The battle is never lost, only delayed.
Progressive legislators and activists, stung by the Supreme Judicial Court’s opinion striking a new proposed income tax on the state’s highest earners from November’s ballot, are aiming to try again in 2022.
The initiative petition that would have changed the state Constitution by imposing a so-called millionaires’ tax and plowing that revenue into transportation and education was ruled unconstitutional because it combined multiple subjects that were not related. The state Constitution requires such ballot measures to have subjects that are related or “mutually dependent.”
But the same proposal to change the Massachusetts Constitution — which currently requires income taxes to be levied at the same rate for everyone — would probably pass legal muster if it originated in the Legislature rather than with voter signatures, experts say.
Enter Senator Jason M. Lewis, a liberal Democrat from Winchester, who says he will propose the same language at the beginning of the next legislative session in January and press for the effort, which would bring in an estimated $2 billion annually, to be put on the ballot in 2022.
It won’t be easy. To impose the tax on high earners would require more than half of legislators to green light the proposal in two consecutive two-year legislative sessions— perhaps in 2020 and then in 2022 — and then get the majority of votes on the November 2022 ballot.
That’s doable, Lewis said, because a broad majority of lawmakers and Massachusetts voters back the effort.
“We’ve seen clearly that there is overwhelming support among the public and there’s also overwhelming support in the Legislature — about 70 percent — to pass a 4 percent surtax on income over $1 million a year and invest that money into transportation and education,” he said. “My proposal would be a way to do it that could make it to the ballot,” unlike the effort that was thwarted Monday.
One former high court justice said he thinks, constitutionally, Lewis is right.
“It is my view that the exclusions that applied to this initiative petition to amend the Constitution would not apply to a legislative proposal to amend the Constitution,” said Robert J. Cordy, a former Supreme Judicial Court justice who is now a partner at the law firm of McDermott Will & Emery.
And on the politics, there is evidence to support Lewis’s view as well.
A WBUR poll last month found 77 percent of registered voters backed the millionaires’ tax.
And while the Constitution only required more than 25 percent of legislators to approve of the initiative effort for it to move forward, the vote was 134-55 in 2017 and 135-57 in 2016.
But there is a twist. Business groups that successfully brought the millionaires’ tax ballot initiative to the high court this year, thwarting it, are still around — and still don’t think such a levy is good public policy.
“The income surtax petition has raised legal, fiscal, and economic concerns for the Massachusetts Taxpayers Foundation,” said Eileen McAnneny, the group’s president.
While the high court’s ruling addressed the legal concerns, she said, “the fiscal and economic ones remain as does our apprehension of embedding a tax in the Constitution. Given that our infrastructure continues to deteriorate, waiting another four years to have the Legislature amend the Constitution as Senator Lewis proposes is not the best path forward.”
Instead, she said, the difficult conversations about how to comprehensively address the needs of the state in a way that helps rather than hinders the economy should begin right now.
But Representative Jay R. Kaufman, a Lexington Democrat, House chairman of the Joint Committee on Revenue and an expert in Massachusetts taxation, says a constitutional amendment making a stepped income tax is the only way forward.
“Until we are able to pass something like the ‘Fair Share’ proposition that was to be on the ballot this year, we are stuck with inadequate revenue and a fundamentally unfair state tax system,” he said. 2022 is “four years too late, but that’s the only option open to us now.”
Raise Up Massachusetts, the coalition of labor, faith, and community groups that had brought the millionaires’ tax forward, expressed openness to the new way of making the constitutional change.
“Several elected officials have suggested that we need to look at other avenues to find ways to invest in our state’s future because they, like many other people in this state, recognize we’re not investing enough to provide our kids with a good education . . . and give us a reliable transit system,” said Steve Crawford, a group spokesman. “We need to be investing in these things to keep our economy strong.”
The state’s current income tax rate is 5.1 percent for all income levels. The amendment advocates wanted on this year’s ballot — and Lewis wants on 2022’s ballot — would impose an additional levy of 4 percent on annual taxable income in excess of $1 million. That income level would be tied to inflation, so the extra tax would continue to apply only to very wealthy people.
Voters have previously rejected five proposals to change the state Constitution to allow for a stepped state income tax: In 1962, 1968, 1972, 1976, and 1994.
And the last time a legislative effort to change the Constitution went to voters and passed was 2000.Joshua Miller can be reached at email@example.com. Follow him on Twitter @jm_bos.