Making Va."s bad roads bill downright toxic Posted at 11:35 AM ET, 03/27/2013 By Norman Leahy Reading over Virginia Gov. Robert F. McDonnell's changes to the transportation bill, a couple of things are apparent: The regional taxes remain mandatory, though, following the Attorney General Ken Cuccinelli's advisory opinion, they are more artfully applied to Northern Virginia and Hampton Roads than was the case in the original bill. Now, rather than calling out localities by name for special tax hikes, which runs afoul of the constitution, the governor's office has used the old legislative trick of setting "objective" criteria for where the taxes would take effect - and only Northern Virginia and Hampton Roads currently meet the new criteria. The one thing about shifting to these numerical criteria, though, is that they are open-ended, and could, through population growth and other factors, see higher taxes imposed automatically elsewhere in Virginia. In short, the governor, following the attorney general's road map, has put a ticking time bomb in the tax code. The General Assembly can tax whatever it wants. The upshot of Attorney General Ken Cuccinelli's advisory opinion, as employed by McDonnell, is that the General Assembly can tax just about anything under the sun and not run afoul of the constitution if the legislation is properly camouflaged. But consider the tax on home sales in Northern Virginia (the ill-named "regional congestion relief fee"). It's supposed to raise $30 million per year, all of which will be used for transportation (and there's a lockbox to make sure of it). To normal people, this looks an awful lot like a property tax, something the state cannot do. To the attorney general's office, this is a mere transaction tax, and so is perfectly fine under the law. But unlike transactions for, say, hats or baseballs, this home sales revenue is going directly and only to transportation. What rational basis is there for such a connection? Houses don't travel. And selling a house does not generally put strain on the road network. But the tax was allowed to stand, again, based upon the attorney general's advisory opinion. Continue reading Norman Leahy's post at Bearing Drift. Norman Leahy blogs at Bearing Drift.