and turns it into a potential weakness, alleged hypocrisy.
Sandoval’s camp — and the Republican Governor’s Association — alleges that Hart is coordinating his attack with Reid’s campaign, inasmuch as Reid has employed Hart as a political operative and voted to hire him as the county’s lobbyist during the 2009 Legislature. And while there’s no direct proof — Hart denies any coordination and Sandoval admits freely he’s got no direct evidence — the allegation can still be made. “The appearance is there. It’s not real hard to connect the dots,” Sandoval says.
No, it’s not. But given the popularity of an anti-tax stance among Republican primary voters these days, and Gibbons’s reputation on the question, Sandoval may have to worry less about who’s trying to knock him out and more about their finely tuned attack.
Ultimately, Sandoval will find little comfort in this: The ad is actually a compliment. Democrats believe he’d be a much stronger general-election opponent than Gibbons, and want to ensure they face a weakened, cash-poor, unpopular incumbent in November rather than an accomplished, well-funded Sandoval.
UPDATE (4/14/10): Mr. Sebelius has issued a correction in which he documents that then-Attorney General Sandoval DID sue the Legislature to raise taxes afterall.