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Analysis: How current Texas lawmakers can boss future lawmakers around

Texas legislators cannot bind future legislators by preventing them or forcing them to do something. But they can certainly make their future decisions uncomfortable.

The Texas House of Representatives continues the budget debate into the late afternoon Thursday on April 6, 2017.

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Most Texas lawmakers don’t want to admit it, but most of what they do doesn’t have a lasting impact. It’s because the people who want to change the state are succeeded by people who also want to change the state.

Governing is a “must be present to win” game, where the people in office at any given time are constantly fiddling with their predecessors’ work.

That doesn’t keep legislators from trying to tie the hands of the people who come after them, however. Look at the efforts to kill the state’s business franchise tax. It’s a significant source of state money — $7.6 billion every two years — but lots of businesses would like to kill it. A large chunk of that total supports public education; the modern version of the tax was designed, in fact, to ease pressure on local property taxes that support schools. Dumping the franchise tax will increase pressure for the state to find money elsewhere or to accelerate the shifting of the financial load from the state to local property taxpayers.

Both the House and Senate — in different ways — are supporting legislation that would gradually shrink and then kill the franchise tax. If you want to make a government smaller, one way is to limit its income and force it to eventually cut spending.

The current officeholders get the party, and the next bunch gets to clean up.

And here’s the beauty, politically speaking, of doing it this way: This set of politicians isn’t cutting spending (they’re increasing it), but their successors are either going to have to raise or create new taxes or make the spending cuts this Legislature doesn’t want to make.

The current officeholders get the party, and the next bunch gets to clean up.

It’s not the only instance where this Legislature is trying to bind future lawmakers. Senate Bill 9 — the low number indicates that Lt. Gov. Dan Patrick considers it a priority — would limit how fast future budgets can grow.

In the negotiations over the House and Senate plans for the next state budget, legislators are talking about delaying payments from one budget period to the next, a common accounting trick that requires future lawmakers to pay the money back. You have to eventually put those payments back in the years where they belong, and a dollar delayed now is a dollar owed tomorrow.

That’s a problem for the successors. 

If you’re inclined to write this off as normal government, you wouldn’t be wrong. Every law that passes, whether it concerns “sanctuary” cities, seat belts, bathrooms, budgets, guns, abortion or any other subject, remains in place until and unless it’s changed by future lawmakers (And judges. Never forget the judges.).

It’s one thing to write a law that allows, say, right turns on red lights. It’s there until lawmakers change it.

It’s another thing, though, to try to control the behavior of future legislators. As a legal matter, one Legislature cannot pass a law that prevents another Legislature from doing something. As a practical matter, it’s easy to make laws that will be difficult to change later on. That’s what growth restrictions on spending or local property tax rates do. That’s what wind-down legislation like the proposed slow death of the franchise tax would do.

Future legislators can always change the law, but if you write your laws in a certain way, you can make their job harder. Somebody in this conservative state is going to have to find $7.6 billion when the franchise tax is gone; that’s probably not going to be a popular cause.

Cities and counties are fighting the state over proposals to require voter approval of property tax increases of more than 5 percent. One often-stated fear is that those elections are expensive. Less often used is the argument that those local governments don’t think they can sell their tax increases to ticked-off property tax payers. However you argue it, it might prove stressful to a future state lawmaker to undo a limit like that — to set those cities and counties free to raise taxes without voter input.

The future folks have the power to change things, but the current crowd can make it harder.

Sometimes the ripples come quickly. Two years ago, the Legislature cut the franchise tax rate, saving taxpayers about $2.6 billion during the current budget period, according to the comptroller’s office. Coincidentally, the squabble over deferrals and diversions that might balance the current budget hinge on the need for $2.5 billion the state doesn’t have available this time.

Even a slow detective could sort that one out.

More columns from Ross Ramsey:

  • The Senate doesn't like the House's hit on the Rainy Day Fund. The House doesn't like the Senate's delay of a deposit into the state's highway fund. Neither wants to raise taxes. But all is not yet lost — unless they want to fight about it.
  • Some Texas lawmakers want to kill the franchise tax that so many businesses hate. So far, so good. But it might leave a hole in the state's pocket when it inevitably comes time to rebalance the state's financing for public schools.
  • The state of Texas has been on a losing streak when it comes to redistricting and voter ID laws, with federal judges repeatedly finding that the state intentionally discriminated against minorities. Whose legal advice were they following? 

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