The right to vote on taxes

Northwestern University Law Review

Volumn 96, Issue 1, 2001, Pages 191-251

  Stark, Kirk J ^a  

^a NONE

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EID: 0346346291     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (369)

1. GEOFFREY BRENNAN & JAMES M. BUCHANAN, THE POWER TO TAX: ANALYTICAL FOUNDATIONS OF A FISCAL CONSTITUTION 189 (1980).
2. See David T. Beito, Tax Revolts in American History, 4 HUMANE STUD. REV. 1 (1986-87) ("The United States owes its birth to a tax revolt."). But see Malcolm Gladwell, Tea and Sympathy: The Truth About American Taxpayers, NEW YORKER, Apr. 19, 1999, at 94 (arguing that the Boston Tea Party controversy arose out of a reduction in British import duties). On the Whiskey Rebellion, see THOMAS P. SLAUGHTER, THE WHISKEY REBELLION: FRONTIER EPILOGUE TO THE AMERICAN REVOLUTION (1986). On the Depression-era tax strikes (with an emphasis on Chicago), see DAVID T. BEITO, TAXPAYERS IN REVOLT: TAX RESISTANCE DURING THE DEPRESSION (1989).
3. See David T. Beito, Tax Revolts in American History, 4 HUMANE STUD. REV. 1 (1986-87) ("The United States owes its birth to a tax revolt."). But see Malcolm Gladwell, Tea and Sympathy: The Truth About American Taxpayers, NEW YORKER, Apr. 19, 1999, at 94 (arguing that the Boston Tea Party controversy arose out of a reduction in British import duties). On the Whiskey Rebellion, see THOMAS P. SLAUGHTER, THE WHISKEY REBELLION: FRONTIER EPILOGUE TO THE AMERICAN REVOLUTION (1986). On the Depression-era tax strikes (with an emphasis on Chicago), see DAVID T. BEITO, TAXPAYERS IN REVOLT: TAX RESISTANCE DURING THE DEPRESSION (1989).
4. See David T. Beito, Tax Revolts in American History, 4 HUMANE STUD. REV. 1 (1986-87) ("The United States owes its birth to a tax revolt."). But see Malcolm Gladwell, Tea and Sympathy: The Truth About American Taxpayers, NEW YORKER, Apr. 19, 1999, at 94 (arguing that the Boston Tea Party controversy arose out of a reduction in British import duties). On the Whiskey Rebellion, see THOMAS P. SLAUGHTER, THE WHISKEY REBELLION: FRONTIER EPILOGUE TO THE AMERICAN REVOLUTION (1986). On the Depression-era tax strikes (with an emphasis on Chicago), see DAVID T. BEITO, TAXPAYERS IN REVOLT: TAX RESISTANCE DURING THE DEPRESSION (1989).
5. See David T. Beito, Tax Revolts in American History, 4 HUMANE STUD. REV. 1 (1986-87) ("The United States owes its birth to a tax revolt."). But see Malcolm Gladwell, Tea and Sympathy: The Truth About American Taxpayers, NEW YORKER, Apr. 19, 1999, at 94 (arguing that the Boston Tea Party controversy arose out of a reduction in British import duties). On the Whiskey Rebellion, see THOMAS P. SLAUGHTER, THE WHISKEY REBELLION: FRONTIER EPILOGUE TO THE AMERICAN REVOLUTION (1986). On the Depression-era tax strikes (with an emphasis on Chicago), see DAVID T. BEITO, TAXPAYERS IN REVOLT: TAX RESISTANCE DURING THE DEPRESSION (1989).
6. Joseph D. Reid, Jr., Tax Revolts in Historical Perspective, 32 NAT'L TAX J. 67, 69 (1979).
7. CAL. CONST. art. XIIIA, § 4 (requiring voter approval for "special taxes"); art. XIIID (requiring voter approval for "general taxes").
8. Voters in Colorado, Michigan, Missouri, Montana, and Washington have adopted similar provisions, though the state supreme courts in the latter two states later rejected the initiatives as unconstitutional based on single-subject challenges. Anti-tax activists in Arizona and Oregon have also pursued tax voting initiatives. See infra subpart I.C.
9. For example, new tax voting initiatives are underway in the states of Washington and Florida. See infra Part II.
10. CAL. CONST, art. XIIIA. Prop 13 has spawned an enormous literature. For a recent analysis, see ARTHUR O'SULLIVAN ET AL., PROPERTY TAXES AND TAX REVOLTS: THE LEGACY OF PROPOSITION 13 (1995); MICHAEL A. SHIRES, JOHN ELLWOOD & MARY SPRAGUE, HAS PROPOSITION 13 DELIVERED? THE CHANGING TAX BURDEN IN CALIFORNIA (1998).
11. CAL. CONST, art. XIIIA. Prop 13 has spawned an enormous literature. For a recent analysis, see ARTHUR O'SULLIVAN ET AL., PROPERTY TAXES AND TAX REVOLTS: THE LEGACY OF PROPOSITION 13 (1995); MICHAEL A. SHIRES, JOHN ELLWOOD & MARY SPRAGUE, HAS PROPOSITION 13 DELIVERED? THE CHANGING TAX BURDEN IN CALIFORNIA (1998).
12. In addition, commentators often cite Prop 13 as inaugurating a new era of direct democracy across the country, having an impact well beyond the tax area. See, e.g., Sherman Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434, 468 (1998).
13. See Richard Briffault, Distrust of Democracy, 63 TEX. L. REV. 1347, 1369 (1985) ("Proposition 13 was followed by a multitude of tax and expenditure limitations propositions on ballots throughout the nation.").
14. C. EUGENE STEUERLE, THE TAX DECADE: HOW TAXES CAME TO DOMINATE THE PUBLIC AGENDA (1992) (discussing tax policy during 1980s).
15. MICHAEL J. GRAETZ, THE DECLINE (AND FALL?) OF THE INCOME TAX 52 (1997); see also WILLIAM FISCHEL, THE HOMEVOTER HYPOTHESIS (forthcoming 2001) (Oct. 2000 manuscript at 4-7, on file with author), available at http://www.lincolninst.edu/workpap/fischel2.html.
16. MICHAEL J. GRAETZ, THE DECLINE (AND FALL?) OF THE INCOME TAX 52 (1997); see also WILLIAM FISCHEL, THE HOMEVOTER HYPOTHESIS (forthcoming 2001) (Oct. 2000 manuscript at 4-7, on file with author), available at http://www.lincolninst.edu/workpap/fischel2.html.
17. CALIFORNIA LEAGUE OF CITIES, UNDERSTANDING PROPOSITION 218 (1997) (comprehensive analysis of Prop 218).
18. Proposition 218: Text of Proposed Law, § 2, at http://vote96.ss.ca.gov/BP/218text.htm, reprinted as WEST'S ANN. CAL. CONST, art. XIIIC, § 1 (Historical Notes) (2000 Supp.); see also Howard Jarvis Taxpayers Ass'n, Statement of Drafters' Intent, Right to Vote on Taxes Act (Jan. 1997), available at http://www.hjta.org/content/ARC000025A_Prop218.htm.
19. Proposition 218: Text of Proposed Law, § 2, at http://vote96.ss.ca.gov/BP/218text.htm, reprinted as WEST'S ANN. CAL. CONST, art. XIIIC, § 1 (Historical Notes) (2000 Supp.); see also Howard Jarvis Taxpayers Ass'n, Statement of Drafters' Intent, Right to Vote on Taxes Act (Jan. 1997), available at http://www.hjta.org/content/ARC000025A_Prop218.htm.
20. Proposition 218: Text of Proposed Law, § 2, at http://vote96.ss.ca.gov/BP/218text.htm, reprinted as WEST'S ANN. CAL. CONST, art. XIIIC, § 1 (Historical Notes) (2000 Supp.); see also Howard Jarvis Taxpayers Ass'n, Statement of Drafters' Intent, Right to Vote on Taxes Act (Jan. 1997), available at http://www.hjta.org/content/ARC000025A_Prop218.htm.
21. I use the term "tax voting" here as shorthand for local referendums on new or increased taxes. There has been some discussion in the economics literature of the new emphasis on direct democracy in local public finance. See, e.g., Steven M. Sheffrin, The Future of the Property Tax: A Political Economy Perspective, in THE FUTURE OF STATE TAXATION 128 (David Brunori ed., 1998); see also Kim Reuben & Therese McGuire, Tax and Bond Referenda in California and Illinois, 12 STATE TAX NOTES 1181 (1997).
22. I use the term "tax voting" here as shorthand for local referendums on new or increased taxes. There has been some discussion in the economics literature of the new emphasis on direct democracy in local public finance. See, e.g., Steven M. Sheffrin, The Future of the Property Tax: A Political Economy Perspective, in THE FUTURE OF STATE TAXATION 128 (David Brunori ed., 1998); see also Kim Reuben & Therese McGuire, Tax and Bond Referenda in California and Illinois, 12 STATE TAX NOTES 1181 (1997).
23. "TEL" is now commonly used in the legal and economics literature to refer to "tax and expenditure limits." E.g., John J. Kirlin, The Impact of Fiscal Limits on Governance, 25 HASTINGS CONST. L.Q. 197, 200 (1998) (using the term to describe various fiscal limits on local taxes in California);see also Mark Skidmore, Tax and Expenditure Limitations and the Fiscal Relationships Between State and Local Governments, 99 PUB. CHOICE 77 (1999).
24. "TEL" is now commonly used in the legal and economics literature to refer to "tax and expenditure limits." E.g., John J. Kirlin, The Impact of Fiscal Limits on Governance, 25 HASTINGS CONST. L.Q. 197, 200 (1998) (using the term to describe various fiscal limits on local taxes in California);see also Mark Skidmore, Tax and Expenditure Limitations and the Fiscal Relationships Between State and Local Governments, 99 PUB. CHOICE 77 (1999).
25. I use "median voter" here and throughout the Article as a shorthand reference for majority rule. For a discussion of the median voter theorem, see Randall G. Holcombe, Median Voter Theorem, THE ENCYCLOPEDIA OF TAXATION AND TAX POLICY 236-38 (Joseph J. Cordes et al. eds., 1999).
26. See THOMAS E. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE, REFERENDUM & RECALL 38-40 (1989) (discussing Rousseau and Jefferson as forerunners of modern-day advocates of direct democracy).
27. BRENNAN & BUCHANAN, supra note 1, at 13-33 (modeling government as a revenue-maximizing leviathan); see also Wallace Oates, Searching for Leviathan: An Empirical Study, 75 AM. ECON. REV. 748 (1985) (presenting and analyzing empirical data concerning Brennan and Buchanan's hypothesis).
28. JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1988) (1690); ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1974). Voluntary exchange theory (sometimes referred to as "fiscal exchange theory") has its origins in the work of 19th-century European economists such as Knut Wicksell. See, e.g., KNUT WICKSELL, A New Principle of Just Taxation (1896), reprinted in CLASSICS IN THE THEORY OF PUBLIC FINANCE 72 (Richard A. Musgrave and Alan T. Peacock eds., 1958). The most prominent contemporary adherent of the Wicksellian philosophy of voluntary exchange is James Buchanan. See BRENNAN & BUCHANAN, supra note 1, at 6-8. For a recent discussion, see Bernd Hansjurgens, The Influence of Knut Wicksell on Richard Musgrave and James Buchanan, 103 PUB. CHOICE 95 (2000) who quotes Buchanan: "In any overall evaluation of the history of fiscal thought, Wicksell alone commands the heights of genius," id. at 97.
29. JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1988) (1690); ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1974). Voluntary exchange theory (sometimes referred to as "fiscal exchange theory") has its origins in the work of 19th-century European economists such as Knut Wicksell. See, e.g., KNUT WICKSELL, A New Principle of Just Taxation (1896), reprinted in CLASSICS IN THE THEORY OF PUBLIC FINANCE 72 (Richard A. Musgrave and Alan T. Peacock eds., 1958). The most prominent contemporary adherent of the Wicksellian philosophy of voluntary exchange is James Buchanan. See BRENNAN & BUCHANAN, supra note 1, at 6-8. For a recent discussion, see Bernd Hansjurgens, The Influence of Knut Wicksell on Richard Musgrave and James Buchanan, 103 PUB. CHOICE 95 (2000) who quotes Buchanan: "In any overall evaluation of the history of fiscal thought, Wicksell alone commands the heights of genius," id. at 97.
30. JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1988) (1690); ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1974). Voluntary exchange theory (sometimes referred to as "fiscal exchange theory") has its origins in the work of 19th-century European economists such as Knut Wicksell. See, e.g., KNUT WICKSELL, A New Principle of Just Taxation (1896), reprinted in CLASSICS IN THE THEORY OF PUBLIC FINANCE 72 (Richard A. Musgrave and Alan T. Peacock eds., 1958). The most prominent contemporary adherent of the Wicksellian philosophy of voluntary exchange is James Buchanan. See BRENNAN & BUCHANAN, supra note 1, at 6-8. For a recent discussion, see Bernd Hansjurgens, The Influence of Knut Wicksell on Richard Musgrave and James Buchanan, 103 PUB. CHOICE 95 (2000) who quotes Buchanan: "In any overall evaluation of the history of fiscal thought, Wicksell alone commands the heights of genius," id. at 97.
31. JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1988) (1690); ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1974). Voluntary exchange theory (sometimes referred to as "fiscal exchange theory") has its origins in the work of 19th-century European economists such as Knut Wicksell. See, e.g., KNUT WICKSELL, A New Principle of Just Taxation (1896), reprinted in CLASSICS IN THE THEORY OF PUBLIC FINANCE 72 (Richard A. Musgrave and Alan T. Peacock eds., 1958). The most prominent contemporary adherent of the Wicksellian philosophy of voluntary exchange is James Buchanan. See BRENNAN & BUCHANAN, supra note 1, at 6-8. For a recent discussion, see Bernd Hansjurgens, The Influence of Knut Wicksell on Richard Musgrave and James Buchanan, 103 PUB. CHOICE 95 (2000) who quotes Buchanan: "In any overall evaluation of the history of fiscal thought, Wicksell alone commands the heights of genius," id. at 97.
32. JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1988) (1690); ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1974). Voluntary exchange theory (sometimes referred to as "fiscal exchange theory") has its origins in the work of 19th-century European economists such as Knut Wicksell. See, e.g., KNUT WICKSELL, A New Principle of Just Taxation (1896), reprinted in CLASSICS IN THE THEORY OF PUBLIC FINANCE 72 (Richard A. Musgrave and Alan T. Peacock eds., 1958). The most prominent contemporary adherent of the Wicksellian philosophy of voluntary exchange is James Buchanan. See BRENNAN & BUCHANAN, supra note 1, at 6-8. For a recent discussion, see Bernd Hansjurgens, The Influence of Knut Wicksell on Richard Musgrave and James Buchanan, 103 PUB. CHOICE 95 (2000) who quotes Buchanan: "In any overall evaluation of the history of fiscal thought, Wicksell alone commands the heights of genius," id. at 97.
33. This observation is subject to an important caveat concerning the ability of local governments to export their tax burdens to nonresidents. The same features of the multi-jurisdictional setting that make tax exporting possible - the movement of people and capital across borders - also limit a jurisdiction's taxing capacity. I discuss these issues in subpart III.C infra.
34. See infra subpart III.E.
35. In this regard, my project has some parallels to the political interpretive methodology described by Ed McCaffery. See Edward J. McCaffery, Tax's Empire, 85 GEO. L.J. 71, 87 (1996) ("[O]ur actual practices are important sources of workable ideals: we should look to them and attempt to read them 'in their best lights.'").
36. See ROBERT S. AMDURSKY & CLAYTON P. GILLETTE, MUNICIPAL DEBT FINANCE LAW: THEORY AND PRACTICE § 2.4 (1992); A. JAMES HEINS, CONSTITUTIONAL RESTRICTIONS AGAINST STATE DEBT 9-12 (1963).
37. See ROBERT S. AMDURSKY & CLAYTON P. GILLETTE, MUNICIPAL DEBT FINANCE LAW: THEORY AND PRACTICE § 2.4 (1992); A. JAMES HEINS, CONSTITUTIONAL RESTRICTIONS AGAINST STATE DEBT 9-12 (1963).
38. See Fiscal Discipline Project, Property Tax Levy Limits - Summary Profile, available at http://www.colorado.edu/Economics/taxpolicy/states/tax-limitations/levy-limits. html (restricted access website, last visited May 16, 2000) (on file with author) (listing states with override provisions). On voter approval for local option taxes, see NATIONAL CONFERENCE OF STATE LEGISLATURES, CRITICAL ISSUES IN STATE-LOCAL FISCAL POLICY - A GUIDE TO LOCAL OPTION TAXES 18(1997).
39. See Fiscal Discipline Project, Property Tax Levy Limits - Summary Profile, available at http://www.colorado.edu/Economics/taxpolicy/states/tax-limitations/levy-limits. html (restricted access website, last visited May 16, 2000) (on file with author) (listing states with override provisions). On voter approval for local option taxes, see NATIONAL CONFERENCE OF STATE LEGISLATURES, CRITICAL ISSUES IN STATE-LOCAL FISCAL POLICY - A GUIDE TO LOCAL OPTION TAXES 18(1997).
40. See discussion infra subpart I.C.
41. Anti-tax activists in Washington are in the process of gathering signatures for "Initiative 252 - The Right to Vote on Taxes." See http://www.mrsc.org/focus/righttovote.htm (last visited Nov. 1, 2001). In Florida, the "Home Rule Committee" has filed a petition for an initiative to be titled "Voter Control of City Taxes." See http://election.dos.state.fl.us/initiatives/fulltext/2782-1.htm (last visited Dec. 3, 2001).
42. Anti-tax activists in Washington are in the process of gathering signatures for "Initiative 252 - The Right to Vote on Taxes." See http://www.mrsc.org/focus/righttovote.htm (last visited Nov. 1, 2001). In Florida, the "Home Rule Committee" has filed a petition for an initiative to be titled "Voter Control of City Taxes." See http://election.dos.state.fl.us/initiatives/fulltext/2782-1.htm (last visited Dec. 3, 2001).
43. CAL. CONST, art. XIIIA (Proposition 13, as amended).
44. Robert Lindsey, California Tax Revolt: Lesson for Legislators, N.Y. TIMES, June 12, 1978, at B10.
45. Economist William Fischel argues that the California Supreme Court's school finance decisions in Serrano v. Priest "caused" Prop 13. William A. Fischel, Did Serrano Cause Proposition 13?, 42 NAT'L TAX J. 465 (1989) [hereinafter Fischel, Did Serrano Cause Proposition 13?]; William A. Fischel, How Serrano Caused Proposition 13, 12 J.L. & POL. 607 (1996). Fischel's thesis is the subject of another project I am currently working on. See Kirk J. Stark & Jonathan Zasloff, Tiebout and Tax Revolts: Reexamining the Role of School Finance Reform (unpublished manuscript, on file with author).
46. Economist William Fischel argues that the California Supreme Court's school finance decisions in Serrano v. Priest "caused" Prop 13. William A. Fischel, Did Serrano Cause Proposition 13?, 42 NAT'L TAX J. 465 (1989) [hereinafter Fischel, Did Serrano Cause Proposition 13?]; William A. Fischel, How Serrano Caused Proposition 13, 12 J.L. & POL. 607 (1996). Fischel's thesis is the subject of another project I am currently working on. See Kirk J. Stark & Jonathan Zasloff, Tiebout and Tax Revolts: Reexamining the Role of School Finance Reform (unpublished manuscript, on file with author).
47. Economist William Fischel argues that the California Supreme Court's school finance decisions in Serrano v. Priest "caused" Prop 13. William A. Fischel, Did Serrano Cause Proposition 13?, 42 NAT'L TAX J. 465 (1989) [hereinafter Fischel, Did Serrano Cause Proposition 13?]; William A. Fischel, How Serrano Caused Proposition 13, 12 J.L. & POL. 607 (1996). Fischel's thesis is the subject of another project I am currently working on. See Kirk J. Stark & Jonathan Zasloff, Tiebout and Tax Revolts: Reexamining the Role of School Finance Reform (unpublished manuscript, on file with author).
48. See, e.g., DAVID O. SEARS & JACK CITRIN, TAX REVOLT: SOMETHING FOR NOTHING IN CALIFORNIA 21-23 (1983).
49. Id. at 22 ("[T]he property tax bill on a home purchased in Los Angeles for $45,000 in 1973, when the average selling price was $39,600, would have risen from $1,160 in 1973-74 to $2,070 in 1976-77, an increase of 80 percent over three years.").
50. Commentators have expressed puzzlement over local governments' failure to reduce rates as property values rose. See, e.g., Fischel, Did Serrano Cause Proposition 13?, supra note 29, at 466-67; see also William Oakland, Proposition 13: Genesis and Consequences, 32 NAT'L TAX J. 387 (1979).
51. Commentators have expressed puzzlement over local governments' failure to reduce rates as property values rose. See, e.g., Fischel, Did Serrano Cause Proposition 13?, supra note 29, at 466-67; see also William Oakland, Proposition 13: Genesis and Consequences, 32 NAT'L TAX J. 387 (1979).
52. SEARS & CITRIN, supra note 30, at 28.
53. See GLENN W. FISHER, THE WORST TAX? A HISTORY OF THE PROPERTY TAX IN AMERICA (1996) (detailing history of American discontent with the property tax).
54. See DAVID R. DOERR, CALIFORNIA'S TAX MACHINE: A HISTORY OF TAXING AND SPENDING IN THE GOLDEN STATE 133-137 (2000) (describing various unsuccessful property tax relief bills introduced during the 1977 legislative term).
55. Id.; see also Stark & Zasloff, supra note 29.
56. Jarvis's role in Prop 13's passage is recounted in Daniel A. Smith, Howard Jarvis, Populist Entrepreneur: Reevaluating the Causes of Proposition 13, 23 SOC. SCI. HIST. 173, 187-201 (1999) (describing Jarvis's organizational efforts); see also HOWARD JARVIS, I'M MAD AS HELL (1979) (autobiography describing efforts in organizing campaign for Prop 13).
57. Jarvis's role in Prop 13's passage is recounted in Daniel A. Smith, Howard Jarvis, Populist Entrepreneur: Reevaluating the Causes of Proposition 13, 23 SOC. SCI. HIST. 173, 187-201 (1999) (describing Jarvis's organizational efforts); see also HOWARD JARVIS, I'M MAD AS HELL (1979) (autobiography describing efforts in organizing campaign for Prop 13).
58. See CAL. CONST, art. XIIIA, §§ 1(a), 2(a). Prop 13's "acquisition value" provision has been the subject of litigation because of the disparities in tax liabilities that it generates for properties of comparable value. In 1992, the U.S. Supreme Court rejected a plaintiffs contention that the acquisition value system violated her federal equal protection rights. Nordlinger v. Hahn, 505 U.S. 1 (1992).
59. See DOERR, supra note 35, at 344.
60. Localities may exceed the 1% limit for the purpose of issuing general obligation bonds which will be used to finance the acquisition or improvement of real estate. CAL. CONST, art. XIIIA § (1)(b). Local bonds must be approved by a two-thirds vote. Id. In November, 2000, California voters approved an initiative lowering the voter approval threshold requirement for school facility bonds to fifty-five percent. Id. § 1(b)(3).
61. Id. § 1(a) (requiring that property tax revenues shall be "apportioned according to law to the districts within the counties" (emphasis added)).
62. See O'SULLIVAN ET AL., supra note 7, at 99-102. These "grants" take the form of each local government's share of property tax receipts, the amount of which is determined by a complex statutory formula set forth in state legislation known as "A.B. 8." See 1979 Cal. Stat. 282. Allocations are subject to annual modification by the state legislature, a fact evidenced most recently in the controversy over the Education Revenue Augmentation Fund (ERAF) diversions during the recession of the early-1990s. For a general discussion, see Legislative Analyst's Office, Reversing the Property Tax Shifts (Apr. 2, 1996), available at http://www.lao.ca.gov/pb040296.html.
63. See O'SULLIVAN ET AL., supra note 7, at 99-102. These "grants" take the form of each local government's share of property tax receipts, the amount of which is determined by a complex statutory formula set forth in state legislation known as "A.B. 8." See 1979 Cal. Stat. 282. Allocations are subject to annual modification by the state legislature, a fact evidenced most recently in the controversy over the Education Revenue Augmentation Fund (ERAF) diversions during the recession of the early-1990s. For a general discussion, see Legislative Analyst's Office, Reversing the Property Tax Shifts (Apr. 2, 1996), available at http://www.lao.ca.gov/pb040296.html.
64. See, e.g., SEARS & CITRIN, supra note 30; ROBERT KUTTNER, REVOLT OF THE HAVES: TAX REBELLIONS AND HARD TIMES (1980); ALVIN RABUSHKA & PAULINE RYAN, THE TAX REVOLT (1982); PAUL RICHTER, CALIFORNIA AND THE AMERICAN TAX REVOLT: PROPOSITION 13 FIVE YEARS LATER (Terry Schwadron ed., 1984).
65. See, e.g., SEARS & CITRIN, supra note 30; ROBERT KUTTNER, REVOLT OF THE HAVES: TAX REBELLIONS AND HARD TIMES (1980); ALVIN RABUSHKA & PAULINE RYAN, THE TAX REVOLT (1982); PAUL RICHTER, CALIFORNIA AND THE AMERICAN TAX REVOLT: PROPOSITION 13 FIVE YEARS LATER (Terry Schwadron ed., 1984).
66. See, e.g., SEARS & CITRIN, supra note 30; ROBERT KUTTNER, REVOLT OF THE HAVES: TAX REBELLIONS AND HARD TIMES (1980); ALVIN RABUSHKA & PAULINE RYAN, THE TAX REVOLT (1982); PAUL RICHTER, CALIFORNIA AND THE AMERICAN TAX REVOLT: PROPOSITION 13 FIVE YEARS LATER (Terry Schwadron ed., 1984).
67. Other authors have used this term to refer to constitutional rules and institutions that govern fiscal decision-making. See Kenneth Dam, The American Fiscal Constitution, 44 U. CHI. L. REV. 271 (1977); see also Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CAL. L. REV. 595 (1988).
68. Other authors have used this term to refer to constitutional rules and institutions that govern fiscal decision-making. See Kenneth Dam, The American Fiscal Constitution, 44 U. CHI. L. REV. 271 (1977); see also Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CAL. L. REV. 595 (1988).
69. See SHEFFRIN, Future of the Property Tax, supra note 14, at 137-140 (offering similar description).
70. See JEFFREY CHAPMAN, PROPOSITION 13: SOME UNINTENDED CONSEQUENCES 15-20 (1998) (discussing the growth of arcane finance techniques in the years since Proposition 13 was adopted). For a description of one particularly interesting technique, the creation of so-called "Mello-Roos" districts, see WILLIAM FULTON, GUIDE TO CALIFORNIA PLANNING (1999), noting that "over time . . . the cities of Southern California learned how to work the angles," id. at 282-84.
71. See JEFFREY CHAPMAN, PROPOSITION 13: SOME UNINTENDED CONSEQUENCES 15-20 (1998) (discussing the growth of arcane finance techniques in the years since Proposition 13 was adopted). For a description of one particularly interesting technique, the creation of so-called "Mello-Roos" districts, see WILLIAM FULTON, GUIDE TO CALIFORNIA PLANNING (1999), noting that "over time . . . the cities of Southern California learned how to work the angles," id. at 282-84.
72. For a discussion, see Joseph T. Henke & Miles A. Woodlief, The Effect of Proposition 13 Court Decisions on California Local Government Revenue Sources, 22 U.S.F. L. REV. 251 (1988). The Howard Jarvis Taxpayers Association continues to play a very active role in policing local government fiscal behavior. A list of the organization's current activities can be found on its website. See http://www.hjta.org/ (last visited October 18, 2001).
73. For a discussion, see Joseph T. Henke & Miles A. Woodlief, The Effect of Proposition 13 Court Decisions on California Local Government Revenue Sources, 22 U.S.F. L. REV. 251 (1988). The Howard Jarvis Taxpayers Association continues to play a very active role in policing local government fiscal behavior. A list of the organization's current activities can be found on its website. See http://www.hjta.org/ (last visited October 18, 2001).
74. Id; see also DOERR, supra note 35.
75. CAL. CONST. art. XIIIA § 4 (emphasis added).
76. See BERNARD L. HYINK & DAVID H. PROVOST, POLITICS AND GOVERNMENT IN CALIFORNIA 136 (14th ed. 1998) ("Rose Bird's tenure on the Court was marked by controversy and indicating that her liberal positions on various subjects, most notably the death penalty, contributed substantially to her recall in 1986.").
77. San Francisco v. Farrell, 648 P.2d 935, 940 (Cal. 1982) (construing the term "special taxes" to mean "taxes which are levied for a specific purpose rather than . . . a levy placed in the general fund to be utilized for general governmental purposes."). In commenting on Farrell, Howard Jarvis noted, "I don't see how a kindergarten child could have misread [Prop 13]. We'll have to give [the court] a forced remedial reading course." Carlsen, 1984 Initiative - Jarvis, Gann Try to Fix Up Prop. 13, S.F. CHRON., Sept. 1, 1982, at 7, cited in Henke & Woodlief, supra note 47, at 268.
78. DOERR, supra note 35, at 433-434 (describing history of Proposition 62).
79. CAL. CONST, art. XI, § 5 (home rule provisions). For a discussion of the differences between charter cities and general law cities, see CAL. STATE LEGISLATURE, SENATE LOCAL GOV'T COMM., TAILOR-MADE GOVERNMENT: A CITIZEN'S GUIDE TO CALIFORNIA'S CHARTER CITIES AND COUNTIES (Feb. 1998). It was also unclear whether Prop 62 would apply to taxes imposed by special districts. See L.A. County Transp. Comm'n v. Richmond, 643 P.2d 941 (Cal. 1982).
80. Prior to Prop 218, there was some question as to whether Prop 62's voter approval requirement constituted an unconstitutional referendum within the meaning of California Constitution Article II, Section 9(a). See, e.g., City of Woodlake v. Logan, 282 Cal. Rptr. 27 (Cal. Ct. App. 1991); City of Westminster v. County of Orange, 251 Cal. Rptr. 511 (Cal. Ct. App. 1988)
81. See Santa Clara County Local Transp. Auth. v. Guardino, 902 P.2d 225 (Cal.1995) (upholding the constitutionality of Proposition 62).
82. Similar initiatives failed in 1984 and 1990. Proposition 36 (1984) would have required two-thirds majority approval before any local tax could take effect. Proposition 136 (1990), the Taxpayer's Right to Vote Amendment, would have required a simple majority for some taxes and a two-thirds majority for other taxes. For a discussion, see DOERR, supra note 35, at 433.
83. Also appearing on the November 1996 ballot were Proposition 209, the controversial initiative banning affirmative action in California, and Proposition 215, an initiative permitting the medical use of marijuana in the state. See CALIFORNIA BALLOT PAMPHLET, GENERAL ELECTION (Nov. 5, 1996), available at http://vote96.ss.ca.gov/Vote96/html/BP/home.htm.
84. Prop 218 passed by a 56.6% to 43.4% vote. These data are set forth along with additional data on the 1996 ballot initiatives, at http://Vote96.ss.ca.gov/Vote96/html/vote/prop/prop-218.961218083528.html (last visited Nov. 1, 2001). Note that 62% of San Francisco County voters opposed Prop 218. Thus, a community whose majority preferred not to impose voter approval requirements on itself is nonetheless obliged to do so. Id.
85. Sheffrin, supra note 14, at 137. Prop 218 added new voting procedures for assessments and "property-related fees." CAL. CONST, art. XIIID. Anti-tax activists have interpreted the term "property-related fee" broadly to include regulatory fees such as the slum-inspection fee imposed on landlords by the City of Los Angeles to fund the city's inspection program for substandard housing. In a recent decision, the California Supreme Court has upheld the city's slum-inspection fee against this challenge. Apartment Ass'n of L.A. County, Inc. v. City of L.A., 14 P.3d 930 (Cal. 2001).
86. As noted earlier, this change was necessary in order for the voter approval requirement to apply to charter cities such as Los Angeles and San Francisco.
87. CAL. CONST, arts. XIIIA-D.
88. INST. FOR SOC. RESEARCH, CAL. STATE UNIV., SACRAMENTO, CALIFORNIA COUNTY, CITY AND SCHOOL DISTRICT ELECTION OUTCOMES: ELECTIONS, CITY OFFICES AND BALLOT MEASURES (1994-1998 editions) (on file with author) [hereinafter CALIFORNIA BALLOT MEASURES].
89. A November 2000 initiative would have increased the number of local tax measures by treating many local fees as taxes requiring voter approval. See Steven A. Capps, Tax Measure Gets Ballot Spot: Initiative Would Reclassify Some Fees, SACRAMENTO BEE, June 21, 2000, at Al; see also Two-Thirds Vote Preservation Act of 2000, at http://vote2000.ss.ca.gov/VoterGuide/text/text_proposed_law_37.htm (text of initiative filed with the California Secretary of State). The initiative failed. Russell Clemings, Election 2000 After the Counting, SACRAMENTO BEE, Nov. 9, 2000, at AA1
90. A November 2000 initiative would have increased the number of local tax measures by treating many local fees as taxes requiring voter approval. See Steven A. Capps, Tax Measure Gets Ballot Spot: Initiative Would Reclassify Some Fees, SACRAMENTO BEE, June 21, 2000, at Al; see also Two-Thirds Vote Preservation Act of 2000, at http://vote2000.ss.ca.gov/VoterGuide/text/text_proposed_law_37.htm (text of initiative filed with the California Secretary of State). The initiative failed. Russell Clemings, Election 2000 After the Counting, SACRAMENTO BEE, Nov. 9, 2000, at AA1.
91. A November 2000 initiative would have increased the number of local tax measures by treating many local fees as taxes requiring voter approval. See Steven A. Capps, Tax Measure Gets Ballot Spot: Initiative Would Reclassify Some Fees, SACRAMENTO BEE, June 21, 2000, at Al; see also Two-Thirds Vote Preservation Act of 2000, at http://vote2000.ss.ca.gov/VoterGuide/text/text_proposed_law_37.htm (text of initiative filed with the California Secretary of State). The initiative failed. Russell Clemings, Election 2000 After the Counting, SACRAMENTO BEE, Nov. 9, 2000, at AA1.
92. See CALIFORNIA BALLOT MEASURES (1997), supra note 62, at 12.
93. See CALIFORNIA BALLOT MEASURES (1998), supra note 62, at 21-39.
94. See, e.g., Durant v. State Bd. of Educ., 381 N.W.2d 662 (Mich. 1985) (describing origins and purpose of Michigan's Headlee Amendment).
95. MICH. CONST, art. IX, § 31; See Cynthia B. Falhaber, "No New Taxes:" Article 9, Section 31 of the Michigan Constitution Twenty Years After Adoption, 46 WAYNE L. REV. 211 (2000).
96. See MO. CONST, art. 10, § 22 (1999); see also Batty v. Metro. St. Louis Sewer Dist., 867 S.W.2d 217 (Mo. 1993) (describing history of Hancock Amendment); Joanne L. Graham, Toward a Workable Definition of "Tax, License or Fees": Local Governments in Missouri and the Hancock Amendment, 62 UMKC L. REV. 821 (1994) (discussing scope of Hancock Amendment's voter approval requirement).
97. Hancock II, an initiative proposed in 1994, failed at the polls following an all-out campaign against it by state lawmakers. See Will Sentel, Hancock II Shot Down; Vote Goes 2-1 Against It, KAN. CITY STAR, Nov. 9, 1994, at A1.
98. For a general discussion, see Tom Brown, Constitutional Tax and Expenditure Limitation in Colorado: The Impact on Municipal Governments, PUB. BUDGETING & FIN., Fall 2000, at 29.
99. COLO. CONST, art. X, § 20(4)(a). TABOR is a comprehensive tax/revenue limitation regime that applies to both state and local governments. The right to vote on taxes is only one component of the overall regime that it created. For a detailed discussion, see COLO. MUN. LEAGUE, TABOR: A GUIDE TO THE TAXPAYER'S BILL OF RIGHTS (1999). TABOR requires voter approval for six categories of revenue increases, including any "tax policy change directly causing a net tax revenue gain to any district." See id. at 70-71 (quoting TABOR § 4(a)); see also John Sanko, '92 Election Was Fiscal Face Lift: Voters' Approval of TABOR Changed Government, THE ROCKY MOUNTAIN NEWS, Aug. 3, 1999, at 14A.
100. COLO. CONST, art. X, § 20(4)(a). TABOR is a comprehensive tax/revenue limitation regime that applies to both state and local governments. The right to vote on taxes is only one component of the overall regime that it created. For a detailed discussion, see COLO. MUN. LEAGUE, TABOR: A GUIDE TO THE TAXPAYER'S BILL OF RIGHTS (1999). TABOR requires voter approval for six categories of revenue increases, including any "tax policy change directly causing a net tax revenue gain to any district." See id. at 70-71 (quoting TABOR § 4(a)); see also John Sanko, '92 Election Was Fiscal Face Lift: Voters' Approval of TABOR Changed Government, THE ROCKY MOUNTAIN NEWS, Aug. 3, 1999, at 14A.
101. See COLO. MUN. LEAGUE, 14TH ANNUAL REPORT, FINANCIAL CONDITION OF COLORADO MUNICIPALITIES 118-24 (2000) (listing local ballot measures from 1993-1999).
102. Amendment CI-75, which would have added a new Section 17 to the Montana State Constitution, provided that "[n]o new tax or tax increase may be enacted unless first approved by a majority of the electors voting on the measure in the geographic area subject to the tax." Marshall v. Montana ex rel. Cooney, 975 P.2d 325, 327 (Mont. 1999) (quoting relevant language from amendment).
103. See id.; Beth Britton, CI-75 Overturned by Supreme Court, MONT. KAIMIN, Feb. 25, 1999, at 1.
104. Editorial, Prop. 13 of the North, WALL ST. J., Oct. 12, 1999, at A22.
105. Gregg Herrington, I-695: The Lesser-Known Other Half, COLUMBIAN (Vancouver, Wash.), Oct. 20, 1999, at A1; David Postman, Beyond Car Tabs: I-695's Impact - How Measure Could Transform Our Lives, SEATTLE TIMES, Aug. 16, 1999, at A1.
106. Gregg Herrington, I-695. The Lesser-Known Other Half, COLUMBIAN (Vancouver, Wash.), Oct. 20, 1999, at A1; David Postman, Beyond Car Tabs: I-695's Impact - How Measure Could Transform Our Lives, SEATTLE TIMES, Aug. 16, 1999, at A1.
107. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762 (Wash. 2000).
108. Michael Heywood, Tim Eyman Knows Best - Just Ask Him, COLUMBIAN (Vancouver, Wash.), Jan. 5, 2001, at C9. Eyman recently filed a new "Right to Vote on Taxes" initiative with the Washington Secretary of State. See Washington Secretary of State, Initiatives & Referendums, Initiative 747, at http://www.secstate.wa.gov/inits/people_2001.asp.
109. Michael Heywood, Tim Eyman Knows Best - Just Ask Him, COLUMBIAN (Vancouver, Wash.), Jan. 5, 2001, at C9. Eyman recently filed a new "Right to Vote on Taxes" initiative with the Washington Secretary of State. See Washington Secretary of State, Initiatives & Referendums, Initiative 747, at http://www.secstate.wa.gov/inits/people_2001.asp.
110. See James Mayer, Initiative Would Require Voter Approval of Tax, Fee Hikes, 18 ST. TAX NOTES 808 (2000); see also David Brunori, The Politics of State Taxation: Record Number of Tax Initiatives Likely on November Ballots, 18 ST. TAX NOTES 2093 (2000). Arizona was also scheduled to have a right to vote on taxes initiative on the November 2000 ballot, but the Arizona Supreme Court refused to let it appear on the ballot. See Kathleen Ingley et al, Justices Bar Tax Initiative, ARIZ. REPUBLIC, Sept. 1, 2000, at A1; see also Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996) (describing efforts of antitax activist Dave Biddulph to put initiative on Florida ballot requiring voter approval for all new taxes).
111. See James Mayer, Initiative Would Require Voter Approval of Tax, Fee Hikes, 18 ST. TAX NOTES 808 (2000); see also David Brunori, The Politics of State Taxation: Record Number of Tax Initiatives Likely on November Ballots, 18 ST. TAX NOTES 2093 (2000). Arizona was also scheduled to have a right to vote on taxes initiative on the November 2000 ballot, but the Arizona Supreme Court refused to let it appear on the ballot. See Kathleen Ingley et al, Justices Bar Tax Initiative, ARIZ. REPUBLIC, Sept. 1, 2000, at A1; see also Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996) (describing efforts of antitax activist Dave Biddulph to put initiative on Florida ballot requiring voter approval for all new taxes).
112. See James Mayer, Initiative Would Require Voter Approval of Tax, Fee Hikes, 18 ST. TAX NOTES 808 (2000); see also David Brunori, The Politics of State Taxation: Record Number of Tax Initiatives Likely on November Ballots, 18 ST. TAX NOTES 2093 (2000). Arizona was also scheduled to have a right to vote on taxes initiative on the November 2000 ballot, but the Arizona Supreme Court refused to let it appear on the ballot. See Kathleen Ingley et al, Justices Bar Tax Initiative, ARIZ. REPUBLIC, Sept. 1, 2000, at A1; see also Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996) (describing efforts of antitax activist Dave Biddulph to put initiative on Florida ballot requiring voter approval for all new taxes).
113. See Dean Stansel, Missouri's Hancock II Amendment: The Case for Real Reform, in BRIEFING PAPERS No. 20, at 1, 8 (Cato Inst. 1994) (noting that voter approval requirements are "increasingly popular, they have recently been adopted by several other states and will be on the ballot in many more this year and in the years to come").
114. See Kevin Merida, Americans Want a Direct Say in Political Decision-Making, Pollsters Find, WASH. POST, Apr. 24, 1994, at A19; see also Edward L. Lascher Jr., Michael G. Hagen & Steven A. Rochlin, Gun Behind the Door? Ballot Initiatives, State Policies and Public Opinion, 58 J. POL. 760, 760 (1996) ("Opinion polls show widespread support for the principles of direct democracy . . . .") (citing studies by Cronin, Jost, and Magleby).
115. See Kevin Merida, Americans Want a Direct Say in Political Decision-Making, Pollsters Find, WASH. POST, Apr. 24, 1994, at A19; see also Edward L. Lascher Jr., Michael G. Hagen & Steven A. Rochlin, Gun Behind the Door? Ballot Initiatives, State Policies and Public Opinion, 58 J. POL. 760, 760 (1996) ("Opinion polls show widespread support for the principles of direct democracy . . . .") (citing studies by Cronin, Jost, and Magleby).
116. See David Brunori, The Politics of State Taxation: Initiatives, Referendums Are Here to Stay, 16 ST. TAX NOTES 1635, 1636 (1999) ("Taxes have been one of the dominant policy areas in the initiatives-and-referendums field.").
117. See James Aim & Rebecca Neumann, The Vanishing Taxpayer? Globalization and the Future of State/Local Government Finance, in PROCEEDINGS OF NATIONAL TAX ASSOCIATION, 92ND ANNUAL CONFERENCE ON TAXATION 114 (2000); Keith Watson & Steven D. Gold, The Other Side of Devolution: Shifting Relationships Between State and Local Governments, at The Urban Institute, http://newfederalism.urban.org/html/other.htm) (last visited October 15, 2001).
118. See James Aim & Rebecca Neumann, The Vanishing Taxpayer? Globalization and the Future of State/Local Government Finance, in PROCEEDINGS OF NATIONAL TAX ASSOCIATION, 92ND ANNUAL CONFERENCE ON TAXATION 114 (2000); Keith Watson & Steven D. Gold, The Other Side of Devolution: Shifting Relationships Between State and Local Governments, at The Urban Institute, http://newfederalism.urban.org/html/other.htm) (last visited October 15, 2001).
119. This process is aided by national organizations such as Americans for Tax Reform and the National Taxpayers Union, which serve as a clearinghouse for information on these measures and assist local anti-tax activists in coordinating their activities. Through newsletters and national conferences, they facilitate a cross-jurisdictional learning process.
120. I am not suggesting that these normative intuitions are unassailable or somehow especially deserving of deference just because they are widely held. I do believe, however, that policy makers should be attentive to these normative intuitions, if only because ignoring them is likely to be counterproductive, especially in those jurisdictions where voters have the initiative power and can therefore restructure decision-making institutions to their liking through direct constitutional amendment.
121. For a general summary of the arguments for and against direct democracy, see CRONIN, supra note 17, at 224-32.
122. David Butler & Austin Ranney, Theory, in REFERENDUMS: A COMPARATIVE STUDY OF PRACTICE AND THEORY 23, 24 (David Butler & Austin Ranney eds., 1978).
123. David Butler & Austin Ranney, Theory, in REFERENDUMS AROUND THE WORLD 11, 15 (David Butler & Austin Ranney eds., 1994).
124. Of course, many of those "filters" are in place by design. See Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503, 1522-30 (1990)(discussing various constitutional "filters" on majority will).
125. One example is the familiar complaint that political representatives are subject to capture by special interest groups. But any variety of other factors might lead representatives to ignore their constituency's preferences. For example, politicians commonly have ambitions for other elected positions beyond the one they currently hold. In such instances, the representative may legislate in such a manner as to appeal to the preferences of his future constituency, rather than those who elected him. This is not an issue with respect to direct democracy.
126. See Brian Beedham, Full Democracy, ECONOMIST, Dec. 21, 1996, at 3 ("If democracy means rule by the people, democracy by referendum is a great deal closer to the original idea than the every-few-years voting which is all that most countries have.");see also Clark, supra note 8, at 434 (criticizing the argument that initiatives and referenda strengthen the voice of the people).
127. See CRONIN, supra note 17, at 46-48. Some have argued that direct democracy may be more susceptible to special interest capture than representative government. See ELISABETH R. GERBER, THE POPULIST PARADOX: INTEREST GROUP INFLUENCE AND THE PROMISE OF DIRECT LEGISLATION (2000);see also Daniel H. Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment, 29 UCLA L. REV. 505 (1982) (presenting data that one-sided campaign spending to defeat propositions is generally effective and advocating reforms to counter its effects).
128. See CRONIN, supra note 17, at 46-48. Some have argued that direct democracy may be more susceptible to special interest capture than representative government. See ELISABETH R. GERBER, THE POPULIST PARADOX: INTEREST GROUP INFLUENCE AND THE PROMISE OF DIRECT LEGISLATION (2000);see also Daniel H. Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment, 29 UCLA L. REV. 505 (1982) (presenting data that one-sided campaign spending to defeat propositions is generally effective and advocating reforms to counter its effects).
129. See Frank I. Michelman, "Protecting the People from Themselves," or How Direct Can Democracy Be?, 45 UCLA L. REV. 1717 (1998) (discussing difficulties of equating democracy with majority rule).
130. As Julian Eule once put it, "[t]he gap between the will of the majority and the voice of the legislature, it turns out, is there by constitutional design." Eule, supra note 89, at 1514.
131. Id. For a useful discussion of the philosophical issues relating to legitimacy and consent, see Jeremy Waldron, Theoretical Foundations of Liberalism, 37 PHIL. Q. 127, 142 (1987).
132. See Butler & Ranney, supra note 87, at 17; Derrick A. Bell, Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1, 25 (1978) (discussing how this political dynamic harms minority interests); Frank I. Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 IND. L.J. 145, 182(1978).
133. See Butler & Ranney, supra note 87, at 17; Derrick A. Bell, Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1, 25 (1978) (discussing how this political dynamic harms minority interests); Frank I. Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 IND. L.J. 145, 182(1978).
134. Eule, supra note 89, at 1520.
135. City of Eastlake v. Forest City Enters., 426 U.S. 668, 673 (1976) (defining the referendum as "a means for direct political participation, allowing the people the final decision, amounting to a veto power, over enactments of representative bodies"); see also Eule, supra note 89, at 1508-13 (discussing differences between initiatives and referendums).
136. Id. at 1510.
137. See Eule, supra note 89, at 1574 ("When voters ratify the legislative choice . . . [t]he statutory product reflects extraordinary consensus. A filtered legislative result has received popular endorsement. Supporters of participatory democracy and representative government can join hands to celebrate the result.").
138. Of course, one might also view the majority's ability to block legislation via referendum as a form of majoritarian tyranny.
139. Clayton Gillette suggests that ballot voting does gauge intensity because those who care deeply about an issue will be sure to vote on it, while others may simply stay home or "drop-off" without voting on the specific question. See Clayton P. Gillette, Plebiscites, Participation, and Collective Action in Local Government Law, 86 MICH. L. REV. 930, 967-71 (1988).
140. State constitutions sometimes constrain the use of the initiative via a single-subject rule, see, e.g., CAL. CONST, art. II, § 8(d), though some have questioned the effectiveness of such provisions, see Daniel H. Lowenstein, California Initiatives and the Single-Subject Rule, 30 UCLA L. REV. 936, 957-63 (1983).
141. See Clark, supra note 8, at 472 ("When a measure has been referred
142. See Gillette, supra note 102, at 630.
143. See WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY 95-159 (1990) (providing an overview of libertarian philosophy).
144. JAN NARVESON, THE LIBERTARIAN IDEA 165 (1988) ("[O]ur sole basic duty is to refrain from utilizing the fundamental resources of others without their consent.").
145. See id. (describing the "basic idea" of libertarianism as a person's right to use her fundamental personal resources however she sees fit, provided that she does not violate the similar right of any other person); see also DAVID BOAZ, LIBERTARIANISM: A PRIMER (1997) ("Libertarianism is the view that each person has the right to live his life in any way he chooses so long as he respects the equal rights of others.").
146. See, e.g., Barbara H. Fried, The Puzzling Case for Proportionate Taxation, 2 CHAP. L. REV. 157, 159-81 (1999) (describing libertarian arguments in favor of proportionate income tax).
147. Richard A. Epstein, Taxation in a Lockean World, 4 SOC. PHIL. & POL'Y, 49, 49 (1986).
148. See STEPHEN R. MUNZER, A THEORY OF PROPERTY 420 (1990) ("[M]any libertarians argue that taxation is morally and politically legitimate only to support minimal functions of the state such as police protection and national defense.").
149. See J.R. Kearl, Do Entitlements Imply That Taxation Is Theft?, 7 PHIL. & PUB. AFF. 74 (1977) (challenging the idea of taxation as theft).
150. NOZICK, supra note 19; see JONATHAN WOLFF & ROBERT NOZICK, PROPERTY, JUSTICE AND THE MINIMAL STATE 88-92 (1991) (describing Nozick's objections to redistributive taxation).
151. NOZICK, supra note 19, at 57.
152. Nozick's interpretation of Locke's theory of private property is not shared by all philosophers. See, e.g., Seana Shiffrin, Lockean Arguments for Private Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 138, 143-54 (Stephen Munzer ed., 2001) (emphasizing Locke's theory of common ownership and arguing that Locke endorsed a narrower conception of private property than many commentators believe).
153. NOZICK, supra note 19, at ix.
154. Id. at 169.
155. Id. at 172.
156. This sentiment pervades American culture. For an interesting analysis of anti-tax themes in Laura Ingalls Wilder's Little House on the Prairie books, see Carolyn C. Jones, Mapping Tax Narratives, 73 TUL. L. REV. 653, 673-79 (1998).
157. The Washington, D.C. based Tax Foundation calculates the date each year. The concept of a "tax freedom day" apparently has its origins in a reference made to a "Personal Independence Day" in a book by Milton and Rose Friedman. See MILTON & ROSE FRIEDMAN, FREE TO CHOOSE (1980) (suggesting a new national holiday marking the day "when we stop working to pay the expenses of government . . . and start working to pay for the items we severally and individually choose in the light of our own needs and desires"), cited in WOLFF, supra note 113, at 91.
158. Various commentators have noted the American voter's sympathy for the libertarian perspective. See, e.g., Kenneth Arrow, Some Ordinalist-Utilitarian Notes on Rawls's Theory of Justice, 70 J. PHIL. 245, 248 (1973) (explaining difficulty in convincing students that the proposition "that an individual is entitled to what he creates is not self-evident"); Fried, supra note 109, at 226 (noting that Nozick's work "taps into intuitions about distributive justice that are widely shared in this society").
159. In Colorado, for example, voter approval for local tax increases was packaged explicitly as part of a Taxpayer Bill of Rights. See supra text accompanying notes 70-72. Washington's upcoming "Right to Vote on Taxes" Initiative similarly emphasizes the need to "obtain prior permission from taxpayers" before adopting tax increases. Initiative 252 - The Right to Vote on Taxes, section 5, at http://www.mrsc.org/focus/righttovote.htm (last visited Nov. 1, 2001).
160. Argument in Favor of Proposition 218, in STATE OF CALIFORNIA, OFFICIAL BALLOT PAMPHLET (Nov. 5, 1996), available at http://vote96.ss.ca.gov/Vote96/html/BP/218yesarg.htm.
161. Rebuttal to Argument Against Proposition 218, in STATE OF CALIFORNIA, OFFICIAL BALLOT PAMPHLET (Nov. 5, 1996), available at http://vote96.ss.ca.gov/Vote96/html/BP/218norbt.htm (emphasis added); see also Proposition 218: Text of Proposed Law § 2, in OFFICIAL BALLOT PAMPHLET, supra, available at http://vote96.ss.ca.gov/Vote96/html/BP/218text.htm (noting that the measure "protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent"); id. § 5 (courts should construe Prop 218 to effectuate its purposes of "enhancing taxpayer consent").
162. Rebuttal to Argument Against Proposition 218, in STATE OF CALIFORNIA, OFFICIAL BALLOT PAMPHLET (Nov. 5, 1996), available at http://vote96.ss.ca.gov/Vote96/html/BP/218norbt.htm (emphasis added); see also Proposition 218: Text of Proposed Law § 2, in OFFICIAL BALLOT PAMPHLET, supra, available at http://vote96.ss.ca.gov/Vote96/html/BP/218text.htm (noting that the measure "protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent"); id. § 5 (courts should construe Prop 218 to effectuate its purposes of "enhancing taxpayer consent").
163. See Howard Jarvis Taxpayers Ass'n, Statement of Drafters' Intent, Right to Vote on Taxes Act (Jan. 1997), available at http://www.hjta.org/content/ARC000025A_Prop218.htm (emphasis added).
164. This includes Oregon (the "Taxpayer Protection Initiative") and Arizona (the "Taxpayer Protection Act"). See David Brunori, Record Number of Tax Initiatives Likely on November Ballots, 18 ST. TAX NOTES 2093 (2000).
165. A unanimity rule ensures that all collective actions will represent Pareto improvements. Because every member of society has the power to veto any proposed legislation, no policy will be adopted unless it improves the position of at least one person and fails to harm all others. See WICKSELL, supra note 19, at 72-118; see also Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519, 1531 (1982) [hereinafter Ellickson, Cities and Homeowners] (crediting Wickseil for the insight that "only a unanimity rule assures that a collective choice will result in a Pareto-supenor outcome"); DENNIS MUELLER, PUBLIC CHOICE II, at 43-49 (1989) (describing Wicksell's "new principle" of taxation).
166. A unanimity rule ensures that all collective actions will represent Pareto improvements. Because every member of society has the power to veto any proposed legislation, no policy will be adopted unless it improves the position of at least one person and fails to harm all others. See WICKSELL, supra note 19, at 72-118; see also Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519, 1531 (1982) [hereinafter Ellickson, Cities and Homeowners] (crediting Wickseil for the insight that "only a unanimity rule assures that a collective choice will result in a Pareto-supenor outcome"); DENNIS MUELLER, PUBLIC CHOICE II, at 43-49 (1989) (describing Wicksell's "new principle" of taxation).
167. WICKSELL, supra note 19, at 90.
168. Id.
169. In Buchanan and Tullock's framework, a unanimity rule might minimize external costs but it would also likely have unacceptably high decision-making costs. See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 43-46 (1962); see also BRENNAN & BUCHANAN, supra note 1, at 6-8 (citing costs of unanimity and low likelihood that any rational person would endorse it).
170. See MUELLER, supra note 127, at 58-63 (discussing majority rule and redistribution).
171. James M. Buchanan, The Political Economy of Franchise in the Welfare State, in CAPITALISM AND FREEDOM: PROBLEMS AND PROSPECTS 61 (Richard T. Selden ed., 1975) (discussing model of fiscal decision-making in which voting franchise is limited to "those who are actual or potential contributors or donors in the income transfer system").
172. A related approach would be to restrict the franchise to property owners. Ellickson argues for such an approach in the context of his proposed "block improvement districts" on the theory that the benefits and costs of BLID activities are likely to be capitalized into property values. See Robert C. Ellickson, New Institutions for Old Neighborhoods, 48 DUKE L.J. 75 (1998); see also Ellickson, Cities and Homeowners, supra note 127, at 1558-63 (arguing for a liberalization of constitutional rules restricting ability of local governments to limit franchise to property owners). For an alternative perspective, see Frank Michelman, Universal Resident Suffrage: A Liberal Defense, 130 U. PA. L. REV. 1581 (1982).
173. A related approach would be to restrict the franchise to property owners. Ellickson argues for such an approach in the context of his proposed "block improvement districts" on the theory that the benefits and costs of BLID activities are likely to be capitalized into property values. See Robert C. Ellickson, New Institutions for Old Neighborhoods, 48 DUKE L.J. 75 (1998); see also Ellickson, Cities and Homeowners, supra note 127, at 1558-63 (arguing for a liberalization of constitutional rules restricting ability of local governments to limit franchise to property owners). For an alternative perspective, see Frank Michelman, Universal Resident Suffrage: A Liberal Defense, 130 U. PA. L. REV. 1581 (1982).
174. A related approach would be to restrict the franchise to property owners. Ellickson argues for such an approach in the context of his proposed "block improvement districts" on the theory that the benefits and costs of BLID activities are likely to be capitalized into property values. See Robert C. Ellickson, New Institutions for Old Neighborhoods, 48 DUKE L.J. 75 (1998); see also Ellickson, Cities and Homeowners, supra note 127, at 1558-63 (arguing for a liberalization of constitutional rules restricting ability of local governments to limit franchise to property owners). For an alternative perspective, see Frank Michelman, Universal Resident Suffrage: A Liberal Defense, 130 U. PA. L. REV. 1581 (1982).
175. Sean Wilentz, Property and Power: Suffrage Reform in the United States, 1787-1860, in VOTING AND THE SPIRIT OF AMERICAN DEMOCRACY: ESSAYS ON THE HISTORY OF VOTING AND VOTING RIGHTS IN AMERICA 31, 32 (Donald W. Rogers ed., 1990); see also Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335 (1989) (discussing suffrage limitations imposed on the poor or people who did not own property).
176. Sean Wilentz, Property and Power: Suffrage Reform in the United States, 1787-1860, in VOTING AND THE SPIRIT OF AMERICAN DEMOCRACY: ESSAYS ON THE HISTORY OF VOTING AND VOTING RIGHTS IN AMERICA 31, 32 (Donald W. Rogers ed., 1990); see also Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335 (1989) (discussing suffrage limitations imposed on the poor or people who did not own property).
177. See, e.g., S. Cal. Rapid Transit Dist. v. Bolen, 822 P.2d 875 (Cal. 1992) (describing voting procedures relating to assessment district financing). In the provisions relating to assessments, California's Prop 218 limits the franchise to property owners and weights those votes according to each contributor's share of the total assessment. See CAL. CONST, art. XIIID. These provisions have been the subject of some controversy. See Ken Ellingwood & Richard Winton, Local Fee Races Discard Idea of 1 Person, 1 Vote, L.A. TIMES, June 16, 1997, at A1. For a description of business improvement districts (as well as Prop 218's assessment provisions), see Richard Briffault, A Government for Our Time? Business Improvement Districts and Urban Governance, 99 COLUM. L. REV. 365 (1999).
178. See, e.g., S. Cal. Rapid Transit Dist. v. Bolen, 822 P.2d 875 (Cal. 1992) (describing voting procedures relating to assessment district financing). In the provisions relating to assessments, California's Prop 218 limits the franchise to property owners and weights those votes according to each contributor's share of the total assessment. See CAL. CONST, art. XIIID. These provisions have been the subject of some controversy. See Ken Ellingwood & Richard Winton, Local Fee Races Discard Idea of 1 Person, 1 Vole, L.A. TIMES, June 16, 1997, at A1. For a description of business improvement districts (as well as Prop 218's assessment provisions), see Richard Briffault, A Government for Our Time? Business Improvement Districts and Urban Governance, 99 COLUM. L. REV. 365 (1999).
179. See Buchanan, supra note 132, at 53. Buchanan's conclusions are generally limited to those situations where an effective rule of unanimity prevails in the "donor club." If a decision rule of less than unanimity applies, then the likelihood of Pareto superior outcomes is diminished. Still, given the exclusion of the income transfer recipients, Buchanan concludes that "it seems plausible to treat observed political outcomes as indirect surrogates for something akin to genuinely voluntary transfers." Id. at 61.
180. Id.
181. Public goods are those goods with respect to which consumption is nonrivalrous (that is, one person's consumption of the good does not deplete another person's consumption) and exclusion is impossible (that is, once the good is produced, it is impossible to exclude anyone from enjoying it). For a discussion, see RICHARD A. MUSGRAVE & PEGGY B. MUSGRAVE, PUBLIC FINANCE IN THEORY AND PRACTICE 42-45 (5th ed. 1989).
182. Buchanan, supra note 132, at 53.
183. Id.
184. The precedential vitality of the one-person, one-vote principle was recently reaffirmed in the Court's controversial holding in Bush v. Gore. Bush v. Gore, 531 U.S. 98, 104-105 (2000) (noting that a state may not "value one person's vote over that of another").
185. City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969); Avery v. Midland County, 390 U.S. 474 (1968); Reynolds v. Sims, 377 U.S. 533 (1964). But see Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973) (finding that one-person, one-vote principle does not apply to special districts whose activities are likely to disproportionately affect the enfranchised class); see also S. California Rapid Transit Dist. v. Bolen, 822 P.2d 875 (Cal. 1992) (applying Salyer Land principle to property-based voting scheme in special assessment financing district). For a useful discussion of these cases and their effect on local governance, see Richard Briffault, Who Rules at Home? One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339 (1993).
186. These holdings are consistent with the view that voting should be valued for purposes other than just the aggregation of preferences. Kenneth Karst articulates such a view: Voting is not just an instrument for achieving power or status and not just an expression of political preferences; it is an assertion of belonging to a political community. . . . Voting is the preeminent symbol of participation in the society as a respected member, and equality in the voting process is a crucial affirmation of the equal worth of citizens. KENNETH KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION 93 (1989).
187. James M. Buchanan, The Political Efficiency of General Taxation, 46 NAT'L TAX J. 401, 403 (1993).
188. For a similar argument, see Buchanan, supra note 144, at 401 (arguing that "political efficiency" requires generality in the tax treatment of individual voters).
189. This view is associated with writers such as Benjamin Barber and Carole Pateman. See BENJAMIN BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (1984); CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 22-44 (1970). As Held explains, these authors aim for a "participatory society" which "nurtures a concern for collective problems and contributes to the formation of a knowledgeable citizenry capable of taking a sustained interest in the governing process." DAVID HELD, MODELS OF DEMOCRACY 271 (1996).
190. This view is associated with writers such as Benjamin Barber and Carole Pateman. See BENJAMIN BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (1984); CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 22-44 (1970). As Held explains, these authors aim for a "participatory society" which "nurtures a concern for collective problems and contributes to the formation of a knowledgeable citizenry capable of taking a sustained interest in the governing process." DAVID HELD, MODELS OF DEMOCRACY 271 (1996).
191. This view is associated with writers such as Benjamin Barber and Carole Pateman. See BENJAMIN BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (1984); CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 22-44 (1970). As Held explains, these authors aim for a "participatory society" which "nurtures a concern for collective problems and contributes to the formation of a knowledgeable citizenry capable of taking a sustained interest in the governing process." DAVID HELD, MODELS OF DEMOCRACY 271 (1996).
192. See Walter Hettich, Tax Price, in THE ENCYCLOPEDIA OF TAXATION AND TAX POLICY 391-92 (Joseph J. Cordes et al. eds., 1999) (describing tax price as "[a] concept developed in analogy to price as observed in private markets").
193. Id. at 391; see also JOSEPH E. STIGLITZ, ECONOMICS OF THE PUBLIC SECTOR 133, 152 (2d ed. 1988) (describing concept of tax price).
194. The "Lindahl tax" is named for Erik Lindahl. Erik Lindahl, Just Taxation - A Positive Solution (1919), reprinted in CLASSICS IN THE THEORY OF PUBLIC FINANCE 168 (Richard A. Musgrave & Alan T. Peacock eds., 1958). For a discussion of Lindahl tax shares, see Fried, supra note 109, at 169-72. See also JULES L. COLEMAN, MARKETS, MORALS AND THE LAW 278-81 (1988).
195. The "Lindahl tax" is named for Erik Lindahl. Erik Lindahl, Just Taxation - A Positive Solution (1919), reprinted in CLASSICS IN THE THEORY OF PUBLIC FINANCE 168 (Richard A. Musgrave & Alan T. Peacock eds., 1958). For a discussion of Lindahl tax shares, see Fried, supra note 109, at 169-72. See also JULES L. COLEMAN, MARKETS, MORALS AND THE LAW 278-81 (1988).
196. The "Lindahl tax" is named for Erik Lindahl. Erik Lindahl, Just Taxation - A Positive Solution (1919), reprinted in CLASSICS IN THE THEORY OF PUBLIC FINANCE 168 (Richard A. Musgrave & Alan T. Peacock eds., 1958). For a discussion of Lindahl tax shares, see Fried, supra note 109, at 169-72. See also JULES L. COLEMAN, MARKETS, MORALS AND THE LAW 278-81 (1988).
197. The difficulty, of course, is that individuals have the incentive to misrepresent their true preferences. Public choice theorists have proposed various complicated voting schemes designed to induce consumers to reveal their true preferences. Under the Groves-Ledyard mechanism, for example, voters are presented with alternative tax-service packages and then asked to bid on these packages with dollars. Each bidder's ultimate tax share is figured by adding the tax specified in the equilibrium package, plus a separate tax the amount of which will depend on whether or not the inviduai's bid was decisive in the outcome. For a discussion, see MUELLER, supra note 127, at 123-48; see also Fried, supra note 109, at 171.
198. Fried, supra note 109, at 170.
199. See RONALD C. FISHER, STATE AND LOCAL PUBLIC FINANCE 371 (1996). Thus, in a community of 10 individuals with an aggregate tax base of $100,000, if individual i owns $8,000 of the tax base, his tax price is .80. That is to say, for each additional $1 in local public goods and services, individual i faces an additional local tax burden of 80¢.
200. Note that the same individual, contributing the exact same amount in taxes, could face a substantially higher tax price in a different community. Thus, an individual's tax price depends not only on the absolute amounts she contributes to her local government, but also on her relative position in the community.
201. r) are greater than zero.
202. Empirical data suggest taxpayer voting behavior is influenced by a reduction in tax price. In one study, Douglas Holtz-Eakin and Harvey Rosen showed that changes in tax prices resulting from federal income tax deducibility influenced the demand for local public goods in several localities. Where the tax price was lowered as a result of federal deductibility, local residents had a greater demand for public goods (and a correspondingly greater willingness to tax) than in those jurisdictions that did not enjoy the deduction-induced reduction in tax price. Douglas Holtz-Eakin & Harvey S. Rosen, Tax Deductibility and Municipal Budget Structure, in FISCAL FEDERALISM: QUANTITATIVE STUDIES 107 (Douglas Holtz-Eakin & Harvey S. Rosen eds., 1988).
203. Several states have imposed such taxes and their authority to do so has been the subject of constitutional challenges under the dormant commerce clause. Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981). A useful collection of essays on this topic can be found in FISCAL FEDERALISM AND THE TAXATION OF NATURAL RESOURCES (Charles E. McLure, Jr. & Peter Mieszkowski eds 1983).
204. Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981).
205. Commonwealth Edison, 453 U.S. at 612-13. At the time of the Commonwealth Edison litigation, the states of Montana and Wyoming together accounted for nearly 70% of all U.S. reserves of low-sulfur coal. Id. at 638 n.1.
206. In dissent, Justice Blackmun questioned the state's authority to so aggressively export the cost of financing its public services, expressing sympathy with the characterization of Montana's coal severance tax as "OPEC-like revenue maximization." Id. at 643 (Blackmun, J., dissenting).
207. This assumption is, of course, extreme. The idea is to assume a product the demand for which is perfectly inelastic. Where there are no substitutes for a particular good, the addition of a tax will have no impact on the aggregate demand for the good. The elasticity of demand for the taxed good is one of the principal factors that determines the extent to which a jurisdiction is able to export a tax burden to nonresidents. See Walter Hellerstein, Selected Issues in State Business Taxation, 39 VAND. L. REV. 1033, 1044-45 (1986).
208. See Charles E. McLure, Jr., Tax Exporting and the Commerce Clause, in FISCAL FEDERALISM AND THE TAXATION OF NATURAL RESOURCES 169-92 (Charles E. McLure, Jr. & Peter Mieszkowski eds., 1983).
209. GEORGE R. ZODROW, STATE SALES AND INCOME TAXES: AN ECONOMIC ANALYSIS 12(1999).
210. Charles E. McLure, Jr., The Tax Assignment Problem: Conceptual and Administrative Considerations in Achieving Subnational Fiscal Autonomy (1999), at http://www1.worldbank.org/ wbiep/decentralization/Topic06_Printer.htm.
211. See Peter Smith, Lessons from the British Poll Tax Disaster, NAT'L TAX J., Dec. 1991, at 421. The British "poll tax" should not be confused with taxes imposed by many American states in an effort to disenfranchise blacks. Such taxes were held unconstitutional. Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) (indicating that right to vote in state elections may not be conditioned on the payment of a poll tax). As to federal elections, see U.S. CONST, amend. XXIV.
212. John Turro, The Second Battle of Britain: The Poll Tax, 47 TAX NOTES 261, 262 (Apr. 16, 1990).
213. Id.
214. Id.
215. DEP'T OF THE ENV'T (UK), GREEN PAPER: PAYING FOR LOCAL GOVERNMENT, Cmnd. 9714 (1986).
216. Id. at 5-7.
217. Like any tax, a head tax has an "income effect" in that it reduces the income of the taxpayer by the amount of the tax; its efficiency derives from its lack of "substitution effects." See Daniel Shaviro, Some Observations Concerning Multi-Jurisdictional Tax Competition 6 (NYU Law School Public Law & Legal Theory, Working Paper No. 13, 2000) ("[L]ump sum tax, such as a uniform head tax, that is invariant to all taxpayer decisions achieves the nirvana, from a tax efficiency standpoint, of leaving incentives unchanged.").
218. On this argument, poll tax advocates were giving the tax too much credit. In effect, the argument implies that the British poll tax was the economic equivalent of a Lindahl tax share, which of course it was not.
219. http://www.infoshop.org/news5/century.html (Jan. 2, 2000) (listing "poll tax riots" as number eleven out of a list of top twenty "anarchist events" of the century).
220. Timothy Besley et al., Fiscal Anarchy in the UK: Modeling Poll Tax Noncompliance. 64 J. PUB. ECON. 137 (1997); Smith, supra note 164, at 422 (noting that the poll tax disaster "was almost certainly the principal reason for the challenge to Margaret Thatcher's leadership of the party in November 1990 and her replacement by John Major").
221. Economic models that view tax exporting as efficient specifically assume that local governments act with the understanding that resident welfare will ultimately be reduced as a consequence of taxes imposed on nonresidents. See, e.g., Richard Krelove, Efficient Tax Exporting, 25 CANADIAN J. ECON. 145 (1992). For a helpful discussion of Krelove's model, see Robert Inman & Dan Rubinfeld, Designing Tax Policy in Federalist Economies: An Overview, J. PUB. ECON. 307, 322-25 (1996).
222. Economic models that view tax exporting as efficient specifically assume that local governments act with the understanding that resident welfare will ultimately be reduced as a consequence of taxes imposed on nonresidents. See, e.g., Richard Krelove, Efficient Tax Exporting, 25 CANADIAN J. ECON. 145 (1992). For a helpful discussion of Krelove's model, see Robert Inman & Dan Rubinfeld, Designing Tax Policy in Federalist Economies: An Overview, J. PUB. ECON. 307, 322-25 (1996).
223. For a discussion of Pigouvian taxes, see HAL R. VARIAN, INTERMEDIATE MICROECONOMICS: A MODERN APPROACH 556-57 (3d ed. 1993).
224. For a general discussion of tax exporting, see Walter Hellerstein, Selected Issues in State Business Taxation, 39 VAND. L. REV. 1033, 1044-45 (1986).
225. This capitalization effect illustrates the point that in some sense all local taxes are borne locally, but not in the sense of falling on local residents, rather in the sense of falling on local landowners. This assumes that the property is zoned for use as a gas station. If the property could be put to some other use, the tax would not necessarily be capitalized into the value of the property.
226. A small literature in local public finance provides empirical support for such "tax mimicking." Helen F. Ladd, Mimicking of Local Tax Burdens Among Neighboring Counties, 20 PUB. FIN. Q. 450, 464 (1992), reprinted in HELEN F. LADD, THE CHALLENGE OF FISCAL DISPARITIES FOR STATE AND LOCAL GOVERNMENTS: THE SELECTED ESSAYS OF HELEN F. LADD 163, 177 (1999) ("This study provides support for the view that local tax decisions in one jurisdiction are influenced by the tax burdens in neighboring jurisdictions.").
227. A small literature in local public finance provides empirical support for such "tax mimicking." Helen F. Ladd, Mimicking of Local Tax Burdens Among Neighboring Counties, 20 PUB. FIN. Q. 450, 464 (1992), reprinted in HELEN F. LADD, THE CHALLENGE OF FISCAL DISPARITIES FOR STATE AND LOCAL GOVERNMENTS: THE SELECTED ESSAYS OF HELEN F. LADD 163, 177 (1999) ("This study provides support for the view that local tax decisions in one jurisdiction are influenced by the tax burdens in neighboring jurisdictions.").
228. The broader issue of taxpayer perceptions is receiving more and more attention in tax scholarship, as cognitive psychology gains ground in tax just as it has in other fields of law. See. e.g., Edward J. McCaffery, Cognitive Theory and Tax,41 UCLA L. REV. 1861 (1994); Edward J. McCaffery & Jonathan Baron, Perspective and Framing in the Evaluation of Tax Policies, USC Olin Research Paper No. 00-18 (Sept. 28, 2000), available at http://www.hss.caltech.edu/CSLP/taxlc.pdf; see also STEFAN TRAUB, FRAMING EFFECTS IN TAXATION: AN EMPIRICAL STUDY USING THE GERMAN INCOME TAX SCHEDULE (1999).
229. The broader issue of taxpayer perceptions is receiving more and more attention in tax scholarship, as cognitive psychology gains ground in tax just as it has in other fields of law. See. e.g., Edward J. McCaffery, Cognitive Theory and Tax,41 UCLA L. REV. 1861 (1994); Edward J. McCaffery & Jonathan Baron, Perspective and Framing in the Evaluation of Tax Policies, USC Olin Research Paper No. 00-18 (Sept. 28, 2000), available at http://www.hss.caltech.edu/CSLP/taxlc.pdf; see also STEFAN TRAUB, FRAMING EFFECTS IN TAXATION: AN EMPIRICAL STUDY USING THE GERMAN INCOME TAX SCHEDULE (1999).
230. The broader issue of taxpayer perceptions is receiving more and more attention in tax scholarship, as cognitive psychology gains ground in tax just as it has in other fields of law. See. e.g., Edward J. McCaffery, Cognitive Theory and Tax,41 UCLA L. REV. 1861 (1994); Edward J. McCaffery & Jonathan Baron, Perspective and Framing in the Evaluation of Tax Policies, USC Olin Research Paper No. 00-18 (Sept. 28, 2000), available at http://www.hss.caltech.edu/CSLP/taxlc.pdf; see also STEFAN TRAUB, FRAMING EFFECTS IN TAXATION: AN EMPIRICAL STUDY USING THE GERMAN INCOME TAX SCHEDULE (1999).
231. Helen F. Ladd, Local Education Expenditures, Fiscal Capacity, and the Composition of the Property Tax Base, 28 NAT'L TAX J. 145 (1975).
232. Id.; see also FISHER, supra note 152, at 373 ("[T]he existence of commercial and industrial property does reduce individual's perceived tax prices and contribute to higher selected tax rates and expenditures but that voters do not perceived commercial and industrial property taxes as completely 'free.'").
233. Voter preferences for indirect taxes are consistent with cognitive psychology literature, which suggests that "an individual suffers more disutility from having to pay something that she thinks she owns than from failing to receive an equivalent amount in the first place." McCaffery, Cognitive Theory of Tax, supra note 179, at 1886.
234. U.S. Dep't of Census, United States State & Local Government Finances by Level of Government: 1995-96, available at http://www.census.gov/govs/estimate/96stlus.txt (last visited February 24, 2001). These figures mask important regional variations. For example, the property tax plays an especially dominant role in the Northeastern states. Local income taxes are, for the most part, fairly rare in the United States, but they figure prominently in local budgets in Ohio and Pennsylvania, as well as several major urban centers. The sales tax has no discernible regional pattern, though in states that have curtailed reliance on the property tax in the wake of the 1970s tax revolt, it has recently become a very significant source of local revenue. Id.
235. Of the three principal local taxes, the property tax is the only one with respect to which voters have substantial referendum experience. See FISHER, supra note 152, at 370.
236. Because renters bear the incidence of the property tax indirectly (if they bear it at all) they may not perceive the burden as readily as those who pay it directly. See WALLACE OATES, LOCAL PROPERTY TAXATION: AN ASSESSMENT (1999).
237. See Amitai Etzioni, Summer-Share Citizenship?, N.Y. TIMES, June 1, 2000, at A29 ("Summer residents from the Hamptons to the Rockies are raising their voices in protest over being required to pay high taxes in their vacation getaways while being denied the right to vote in local elections.").
238. See Blaine Harden, Summer Residents Want Year-Round Voice, N. Y. TIMES, May 30, 2000, at A1.
239. A lawsuit is pending that challenges the exclusion from the local franchise of nonresident owners of property in the jurisdiction. See Robert Dill, Jr. v. Lake Pleasant Cent. Sch. Dist., No. 99-CV-1610 (N.D.N.Y. Nov. 22, 1999).
240. See I.R.C. § 164 (1986). The deduction for state and local taxes is the subject of another project I am currently working on. See Kirk J. Stark, Fiscal Federalism and the Deduction for Local Taxes (manuscript, on file with author). While there is a substantial literature (in both law and economics) on the federal income tax deduction for state and local taxes, few have addressed the effects of state-level property tax relief mechanisms. One exception is Ronald Fisher. See FISHER, supra note 152, at 374-76.
241. The extent of commercial and industrial property within communities varies widely. In Colorado, the portion of commercial and industrial property in local tax bases range from a low of 1.2% in Bow Mar to a high of 98.8% in Lakeside. COLO. MUN. LEAGUE, 2000 FlNANCIAL CONDITION OF COLORADO MUNICIPALITIES 8 (2000).
242. Most economists assume that the burden of the residential component of the property tax - at least in the short run - falls on the owner-occupants of the property at the time the tax is imposed. See DICK NETZER, ECONOMICS OF THE PROPERTY TAX 45-46 (1966).
243. See I.R.C. § 164 (1986). The deduction for state and local taxes is the subject of another project I am currently working on. See Stark, supra note 189. While there is a substantial literature (in both law and economics) on the federal income tax deduction for state and local taxes, few have addressed the effects of state-level property tax relief mechanisms. One exception is Ronald Fisher. See FlSHER, supra note 152, at 374-76.
244. I.R.C. § 164 (1986). For a discussion of property tax relief mechanisms, see Michael E. Bell & John H. Bowman, Property Taxes, in LOCAL GOVERNMENT FINANCE: CONCEPTS AND PRACTICES 85, 105-109 (John E. Petersen & Dennis R. Strachota eds., 1991).
245. It is interesting to note that, for the tax year 1999, 72% of the revenue lost to state and local income and property tax deductions was attributable to taxpayers earning in excess of $100,000. See JOINT COMM. ON TAXATION, ESTIMATES OF FEDERAL TAX EXPENDITURES FOR FISCAL YEARS 2000-2004, at 27 tbl.3 (1999).
246. The local income tax is an important source of revenue in a handful of states and large cities. According to a 1995 ACIR report, more than 4,000 localities in 11 states levied local income taxes. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, I SIGNIFICANT FEATURES OF FISCAL FEDERALISM: BUDGET PROCESSES AND TAX SYSTEMS, 70 tbl.20 (1995). For data concerning the use of local income taxes, see Table 5, Percent Distribution of Municipal Government Revenue by Source and State: 1991-92, 1992 CENSUS OF GOVERNMENTS, VOLUME 4, GOVERNMENT FINANCES, NUMBER 4, FINANCES OF MUNICIPAL AND TOWNSHIP GOVERNMENTS.
247. The local income tax is an important source of revenue in a handful of states and large cities. According to a 1995 ACIR report, more than 4,000 localities in 11 states levied local income taxes. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, I SIGNIFICANT FEATURES OF FISCAL FEDERALISM: BUDGET PROCESSES AND TAX SYSTEMS, 70 tbl.20 (1995). For data concerning the use of local income taxes, see Table 5, Percent Distribution of Municipal Government Revenue by Source and State: 1991-92, 1992 CENSUS OF GOVERNMENTS, VOLUME 4, GOVERNMENT FINANCES, NUMBER 4, FINANCES OF MUNICIPAL AND TOWNSHIP GOVERNMENTS.
248. The Ohio Supreme Court has ruled that an individual may be subject to municipal income taxes both in her place of residence and her place of work. See Thompson v. City of Cincinnati, 208 N.E.2d 747, 752 (Ohio 1965). An employee who lives in one jurisdiction but works in another incurs primary income tax liability where she works. If her home jurisdiction also imposes an income tax, she must pay that tax as well; in determining the total amount owed, however, she is generally entitled to a credit for taxes paid to the municipality where she works. The effect of this dual-liability-with-credit regime is to replicate the effects of a source-based tax (meaning that income is taxed where it is earned), while also permitting localities to tax the income of their residents that is earned in jurisdictions that do not impose an income tax. Pennsylvania follows the opposite approach. See Koleman S. Strumpf, Government Credibility and Policy Choice: Evidence from the Pennsylvania Earned Income Tax, 80 J. PUB. ECON. 141, 145 (2001).
249. See Introduction to the State of Ohio, Local Income Tax and School District Income Tax Directory, at http://www.state.oh.us/das/dhr/inctxint.html (last visited Nov. 2, 2001).
250. This is the most common argument for local source-based wage taxes at the local level. A commuter tax can compensate cities for the infrastructure and service costs that commuters incur, the tax is easily administrable because the city can simply impose a withholding requirement on employers operating within city limits.
251. See Jim Bebbington, Dayton 's Income Tax Renewal Approved by Voters, DAYTON DAILY NEWS, May 3, 2000, at 1A.
252. Jim Bebbington, Voters Decide Tuesday on a 6-Year Renewal, DAYTON DAILY NEWS, May 1, 2000, at 1B (noting that two thirds of Dayton's income tax revenues come from nonresidents). Commuters complain that the system smacks of taxation without representation. In late 2000, they sought to redress the situation with a statewide ballot initiative. See, e.g., Brett Thurman, Not All Taxes Are Voted on by Those Who Pay Them, DAYTON DAILY NEWS, Apr. 17, 2000, at 3C. The "Ohio Tea Party" proposed amending the state constitution to prohibit municipalities from imposing income taxes on persons other than their own residents but failed to secure enough signatures to get the issue on the ballot. Information on this proposed Ohio initiative can be found at http://www.ohioteaparty.com. See also Alison Grant & Joe Frolik, Tax Revolt Brewing: Ohio Tea Party Referendum Would Block Cities from Taxing Commuters; Cleveland Would Lose $200 Million, CLEVELAND PLAIN DEALER, Jan. 14, 2000, at 1A, available at 2000 WL 5128816.
253. Jim Bebbington, Voters Decide Tuesday on a 6-Year Renewal, DAYTON DAILY NEWS, May 1, 2000, at 1B (noting that two thirds of Dayton's income tax revenues come from nonresidents). Commuters complain that the system smacks of taxation without representation. In late 2000, they sought to redress the situation with a statewide ballot initiative. See, e.g., Brett Thurman, Not All Taxes Are Voted on by Those Who Pay Them, DAYTON DAILY NEWS, Apr. 17, 2000, at 3C. The "Ohio Tea Party" proposed amending the state constitution to prohibit municipalities from imposing income taxes on persons other than their own residents but failed to secure enough signatures to get the issue on the ballot. Information on this proposed Ohio initiative can be found at http://www.ohioteaparty.com. See also Alison Grant & Joe Frolik, Tax Revolt Brewing: Ohio Tea Party Referendum Would Block Cities from Taxing Commuters; Cleveland Would Lose $200 Million, CLEVELAND PLAIN DEALER, Jan. 14, 2000, at 1A, available at 2000 WL 5128816.
254. Jim Bebbington, Voters Decide Tuesday on a 6-Year Renewal, DAYTON DAILY NEWS, May 1, 2000, at 1B (noting that two thirds of Dayton's income tax revenues come from nonresidents). Commuters complain that the system smacks of taxation without representation. In late 2000, they sought to redress the situation with a statewide ballot initiative. See, e.g., Brett Thurman, Not All Taxes Are Voted on by Those Who Pay Them, DAYTON DAILY NEWS, Apr. 17, 2000, at 3C. The "Ohio Tea Party" proposed amending the state constitution to prohibit municipalities from imposing income taxes on persons other than their own residents but failed to secure enough signatures to get the issue on the ballot. Information on this proposed Ohio initiative can be found at http://www.ohioteaparty.com. See also Alison Grant & Joe Frolik, Tax Revolt Brewing: Ohio Tea Party Referendum Would Block Cities from Taxing Commuters; Cleveland Would Lose $200 Million, CLEVELAND PLAIN DEALER, Jan. 14, 2000, at 1A, available at 2000 WL 5128816.
255. In many states (e.g., California and Colorado), the sales tax is a more significant source of municipal revenue than the property tax. For a discussion of the history of the sales tax, see RICHARD POMP & OLIVER OLDMAN, STATE AND LOCAL TAXATION 6-2 to 6-3 (2000). More than 6,500 localities in 31 states rely on local sales taxes. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, I SIGNIFICANT FEATURES OF FISCAL FEDERALISM: BUDGET PROCESSES AND TAX SYSTEMS, 95-96 tbl.27 (1995). Reliance on the local sales tax is significant in Louisiana and Washington, where it accounts for 48% and 31% of local own-source tax revenues, respectively. Other notable users of the local sales tax are Alabama (54% of total own-source local taxes), Arizona (53%), Colorado (64%), Missouri (30%), New Mexico (59%) and South Dakota (60%). Table 5, Percent Distribution of Municipal Government Revenue by Source and State: 1991-92, 1992 CENSUS OF GOVERNMENTS, VOLUME 4, GOVERNMENT FINANCES, NUMBER 4, FINANCES OF MUNICIPAL AND TOWNSHIP GOVERNMENTS.
256. In many states (e.g., California and Colorado), the sales tax is a more significant source of municipal revenue than the property tax. For a discussion of the history of the sales tax, see RICHARD POMP & OLIVER OLDMAN, STATE AND LOCAL TAXATION 6-2 to 6-3 (2000). More than 6,500 localities in 31 states rely on local sales taxes. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, I SIGNIFICANT FEATURES OF FISCAL FEDERALISM: BUDGET PROCESSES AND TAX SYSTEMS, 95-96 tbl.27 (1995). Reliance on the local sales tax is significant in Louisiana and Washington, where it accounts for 48% and 31% of local own-source tax revenues, respectively. Other notable users of the local sales tax are Alabama (54% of total own-source local taxes), Arizona (53%), Colorado (64%), Missouri (30%), New Mexico (59%) and South Dakota (60%). Table 5, Percent Distribution of Municipal Government Revenue by Source and State: 1991-92, 1992 CENSUS OF GOVERNMENTS, VOLUME 4, GOVERNMENT FINANCES, NUMBER 4, FINANCES OF MUNICIPAL AND TOWNSHIP GOVERNMENTS.
257. In many states (e.g., California and Colorado), the sales tax is a more significant source of municipal revenue than the property tax. For a discussion of the history of the sales tax, see RICHARD POMP & OLIVER OLDMAN, STATE AND LOCAL TAXATION 6-2 to 6-3 (2000). More than 6,500 localities in 31 states rely on local sales taxes. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, I SIGNIFICANT FEATURES OF FISCAL FEDERALISM: BUDGET PROCESSES AND TAX SYSTEMS, 95-96 tbl.27 (1995). Reliance on the local sales tax is significant in Louisiana and Washington, where it accounts for 48% and 31% of local own-source tax revenues, respectively. Other notable users of the local sales tax are Alabama (54% of total own-source local taxes), Arizona (53%), Colorado (64%), Missouri (30%), New Mexico (59%) and South Dakota (60%). Table 5, Percent Distribution of Municipal Government Revenue by Source and State: 1991-92, 1992 CENSUS OF GOVERNMENTS, VOLUME 4, GOVERNMENT FINANCES, NUMBER 4, FINANCES OF MUNICIPAL AND TOWNSHIP GOVERNMENTS.
258. Many have complained that this "situs rule" induces localities to compete for retail activity, especially big box retailers such as Wal-Mart and Home Depot. For a fascinating account of one California county's experience with this issue, see William Fulton, Sales Tax Canyon, in THE RELUCTANT METROPOLIS (1996) (describing sales tax competition in Ventura County among the cities of Camarillo, Ventura and Oxnard for big-box retailers and auto dealerships).
259. A residence-based retail sales tax, while possible, could present complex administrative issues. For example, a Beverly Hills businessperson traveling to Sacramento would need to keep track of her taxable retail sales consummated in Sacramento in order to tally up the total sales tax due to Beverly Hills at the end of each year. On the other hand, local governments could probably piggy-back on alternative consumption taxes, such as the Nunn-Domenici Unlimited Savings Allowance Tax, S. 722, 104th Cong. § 201 (1995), without as many administrative difficulties.
260. See TIMOTHY J. BESLEY & HARVEY S. ROSEN, SALES TAXES AND PRICES: AN EMPIRICAL ANALYSIS, 26 (NBER Working Paper Series, No. 6667, 1998).
261. Id. But see James M. Poterba, Retail Price Reactions to Changes in State and Local Sales Taxes, 49 NAT'L TAX J. 165 (1996) (finding little evidence of overshifting of sales tax).
262. See BEVERLY HILLS, CAL., MUNICIPAL CODE § 3-1.103 (2000).
263. See BEVERLY HILLS, CAL., MUNICIPAL CODE § 3-1.103 (2000). 207 Florida derives 67% of its state tax receipts from sales and use taxes. Office of Research & Analysis, Florida Department of Revenue, Validated Tax Receipt Data for Fiscal Year 2001 (Sept. 14, 2001), at http://www.myflorida.com/dor/tables/f2fy0001.html.
264. Brendan Riley, Nevada's Sales Tax Revenue Jumps, LAS VEGAS REVIEW-JOURNAL, Mar. 18, 1999, available at http://www.lvrj.com/lvrj_home/1999/Mar-18-Thu-1999/business/10818644.html.
265. Moreover, items that individuals are most likely to purchase in their own localities, such as groceries, are generally exempt from the retail sales tax.
266. See Pamela Lanier's Family Travel, Outlet Shopping - Northern New England, at http://www.familytravelguides.com/articles/newengland/North_New_England/outlet. html (last visited Nov. 2, 2001) (listing Manchester, Vermont as a destination that a "truly dedicated outlet shopper will want to head for").
267. For a discussion, see POMP & OLDMAN, supra note 201, at 6-20 to 6-22.
268. Id. at 20 ("A normative sales tax would exempt all goods and services used in producing consumer goods and services (business inputs) and all goods and services related to investment activities."); see Charles E. McLure, Jr., Rethinking State and Local Reliance on the Retail Sales Tax: Should We Fix the Sales Tax or Discard It?, 2000 BYU L. REV. 77, 83 (noting that an ideal retail sales tax "would exempt all purchases by businesses, capital goods, goods for resale, fuels and utilities, office supplies, or whatever").
269. A sales tax system that distinguishes between different types of purchasers (business versus nonbusiness) may be more difficult to administer than one that does not make such distinctions. Moreover, a system that allows for a comprehensive sale-for-resale exception could be more susceptible to abuse; businesspersons may make personal purchases under the guise of business purchases. See Raymond J. Ring, Jr., The Proportion of Consumers' and Producers' Goods in the General Sales Tax, 42 NAT'L TAX J. 167 (1989).
270. See, e.g., Sta-Ru Corp. v. Mahin, 356 N.E.2d 67, 69 (Ill. 1976) (characterizing sale of plastic cups and containers to Dairy Queen Brazier as a taxable retail sale). The narrowing of the sale-for-resale exemption results in a phenomenon known as "pyramiding," whereby the ultimate retail tax is imposed upon a base that includes an amount of tax already paid at an earlier stage. POMP & OLDMAN, supra note 201, at 6-20.
271. See Ring, supra note 213, at 171 tbl.l. Ring estimates that the producer portion of the general sales tax is as high as 65% in Louisiana and Wyoming and as low as 20% in Virginia. Ring's estimate of the national average is 41%.
272. If the firm wanted to avoid paying such a sales tax, it might consider purchasing its supplies from the Quill Corporation, which has no physical nexus with California and therefore is not required to withhold the sales/use tax that the firm owes. See Quill Corp. v. North Dakota, 504 U.S. 298 (1992).
273. MUSGRAVE & MUSGRAVE, supra note 138, at 2-19 (emphasis added).
274. Roger H. Gordon, An Optimal Taxation Approach to Fiscal Federalism, 98 Q.J. ECON. 567 (1983). Gordon's paper is the seminal treatment of the tax assignment question from an efficiency perspective. The article appears in the first chapter of a new text edited by Wallace Gates consisting of the leading essays in the field. See WALLACE E. OATES, THE ECONOMICS OF FISCAL FEDERALISM AND LOCAL FINANCE (1998). Gordon attempts to isolate the problems created by decentralization per se. His analysis may be contrasted with the well-known Tiebout Hypothesis, which holds that an efficient provision of local public goods is possible under certain severe assumptions. See Charles M. Tiebout, A Pure Theory of Local Public Expenditures, 64 J. POL. ECON. 416 (1956). The Tiebout model assumes no interjurisdictional externalities. By contrast, Gordon's analysis emphasizes the externalities associated with local fiscal decision-making.
275. Roger H. Gordon, An Optimal Taxation Approach to Fiscal Federalism, 98 Q.J. ECON. 567 (1983). Gordon's paper is the seminal treatment of the tax assignment question from an efficiency perspective. The article appears in the first chapter of a new text edited by Wallace Gates consisting of the leading essays in the field. See WALLACE E. OATES, THE ECONOMICS OF FISCAL FEDERALISM AND LOCAL FINANCE (1998). Gordon attempts to isolate the problems created by decentralization per se. His analysis may be contrasted with the well-known Tiebout Hypothesis, which holds that an efficient provision of local public goods is possible under certain severe assumptions. See Charles M. Tiebout, A Pure Theory of Local Public Expenditures, 64 J. POL. ECON. 416 (1956). The Tiebout model assumes no interjurisdictional externalities. By contrast, Gordon's analysis emphasizes the externalities associated with local fiscal decision-making.
276. Roger H. Gordon, An Optimal Taxation Approach to Fiscal Federalism, 98 Q.J. ECON. 567 (1983). Gordon's paper is the seminal treatment of the tax assignment question from an efficiency perspective. The article appears in the first chapter of a new text edited by Wallace Gates consisting of the leading essays in the field. See WALLACE E. OATES, THE ECONOMICS OF FISCAL FEDERALISM AND LOCAL FINANCE (1998). Gordon attempts to isolate the problems created by decentralization per se. His analysis may be contrasted with the well-known Tiebout Hypothesis, which holds that an efficient provision of local public goods is possible under certain severe assumptions. See Charles M. Tiebout, A Pure Theory of Local Public Expenditures, 64 J. POL. ECON. 416 (1956). The Tiebout model assumes no interjurisdictional externalities. By contrast, Gordon's analysis emphasizes the externalities associated with local fiscal decision-making.
277. Gordon, supra note 218, at 568.
278. Id. at 580 ("Propositions 1 and 2 together provide a formal characterization of the reasons why decentralized decision-making itself can lead to a less efficient (equitable) outcome. This arises because one community's decisions affects in many ways the utility levels of residents of other communities, yet these effects are ignored in the decision-making.").
279. Id. at 581.
280. Id. In a more recent paper, Robert Inman and Daniel Rubinfeld extend Gordon's analysis to consider how tax assignment policies influence the problem of fiscal externalities. Robert P. Inman & Daniel L. Rubinfeld, Designing Tax Policy in Federalist Economies: An Overview, 60 J. PUB. ECON. 307 (1996). Like Gordon, Inman and Rubinfeld argue that employing residence-based principles in the design of local taxes "moves a significant way towards tax efficiency in decentralized public economies." Id. at 318-19.
281. In addition to Gordon, Inman, and Rubinfeld, other authors who have endorsed residence-based taxation for local governments include Ronald McKinnon and Thomas Nechyba, see Ronald McKinnon & Thomas Nechyba, Competition in Federal Systems: The Role of Political and Financial Constraints, in THE NEW FEDERALISM: CAN THE STATES BE TRUSTED? 3, 15-19, 47-52 (John A. Ferejohn & Barry R. Weingast eds., 1997), and Wallace E. Oates, see Wallace E. Oates, An Essay on Fiscal Federalism, 37 J. ECON. LITERATURE 1120, 1126 (1999).
282. In addition to Gordon, Inman, and Rubinfeld, other authors who have endorsed residence-based taxation for local governments include Ronald McKinnon and Thomas Nechyba, see Ronald McKinnon & Thomas Nechyba, Competition in Federal Systems: The Role of Political and Financial Constraints, in THE NEW FEDERALISM: CAN THE STATES BE TRUSTED? 3, 15-19, 47-52 (John A. Ferejohn & Barry R. Weingast eds., 1997), and Wallace E. Oates, see Wallace E. Oates, An Essay on Fiscal Federalism, 37 J. ECON. LITERATURE 1120, 1126 (1999).
283. See 1979 Cal. Stat. 1785 (codified at CAL. GOV'T CODE §§ 50075-50077 (West 2001)).
284. The business license tax is a tax imposed upon the privilege of operating a business within the jurisdiction. It is usually based on the business's gross receipts, though some jurisdictions authorize an alternative calculation based on the payroll. The utility users tax is a sales tax of sorts - it applies at varying percentages to the consumption of gas, electricity, water, phone service and cable television service. The hotel tax applies to the privilege of occupying a hotel or motel within a jurisdiction. For a discussion see ELIZABETH G. HILL, CALIFORNIA'S TAX SYSTEM: A PRIMER 57 (2001). Recent empirical studies have documented the growth of these taxes in the years since Proposition 13. See MICHAEL A. SHIRES, PATTERNS IN CALIFORNIA GOVERNMENT REVENUES SINCE PROPOSITION 13, at 46 (1999) (noting that "[b]usiness license taxes, franchise taxes, real property transfer taxes and transient lodging taxes have risen some 454 percent [from 1978 to 1995]").
285. The business license tax is a tax imposed upon the privilege of operating a business within the jurisdiction. It is usually based on the business's gross receipts, though some jurisdictions authorize an alternative calculation based on the payroll. The utility users tax is a sales tax of sorts - it applies at varying percentages to the consumption of gas, electricity, water, phone service and cable television service. The hotel tax applies to the privilege of occupying a hotel or motel within a jurisdiction. For a discussion see ELIZABETH G. HILL, CALIFORNIA'S TAX SYSTEM: A PRIMER 57 (2001). Recent empirical studies have documented the growth of these taxes in the years since Proposition 13. See MICHAEL A. SHIRES, PATTERNS IN CALIFORNIA GOVERNMENT REVENUES SINCE PROPOSITION 13, at 46 (1999) (noting that "[b]usiness license taxes, franchise taxes, real property transfer taxes and transient lodging taxes have risen some 454 percent [from 1978 to 1995]").
286. See CALIFORNIA BALLOT MEASURES (1998), supra note 62. Periodically, cities and counties are also called upon to vote on local sales taxes, usually in the context of some special local add-on to the existing state and local sales taxes, the rate of which is fixed by statute.
287. Id.
288. For similar data relating to earlier years, see Reuben & McGuire, supra note 14.
289. See COLO. MUN. LEAGUE, 1995 MUNICIPAL TAXES: THE CHARACTERISTICS AND RATES OF THE MOST COMMON TAXES LEVIED BY COLORADO MUNICIPALITIES 19 (1995) (showing by chart that property taxes, as a percentage of total municipal tax revenues, have declined from 36% in 1972 to 18% in 1993). By contrast, the general sales and use tax accounted for 68.6% of municipal tax revenues in 1993. Id.
290. See COLO. MUN. LEAGUE, 14TH ANNUAL REPORT, FINANCIAL CONDITION OF COLORADO MUNICIPALITIES 107-134 (2000) (listing local ballot measures from 1993 to 1999).
291. See Frederick Schauer, Discourse and Its Discontents, 72 NOTRE DAME L. REV. 1309, 1313 (1997) ("Discourse is in the air.").
292. Michael Saward, Direct and Deliberative Democracy 2 (draft paper presented for conference on "Deliberating About Deliberative Democracy," University of Texas at Austin, Feb. 4-6, 2000, on file with author) ("That deliberative democracy comes in many shapes is an understatement.").
293. Joshua Cohen, Deliberation and Democratic Legitimacy, in DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 67, 72 (James Bohman & William Rehg eds., 1997); see also Bernard Manin, On Legitimacy and Political Deliberation, 15 POL. THEORY 338, 345 (1987) (defining "deliberation" as "the process of the formation of the will, the particular moment that precedes choice, and in which the individual ponders different solutions before settling for one of them").
294. Joshua Cohen, Deliberation and Democratic Legitimacy, in DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 67, 72 (James Bohman & William Rehg eds., 1997); see also Bernard Manin, On Legitimacy and Political Deliberation, 15 POL. THEORY 338, 345 (1987) (defining "deliberation" as "the process of the formation of the will, the particular moment that precedes choice, and in which the individual ponders different solutions before settling for one of them").
295. James Bohman & William Rehg, Introduction to DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS ix, ix (James Bohman & William Rehg eds., 1997) ("[Legitimate lawmaking issues from the public deliberation of citizens."); Manin, supra note 233, at 351-52 ("[T]he source of legitimacy is not the predetermined will of individuals, but rather the process of its formation, that is, deliberation itself. . . . We must, therefore, challenge the fundamental conclusion of Rousseau, Sieyes, and Rawls: a legitimate decision does not represent the will of all, but is one that results from the deliberation of all."); JAMES BOHMAN, PUBLIC DELIBERATION 2 (1996) ("The call for more deliberation is . . . a demand for a more rational political order in which decision making at least involves the public use of reason. According to this position, the legitimacy of decisions must be determined by the critical judgment of free and equal citizens.").
296. James Bohman & William Rehg, Introduction to DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS ix, ix (James Bohman & William Rehg eds., 1997) ("[Legitimate lawmaking issues from the public deliberation of citizens."); Manin, supra note 233, at 351-52 ("[T]he source of legitimacy is not the predetermined will of individuals, but rather the process of its formation, that is, deliberation itself. . . . We must, therefore, challenge the fundamental conclusion of Rousseau, Sieyes, and Rawls: a legitimate decision does not represent the will of all, but is one that results from the deliberation of all."); JAMES BOHMAN, PUBLIC DELIBERATION 2 (1996) ("The call for more deliberation is . . . a demand for a more rational political order in which decision making at least involves the public use of reason. According to this position, the legitimacy of decisions must be determined by the critical judgment of free and equal citizens.").
297. BOHMAN, supra note 234, at 5 ("All deliberative models of democratic legitimacy are strongly normative in the particular sense that they all reject the reduction of politics and decision making to instrumental and strategic rationality.").
298. This is a reference to the "ideal speech situation" posited by German political philosopher Jurgen Habermas. See LESLIE A. HOWE, ON HABERMAS 18-38 (2000) (discussing Habermas's theory of communicative action); see also JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans., 1996); Cass R. Sunstein, Democracy Isn't What You Think, N.Y. TIMES BOOK REV., Aug. 18, 1996, at 29. ("In the ideal speech situation, all participants have equal power, attempt to reach understanding, do not act manipulatively or strategically, and understand their obligation to offer reasons.").
299. This is a reference to the "ideal speech situation" posited by German political philosopher Jurgen Habermas. See LESLIE A. HOWE, ON HABERMAS 18-38 (2000) (discussing Habermas's theory of communicative action); see also JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans., 1996); Cass R. Sunstein, Democracy Isn't What You Think, N.Y. TIMES BOOK REV., Aug. 18, 1996, at 29. ("In the ideal speech situation, all participants have equal power, attempt to reach understanding, do not act manipulatively or strategically, and understand their obligation to offer reasons.").
300. This is a reference to the "ideal speech situation" posited by German political philosopher Jurgen Habermas. See LESLIE A. HOWE, ON HABERMAS 18-38 (2000) (discussing Habermas's theory of communicative action); see also JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans., 1996); Cass R. Sunstein, Democracy Isn't What You Think, N.Y. TIMES BOOK REV., Aug. 18, 1996, at 29. ("In the ideal speech situation, all participants have equal power, attempt to reach understanding, do not act manipulatively or strategically, and understand their obligation to offer reasons.").
301. JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS 207-208 (1927) (quoting politician Samuel J. Tilden).
302. Id.
303. Frank I. Michelman, Forward: Traces of Self-Government, 100 HARV. L. REV. 4, 19 (1986). For a theory of democracy that brings together the ideas of deliberative democracy and participation, see BARBER, supra note 148, at 25 (advocating a "strong democracy," the aim of which is "to associate democracy with a civic culture nearer to the themes of participation, citizenship, and political activity that are democracy's central virtues" (emphasis added)).
304. Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1549 (1988). For a discussion of the role of participation in arguments for deliberative democracy, see Note, Civic Republican Adminstrative Theory: Bureaucrats as Deliberative Democrats, 107 HARV. L. REV. 1401 (1994).
305. Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1549 (1988). For a discussion of the role of participation in arguments for deliberative democracy, see Note, Civic Republican Adminstrative Theory: Bureaucrats as Deliberative Democrats, 107 HARV. L. REV. 1401 (1994).
306. Some critics have argued that advocates of deliberative democracy have given insufficient attention to the "deliberative inequalities." JAMES BOHMAN, PUBLIC DELIBERATION: PLURALISM, COMPLEXITY AND DEMOCRACY 107-49 (1996) (discussing deliberative inequalities); see also Iris Marion Young, Communication and the Other: Beyond Deliberative Democracy, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL (Seyla Benhabib ed., 1996); Iris Marion Young, Activist Challenges to Deliberative Democracy, in POLITICAL THEORY 1 (forthcoming 2002) ("[T]he design and enactment of deliberative processes today is biased in favor of those with structural and political economic power.").
307. Some critics have argued that advocates of deliberative democracy have given insufficient attention to the "deliberative inequalities." JAMES BOHMAN, PUBLIC DELIBERATION: PLURALISM, COMPLEXITY AND DEMOCRACY 107-49 (1996) (discussing deliberative inequalities); see also Iris Marion Young, Communication and the Other: Beyond Deliberative Democracy, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL (Seyla Benhabib ed., 1996); Iris Marion Young, Activist Challenges to Deliberative Democracy, in POLITICAL THEORY 1 (forthcoming 2002) ("[T]he design and enactment of deliberative processes today is biased in favor of those with structural and political economic power.").
308. Some critics have argued that advocates of deliberative democracy have given insufficient attention to the "deliberative inequalities." JAMES BOHMAN, PUBLIC DELIBERATION: PLURALISM, COMPLEXITY AND DEMOCRACY 107-49 (1996) (discussing deliberative inequalities); see also Iris Marion Young, Communication and the Other: Beyond Deliberative Democracy, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL (Seyla Benhabib ed., 1996); Iris Marion Young, Activist Challenges to Deliberative Democracy, in POLITICAL THEORY 1 (forthcoming 2002) ("[T]he design and enactment of deliberative processes today is biased in favor of those with structural and political economic power.").
309. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996) ("Deliberative democracy is more idealistic than other conceptions because it demands more than democratic politics normally delivers.").
310. James A. Gardner, Shut Up and Vote: A Critique of Deliberative Democracy and the Life of Talk, 63 TENN. L. REV. 421, 447 (1996).
311. See Miriam Galston, Taking Aristotle Seriously: Republican-Oriented Legal Theory and the Moral Foundation of Deliberative Democracy, 82 CAL. L. REV. 331, 362 (1994) (noting that deliberative democracy "presupposes that people will listen fairly, participate honestly, and be open to persuasion (where appropriate) by the power of opposing arguments").
312. Gardner, supra note 243, at 447 (citing a "parallel critique" offered by Michael A. Fitts, Look Before You Leap: Some Cautionary Notes on Civic Republicanism, 97 YALE L.J. 1651, 1655-57 (1988)).
313. Id.
314. BOHMAN, supra note 241, at 245 (1996) (criticizing referendum's capacity to stimulate deliberation).
315. Id.
316. Michael Walzer, Deliberation, and What Else?, in DELIBERATIVE POLITICS: ESSAYS ON DEMOCRACY AND DISAGREEMENT 58, 68 (Stephen Macedo ed., 1999).
317. See Lior Jacob Strahilevitz, The Uneasy Case for Devolution of the Individual Income Tax, 85 IOWA L. REV. 907, 935 (2000) ("The decision about who should bear the burden of government taxation is a fundamental act of community self-definition."); see also WALTER HETTICH & STANLEY L. WINER, DEMOCRATIC CHOICE AND TAXATION: A THEORETICAL AND EMPIRICAL ANALYSIS 1 (1999) ("How a society employs taxation reveals much about the relation between its citizens and the state, and thus defines an important part of the nation's character.").
318. See Lior Jacob Strahilevitz, The Uneasy Case for Devolution of the Individual Income Tax, 85 IOWA L. REV. 907, 935 (2000) ("The decision about who should bear the burden of government taxation is a fundamental act of community self-definition."); see also WALTER HETTICH & STANLEY L. WINER, DEMOCRATIC CHOICE AND TAXATION: A THEORETICAL AND EMPIRICAL ANALYSIS 1 (1999) ("How a society employs taxation reveals much about the relation between its citizens and the state, and thus defines an important part of the nation's character.").
319. Richard A. Musgrave (1981), quoted in HETTICH & WEINER, supra note 250, at 1.
320. JOSEPH F. ZIMMERMAN, THE NEW ENGLAND TOWN MEETING: DEMOCRACY IN ACTION xi (1999) (noting that "political scientists, with a few exceptions, have not studied this form of law-making").
321. See JANE J. MANSBRIDGE, BEYOND ADVERSARY DEMOCRACY (1980). "Selby" is a fictional name that Mansbridge gives to the Vermont town she studied.
322. Mansbridge develops the idea of "unitary democracy" as an alternative form of democratic decision-making. She defines unitary democracy as consensual, face-to-face democracy based on "common interest and equal respect." Id. at 3. She contrasts it to "adversary democracy." Importantly, Mansbridge is not necessarily "for" unitary democracy or "against" adversary democracy. She expresses considerable ambivalence about the unitary model.
323. Act of May 5, 1998, 1998 Pa. Legis. Serv. Act 1998-50 (West).
324. PENN STATE COLL. OF AGRIC. SCIENCES COOP. EXTENSION, UNDERSTANDING SCHOOL TAX CHANGE UNDER ACT 50 OF 1998 (1998), available at http://pubs.cas.psu.edu/FreePubs/ua326.html.
325. Id.
326. MANSBRIDGE, supra note 253, at 89.
327. Id.
328. As one farmer put it, "These people [the newcomers] think that money grows on bushes! Huh! Those bushes were winterkilled a long time ago! . . . We'll be driven right off our land by taxes!" Id. at 90.
329. Id. at 53.
330. Id. As described by the farmer, the Selby situation presents a classic example of what economists commonly describe as the "free-riding" of low-income households on the community's tax base. One common reaction to this situation is to adopt restrictive zoning ordinances to ensure that newcomers "pay their way." Some economists have suggested that the use of such "fiscal zoning" can convert the property tax into a market-type fee-for-service with efficiency qualities similar to those envisioned by the Tiebout model. This is commonly referred to as the "benefit view" of the property tax. For a discussion, see William A. Fischel, Property Taxation and the Tiebout Model: Evidence for the Benefit View from Zoning and Voting, 30 J. ECON. LITERATURE 171 (1992).
331. MANSBRIDGE, supra note 253, at 77.
332. Id. at 78.
333. Manin, supra note 233, at 349-350.
334. BOHMAN, supra note 241, at 5 ("The deliberative process forces citizens to justify their decisions and opinions by appealing to common interests or by arguing in terms of reason that 'all could accept' in public debate."); see also Selya Benhabib, supra note 241, at 71-72 ("This process of articulating good reasons in public forces the individual to think of what would count as a good reason for all others involved.").
335. Benhabib, supra note 241, at 72 (citing Arendt and Kant).
336. See Michael Rabinder James, Review of Ricardo Blaug, Democracy Real and Ideal, CONSTELLATIONS, Sept. 2001, at 420, 422 (book review) (noting the "hidden forms of power" that often operate to influence legislative outcomes in the unitary model).
337. See Jane J. Mansbridge, Town Meeting Democracy, in DILEMMAS OF DEMOCRACY: READINGS IN AMERICAN GOVERNMENT 148, 155 (Peter Collier ed., 1976), cited in ZIMMERMAN, supra note 252, at 169.
338. Id. at 148.
339. Bruno S. Frey, Direct Democracy: Politico-Economic Lessons from Swiss Experience, AM. ECON. REV., May 1994, at 338, 339; see also Iris Bohnet & Bruno S. Frey, Direct-Democratic Rules: The Role of Discussion, 47 KYKLOS 341, 341 (1994) (arguing that "institutionalized communication opportunities enable individuals to privatize a decision, and to create and choose between new alternatives, thus extending an individual's possibility set").
340. Bruno S. Frey, Direct Democracy: Politico-Economic Lessons from Swiss Experience, AM. ECON. REV., May 1994, at 338, 339; see also Iris Bohnet & Bruno S. Frey, Direct-Democratic Rules: The Role of Discussion, 47 KYKLOS 341, 341 (1994) (arguing that "institutionalized communication opportunities enable individuals to privatize a decision, and to create and choose between new alternatives, thus extending an individual's possibility set").
341. Advocates of the right to vote on taxes reject this perspective, viewing taxation as something that government does to people, rather than as something that citizens do to themselves. The image upon which it rests is that of the government sticking its hands into the pockets of private citizens. "But alas," as John Dewey once noted, "the public has no hands except those of individual human beings." DEWEY, supra note 237, at 82.
342. William A. Schambra, From Self-interest to Social Obligation: Local Communities v. the National Community, in MEETING HUMAN NEEDS: TOWARD A NEW PUBLIC PHILOSOPHY 33, 45 (Jack A. Meyer ed., 1982) (quoting Alexis de Tocqueville: "If it is a question of taking a road past his property, he sees at once that this small public matter has a bearing on his greatest private interests, and there is no need to point out to him the close connection between his private profit and the general interest.").
343. MANSBRIDGE, supra note 253, at 46. As a result, deliberation over the trade-offs involved in switching from a property tax to an income tax never got off the ground.
344. Political theorists going back at least to Hobbes have expressed a similar intuitive appeal for benefit taxation. See R.A. Musgrave, A Brief History of Fiscal Doctrine, in 1 HANDBOOK OF PUBLIC ECONOMICS 1, at 16-18 (Alan J. Auerbach & Martin Feldstein eds., 1985).
345. Act of May 5, 1998, § 9, 1998 Pa. Legis. Serv. Act 1998-50 (West); see also PENN STATE COLL. OF AGRIC. SCIENCES COOP. EXTENSION, UNDERSTANDING SCHOOL TAX CHANGE UNDER ACT 50 OF 1998 (1998), available at http://pubs.cas.psu.edu/FreePubs/ua326.html
346. See Timothy W. Kelsey, Local Taxes & Our Community, at http://cax.aers.psu.eduA.TOC/ (last visited Nov. 7, 2001).
347. See Id.
348. Gary Abdullah, Coping with Community Taxes. PENN ST. AGRIC., Winter/Spring 2000, at 26, 27.
349. Dan Hartzell, Farm Group Wants Relief from Tax on Property: Members Lobby School Boards to Use New State Law to Shift More Burden to Wages, ALLENTOWN MORNING CALL, Feb. 17, 2001, at B6.
350. Id.
351. See discussion supra subpart III.E and accompanying notes.
352. Id.
353. See J. Eric Oliver, The Effects of Metropolitan Economic Segregation on Local Civic Participation, 43 AM. J. POL. SCI. 186, 191 (1999) (discussing "conflict" models of civic participation).
354. BARBER, supra note 146, at 135.
355. Id.
356. Schambra, supra note 273, at 45.
357. Kenneth Karst, Local Discourse and the Social Issues, 12 CARDOZO STUD. L. & LITERATURE 1, 1 (2000).
358. See supra section III.D.2.
359. Lars Soderstrom, Fiscal Federalism: The Nordic Countries' Style, in PUBLIC FINANCE WITH SEVERAL LEVELS OF GOVERNMENT 37 (Rémy Prud'homme ed. 1991).
360. Id. at 41 (Table 4).
361. Id.
362. For a recent and very useful discussion of the future of the local property tax in the United States, see David Brunori, To Preserve Local Government, It's Time to Save the Property Tax, 21 ST. TAX NOTES 813 (September 10, 2001).
363. See supra subpart I.A.
364. One possibility would be to tax nonresidential property on a uniform state-wide basis, returning the proceeds to localties via some sort of intergovernmental grant, and to permit localities, subject to majority voter approval, to impose or increase local property taxes on residential property. I have advocated such a proposal in earlier work. See Kirk J. Stark, Rethinking Statewide Taxation of Nonresidential Property for Public Schools, 102 YALE L.J. 805 (1992).
365. See Riel C.D. Franzsen, Local Government and Property Tax Reform in South Africa, LAND LINES, May 2000; Joan Youngman, South Africa: Land Policy and Taxation in Transition, LAND LINES, November 1997.
366. See Riel C.D. Franzsen, Local Government and Property Tax Reform in South Africa, LAND LINES, May 2000; Joan Youngman, South Africa: Land Policy and Taxation in Transition, LAND LINES, November 1997.
367. BRENNAN & BUCHANAN, supra note 1, at 189.
368. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991);
369. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998).