Separation of powers or separation of politics?

Not since 2003, when a governor sued the Legislature, has there been such a sizzling separation of powers debate percolating in Carson City, one that could determine myriad political and policy fates.

None of this may ever get to court – I continue to believe it is unlikely Senate Minority Leader Michael Roberson could ever get majority support for a margins tax alternative. But if it does end up across the way from the Legislative Building, the Gang of 62 should be careful what it wishes for as executive branch supremacy could well be affirmed along with the unfettered right of the public to seek redress from an inert legislative branch through the initiative process – a process that should only be undone by affirmative approval from both branches.

Only a sadist (guilty!) could want this to go to the justices for resolution of the eternal tug o’ war between the other branches. But the case would make Guinn v. Legislature, which like a deus ex machina resolved a tax dispute (and was later withdrawn), look like a minor decision compared to one that could draw a bright separation-of-powers line.

And the political dynamic is the most fascinating and delicious I have seen in almost all my years here: A Republican Senate leader (Roberson), with a quintet of acolytes, battling a popular GOP governor (Brian Sandoval), who now has as his allies a Democratic secretary of state (Ross Miller) and Democratic attorney general (Catherine Cortez Masto) who may someday want to be….governor. All of this, at least now, plays right into Sandoval’s hands (as if he needed the help), as he plays spider to the legislative flies, inviting them to sue him so they can…raise taxes.

(Anyone wonder why I love my job so much? Still crazy after all these years.)

As one knowledgeable observer said, “It’s not every day that you see first-term senators and a minority leader attacking a Republican governor, an SoS, and an AG, for the purpose of undermining a petition the people have qualified. Not exactly politically safe. And from a legal perspective, I'll take this fight any day of the week.” 


What’s happening with the latest to and fro on the possibility (very remote) that a legislative majority tries to put a margins tax alternative on the ballot is that Gov. Brian Sandoval has the opinion he wants (you have all the power) and Roberson has the opinion he wants. It’s not just that this changes the legal dynamic to favor the teachers union and the governor, but it dramatically alters the political matrix, making it very unlikely that the Dirty Half-Dozen can build support outside their coterie for any tax alternative.

But Roberson is this session’s Energizer Bunny – he just keeps going and going, despite any setbacks, real and perceived. I’m not sure what his endgame is – I’m not sure he knows.

But as he continues to chew more capital scenery than anyone in many, many years, we will soon know whether Roberson is the Pythonesque ("I'm not dead yet.") black knight, with legal limbs lopped off and yet protesting a tax alternative’s viability, or a Raggioesque (Don’t smite me from above, Sir Bill!) policy driver who is able to make a deal on taxes, pass construction defects reform and protect his caucus from 2014 electoral harm.

Although it’s hardly surprising both the governor and Roberson would try to assert their branches’ authority, in this state, with its Lilliputian Legislature (meeting four out of 24 months), the executive is quite potent. And it’s codified in statute and, my guess a court will find, in the Constitution.

Don’t forget that nothing could go on the ballot until the issue of the governor’s ability to "approve" an alternative is resolved. He never would, and Sandoval would relish the fight (“I fought to stop your taxes from being raised.")

As one legal insider put it, “The governor is every bit a part of an alternative as the Legislature.  If the Legislature is unresponsive and the people get 10 percent voter approval on  a petition, it seems perfectly logical that the government can only subvert the will of the people by obtaining the governor’s consent. Any other interpretation minimizes the benefit the people get from Article 19.”

That is, what good is the right to circumvent a stiff-arming Legislature if, by doing nothing, they can stop you? That would be an absurd interpretation, even in this absurd state.


Again, it is unlikely to ever get there. And imagine if lawmakers have to sue Sandoval to have the right to get a tax plan on the ballot? That won’t happen, but if it did, New Jersey Gov. Chris Christie would have the second-highest gubernatorial approval rating in the country.

As one insider put it: “In the end, if six Republicans want to sue for the right to raise taxes, it's their funeral.  I don't think it will come to that though.  I don't think there's an appetite on (Speaker Marilyn Kirkpatrick) or (Senate Majority Leader Mo Denis) part to bring this up for a vote, let alone let their members vote for it.”

Of course, as I have said before, Roberson has a mountainous climb just to regain trust with Democratic leaders, who believe him to be a media-hungry poseur. And even if he thinks he can garner support by having legislative attorneys reaffirm the Gang of 62’s authority, as one lawyer told me: “LCB’s opinion is almost wholly irrelevant to this dispute.  Pass it, fellas. See what happens.”

What would happen is it would precipitate a chain of events that could give Sandoval even more power or, I suppose, get it into a courtroom where Roberson & Co. might hope anything could happen. And based on history….

Some folks think this is what the governor planned from the beginning – and I am not sure they are wrong. One observer outside the governor's office said, “I think that has been part of Sandoval's calculation the whole time, along with preservation of executive authority. Great optics for him. And he drove the ship. And (Miller’s) job, just like with initiatives, is to enforce procedural requirements….and finally, and maybe most importantly, this is a crazy fight to pick if you aren't positive that you have 50 percent of the votes to pass anything in the first place. “


So where do we go from here? Into chaos?

Certainly, there are several scenarios more likely than an alternative to the margins tax passing.

Most likely is lawmakers could (almost surely will) pass SJR 15 to take mining taxation,  or one aspect of it, out of the Constitution, but in the short term could cause a mining tax decrease – cue the high court, again, which may have to step in to resolve the industry tax bill.

The cocky wisdom of most folks, especially Big Business folks, is that the margins tax will fail at the ballot. Maybe so. But absent any tax deal during the session with the tecahers, who would then premsuably agree to try to kill the margins tax, that will be the only game on the 2014 ballot.

And, yes, it is difficult to persuade Nevada voters to apoprove taxes. But – BUT – if the teachers could get a lot of funding (hello, NEA, it’s one of your locals calling), who knows what might happen? Maybe voters will be fed up with the Legislature and its lack of tax policy and take it into their own hands, thus locking in a tax few like for at least three years. That’s what this has come to.

So maybe, as Senate Finance Chairwoman Debbie Smith and Kirkpatrick have always wanted, it’s time for a session solution – i.e. the Gang of 62 could do their jobs. That still leaves the governor sitting pretty, able to veto any tax plan even if enough Republicans bought into the idea.

Wouldn’t that be preferable to leaping into the legal swamp that both sides seem so happy to wallow in and see who is left wearing the muck? Of course.

But I am not Polyanna enough to think that reason and responsibility will prevail, so I get a sense of déjà vu that there is only one way this session (and special sessions?) will be resolved:

Justices of the Nevada Supreme Court: Start your engines.