Don't Blame Bob Marshall; Va. Officials Were Warned About Passing the Buck on Road Taxes

Tuesday, March 4, 2008

Virginia Del. Bob Marshall, the Republican from Prince William County who is one of the last great crusaders in the General Assembly, follows his conscience, no matter how unpopular or inconvenient the results. Whether he's seeking to restrict abortion in any possible way or trying to restrict development that might damage the environment, he's fine with ticking off left or right. In fact, he relishes the idea.

So it came as no surprise that it was Marshall who tossed a pipe bomb into the delicate structure that housed Virginia's multibillion-dollar transportation compromise. And when he won a total victory in the Virginia Supreme Court last week, his reaction was classic Marshall: "I told you so."

Where other politicians might try to calm their colleagues or craft a compromise, Marshall instead was gleeful over the unanimous declaration by the state's high court that last year's transportation plan, designed to raise $1.1 billion a year for roads and rails while allowing legislators to pretend that they hadn't raised taxes, was now "null and void."

The legislature and Gov. Tim Kaine had created regional transportation authorities and charged them with raising fees and taxes to generate money to ease congestion in Northern Virginia and Hampton Roads. Rather than taking the straightforward, honest path of raising either the gas tax or the sales tax, the politicians had come up with a crazy-quilt of borrowing, local levies and the ill-fated abuser fees, all of which Sen. Ken Stolle, a Virginia Beach Republican, came to call "too cute."

But Stolle said that only after the publication Friday of a 23-page opinion by Justice Bernard Goodwyn -- a Kaine appointee -- who concluded that the legislature had circumvented Virginia's constitutional bar against tax increases coming from anyone other than the people's elected representatives.

"The General Assembly may not delegate its taxing power to a non-elected body," Goodwyn wrote. The Constitution clearly states that "all men . . . cannot be taxed . . . without their own consent, or that of their representatives duly elected."

The easy solution now is for legislators to come back in a special session this spring and reinvent the regional transportation authorities, but with a new flow of money, this time from newly imposed state taxes and fees.

But when it comes to politics and taxes, nothing is easy. While state senators in the past few days have embraced the idea of raising taxes to pay for roads -- a 5-cent-per-gallon hike in the 17.5-cent gas tax is the most oft-cited proposal -- the Republican-controlled House remains wedded to the fantasy that you can make billions in improvements without raising taxes to pay for the new spending.

The state Supreme Court had little patience for the legislature's games. "When the primary purpose of an enactment is to raise revenue, the enactment will be considered a tax, regardless of the name attached to the act," the court wrote.

In other words, you can call it something different or try to make it seem as if someone else is ordering the tax, but a tax is a tax is a tax.

The blame for this mess does not rest solely on House Republicans. Senate Majority Leader Dick Saslaw, the Fairfax Democrat, was outspoken from the get-go about the fact that last year's compromise was unconstitutional, but many Democrats happily bought into the fantasy. Kaine had to know the compromise was unlikely to pass muster with the courts, yet he failed to veto the deal.

The gas tax hasn't gone up since 1986. Given the soaring price of gas, who can possibly claim that a nickel per gallon would be noticed by anyone?

But nothing's that simple. Watch for weeks of wrangling and gamesmanship, all designed to concoct some way once again to raise the money without appearing to raise the money.

Marshall, meanwhile, has launched his next crusade. He wants the dollars collected by Northern Virginia's transportation authority since Jan. 1 to be paid back to the citizens. "They stole money from us," Marshall said. "They gotta pay that back."

No one has figured out how to refund the taxes collected on car repairs and rentals, but when they do, that will be Bob Marshall's cackle you hear in the distance. Meanwhile, enjoy the traffic.

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