OPPONENTS OF THE so-called “millionaire’s tax” filed a lawsuit Thursday asking the Supreme Judicial Court to change the summary of the constitutional amendment that will appear on the November 2022 ballot. Their lawsuit calls attention to what has been a controversial issue – whether the money raised from the income surtax will actually go toward increased spending on transportation and education, as advocates of the measure have claimed.
“It is important to understand that this lawsuit is not about whether creating a new graduated income tax is good public policy or bad public policy, it is about ensuring voters are not misled by a description of the proposal that is neither fair nor accurate,” said Chris Anderson, president of the Massachusetts High Technology Council and the lead plaintiff.
Proponents of the constitutional amendment, which would create a surtax of 4 percentage points on income over $1 million, initially tried to get the question on the 2018 ballot. But the Supreme Judicial Court ruled that because the question dealt with two different topics – it set the tax rate and earmarked the money for education and transportation – it could not appear on the ballot. This time, the same amendment was introduced as a legislative petition rather than a citizens’ petition, which does not include the legal requirement barring questions that combine unrelated subjects.
The opponents are not seeking to overturn the question entirely but to modify the language that appears on the ballot. They argue that summary language approved by Attorney General Maura Healey and Secretary of the Commonwealth William Galvin – the same language that was going to be used in 2018 – is “unfair and misleading.”
They argue that the question summary and a statement laying out the “yes” argument, which will appear in a voter information guide, say the money raised by the tax can only be used to fund new spending on education and transportation. But their brief argues that money is fungible and subject to legislative appropriation, and the income tax money could be used to supplant existing funding for education and transportation. So as long as the amount raised by the tax is used in those areas, the plaintiffs say, lawmakers will fulfill their obligation – even if there is no increase in spending.
“Voters will be told the new money must be used for education and transportation, but because state tax revenues are ‘fungible,’ the Legislature will have ‘ultimate discretion’ over which budget categories actually see spending increases,” the plaintiffs wrote, citing language used by the attorney general in the 2018 Supreme Judicial Court case.
The plaintiffs want the summary to state: “The Legislature could choose to reduce funding on education and transportation from other sources and replace it with the new surtax revenue.”
They argue, based on polling, that public support for the constitutional amendment is dependent on the money going toward education and transportation, and proponents are misleading the public.
The 54 plaintiffs are all identified as Massachusetts voters and taxpayers, and many are active in conservative or business-aligned organizations. They include several state representatives: Republicans Nick Boldyga of Southwick, David DeCoste of Norwell, and Marc Lombardo of Billerica, and Democrat Colleen Garry of Dracut. Other plaintiffs include Agawam City Council Vice President Cece Calabrese, National Federation of Independent Business state director Christopher Carlozzi, Pioneer Institute executive director Jim Stergios, Massachusetts Fiscal Alliance spokesperson Paul Craney, Massachusetts Taxpayers Foundation president Eileen McAnneny, auto parts business owner and Massachusetts Fiscal Alliance founder Rick Green, and self-storage business owner Mike Kane.
Craney said in a statement, “MassFiscal applauds the effort of this lawsuit to bring accuracy to what is before the voters this November….Voters deserve to know the truth about how the legislature’s 80 percent income tax increase will not guarantee additional funding for what they claim.”
Stergios said in a statement, “Proponents may willfully mislabel this tax, but the AG and the Secretary should not.”
Raise Up Massachusetts, a coalition of unions, clergy, and liberal organizing groups that is leading the campaign in favor of the constitutional amendment, responded that the opponents are “playing word games in the courts to confuse voters.”
“Dedicating the money in our state constitution is the strongest way possible to ensure that the revenue raised by the Fair Share Amendment is spent on essential investments in education and transportation,” the coalition said in a statement. The group said money is needed as Massachusetts recovers from the pandemic, and added, “Massachusetts families deserve an honest debate and they deserve the stronger economy we can provide them with through the additional revenue raised by the Fair Share Amendment.”