COLUMBUS - While Republican lawmakers worked toward an alternative they hope will lead to removal of a government spending-restraint issue from the ballot, some believe the courts might have gotten around to doing it for them.
Two weeks ago Franklin County Common Pleas Judge David Cain invalidated a number of petitions circulated in favor of an unrelated ballot issue seeking a strict statewide ban on smoking in indoor public places. He determined that the professional signature gatherers mistakenly failed to disclose the firm paying them.
SmokeFreeOhio, the coalition of health organizations pushing the ban, had relied on advice from Secretary of State Kenneth Blackwell's office when it made the error. Citizens for Tax Reform, the Tax Expenditure Limitation committee associated with Mr. Blackwell, relied on professional signature gatherers to a much greater degree, leaving more of its signatures at risk.
"We're not threatening a Cain challenge, but there are 11 million people out there who might be thinking about a Cain challenge," said Scott Borgemenke, chief of staff to House Speaker Jon Husted (R., Kettering). "We did know and have known that there were several court challenges that had a chance to be successful."
Earlier this week, GOP leadership in the Ohio House and Senate struck a deal with Mr. Blackwell, who had made TEL the centerpiece of his Republican gubernatorial campaign. The lawmakers plan to pass their own scaled-back version of a TEL next week. In return, they expect Mr. Blackwell to recommend withdrawal of the stricter ballot question.
As of now, the TEL issue stands certified for the Nov. 7 ballot. It would ask voters to approve a constitutional amendment limiting annual growth in government spending to 3.5 percent, or the rate of inflation adjusted for population, whichever is greater.
The proposed state law, final language for which was still being negotiated yesterday, would, except in cases of emergency, limit state general revenue spending but would exempt state fees, capital bonds, property tax rebates, local governments, and school districts. The bill would also for the first time state that the backers of a ballot issue may change their minds and remove it from the ballot even after it has been certified as having enough valid signatures.
An issue still being negotiated last night was whether the 3.5 percent could accumulate over time if not fully exploited each year. One option discussed was to allow the available spending base to accrue over four years and then reset to zero.
If the ballot issue is cancelled, it would render moot a hearing scheduled for June 9 in Franklin County Common Pleas Court on challenges made to numerous signatures. That case does not address the "Cain issue," which surfaced after this challenge was filed. But such court action would be expected if the TEL is not removed from the ballot and opposition to it continues to grow among state and local government officials, universities, schools, and social service organizations.
"Experience has show that statutory spending caps are easily 'suspended' and tossed out when they become inconvenient for tax spenders," said Grover Norquist, president of Americans for Tax Reform. "While any spending limitation is a positive step for Ohio, there is no question a constitutional amendment put in place by legislators or voters at the ballot box will hold up stronger against the forces of rampant spending."
But John Green, director of the Ray C. Bliss Institute for Applied Politics, said it won't be easy for lawmakers to change their minds later when tough budgetary decisions have to be made.
"Once something is in the law, it will take a good bit of political capital to override it," he said. "Just the politics of changing it would be hard. That won't satisfy purists, because it would still be possible, but such a move would come at a real political cost. Some would feel there is some virtue in having this [in state law], even if it isn't ironclad."