Why the Ohio Roundtable Is Suing to Stop the Sales Tax Increase
From Reaching the Ballot

From the beginning of the school funding debate, the Ohio Roundtable has objected to the DeRolph decision based upon matters of Constitutional law. We agree with Chief Justice Moyer who calls DeRolph a "usurpation" of the proper authority of the Legislature. Our track record on that issue is clear.

We warned in March of 1997 that attempting to build public policy on this flawed decision would lead to further corruption of the Constitution and endless litigation. That warning has been clearly played out in the actions of the Ohio Legislature in attempting to meet the demands of DeRolph.

On two specific occasions, the Legislature has attempted to pass a Constitutional amendment to increase the state sales tax. Both highly publicized attempts failed to attain the majority vote required by law. Now the Legislature has turned to a supposed "loophole" in the Constitution to take the same tax increase directly to the voters.

We have analyzed the legal rationale submitted by the Legislature for this action and find it wholly lacking. A thorough investigation of Ohio history reveals that no other attempt has ever been made to utilize Article II Section 26 of the Ohio Constitution in this fashion.

The historic development of the Ohio Constitution and existing case law all reveal that passing statutory law contingent upon the direct vote of the electorate is not what the founders had in mind, nor what the Courts have established as precedent.

Turning to this extra-constitutional method is the equivalent of changing the rules in the middle of the game. The Legislature spoke clearly in rejecting the tax increase amendment on two occasions. Attempting to claim a newly discovered provision in the Constitution as means of securing the tax is a blatant abuse of power on the part of the state legislature.

Furthermore, should this method be upheld in Court and utilized, a whole new legal avenue will be made available for changing laws in Ohio. The ramifications of this new law-making technique will have to be clearly defined to prevent further abuses. For example, if the Legislature can pass this tax statute pending voter approval, can they pass all future tax measures affecting education in a similar fashion? In other words, if the people get the right to vote on this measure, will they be guaranteed the right to vote on all such measures in the future? Or is this just a special case because the Legislature really, really, wants to pass a tax.

Regardless of the outcome of the suit we are filing, or the results of the proposed vote in May, there are serious questions raised by this attempt to go around the clear meaning and precedent of the Constitution. As an organization committed to the traditional principles that helped birth the Ohio Constitution, we are concerned that a full legal discussion occur regarding this new attempt in governance.

There are two recent federal cases that might shed light on this matter. Several years ago the U.S. Supreme Court struck down state-initiated attempts to limit the terms of members of Congress. The Court claimed that term limits on Congress could only be enacted by a Constitutional amendment initiated by Congress. The states in essence could not "go around" the existing provisions for changing the law.

Recently a federal appeals court struck down the federal line-item veto passed by Congress. Again the judge cited the inability for even the Congress to amend a fundamental law touching the balance of powers without the proper constitutional remedy.

Both these cases shed light on the importance of constructing laws and implementing them based upon the established precedent of the Constitution. A very similar case can be made regarding the Ohio school funding tax increase proposal.

Finally, some have questioned our position based upon our previous leadership in ballot initiatives, referenda and constitutional amendments. Their charge has been hypocrisy. They claim we are being inconsistent by promoting voter participation in term limits, campaign finance reform, casino gambling and other campaigns while fighting to keep this tax increase off the ballot. They miss the point entirely.

When we initiated the term limits amendments, we played the game according to the rules. We did what the Ohio Constitution required down to the color of the ink and the size of the type on our petitions. The same was true in the campaign finance reform statute and the campaigns for the defeat of casino gambling. And we legally encouraged Ohioans to defeat the Governor’s sales tax twice in the past year. Those people who wrote and called their elected officials asking them to defeat the tax played according to the rules.

We fully support the rights of all Ohioans to vote and to participate in their government. What we object to is the attempt of a few powerful Ohioans to change the rules in the middle of the game. The Ohio Constitution is the document that secures the basic rights of all voters in Ohio. If the Governor and the Legislature want to change the Constitution to require voter approval for tax measures, then they should pursue such an amendment. Attempting to go around the existing document in a political crisis is bad form and potentially dangerous to the civil liberties the Constitution is designed to protect.

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