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Why the “Taxation Without Representation” Claim Against Home Rule is Bogus

There’s been a lot of debate about home rule for Dallas ISD since the idea was launched in February. Much of it has been silly — I don’t like THOSE people, so I don’t like home rule, consarn it — rather than substantive discussion of policy. But one of the more interesting arguments that I’ve heard on occasion is this: home rule can lead to taxation without representation.

First time I heard that argument, I raised an eyebrow. (Very different from raising two.) I’ve heard it several times now, and it still strikes me as ludicrous. Lemme ‘splain.

What is taxation without representation? Seems simple. It means the government imposes a tax on me, but I have no ability to influence the government’s decision to do so, at what rate I’m taxed, etc.

But there are shades of meaning here. Consider this: “Taxation Without Representation” is the motto you’ll see on Washington, D.C., license plates. The city that represents the center of power in the U.S., and its residents think they’re being taxed unfairly. Why? Well, they elect the mayor and city council, and they vote for President, but they can’t vote for anybody in congress. While the president does have the power to veto spending and tax bills, without a congressman, Washingtonians have no claim to writing federal tax policy. That’s the basis for the gripe from the folks in D.C. They have some representation, but not as much as everybody else. There’s clearly nothing illegal about this arrangement (otherwise they’d have a different arrangement by now), but they voice their displeasure on their license plates.

Back here, in God’s country, we face two different questions as we relate this home rule:

  1. Is the home rule model of school governance (now, automatically, as a process) taxation without representation?
  2. Can home rule lead to taxation without representation?

Very different questions. Let’s consider the first.

The home rule process dictates that our local school system will write a charter to govern itself, like a constitution. This is not radical. Dallas itself is governed by a charter, as are a lot of cities in Texas. That’s a beloved democratic tradition — more self-government at the local level. If the school district does go home rule, remember that it must first be approved by the voters. In fact, it has to be approved by voters at an even year November election, when turnout is above 25 percent. So, if we become home rule, it will be because the voters approved it. That means that taxpayers really control the outcome of this process, and that pretty much is that.

Some people get it twisted (I’m sure through an honest mistake, not through any particular mendacity on their part), and say, HEY, WAITAMINNUT! The people who are writing the charter the Home Rule Commission — were appointed. They look at that appointed body and say: This isn’t democracy! That’s taxation without representation!

Those people, unfortunately, are stupid. The Home Rule Commission doesn’t have any power to tax, directly or indirectly. As noted a billion times, whatever charter they write MUST be approved by the voters. Calling this anti-democratic would be like saying all our parks in Dallas are anti-democratic because their plans were initially approved by the park board, an appointed body, even though it took the voters to approve bond elections in the city before said plans were ever executed.

We, the voters, ultimately control home rule. It’s that simple. Easy peasy, lemon squeezy. You might not like how people vote, but if they vote the way you don’t like, that doesn’t make it taxation without representation. The answer to question No. 1, then, is “no.” Home rule does not equal taxation without representation.

Question No. 2: Could home rule LEAD to taxation without representation?

This is way more interesting. Because it is possible that a final home rule charter, drafted by the commission and approved by voters, could contain a provision that replaces our currently elected school board with a partially or wholly appointed school board. Is that a problem?

Other cities have wrestled with this issue. Boston’s school board is appointed (by a nominations committee, with the mayor having veto authority). Hartford, CT, has a school board that is partially elected and partially appointed by the mayor. New Orleans schools aren’t run by a board at all, but are run by a gubernatorial appointee. NYC’s school board is appointed by New York bureau presidents, and the mayor names the chancellor. There are many others that have some form of appointed boards. Nowhere has a legal challenge of “taxation without representation” carried the day. Clearly, you can have an appointed school board without this being a real legal problem.

Why? Largely, because voters have other remedies related to school taxation, since school taxation is ultimately a state matter, not a local one.

I’ve been exploring this in detail, as I’m working on a school finance post that is just about killing me dead, but it’s given me insight into just how this works, and how to quickly show you that taxation is a state matter (for the most part). It’s a two-part answer.

Consider this first: Charter schools in Texas are public schools. If a charter school sets up in your neighborhood, do you hear complaints about taxation without representation? No. Because the charter school is funded by the state finance system. Voters control the state school finance system by electing members to the state house and state senate.

But independent school districts are a bit different than charter schools. They have been granted authority, by the state legislature, to levy bonds and to set an operations tax level. But this is the thing about those powers: In both cases, the rates must be approved by voters. If Dallas ISD wants to raise taxes as part of a bond issuance to construct or renovate buildings, the voters must approve or reject it, regardless what the school board says. Likewise, if Dallas ISD wants to increase taxes raised for operations, the voters must approve that, too, in a tax ratification election, or a TRE. (See this post about how one of those is most assuredly coming down the trolley line, btw.) This is true if DISD adopts home rule or doesn’t.

Bottom line: Even if the Home Rule Commission replaces the elected board with an appointed board, any new taxes must be approved by voters. Which pretty well shanks the taxation without representation argument.

If you’re still not satisfied, fine, I’m here all day. Look at your local property tax bill. Depending on where you are, you’ll see a pretty healthy chunk of your property taxes go to pay for Parkland. Have you ever elected a Parkland board member? I didn’t think so. (This argument is actually quite a bit more complex, because tax rates for Parkland are currently set by the county commissioners, who are elected, but they used to be set by the hospital board itself.) For that matter, the next time you hit the dollar store and have to bust out change to get to $1.08, ask yourself when is the last time you elected a DART commissioner, since DART is taking one of those pennies you paid in sales taxes? (In the case of DART, voters approve the sales tax levy, which is just how it works with the school system.)

The argument about taxation with representation fails for these reasons:

  • The state legislature is really in charge of tax policy for school systems, and you elect your legislators.
  • Local voters have to approve all local taxes in school systems.
  • If a board is appointed, the appointers (or their appointers, or their appointers) would be elected, so you as a voter still have some kind of recourse.
  • You’ll vote to approve (or reject) the home rule charter document itself, so whatever authority it has comes from you and your fellow members of the electorate.
  • If you vote to approve a home rule charter, it will take more voters than have voted in the history of the school system, and it will mean we’ve written a locally developed democratic constitution to govern ourselves.

Moral of the story: home rule is pretty much the opposite of taxation without representation. If it comes to pass some day (HUGE, ENORMOUS if, btw) — it would be, by design, the epitome of local control.