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Will the people you vote for protect ALL of our civil rights?

Orrin J. H. Johnson
Orrin J. H. Johnson
Opinion
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The front of the Nevada Legislature Building on a sunny day

Earlier this week, Judge James Russell found a tax hike at the eleventh hour of last year’s legislative session to be unconstitutional. There shouldn’t have been a doubt about it. Nevadans, of course, amended the Constitution many years back to require any bill that increased revenue in any way to have support of two-thirds of the legislators. Taking money from hard working people and giving it to other people is a big deal, and requiring such broad buy-in for tax increases makes it more likely (although does not guarantee) that there is a good reason to take that money.

This is an eminently sensible rule, especially in a state that must balance its budget. Raising taxes is lazy, and hurts people who must pay the tax, directly or indirectly (when businesses raise prices to compensate). In a perfect world, all taxes are an investment that pays off — by paying for the roads that let me get to my office, and more importantly, let my clients get to my office, I’m able to serve more people (and make more money). But if you can’t sell that cost-benefit analysis to a large cross-section of Nevada’s representatives, it’s probably a good bet that the benefit isn’t worth the cost.

This boundary against government action could not be more clear. The purpose behind the language in our state Constitution could not be more plain. And yet, legislative Democrats tried to pretend that limit on their power didn’t exist. In the last hours of the 2019 session, failing to get enough votes, they decided to pretend the rules didn’t apply. In a tortured, 24 page document which examined everything except the plain language of the state constitution and simple logic, Legislative Counsel Bureau attorneys found a way to justify the otherwise unlawful taking of other people’s money.

Even if you think our taxes are too low in Nevada, this sort of thing should bother you. The way government goes about things is at least as important as the actions themselves. And once governments get away with bending or breaking rules, they will keep doing so until either people rein them in, or until there are no rules left. 

This year, both special sessions involved more than their fair share of shenanigans – last-minute agendas from the governor, insufficient time to read and debate major legislation, votes in the wee hours of the morning, and a building closed off from the public. In a time where the public trust in government is lacking, none of this does much to help restore it.

It took too long, but Judge Russell’s invalidation of the obviously unconstitutional taking of other people’s money will do a little to move the needle the other way. Thank God for an independent judiciary.

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Beyond it just being the wrong thing to do, playing fast and loose with the rules never works out for anyone in the end. Whatever short-term gain might be had is always offset by larger consequences down the road.

In the case of an illegal tax, the government must pay it back, with interest. Not only does this open up the budget hole the illegal taxes were meant to plug, it makes that hole bigger. This can get awfully pricey. For example, between 2003 and 2006, Washoe County tax assessors played stupid games with their assessment rules, and last year a judge handed the county a stupid prize — pay back tens of millions of dollars in illegally assessed tax dollars, plus interest. What would have hurt the people of Washoe County in ordinary times hurts even worse when something else pops up, like say a global pandemic and panicked responses by government officials who continue to strangle the economy and choke off government revenue. 

And wasted money is bad enough — the wasted credibility of government actors is worse. Nearly a year ago, I warned in this very space that this foolish taxation overreach, and the Legislative Counsel Bureau’s side-taking in that fight, would irreparably damage the very institution of the Legislature. How are Republicans in future sessions supposed to trust the opinions of LCB?  When LCB is right (as their attorneys usually are), how much simpler will it be for legislators determined to abuse their power to ignore them?  At some point, any power you give yourself will be wielded by your enemies/adversaries — what terrible escalation can we expect next, no matter who wins elections in the future?  (See, i.e., Harry Reid’s ending of the filibuster for federal judicial nominations.)

When most people think of civil liberties, they think in terms of criminal justice reform, or maybe voting rights. But owning property and running a business are civil rights, too. And since the power to tax is the power to destroy, protecting those civil rights is just as crucial to a fair, just, and prosperous society (indeed, far more so) than all the restrictions on police in the world.

It’s very frustrating that civil rights have been divvied up among our partisan tribes, too. Ruth Bader Ginsberg pushed back against the government when it came to laws discriminating against women, which is inarguably good. But her last significant vote on a case was to kneecap the First Amendment for Nevada churchgoers (and by extension, everyone else in the country suffering under arbitrary and capricious “emergency” dictates) – a sad coda to the storied career of the former ACLU lawyer.

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In a free society, governments must have clear boundaries beyond which they are not permitted to interfere with people’s lives, liberty, or property. The noblest parts of our national history, from our very founding, is when we have pushed those boundaries further back against the government – the abolition of slavery, every voting rights expansion, eliminating racial segregation, the repeal of Prohibition, and of course the ratification of the Constitution and Bill of Rights themselves. 

Wise governments steer well clear of these boundaries. Wise people push back against their government when it forgets, through elections, lawsuits, and righteous civil disobedience. And wise judges like Judge Russell police those boundaries aggressively, keeping government firmly in its box, and erring on the side of liberty. 

As you make your choices in the coming weeks for any elected official, ask which of them know where the boundaries are, and know to steer well clear of the edges. When you’re deciding on which judges to vote for, ask which of them will enforce those limits. And remember that what protects your political opponents against the government, also will protect you.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].

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