January 2015

Tort Reform – Losers Pay

January 9, 2015

Tort Reform “Losers Pay”

In 2010 Towers Watson estimated that tort litigation cost Americans more than $250 billion, or the equivalent to 2.2% of GDP. [i] Attorney fees are the largest expense in litigation with the exception of some adverse judgments. In one example, Peasrson v. Chung, a dry cleaner owner was sued for $54 million, when a pair of pants was lost, for inconvenience, mental anguish and attorney fees—although ultimately victorious, the dry cleaner owners were left with an estimated $100,000 in attorney fees.[ii]

Most western countries follow what is known as the “English” or “loser pays” rule, which essentially shifts the cost of attorney fees of the victorious party to the loser, thus reducing frivolous litigation that harms innocent business owners and drains the economy. Alternatively, the majority approach in the United States is the “American rule,” which requires parties to pay for their respective attorney fees—regardless of the outcome. However, in an effort to curtail the negative consequences of the American rule, a number of states have decided to pursue tort reform including the English rule or some variation thereof.

One prominent example of a state that has recently enacted a variation of a loser pays law is Texas. In 2011, Texas enacted H.B. No. 274 which (1) directs the Supreme Court of Texas to develop a system for dismissing claims at an early stage and award costs, and (2) modifies what is known as an “offer of judgment.” An offer of judgment requires a plaintiff to pay certain court costs when they reject a prior settlement offered by a defendant, and a trial ultimately results in a verdict that is substantially less favorable than the original settlement offer.[iii]

Supporters of the law say, among other things, that the bill will “implement solid, fair and necessary reforms to the Texas Civil justice system to lower the costs of litigation. . . and level the playing field between plaintiffs and defendants by repealing certain limits on the recovery of costs.” [iv]

The Texas Trial Lawyers Association, Texas AFL-CIO, and others were opposed to H.B. No. 274, viewing it as needless and detrimental to individual litigants due to the fact that plaintiffs’ attorneys work on a contingency basis and “have a strong incentive to take only cases they feel have merit in order to maximize their chances of winning the case and receiving their commission.”[v]Moreover, critics believe that loser pays will primarily harm those in the middle class because they have modest assets to lose if the winning party seeks attorney fees and court costs, as those with limited incomes do not have little assets worth pursuing.

Alaska state law allows for a winning party to seek a portion of their attorneys’ fee ranging from 1 to 30 percent. Alaska’s court rules sets out the percentage of attorney fees that may be awarded depending on whether the case was resolved with or without trial, contested or uncontested, and on the amount of the judgment.[vi] It is important to note that the law provides judges with 10 factors that may be used to depart from the schedule. At least one factor that a judge may consider to determine that a variation is warranted disfavors awarding fees to businesses who are sued by individual plaintiffs as it allows the judge to consider “the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts.” Similarly, a second factor counsels against awarding defense attorney fees to a business that has made the strategic decision to fight each case to discourage plaintiffs’ lawyers from frivolous litigation as the judge may consider “the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar, such as a desire to discourage claims by others against the prevailing party. . . .” Finally, the law allows a judge to consider “other equitable factors deemed relevant,” allowing judges with significant discretion not to award fees on a case-by-case basis. [vii] In 1995, the Alaska Judicial Council published a study that ultimately concluded that the state’s loser pays statute “seldom plays a significant role in civil litigation,” that courts awarded fees in only about 10 percent of cases, and that 75 percent of the fees awarded were for less than $5,000. [viii]

To avoid the failure of Alaska’s loser pays law, legislatures in Arkansas legislatures should support legislation that requires those who bring frivolous lawsuits to pay the attorneys’ fees and expenses of those who must defend against such lawsuits. Frivolous lawsuits are defined as “lawsuits that have no legal basis, often filed to harass or extort money from the defendant.”[ix] Currently, Arkansas Rule of Civil Procedure 11 requires an attorney or party to a lawsuit to sign every pleading or motion to certify that to the best of their knowledge, information, and belief that the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [x] If the motion, pleading, or other paper is signed in violation of Rule 11, then the court, upon motion or upon its own initiative, “shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading motion, or other paper, including reasonable attorney’s fees.” However, “a motion for sanctions under the Rule shall be made separately from other motions and shall describe the specific conduct alleged, and may only be filed within 21 days after the service of the motion,”—unless it is withdrawn or corrected. In essence, the current law allows the party bringing the frivolous claim to walk away with no penalty as long as they walk away within 21 days after a motion to dismiss has been made. To reduce frivolous claims, legislators should eliminate the 21-day safe harbor period and provide for mandatory sanctions if a judge determines a case to be frivolous.

Opponents of tort reforms will likely contend that the underlying purpose of proposed changes to existing law is to shield business from having to pay just compensation to consumers, patients, and clients for damages incurred from fraud, negligence, medical malpractice, and other legitimate tort claims. It is paramount to keep in mind that tort litigation drains billions of dollars from the economy each year and that innocent business owners are often stuck with unrecoverable losses defending frivolous claims. Capping damages, reducing safe harbor periods, and mandating sanctions for frivolous claims are a step in the right direction for Arkansas and will help level the playing field for small business owners and strengthen the economy.

Sources:

[i] “2011 Update on U.S. Tort Costs Trends – BP Oil Spill Costs – Towers Watson.” Towers Watson. N.p., Jan. 2012. Web. 05 Jan. 2015.

[ii] Cauvin, Henri E. “Court Rules for Cleaners In $54 Million Pants Suit.” Washington Post. The Washington Post, 26 June 2007. Web. 05 Jan. 2015.

[iii] Schwartz Z, Victor E., and Cary Silverman. “American Legislative Exchange Council – Limited Government · Free Markets · Federalism.” ALEC American Legislative Exchange Council. N.p., Mar. 2012. Web. 06 Jan. 2015.

[iv] Texas Bill Analysis, H.B. 274, May 7, 2011.

[v] Rodriguez, Robert C. “Texas Expands Loser Pays Rule.” Texas Expands Loser Pays Rule. American Bar Association, 8 Aug. 2011. Web. 06 Jan. 2015.

[vi] AK R RCP Rule 82.

[vii] See State v. Native Village of Nunapitchuk, 156 P.3d 389, 405 (Alaska 2007.)

[viii] Alaska Judicial Council, Alaska Judicial Council, Alaska’s English Rule: Attorney’s Fee Shifting in Civil Cases (1995.)

[ix] Black’s Law Dictionary (9^th ed. 2009.)

[x] Ark. R. Civ. P. 11

(Edit)

Edwin Flores In Policy Positions

Performance Based Budgeting

Performance-Based Budgeting in State Agencies

Traditionally, state budgeting focused on incremental changes in detailed categories of expenditures. Performance-based budgeting (PBB) is a more recent approach which diverges from older budgeting techniques by concentrating on results as opposed to merely requests by agencies.¹ In essence, a complete PBB system links the amount of appropriations received by state agencies to their success in achieving pre-determined goals. This process requires the state legislature and related agencies to identify specific, quantifiable goals or objectives to be achieved. Budget dollars are then allocated to agencies based upon the required resources to attain such goals, in what is formulated as a strategic plan.

PBB promotes legislators to rethink policies of the past and provides agencies the flexibility to make challenging decisions that are not easily reached under traditional budgeting systems. Benefits of this system include unification of government direction, increased information to public officials and constituents of agency performance, and a more effective budget decision process.²Over time, studies show that successful use of PBB can positively impact long-term fiscal health of states.² Problems with the use of PBB consist of subjectivity in what goals are important, the vagueness in developing goals, what measures are to be used in evaluation, lack of direction as to dealing with ineffective agencies, and the costs of tracking and overseeing performance data of agencies.^{2 3}

Arkansas’ budgeting process focuses primarily on requests made by state agencies and does not currently follow a result-oriented PBB system.⁴ Although budgets are reviewed by the legislature, budgeting decisions do not require strategic plans from the agencies, nor do they involve assessments of how well agencies achieved defined performance measures.⁴

While it is difficult to ascertain which states precisely follow comprehensive PBB systems, sources affirm that most states apply the system in some capacity. According to the Murphy Commission report, 14 states incorporated PBB into operations, and over 20 other states were considering using the system.⁴ In contrast, a study done around the same time by researchers at Georgia State University found that 47 states have some form of PBB methods in effect.⁵ Of this number, 31 states passed legislation requiring PBB use, and 16 states use PBB through non-legislative initiatives in place.⁵ Provided below is a chart organized by these researchers showing which of the states have implemented some form of performance-based budgeting, through which bills, and in what year. Arkansas is one of the three states that does not have any form of centralized performance-based budgeting initiatives, according to their study.⁵

A more recent study conducted in 2012 revealed that 40 states have performance budgeting legislation passed into law.² Furthermore, the researchers recommended implementation to the states which do not use PBB (including Arkansas) because of the positive impact this system has on state liquidity, expenditures per capita, and long-term financial liability ratios.²

The success of these states prompted the federal government to adopt similar measures into the budgeting process for federal agencies. The Government Performance and Results Act (GPRA) of 1993 requires federal agencies to create a 5-year strategic plan of performance goals.⁴ These plans specify exactly how the agencies are to achieve measurable performance goals. Agencies then must report quantifiable results to the Office of Management and Budget, along with explanations if goals are not met.⁴ The OMB office is in charge of developing and conveying an overall federal performance report to Congress.⁴

Texas is recognized as one of the leading users of PBB, enacting the system after bills passed in 1991 and 1993 provided for tying agency budgets to performance goals.^{7 8} Agencies are required to create performance goals and a strategy for achieving the goals. A Legislative Budget Board is in charge of monitoring the performance of state agencies in achieving strategic goals and conveying metrics of performance to the legislature.⁶ The legislature uses the reports on agency performance when deciding upon the next year’s budget.^{3 6}

Requisite to the success of PBB is an accurate, transparent accounting system that will provide legislators and budget oversight committees with information to assess the proper costs associated with state agency activities. For this reason, as discussed elsewhere, CFC recommends the implementation of activity-based accounting systems across all state agencies to accurately report the true expenditures of government activity.

Sources:

1. “Performance Based Budgeting: Fact Sheet.” Performance Based Budgeting Fact Sheet. National Conference of State Legislators, n.d.

2. Lu, Yi and Katherine Willoughby. “Performance Budgeting in the States: An Assessment” IBM Center for. IBM Center for The Business of Government (2012): 71-75. <http://faculty.cbpp.uaa.alaska.edu/afgjp/PADM628%20Spring%202013/Performance%20Budgeting%20in%20the%20States%20–%20An%20Assessment.pdf>

3. National Conference of State Legislators. “Legislative Performance Budgeting.” NCSL.org. 6 Oct. 2008. <http://www.ncsl.org/research/fiscal-policy>.

4. Murphy Commission. 1996-1999. “Making Arkansas’ State Government Performance Driven and Accountable.” <http://www.arkansaspolicyfoundation.org/policy/performance_driven.html>

5. Melkers, Julia, and Katherine Willoughby. “The State of the States: Performance-Based Budgeting Requirements in 47 out of 50.” Public Administration Review 58.1 (1998): 66-73.

6. Legislative Budget Board, n.d. <http://www.lbb.state.tx.us/>.

7. H.R. 2009, 72nd Reg. Sess. (Tex. 1991)

<http://www.lrl.state.tx.us/legis/BillSearch/text.cfm?legSession=72-0&billtypeDetail=HB&billNumberDetail=2009&billSuffixDetail=&startRow=1&IDlist=&unClicklist=&number=100>

8. S. 1332, 73rd Reg. Sess. (Tex. 1993).

<http://www.lrl.state.tx.us/legis/BillSearch/text.cfm?legSession=73-0&billtypeDetail=SB&billNumberDetail=1332&billSuffixDetail=&startRow=1&IDlist=&unClicklist=&number=100>

Edwin Flores In Policy Positions

ABC Accounting

January 9, 2015

Activity-Based Costing in Government Internal Accounting

Activity-based costing (ABC) is an accounting method used for internal management to tie costs with the activities associated with those costs. This method allocates indirect or overhead costs in a more accurate manner than traditional accounting methods.

Overhead costs are those costs which cannot be directly traceable to a specific item, activity, or department. An example of overhead cost is an electricity bill incurred for an entire building that is being used to manufacture multiple different products, or is being used by multiple departments. Traditional accounting methods allocate overhead costs of an organization in a simple fashion, usually based on a volume related factor. In the electricity bill example, a traditional method may allocate the cost of the bill between products in a manufacturing building based only on the number of machine hours used, or between departments based on their respective square footage. This allocation does not take into account differing electricity usages by different product machines or by different departments within the buildings.

ABC accounting separates all of the different activities which use resources by an entity and specifically identifies the common factors driving costs for each activity (also called the cost drivers). Cost drivers can include factors such as labor hours for wage costs, machine hours for production costs, square feet of space for rent costs, or miles driven for vehicle costs to name a few examples. Costs must be identified as belonging to a certain activity, then all costs associated with each activity are pooled together in cost pools. Cost pools are divided by cost driver units to arrive at a unit cost per each activity. Once a unit cost for each cost driver and activity is determined, then a product or department can receive accurate cost allocations based upon their usage of cost drivers. Unit costs can also be used for more accurate budgeting and decision making in the future. An in-depth example of activity-based costing in a government agency, the Iowa Department of Transportation, can be found in the Murphy Commission report.¹

Obvious drawbacks of implementing activity-based costing systems are the expense and time required to identify all cost activities of state agencies, their related cost drivers, develop software to accurately track these costs, and train employees to effectively maintain the system. However, existing statewide use of SAP systems in Arkansas could possibly mitigate the startup expenses. Opponents of ABC accounting could address the complexity of implementation, but as addressed by John Turner of the Public Interest Institute, ABC concepts are those that accountants should be familiar with from school.²

Many states use the activity-based costing system within internal accounting of state agency expenditures. Agencies in Texas, Iowa, Virginia, and Utah have switched to ABC accounting methods.^{1 3} North Carolina, South Carolina, Florida, Indiana, Minnesota, and Mississippi all adopted statutes requiring the use of activity-based costing accounting by local governments.²Mark Abrahams of the Abrahams Group assisted Iowa, Montana, Washington, and multiple cities and counties nationwide in incorporating activity-based costing into government operations.⁴

Utah adopted this system in 2008 as part of its Free Market Protection and Privatization Board Act, which was last amended in 2013.⁵ Leonard Gilroy, Director of Government Reform for the Reason Foundation, recommended its implementation for Utah government services so that costs associated with government or non-government activities would be accurately reflected.⁶ The Act also created a Privatization Policy Board to conduct inventories of state agencies and make the determination of whether an agency function is inherently governmental or commercial.⁶ That determination allows citizens to see how much state resources are spent on government versus private activities, and also gives public officials a chance to engage the private sector to perform certain activities instead of the government.⁶

Iowa implemented activity-based costing when it established its Department of Administrative Services in 2003 to manage the resources of the state. Section 8A.505 of the Act requires the department to “establish an indirect cost allocation system based upon standard cost accounting methodologies to allocate direct and indirect costs of state agencies.”⁷ The Department issued Regulation 11.1.4(6), which incorporates activity-based costing into its operations.⁸ Furthermore, under §8A.102-4, a governor appointed director oversees all of the financial and administrative activities of the state, including “developing best practices for the efficient operation of government and encourage state agencies to adopt and implement these practices.”⁷

States which have adopted ABC accounting did so in a manner unique to those states, for each state has differing economies and activities which contains different cost drivers. To be implemented in Arkansas, the state would have to develop a system of allocation and cost drivers unique to Arkansas. Then, like other states, Arkansas would need to create new government positions to monitor its use and ensure that ABC is being implemented effectively. Doing so would provide Arkansas public officials and citizens with more accurate data on where expenditures are going, and would provide officials with a useful tool of budgeting going forward.

Sources:

Murphy Commission. 1996-1999. “Making Arkansas’ State Government Performance Driven and Accountable.” <http://www.arkansaspolicyfoundation.org/policy/performance_driven.html>
Turner, John H. “Requiring Local Governments to Utilize Full Cost Accounting Methods.” Public Interest Institute 2.1 (1997): 5-7. <http://www.limitedgovernment.org/publications/pubs/limits/limmar97.pdf.>
Briner, Russell F., Mark Alford, and Jo Anne Noble. “Activity-Based Costing for State and Local Governments.” Management Accounting Quarterly 4.3 (2003): 8-9.
Abrahams, Mark D. The Abrahams Group. N.p., n.d. <http://www.theabrahamsgroup.com/Introduction_Resume.htm>
Utah House Bill 75 (2008 General Session) (enacted). Inventory and Review of Commercial Activities. <http://le.utah.gov/~2008/bills/static/HB0075.html>; Utah House Bill 94 (2013 General Session) (amended). Free Market Protection and Privatization Board Act Amendments. <http://le.utah.gov/~2013/bills/static/HB0094.html>
Agency Activity Inventory a Powerful Tool to “Right-Size” State Government, Utah Senate Business and Labor Standing Committee Cong. (2008) (testimony of Leonard Gilroy). <http://reason.org/news/show/agency-activity-inventory-a-po>
Legis. Serv. 145 (H.F. 534), 80th Gen. Assemb., Reg. Sess. (Iowa 2003)
https://www.legis.iowa.gov/law/statutory/acts (Iowa Acts Quick Search: GA 80, Session 1, Chapter 0145)
Iowa Admin. Code 11-1.4(8A) (2013).

Edwin Flores In Policy Positions

Containing Government Growth

Summary

This act is intended to contain the growth of Arkansas government by limiting government expenditures from year to year to the growth in inflation plus population. In addition, there will be revenue limits restricting the raising of taxes. This method alone will not change the appropriations and budgeting process, but rather responsibly limit the total number of expenditures. This bill will prevent policy makers from increasing state spending that does not reflect voters’ willingness to pay for government services.[1] Over 30 states have passed similar measures.[2]

In effect, this limit gives the people of Arkansas control on how much they want government to spend, and the legislators remain in control on what to spend the money on. It would prevent government from spending away everything it brings in, and will return extra revenue back to the people.

This is a responsible limit because it addresses the need to contain the growth in government expenditures, as well as addressing the needs in providing services to a growing population and changing value of the dollar. A working formula would look as follows:

Expenditure Limit = Previous Year Expenditures + (Previous Year Expenditures x (Inflation + Population Growth))

Inflation – means the percentage change in CPI in the United States Bureau of Labor Statistics Consumer Price Index (CPI) for South Region, all items, all urban consumers, or its successor index.

Population Growth – means the annual federal census estimates for Arkansas and such number shall be adjusted every decade to match the federal census.

The power to change this limit should be placed in the hands of the people rather than legislatures. Legislatures have incentives to continue government growth and spending by providing loopholes, exemptions, and special considerations that would undermine the limit. Measures that legislators can work around do not restrain spending.[3]

A comparable constitutional amendment was passed in Colorado in 1992 known as the Taxpayer Bill of Rights. That bill provided taxpayer refunds in 1997-2000 of over $2.3 Billion to the people of Colorado.[4] A simulation shows that if a similar formula had been enacted in 1980, Arkansas would have spent over $120 Billion LESS between 1980-2008. (Tax Foundation, TABOR calculator).

An ideal bill for Arkansas should contain the following provisions:

Growth in government expenditures limited to inflation plus population growth.
Any revenue collected over the limit goes immediately back to the taxpayers, and all tax increases have to be approved by a vote of the people.
When transferring government programs the overall limit must be reduced down accordingly.
Supermajority vote of legislature or popular vote of the people to change the limit or raise/change any taxes.

Introduction

Over 30 states have enacted some type of tax or expenditure limit (TELs).[5] TELs place a limit on how much taxes, revenues, or expenditures can increase in a state each year.[6] There are various types of TELs and no two are the same. The states change and adapt them for each state. The most common types of TELs include limitations based on (1) inflation + population growth, (2) Personal Income Growth, (3) Share of Income, (4) a Fixed Number, or (5) some variation of these.[7][8]

Effectiveness of TELs

TELs passed by initiative are more restrictive and contain fewer loopholes than those enacted by state legislatures.[9] TELs that limit government spending to the inflation rate plus population growth and mandate immediate rebates of government surpluses are more effective at limiting government expenditures than are other TELs.[10] This in turn creates incentives to cut taxes when it appears that revenues are going to exceed the limit. TELs that allow legislatures to increase the limit or work around them in some way do not restrain spending.[11] TELs that limit growth to the growth in state income is associated with slightly smaller budgets in low-income states, but is associated with larger budgets in high-income states.[12] TELs built as “some share of income” “have no statistically significant impact on either state-only spending or stand-and-local spending.”[13] TELs at a fixed number result in higher budget growths.[14]

Characteristics that tend to have more of an impact on keeping spending down include: (a) extra-legislative adoption, (b) constitutional codification, (c) a supermajority or public vote requirement for overrides, (d) a provision that automatically and immediately refunds surpluses in excess of the limit, and (e) prohibition on unfunded mandates to the local levels.[15]

Some research advocates that TELs are not effective at actually reducing government spending.[16] That conclusion is made because of the level of significance measured, and because of how TELs are structured.[17] At least one report states there is no statistical significance between states that have TELs and those that do not.[18] A measure was statistically significant if it was at least 5% of a difference.[19] Even though few states met that 5%, small percentages out of billions of dollars spent would still be significant to others. Most TELs do reduce per capita expenditures, but the ones that use formulas and calculations that included extra measures beyond just inflation plus population growth did not see much reduction in the growth of government expenditures. Many states enact TELs structured to allow them to say to constituents that they are reducing government growth, while actually allowing for them to spend more.

The “Anti-Tel” research advocated other measures to limit government expansion that include (1) increase competition among bureaus, (2) forcing state and localities to compete with each other, and (3) allow bureaus to compete for budget dollars in the provision of given services.[20] Zycher states that “TELs will be unable to substitute for the hard work of long-term public education and persuasion about the central benefits of reduced government spending.”[21] However, it seems like that advice coupled with a strict TEL like Colorado’s TABOR and described in the summary would help towards more economic freedom for Arkansans.

TEL Calculator

A “TEL Calculator” has been developed by the Tax Foundation to show how a certain TEL would impact a certain state over a certain period of time. There are options to apply differing styles of TELs to the same data. The TEL calculator can be found at http://interactive.taxfoundation.org/tabor/ .

Arguments For TELs

TELS are generally supported by those advocating smaller government and less spending such as conservatives and libertarians. This includes the national group Americans for Prosperity, and the CATO Institute’s support for TELs limited to inflation plus population growth. Common arguments in favor of TELs include[22]:

Enhance the stability of the policy environment;
Assure state residents that taxes will not rapidly increase unless a majority is in favor of change;
Make government more accountable;
Force more discipline over budget and tax practices;
Make government more efficient;
Control the growth of government;
Enable citizens to vote on tax increases and determine their desired level of government service;
Force government to evaluate programs and prioritize services;
Raise questions about the advisability of some functions provided by state government;
Help citizens feel empowered and result in more taxpayer satisfaction;
Help diffuse the power of special interests.

Arguments Against TELs

TELs are generally opposed by those advocating larger government and more spending such as liberals and those interests benefiting from more government spending. Interests that rely on government funding and subsidizing generally do not support TELs. Bell Policy Center is a leading advocate against TELs, specifically those like Colorado’s TABOR. Common arguments in opposition to TELs include[23]:

Shift fiscal decision making away from elected representatives;
Cause disproportional cuts for non-mandated or general revenue fund programs;
Make it harder for states to raise new revenue;
Cause a “ratchet-down” effect where the limit causes the spending base to decrease so that maximum allowable growth will not bring it up to the original level;
Result in excess revenues that are difficult to refund in an equitable or cost-effective manner;
Result in declining government service levels over time;
Fail to provide enough revenues to meet continuing levels of spending in hard economic times;
Shift the state tax base away from the income tax to the more popular (but regressive) sale tax if voter approval is required.
Does not allow local municipals to raise taxes and spend more if those constituents with for that
Increase in Health Care Services will reduce other services proportionally

Case Study: Colorado

Colorado’s TEL, the “Taxpayer Bill of Rights” (TABOR) is perhaps the most well-known TEL. It is praised by limited government supporters and demonized by big government advocates. TABOR was a constitutional amendment approved by the people of Colorado in 1992 that “limits revenue growth for state and local governments and requires that any tax increases be approved by the voters of the affected government.”[24] The expenditure limit was set at inflation plus population growth. Specifically, voter approval was required for (1) tax rate increases, (2) imposition of new taxes, and (3) increases in property tax assessment ratios.[25] Also, TABOR explicitly prohibits implementation of new or increased (1) Real Estate Transfer Taxes, (2) Local Income Taxes, (3) State Property Taxes, and (4) State Income Tax Surcharges.[26]

“Without any voter-approved adjustments to the limit, the TABOR cap ensures that state revenue growth will remain below the rate of economic growth in the state.”[27] TABOR also prevented creation of “Rainy Day” funds, with the excess revenue over 3% going back to the voters.[28]Emergencies require a supermajority vote of the legislature, and are general limited to natural disasters.

TABOR provided taxpayer refunds in 1997-2000 of over $2.3 Billion to the people of Colorado.[29]

In 2005, the people of Colorado approved a Referendum that basically “suspended” TABOR for five years. This allowed the state to take in all raised revenue with no rebates to the people, and exceed spending limits.[30] This allowed the state to keep over $1.3 Billion that would have returned to taxpayers as rebates.[31]

Colo. Const art. 10, §20

Colorado’s Taxpayers Bill of Rights (TABOR)

Colorado’s Taxpayers Bill of Rights (TABOR), with Annotations

Case Study: Utah

Utah passed a TEL by legislation back in 1989 that would set an expenditure limit at inflation plus population growth plus the growth in personal income.[32] In 2004, the limitation removed the growth in personal income from the limit.[33] This made the limit more restrictive and began “limiting the growth in state spending to the relatively low percentages of population growth and inflation.”[34] Utah’s bill did not appear to include provisions for refunds to the public when the spending limit was not met. This aspect incentivized legislators to spend more. So, those differences became smaller as more spending occurred. In 2004 there was $150 million below the spending limit, $88 million below in 2005, $50 million below in 2006, and then estimated for just $9.5 million below the limit.[35] In addition, there were numerous programs and funds exempt from the expenditure limit including public education, debt service expenditures, emergency expenditures, Rainy Day Fund, Education Rainy Day Fund, one-time project cots for capital developments, Centennial highway fund restricted account, and transportation investment fund.[36]

Utah’s change to keep the limit at inflation plus population growth was good, but the numerous exemptions and lack of refunds show the effects likely to occur – a lack of better containing government growth. A provision that would refund those large sums of money would incentivize tax breaks to avoid the refunds or provide the actual refunds back to the people. Making sure the bill included practically all government expenditures within the limit would avoid re-classifying expenditures to avoid the limit.

Utah Code Ann. §63J-3-101-402

Utah TEL

Case Study: Ohio

Ohio passed a TEL through the legislature in 2006. Their version would limit government expenditures by either inflation plus population growth or 3.5%, whichever is greater.[37] This means that there is a guaranteed spending increase in government of at least 3.5% per year, regardless of any other factors. The Ohio bill also included a provision that excess revenues brought in above the expenditure limit would go into a “rainy day” fund up until it is 15% of the budget, and only then would refunds be distributed out to the people of Ohio.[38] Also, it did not put the power of tax increases in the hands of voters, and so if there are any new constitutionally mandated spending increases into the fiscal legislation, the TEL becomes null and void.[39] The bill does not limit tax increases.[40]

Ohio’s bill shows that changing the formula and other attributes just slightly can affect the actual goal of containing government growth. This law could allow for an increase in expenditures even during periods of deflation and population reduction, although it will keep government from growing at a larger pace than 3.5% a year, it may do little in true containment of growth. A better solution would be like the one proposed in the summary that is more kin to the Colorado TABOR bill. The TEL proposal in Ohio “provides incentives to the legislature and those who benefit from public spending to budget the entire “guaranteed” maximum increase in public spending of 3.5%.

Ohio Rev. Code Ann. §131.55-60

Ohio TEL

Sources

Hill, Edward, Ph.D., Matthew Sattler, Jacob Duritsky, Kevin O’Brien, and Claudette Robey. A Review of Tax Expenditure Limitations and Their Impact on State and Local Government In Ohio. Issue brief. Cleveland: Cleveland State U – Maxine Goodman Levin College of Urban Affairs, 2006. Web. 6 Jan. 2015. <http://urban.csuohio.edu/publications/center/center_for_public_management/tel31806.pdf>.

Kinnaird, Andrew, and Cameron Smith. Exploring a Constitutional Expenditure Limit for Alabma. Rep. Birmingham, AL: Alabama Policy Institute, 2013. Print.

McGuire, Therese J., Ph.D., and Kim S. Rueben, Ph.D. THE COLORADO REVENUE LIMIT: The Economic Effects of TABOR. Issue brief. Washington DC: Economic Policy Institute, 2006. Briefing Paper. Web. 5 Jan. 2015. <http://www.epi.org/publication/bp172/>.

Mitchell, Matthew., Ph.D. TEL IT LIKE IT IS: Do State Tax and Expenditure Limits Actually Limit Spending? Working paper no. 10-71. Washington DC: Mercatus Center – George Mason U, 2010. Web. 2 Jan. 2015. <http://mercatus.org/sites/default/files/publication/TEL%20It%20Like%20It%20Is.Mitchell.12.6.10.pdf>.

New, Michael J., Ph.D. “Limiting Government Through Direct Democracy: The Case of State Tax and Expenditure Limitations.” Policy Analysis 420 (2001): 1-17. Cato Institute. Web. 2 Jan. 2015. <http://www.cato.org/publications/policy-analysis/limiting-government-through-direct-democracy-case-state-tax-expenditure-limitations>.

Patton, W. David, Ph.D. “Hitting the State Spending Limit.” Policy Perspectives 2.11 (2006): 1-6. Center for Public Policy and Administration – University of Utah, 20 Dec. 2006. Web. 6 Jan. 2015. <http://www.imakenews.com/cppa/e_article000718531.cfm?x=b11,0,w>.

“TABOR Bill with Annotations.” N.p., 13 July 2011. Web. 6 Jan. 2015. <http%3A%2F%2Fwww.colorado.gov%2Fcs%2FSatellite%3Fblobcol%3Durldata%26blobheader%3Dapplication%252Fpdf%26blobkey%3Did%26blobtable%3DMungoBlobs%26blobwhere%3D1251726086092%26ssbinary%3Dtrue>.

“The Taxpayer’s Bill of Rights (TABOR).” TABOR Text. N.p., n.d. Web. 2 Jan. 2015. <http://www.douglasbruce.com/ECO/ECOcontent.php?it=85>.

Waisanen, Bert. State Tax and Expenditure Limits. Issue brief. National Conference of State Legislators, 2010. Web. 2 Jan. 2015. <http://www.ncsl.org/research/fiscal-policy/state-tax-and-expenditure-limits-2010.aspx>.

Washington, Emily, and Frederic Sautet, Ph.D. Tax and Expenditure Limits for Long-Run Fiscal Stability. Issue brief no. 61. Washington DC: Mercatus Center – George Mason U, 2009. Mercatus On Policy. Web. 2 Jan. 2015. <http://mercatus.org/publication/tax-and-expenditure-limits-long-run-fiscal-stability>.

Zycher, Benjamin, Ph.D. State and Local Spending: Do Tax and Expenditure Limits Work? Rep. Washington DC: American Enterprise Institute, 2013. Web. <https://www.aei.org/wp-content/uploads/2013/05/-state-and-local-spending-do-tax-and-expenditure-limits-work_152855963641.pdf>.

Endnotes

[1] Washington at p.1

[2] Zycher at p.1

[3] Washington at p.2

[4] New at p.12

[5] Zycher at p. 1

[6] New at p. 3

[7] Waisanen at p.2

[8] Mitchell at p.22

[9] New at p. 3

[10] Id.

[11] Washington at p. 2

[12] Mitchell at p. 22

[13] Id.

[14] Id.

[15] Id. At 23

[16] Zycher at p.1

[17] Id. At 20

[18] Id.

[19] Id.

[20] Id. At 46

[21] Id.

[22] Waisanen at p.4

[23] Id.

[24] Id.

[25] McGuire at p.2

[26] Id.

[27] Waisanen at p.4

[28] Id.

[29] New at p.12

[30] Waisanen at p.5

[31] Washington at p.3

[32] Patton at p.1

[33] Id.

[34] Id.

[35] Id. at p. 3

[36] Id.

[37] Hill at p.39

[38] Id. at p.40

[39] Id.

[40] Id.

What Other States Are Doing

State	Year Adopted	Constitution or Statute	Type of Limit	Main Features of the Limit
Alaska	1982	Constitution	Spending	A cap on appropriations grows yearly by the increase in population and inflation.
Arizona	1978	Constitution	Spending	Appropriations cannot be more than 7.41% of total state personal income.
California	1979	Constitution	Spending	Annual appropriations growth linked to population growth and per capita personal income growth.
Colorado	1991	Statute	Spending	General fund appropriations limited to the lesser of either a) 5% of total state personal income or b) 6% over the previous year’s appropriation.
	1992	Constitution	Revenue & Spending	Most revenues limited to population growth plus inflation. Changes to spending limits or tax increases must receive voter approval.
	2005	Referendum	Revenue & Spending	Revenue limit suspended by voters until 2011, when new base will be established.
	2009	Statute	Spending	Revised general fund appropriations limit to remove the 6% of prior year appropriations alternative, while retaining a limit based on 5% of total state personal income.
Connecticut	1991	Statute	Spending	Spending limited to average of growth in personal income for previous five years or previous year’s increase in inflation, whichever is greater.
	1992	Constitution	Spending	Voters approved a limit similar to the statutory one in 1992, but it has not received the three-fifths vote in the legislature needed to take full effect.
Delaware	1978	Constitution	Appropriations to Revenue Estimate	Appropriations limited to 98% of revenue estimate.
Florida	1994	Constitution	Revenue	Revenue limited to the average growth rate in state personal income for previous five years.
Hawaii	1978	Constitution	Spending	General fund spending must be less than the average growth in personal income in previous three years.
Idaho	1980	Statute	Spending	General fund appropriations cannot exceed 5.33% of total state personal income, as estimated by the State Tax Commission. One-time expenditures are exempt.
Indiana	2002	Statute	Spending	State spending cap per fiscal year with growth set according to formula for each biennial period.
Iowa	1992	Statute	Appropriations	Appropriations limited to 99% of the adjusted revenue estimate.
Louisiana	1993	Constitution	Spending	Expenditures limited to 1992 appropriations plus annual growth in state per capita personal income.
Maine	2005	Statute	Spending	Expenditure growth limited to a 10-year average of personal income growth, or maximum of 2.75%. Formulas are based on state’s tax burden ranking.
Massachusetts	1986	Statute	Revenue	Revenue cannot exceed the three-year average growth in state wages and salaries. The limit was amended in 2002 adding definitions for a limit that would be tied to inflation in government purchasing plus 2 percent.
Michigan	1978	Constitution	Revenue	Revenue limited to 1% over 9.49% of the previous year’s state personal income.
Mississippi	1982	Statute	Appropriations	Appropriations limited to 98% of projected revenue. The statutory limit can be amended by majority vote of legislature.
Missouri	1980	Constitution	Revenue	Revenue limited to 5.64% of previous year’s total state personal income.
	1996	Constitution	Revenue	Voter approval required for tax hikes over approximately $77 million or 1% of state revenues, whichever is less.
Montana*	1981	Statute	Spending	Spending is limited to a growth index based on state personal income. * In 2005 the Attorney General invalidated the statute, and it is not in force at this time.
Nevada	1979	Statute	Spending	Proposed expenditures are limited to the biennial percentage growth in state population and inflation.
New Jersey	1990	Statute	Spending	Expenditures are limited to the growth in state personal income.
North Carolina	1991	Statute	Spending	Spending is limited to 7% or less of total state personal income.
Ohio	2006	Statute	Spending	Appropriations limited to greater of either 3.5% or population plus inflation growth. To override need 2/3 supermajority or gubernatorial emergency declaration.
Oklahoma	1985	Constitution	Spending	Expenditures are limited to 12% annual growth adjusted for inflation.
	1985	Constitution	Appropriations	Appropriations are limited to 95% of certified revenue.
Oregon	2000	Constitution	Revenue	Any general fund revenue in excess of 2% of the revenue estimate must be refunded to taxpayers.
	2001	Statute	Spending	Appropriations growth limited to 8% of projected personal income for biennium.
Rhode Island	1992	Constitution	Appropriations	Appropriations limited to 98% of projected revenue (becomes 97% July 1, 2012).
South Carolina	1980 1984	Constitution	Spending	Spending growth is limited by either the average growth in personal income or 9.5% of total state personal income for the previous year, whichever is greater. The number of state employees is limited to a ratio of state population.
Tennessee	1978	Constitution	Spending	Appropriations limited to the growth in state personal income.
Texas	1978	Constitution	Spending	Biennial appropriations limited to the growth in state personal income.
Utah	1989	Statute	Spending	Spending growth is limited by formula that includes growth in population, and inflation.
Washington	1993	Statute	Spending	Spending limited to average of inflation for previous three years plus population growth.
Wisconsin	2001	Statute	Spending	Spending limit on qualified appropriations (some exclusions) limited to personal income growth rate.

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