Archive for Wednesday, December 8, 2004

Legislative proposal troubling

December 8, 2004


Every year, the holiday season not only brings tales of reindeer and sugar plums but also of potential initiatives that occupy the minds of legislators as they prepare for the beginning of the new session in January. In recent days, two such proposals have come to light. The first is a move to authorize covenant marriage in Kansas; the second is to adopt a "Taxpayer Bill of Rights" (TABOR) modeled on the Colorado law.

As a result of the November elections, conservatives have gained power in the Kansas Legislature. It would be naÃive to think that, with the additional votes they will have this session, they will not attempt to further their legislative agenda. But all Kansans can hope that this agenda will be well thought out and practical. I think it's worthwhile to ask whether the two proposals that have surfaced early, make sense.

The impulse behind covenant marriage is the belief among some people that divorce is simply too easy under current law. In a sense, covenant marriage laws, which generally require couples to have some form of pre-marital counseling and which limit the grounds on which a divorce can be obtained, are an attempt to turn back the legislative clock and to return to a time when it was more difficult to get a divorce.

In my opinion, it's tough to object to the idea of covenant marriage so long as it is entirely voluntary and no one is required to enter into a covenant marriage. On the other hand, I find it hard to understand the need for covenant marriage if it is voluntary. Under such a statute, people put the restriction on themselves. If a person believes that divorce is wrong except in limited circumstances, then that person ought not to get divorced. Certainly, no one forces people to get divorced under current law.

The only thing that I can imagine is a situation in which a person gets married and at that time believes that divorce ought to be limited and then changes his or her mind. A covenant marriage agreement would make it harder for that person to get a divorce after a mind change. Do we really want to encourage people to put themselves into that kind of a situation?

I find the whole concept of TABOR much more troubling. It is an attempt at restricting future Legislatures through a constitutional amendment and, therefore, is something with which I strongly disagree. One can argue whether continuing to cut back on state taxes and the revenues needed to fund state government is a good idea. Personally, I think that it is a very bad idea. People in Kansas need state government services and TABOR would have the practical effect of severely harming these, as the Colorado experience clearly shows.

But beyond arguing about the financial and operational effects of TABOR on state government, there is also the issue of using a constitutional amendment to limit the power of future legislatures for such a purpose.

To my mind the key function of the Kansas Legislature is to deal with the state budget and to ensure that the will of the people of Kansas is manifested in budgetary decisions through their legislative representatives. A constitutional amendment which would, in effect, severely limit the authority of the Legislature to do this is nothing less than a radical change in the form of our state government and one designed to impose the views of the current Legislature on all future legislators. It would mean that future legislatators elected by Kansans could find it difficult to make budgetary decisions in keeping with their electors' wishes.

There is a very big difference between covenant marriage and a "Taxpayer Bill of Rights." Under a covenant marriage law, a couple, entering into a covenant marriage, limit their own future freedom of choice. While I think that this is not the wisest thing for couples to do, especially young couples, it seems to me that this is something which only affects them.

On the other hand, a "Taxpayer Bill of Rights" involves nothing less than a current Legislature taking away authority from all future Legislatures and the citizens of Kansas. This, to my mind, is quite dangerous.

Before legislators decide to support TABOR I believe that they need to think about the precedent they are setting. Once the Legislature gets into the habit of creating constitutional amendments on issues like the budget, they might want to think about what this could mean over the long term. Conservatives may not always be the dominant faction in the Legislature. If they establish a precedent for using constitutional amendments to limit future Legislatures, are they prepared to face the possibility of a liberal majority in the future deciding to do the same on other issues such as marriage or abortion?

In the end, while I think that a covenant marriage statute is unnecessary, I have no objections to it if it's use remains voluntary. Passage of a "Taxpayer Bill of Rights," on the other hand, seems like a terrible idea to me both on practical and on legal grounds. One can hope that those legislators who now favor the latter proposal will think hard about what sort of a precedent they may be creating and decide that such an amendment would be a serious mistake.

-- Mike Hoeflich, a professor in the Kansas University School of Law, writes a regular column for the Journal-World.

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