The Spending Cap, Ctd

The Yankee Institute for Public Policy, a Connecticut-based conservative think tank, recently released a policy brief concerning Connecticut’s spending cap.  The brief is referenced in an Op-Ed on CT News Junkie authored by Peter Bowman, President of the Connecticut Lawyer’s Chapter of the Federalist Society.

Contrary to my earlier post, which explains why the spending cap is judicial unenforceable, the Executive Summary of the policy brief states that “if lawmakers raise taxes while also exceeding the spending cap without an emergency declaration, taxpayers may have cause to challenge their tax bills in court.”  The key word in this sentence is “may,” and it is a word with which I respectfully disagree, unless it is construed to mean “infinitesimally small possibility.”

Mr. Bowman’s policy brief does a very fine job of explaining the history of the spending cap, as well as the cases that have addressed the cap, including the cases I discussed in my post, particularly Nielsen v. State of Connecticut (1996) and Roger Sherman Liberty Center, Inc. v. Donald Williams, et al.  The description of the holding in the Roger Sherman case, however, is incomplete.  Mr. Bowman correctly states that the trial court dismissed that case on ripeness grounds, i.e., the lawsuit was premature.  But Mr. Bowman fails to note that the court also addressed a second reason why the case should be dismissed: applying the holding of Nielsen v. State of Connecticut, the court concluded that the case–which challenged a budget as violative of the spending cap–presented a “political question” over which the court lacked jurisdiction.

Ultimately, the policy brief concludes by stating that a legal challenge to a budget on the grounds that it violates the spending cap “would face extraordinary legal hurdles and would likely have limited success. That is not to say that such a challenge would not be successful.”   I agree with the first quoted sentence.  And I agree with the second sentence, provided that the chances of success are understood to be virtually nil.