WVU Law Professor Says GOP Has Right to Seek Full Elimination of the Food Tax

Among the many stories in today's Charleston Gazette pertaining to the special legislative session, one really caught my attention. WVU law professor Bob Bastress, whose politics tilt more than slightly to the left, says the Legislature would be within its authority to amend Governor Manchin's proposed 1% food tax reduction to provide for a full elimination of the food tax. Manchin's proclamation convening the special session had limited the food tax bill to a 1% cut.

In a 1932 case, the state Supreme Court ruled the Legislature had the flexibility to address the issues presented in the governor's call more broadly. In part, the court said:

“In authorizing a Governor to state the business of an extraordinary session, and in limiting legislative action to that specific business, the Constitution does not confer on him one jot of legislative power.

“The Constitution vests that power exclusively in the Senate and House of Delegates, whether the session be regular or extraordinary.

“When, therefore, the governor, by his proclamation, couched in such language as he may select, has fairly indicated to the legislators and the people, a general subject for legislative consideration, the legislature, in special session, may lawfully deal with that subject as fully and completely as at a regular session.”

Republican legislators believe they have the necessary votes in both houses to amend the Governor's bill to completely eliminate the food tax. The Governor can always veto the bill and is threatening to do so. The Gazette reported the veto threat today.

Thanks to the Ruling Party's voracious appetite for our money, the state's total tax revenues have grown from $1.4 billion in FY 1989 to $2.9 billion in FY 2003 (and are now over $3 billion)--increasing by 2 1/2 times the combined rate of inflation and population growth and 30 percent faster than personal income.

Today, the tax cut in question happens to be the food tax. More than a fiscal issue, it's a moral issue. Elimination of the tax is supported by over 80 percent of West Virginians and one in particular who is willing to put a lot of money behind the cause. Some say other tax cuts could produce a greater bang for the buck, and they're right on that count. However, where are they when we're proposing reducing or eliminating the business franchise tax, reducing the corporate income tax, or promoting a comprehensive structural reform of the tax code proposed by a commission that counted among its members the chairmen of both finance committees?

The Ruling Party's leadership reflexively opposes every tax cut of every size, shape, and implementation period. Even when we propose measures that would merely slow the pace of revenue growth and not result in actual net revenue reductions from year to year, they say "No!" Just as in the Capital One ads, the answer's always no. They probably have their own David Spade somewhere undercover constantly testing members of their caucus.