Is Connecticut’s Spending Cap Judicially Enforceable?

Short answer: No.  Long answer: No.  Short explanation: The “political question” doctrine.  Longer explanation: See below.

Since 1992, Connecticut has had both a constitutional and a statutory spending cap.  In theory, the purpose of the cap, which was passed in the wake of the state’s enactment of an income tax, is to restrain the annual growth of “general budget expenditures” to a rate that does not exceed the rate of inflation or growth in personal income.

A recent proposal by the Appropriations Committee of the General Assembly to redefine how the legislature has long interpreted the phrase “general budget expenditures” is generating significant controversy.  Article third, § 18 of the Connecticut Constitution, which sets forth the constitutional spending cap, says that “[t]he General Assembly shall by law define . . . ‘general budget expenditures’ for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness.”

Remarkably, the General Assembly has never exercised its express authority under article third, §18 to pass a law that actually defines “general budget expenditures” or two other key terms of the spending cap. In fact, a lawsuit filed in the mid-1990’s attempted–unsuccessfully–to force the legislature to enact definitions of those terms.  I’ll have more to say about that very important lawsuit in a moment.

By custom and practice, however, the legislature has long interpreted “general budget expenditures” only to exclude payments of principal and interest on so-called “hard” debt, such as bonds.  So-called “soft” debt, which includes the state’s pension obligations and payments for retiree health plans, has always been treated as a general budget expenditure.  At least until now.  The Appropriations Committee says it wants to exclude such soft debt from the category of general budget expenditures.  That proposal, if accepted, would have the effect of significantly increasing the spending cap, thereby allowing the legislature to pass a larger budget without exceeding the cap.

As a matter of policy, people can debate the wisdom of the Appropriations Committee’s proposal.  But my purpose in writing this post is to explain why the spending cap is, and always has been, a legal fiction.  The cap is not judicially enforceable. The legislature may violate the cap with legal impunity.  The sole remedy for voters who are unhappy with how the General Assembly treats the spending cap is to express their feelings at the ballot box.

Why isn’t the spending cap legally enforceable?  Because of something called the “political question” doctrine.

Back to the important case from the mid-1990’s that I mentioned a few paragraphs ago.  The case, Nielsen v. State of Connecticut, was filed by taxpayers who sought to compel the General Assembly to enact statutory definitions required to implement the constitutional spending cap.  The trial court dismissed the case on the ground that it presented a “political question that could not be adjudicated by judicial authority.”  The plaintiffs appealed to the Supreme Court, which affirmed the trial court.

As the Supreme Court explained, the “political question” doctrine reflects the proposition that with respect to certain kinds of controversies, “some other branch of government has constitutional authority over the subject matter superior to that of the courts.”  “The fundamental characteristic of a political question . . . is that its adjudication would place the court in conflict with a coequal branch of government in violation of the primary authority of that coordinate branch.”  If a case presents a “political question,” as the courts understand and define that term, a court lacks jurisdiction to hear and decide the case.

In Nielsen, the Supreme Court concluded that plaintiffs’ claim presented a “political question” based on the court’s analysis of the text of article third, § 18.  As noted above, that text states that “the general assembly shall by law define  . . . ‘general budget expenditures’. . . .”  (Emphasis supplied.)  The court said the following of that text:

This provision, by its plain and unambiguous terms, commits exclusively to the General Assembly the power to define the spending cap terms and nowhere intimates any role in this process for the judiciary.  Moreover, neither the structure nor the history of the provision manifests any intended constraint on the unconditional definitional authority conferred upon the General Assembly.

. . .

Accordingly, because article third, § 18, clearly commits to the General Assembly the sole authority to define the spending cap terms, we have no jurisdiction to consider the merits of the plaintiffs’ claim.  ‘We must resist the temptation which this case affords to enhance our own constitutional authority by trespassing upon an area clearly reserved as the prerogative of a coordinate branch of government.’

The Supreme Court concluded its opinion with this statement:

Our decision requires the plaintiffs to seek relief elsewhere.  The voters who cast their ballots to adopt article third, § 18, entrusted its implementation to their legislators.  If the plaintiffs and other voters are dissatisfied with that implementation, their recourse is to the political process.

In my view, the decision in Nielsen v. State controls any attempt to challenge a budget that the General Assembly passes on the ground that the budget violates the spending cap.  If voters are not happy with a budget, the answer is not to sue; the answer is to vote.

UPDATE: As appellate ace Proloy Das points out, in 2011 a superior court judge applied Nielsen, in the very way I described, and dismissed a case challenging a budget as violative of the spending cap.  See Roger Sherman Liberty Center, Inc., v. Donald Williams, et al.

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