Transportation commission takes detour around Legislature, taxpayer advocates warn

By Bre Payton | Watchdog.org Virginia Bureau

DETOURS AHEAD: Taxpayer advocates warn that the transportation commission established by HB 1253 and SB 513, will circumvent the legislature and hit constitutional road blocks.

PURCELLVILLE, Va.— A move establishing an unelected commission to allocate and raise millions for transportation projects will run into constitutional roadblocks, taxpayer advocates warn.

They oppose HB 1253, which cleared the house earlier this month — 88-9 — and its Senate version, SB 513. The bills would establish a commission of 21 non-elected members and give it authority to issue bonds and levy tolls to fund transportation projects in the Tidewater area.

The Transportation Accountability Commission would be established — if the bill clears the Senate and is signed by Gov. Terry McAuliffe — to decide how $200 million would be spent annually on transportation projects in Hampton Roads.

The new revenue came from new regional sales and gas taxes, levied by the Legislature last year.

Opponents argue the commission will mirror a similar move deemed unconstitutional by the Virginia Supreme Court in 2008, said Robert Dean, a member of the Virginia Taxpayer Alliance, and communications director for the Tidewater Libertarian Party.

HB 3202, proposed in 2007, gave the unelected Commonwealth Transportation Board the authority to impose taxes, as well as levy tolls and issue bonds to fund transportation projects.

The Supreme Court of Virginia ruled the taxes were levied without representation,so the body and its taxing authority were unconstitutional.

“This bill (HB 1253 and SB 513) now has all of the same problems as HB 3202,” Dean said.

Commission members would be appointed, not elected, making them unaccountable to the taxpayers and voters directly.

“They are trying to circumvent the legislative process,” Dean said.

Pat McSweeney, former GOP chairman and lawyer who fought to have HB 3202 struck down, said the new panel won’t have explicit taxing power.

“They are unelected, but they are not imposing taxes,” he said.

A recent case ruling affirms the legality of an unelected entity’s ability to levy tolls, however.

The Virginia Supreme Court’s decision in Elizabeth River Crossings OPCO, LLC v. Danny Meeks, et al, made in October, says unelected bodies such as the Virginia Department of Transportation can levy tolls.

“Given the Supreme Court’s view on what is and isn’t a tax, it is not unconstitutional,” McSweeney said.

The patron of the Senate version, Sen. Frank Wagner, told the House Transportation Committee on Tuesday the commission is necessary because it will be able to issue bonds, something that existing transportation entities cannot do.

The commission is designed to avoid another public-private partnership, Wagner said.

“Frank Wagner has never seen a tax hike he didn’t like,” Dean said.

Dean wants the General Assembly to kill the bill and consider establishing a transportation bonding authority instead.

The General Assembly would have to approve all new transportation projects; the bonding committee would handle the funding.

The move would stop HB 1253 and SB 513 from circumventing the Legislature and “put the responsibilities of increasing tolls and fees in the lap of the General Assembly,” Dean said.

Contact Bre Payton at bpayton@watchdog.org or follow her on Twitter @Bre payton.

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Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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