Repeal hurdles high

(Steve Sebelius, Las Vegas Review-Journal) – For a group of conservative lawmakers and activists who’d love nothing better than to circulate a petition to repeal the just-enacted tax increases of the 2015 Legislature, the hurdle of the so-called single subject rule is a high one.

You remember the single-subject rule, right? That’s the state law that says initiatives must “embrace but one subject and matters necessarily connected therewith and pertaining thereto.” And Nevada’s courts have been sticklers for enforcing that rule.

While repeal petitions almost always face long odds, you might think it would be a fairly straightforward thing, logistically speaking, to repeal the entire tax bill en masse. Senate Bill 483 made a package of supposedly temporary taxes permanent, raised the business license fee, raised the payroll tax and created a brand-new commerce tax on business revenue.

Why? Because the Nevada Legislature also has a single-subject rule, found in the state Constitution at Article 4, Section 17. It says: “Each law enacted by the Legislature shall embrace but one subject, and matter, properly connected therewith, which subject shall be briefly expressed in the title.”

So if all those taxes can legally be enacted in a single bill under the constitutional single-subject rule, then it should be fairly straightforward to write a single petition to repeal them under the statutory single-subject rule, right?

Nope. In an opinion from the Legislative Counsel Bureau requested by Assemblyman Jim Wheeler, R-Minden, a tax opponent, the Legislature’s chief lawyer explains why things are more complicated than that: “Although it seems counterintuitive, I do not believe that you would be able to bring a referendum to a vote of the people that included all of the provisions of SB 483 (2015), which is the bill that added the Commerce Tax to the law,” wrote Brenda Erdoes, the legislative counsel.

“Based upon the current case law, the Supreme Court would likely find such a referendum to be in violation of NRS 295.009. That section sets forth the single subject rule for initiatives and referenda and has been much more narrowly construed by the Courts than the constitutional single subject rule (section 17 or Article 4 of the Nevada Constitution) that applies to statutes enacted by the Legislature.”

In other words, the rules apply differently to the people exercising their legislative power using a petition than they do to the people exercising their legislative power through representative democracy. And there are some good reasons for that: laws created by the Legislature are subject to far more debate and scrutiny as they are proposed and passed than voter-written initiatives. You can amend bills easily as they move through the legislative process; you can’t amend a voter initiative once it’s filed with the state. And, while not subject to the open meeting law, the legislative law-writing process is much more open than the initiative-writing process.

There are exceptions; Erdoes cites the multi-faceted Sales and Use Tax Act of 1956 as one example. But she’s undoubtedly right that an all-encompassing repeal initiative would face a legal chainsaw. That means anti-tax activists might have to file a petition to repeal each of the tax increases.

But they ought to be careful, because there’s another citizen versus Legislature disparity on the horizon, according to Erdoes’ memo. If voters succeed in repealing the taxes, there’s nothing to stop the next Legislature from re-enacting them in some form in a future session.

On the other hand, if the initiative(s) fail(s), and the voters uphold the tax, then it can’t be changed in the future without another vote of the people. That means the conservatives could end up cementing into law several taxes they hate.

Proposing and repealing laws at the ballot box is a safety valve for democracy, something to use when the system has failed. Whether anti-tax opponents can make that case here is far from a sure thing.

Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.