In order for Republicans to fashion an effective response to the Supreme Court’s latest Claremont decision, they need to recognize and accept that Governor Lynch will not support any constitutional amendment that limits judicial review of the adequacy of public education.  And without Lynch’s active support, Democrat legislators will not support a constitutional amendment.  This means that amendments such as the one recently proposed by former Supreme Court Justice Chuck Douglas, and endorsed by Republican gubernatorial candidate Jim Coburn, are “DOA” at the Legislature.

 

            Conversely, unless 2006 turns out to be as much of a tsunami for Republicans running for state office in New Hampshire as 1994 was for Democrats running for Congress, Lynch will need Republican support to pass his education funding plan, which did not pass the Republican state senate this past session.

 

            There is common ground, however.  Lynch has said repeatedly that he will veto any income and sales taxes, and that he wants to get rid of the state property tax.  That is a goal shared by many Republicans.  So why not the following bargain:

 

            Lynch agrees to call a special session of the Legislature and agrees to actively support a constitutional amendment to be placed on the ballot this November that would simply say that there shall be no income, sales or state property tax.  If the Legislature passes such an amendment, Republicans then return the favor by passing Lynch’s education funding plan.

 

            This proposal will be rejected out of hand by the many Democrats and the quite a few Republicans in the Legislature who support an income tax.  Indeed, these folks are practically drooling at the prospect of the Supreme Court imposing an income tax in 2007.  But all that they would need to do to block enactment of the constitutional amendment is to persuade one-third of the voters to vote against it, which shouldn’t be that difficult if an income tax is really the panacea they claim it is.   

 

After that, it would be smooth sailing for the income tax.  No matter how detailed a definition of an adequate education the Legislature passes, its content and cost is sure to be challenged in court.  Then the Supreme Court will get the final say.  Since the Court in its most recent Claremont decision suggested that the $837 million currently allotted by the Legislature to fund public education is not “facially sufficient” to pay for a “constitutionally adequate education,” it’s fair to say that it will require an income tax to pay for the education that the Court has in mind.  It’s also fair to say that this Supreme Court, which in the same decision also said that “in the absence of action by other branches a judicial remedy is not only appropriate but necessary,” will have no qualms about imposing an income tax.     

 

            Many in the Republican Party will probably find this proposal unacceptable.  They need to consider, however, that a page of history is worth a volume of logic.  No amendment that limits the power over education policy usurped by the Supreme Court in its Claremont decisions has ever been passed by the Legislature, not even when the Republicans had huge majorities in both chambers following the 2002 election.  If it hasn’t happened in the last thirteen years, it’s not going to happen in the next two.

 

            That leaves resisting the Supreme Court’s latest Claremont ruling as the only way to prevent an income tax.  But that is even less likely to happen.  A majority of legislators either erroneously believe that the Constitution is whatever the Court says it is, or are willing to go along with the Court to achieve political results that they cannot achieve at the ballot box.  Hence, the Legislature either will meet the Court’s deadline of June of 2007 for defining an adequate education in a manner acceptable to the Court, or will accept whatever definition and cost the Court comes up with in the absence of legislative action.  In either case, an income tax is sure to follow.

 

            If Governor Lynch is as opposed to income, sales and state property taxes as he has been telling us, then he should get behind this proposal.  Otherwise, he needs to explain to us, before we cast our votes in November, what he will do when the Supreme Court, sometime in 2007, rules that the cost of an adequate education is in the neighborhood of the $2 billion claimed by the Claremont plaintiffs, and orders the State to fund that cost exclusively with state taxes.