Blaming The Victim: West Virginia’s Flirtation With Medicaid Work Requirements

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It was my intention when launching this blog to support economic policies in West Virginia that actually spread prosperity to all citizens. The wealthy don’t seem to need help ensuring they get a big plate full at the prosperity table. It is the less fortunate who need help. But in this long Republican winter, avoiding policies that hurt the less fortunate is really a full time job.

Two ideas popular in West Virginia and the nation today fuel this problem. First is the Koch-funded libertarian idea that any expansion of public benefits is a threat to the “liberty” of those who are taxed to pay for it. This is well-documented in Nancy MacLean’s 2017 book Democracy in Chains. Second is the populist notion that people who receive public benefits are somehow lazy and morally at fault for their situation. Both of these factors are on display in the current debate about whether to add work requirements for Medicaid benefits.

Medicaid is a jointly funded federal and state program that helps several categories of low income and disabled people with medical costs. As of 2017, Medicaid provided healthcare coverage to 74 million nationwide (over 23% of the population). Some of the covered categories include children in low-income families, pregnant women, parents of Medicaid-eligible children who meet certain income requirements, and low-income seniors.

Obamacare extended Medicaid eligibility to all U.S. citizens and legal residents with income up to 138% of the federal poverty line, including for the first time adults without dependent children. But as a result of a Supreme Court ruling, states were not required to adopt this expansion in order to receive federal Medicaid funding for previously covered groups. Given its large poor population, West Virginia wisely opted to extend coverage. About 170,000 additional West Virginians became eligible under Medicaid expansion, roughly 9% of the state’s population.

On January 11, 2018, the landscape changed. The Director of the federal Centers for Medicare and Medicaid Services (CMS) issued a letter to all state Medicaid directors inviting them to apply for a waiver that would allow states to require participation in work and other community engagement as a condition for Medicaid eligibility. The policy change is described as “designed to assist states in their efforts to improve Medicaid enrollee health and well-being through incentivizing work and community engagement.” Yes, you read that right. These bureaucrats are asserting that work will make you healthy. They cite studies that link unemployment with depression. Of course, they have it totally backwards – being healthy will enable you to work.

I am inclined to think that CMS’ explanation is a cynical effort to avoid the legal challenges to Medicaid work requirements that have already begun. In the first place, approving work requirement waivers is an about-face – several states attempted this in the past but were denied. They were denied because work requirements for eligibility are contrary to Medicaid’s stated purpose to provide comprehensive healthcare coverage for people below state income thresholds. Administrative agencies cannot lawfully rewrite a statute through adding eligibility requirements that advance other goals (limiting benefits to the “deserving poor”) that are contrary to the purpose of the law. CMS operatives know this, which explains their absurd effort to link work requirements with health.

At the urging of Republican legislators, West Virginia’s Department of Health and Human Resources is now considering work requirements for Medicaid recipients. According to Jeremiah Samples, Deputy Secretary of DHHR, this effort would focus on “able-bodied” people:

We’re trying to empower folks to get out of the system. At the end of the day, the best thing we can do at DHHR for our able-bodied population is to get them into the workforce, without question.

Truth be told, any such requirements would expel recipients from the system, not “empower” them to leave. This is a stick not a carrot. For Medicaid expansion states like West Virginia, any work requirements will have the (intended) effect of reducing the recipient population irrespective of whether those removed remain below the state income threshold.

How would this happen? According to Mr. Samples, the DHHR is reviewing how other states plan to add work requirements. Kentucky’s waiver was the first to be approved by CMS. The Kentucky plan calls for reporting by the recipient every 30 days to verify that he or she is working or involved in some other activity approved by the authorities. Kentucky will disenroll recipients from Medicaid for up to six months if they fail to report changes in income or work status.  Beyond the sheer hassle to the recipient and the possibility of inadvertent noncompliance, this would be yet another layer of red tape and opportunity for error. It would be a system the sole purpose for which is to snag and remove Medicaid recipients who do not repeatedly, month after month, prove their eligibility and worthiness. An aide to Kentucky Governor Blevins says that he expects 95,000 recipients to be removed from Medicaid benefits within five years.

Getting people off benefit rolls and onto employment rolls is a great idea. But West Virginia can’t do this by denying people healthcare. There are several reasons why an “able-bodied” person might be in need of Medicaid that have nothing to do with laziness. A shortage of jobs is one. Being between jobs for over 30 days is another. A mismatch between job requirements and a worker’s skill might be another. Opioid dependency might be involved. In an excellent editorial published on January 25, 2018, The Charleston Gazette put it this way:

How does interruption in coverage improve anything? Or is it just an exercise for the righteous . . . to feel better about themselves? ‘Must work for your healthcare,’ might be a great policy in the perfect imaginary world where ideologists live, but it fails to acknowledge the real circumstances of life in most of West Virginia, both town and country. No doubt that is by design. If people who never liked the Medicaid expansion can dress up their ‘solutions’ as getting tough on the poor and lazy, it sells better than if it is more accurately described as kicking the most vulnerable West Virginia workers, or potential workers.

Eighteen states declined to accept Medicaid expansion funds despite the needs of their populations. This group includes every state in the old Confederacy except Arkansas and Louisiana. But one unintended consequence of the present willingness of CMS to approve Medicaid work requirements is that several of these non-expansion states are now considering participation in the expansion. This may have the ultimate effect of increasing the Medicaid rolls nationwide. But it is a development that will not help expansion states like West Virginia.

Partisan Gerrymandering and the Constitution

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On October 3, 2017, the United States Supreme Court will hear arguments in the case of Gill v. Whitford. This case raises the question of whether gross partisan gerrymandering by the Wisconsin state legislature in creating state voting districts violates any provision of the U.S. Constitution. Partisan gerrymandering – intentionally drawing voting district lines to favor one party or the other – has seen a sharp increase since the redistricting that followed the 2010 census. Many observers believe that partisan gerrymandering is to blame for much of the gridlock in Congress and the state legislatures because highly partisan districts elect highly partisan representatives who have no political room to compromise. The old legal wisdom is that for every wrong there is a remedy, so you would expect that this case would be a slam-dunk for those challenging the Wisconsin redistricting in the Supreme Court. But you would be wrong.

Appendix AFirst, some basics. The constitutions of each state determine the number of state Senators and Delegates assigned to voting districts and the apportionment of the state’s population into those districts. In West Virginia the House of Delegates is composed of a fixed 100 members, each theoretically representing 1/100 of the state’s population. But instead of there being 100 districts, our legislature has created 67 districts some of which elect multiple Delegates. (Appendix A). All Delegates face re-election every two years.

There are two Senators from each of seventeen senatorial districts for a total of thirty four. According to the West Virginia Constitution, senatorial districts “shall be compact, formed of contiguous territory, bounded by county lines, and, as nearly as possible, equal in population, to be ascertained by the census of the United States.” (Appendix B). There is no such language relating to House districts. Senate terms are four years and elections are staggered so that a portion of senators faces re-election every two years.

Appendix BState legislatures also draw each state’s Congressional district boundaries, which must be revisited every ten years immediately after the census. West Virginia has had three Congressional districts for several decades, but their boundaries have changed slightly over time to reflect the shift in population to the Eastern Panhandle and Monongalia County. The U.S. Constitution and its Amendments determine who can vote in federal elections. But as for how districts are constituted, it merely says that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective numbers” and that “the number of Representatives shall not exceed one for every thirty Thousand.”

The basic requirement of Congressional apportionment that each district have an approximately equal population is consistent with the 5th Amendment’s promise of equal protection of the law. For example, if District A has a population of 750,000 and District B has a population of 800,000, then voters in B have an incrementally less powerful vote. That same principle was made applicable to the states by the 14th Amendment, ratified after the Civil War. In a series of cases in the 1960s, the Supreme Court announced that “equal protection” in the context of state legislative district apportionment meant “one person, one vote.” For example, in Reynolds v. Sims (1964), the Court said:

To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. . . . By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.

But if all equal protection requires is districts of equal population, there is still an infinite number of ways to divide a state’s population into roughly equal segments. The development of software that predicts the likely election consequences of moving even small groups of voters from one district to another has tempted legislatures to find just those configurations that maximize the likely future success of the party in power, while still satisfying the equal population requirement. The Republican legislators in Wisconsin sorted through multiple proposed district maps with the use of redistricting software and the help of political science experts until they found the one they believed would best ensure their control of the legislature for an entire decade even if they were to lose the popular state-wide vote.

The challengers to this plan in Wisconsin were numerous individuals and groups acting on behalf of Democrat voters in the state. There is a subtle but significant difference between protecting an individual voter from the dilution of her vote and protecting a subset of the whole voting population – registered Democrats – from being deprived of a proportionately equal chance to elect Democrat candidates. This difference raises the question of whether the Equal Protection Clause even applies to state-wide voter groups? If it does, are all such groups entitled to equal protection? If Democrats and Republicans as distinct voter groups are entitled to equal protection, how about the Green Party or the American Nazi Party? This is one thing that makes the issues raised in the Wisconsin case so difficult for courts to get their minds around.

There is even a more fundamental legal question the Court must answer before deciding whether the Equal Protection Clause prevents partisan gerrymandering. That question is “justiciability” – whether a clear rule can be found delineating what is acceptable from unacceptable in the drawing of district boundaries and whether courts should step into the political arena at all in view of the separation of powers. In my next post, I will explain why partisan gerrymandering greatly intensified after the Supreme Court’s last pronouncement on these issues in 2010, and where the law now stands on the issues presented in the Wisconsin case.

 

The Old Bait And Switch

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West Virginia voters have just been made the victims of a fraud — we were sold one thing by Jim Justice and he has now delivered another. It did not take him long to reveal the fraud, suggesting that it was intended from the beginning.  In Huntington with Donald Trump on August 3, 2017, Justice announced that he was switching parties from Democrat to Republican. Recall that this is a man who switched party affiliations from Republican to Democrat in February 2015 so he could run for Governor on the Democrat ticket. He was elected in November 2016, a mere nine months before switching back to Republican again. In front of a cheering crowd who had booed him just moments before, Justice explained that “I just can’t help you anymore being a Democrat governor.” This bait and switch had far less to do with Justice’s desire to be an effective governor than with his lack of character.

It’s easy to dispose of Justice’s claim that being a Democrat governor limited his effectiveness during the recent budget fiasco. When his proposed budgets were first introduced to the Legislature they involved generating new revenues and preserving the spending necessary to retain the state’s social fabric. He got wide support for this from the Democrats but little support from the Republicans. As the debate wore on, however, Justice abandoned the progressive aspects of his budget and began caucusing with the far-right Senate Republicans in their effort to cut income taxes.

These income tax cuts were not only opposed by Democrats, but also by House Republicans. Since Republicans control the House of Delegates, it was Justice’s inability to deal with them that ultimately frustrated him. But actually being a registered Republican would not have improved his effectiveness.  He had already taken up with the right fringe in the Senate and begun to act like a Republican. Instead it was his poor policy choices, frequent course reversals and shallowness that caused his ineffectiveness. He has poor political instincts and is simply not a leader.

There is no question, however, that Justice’s switch of party affiliation has damaged the already lame Democrat party. That party has been able to elect only one Democrat out of five Congressional representatives and now all in the state’s elected leadership are Republican. Sen. Joe Manchin, who is reputed to have recruited Justice to switch parties to Democrat and run for governor, looks like a fool. So does current State Democrat Party Chair Belinda Biafore, who claims that Justice duped her, not to mention former Democrat Party Chair Nick Casey, who is Justice’s Chief of Staff. Calls for a shake-up of Democrat party leadership have already begun. Former West Virginia Senate President Jeff Kessler, a respected Democrat who lost to Justice in the 2016 primary, said “It’s time for a change at the top . . . They need some new leadership at the Democrat chair.”

Nobody looks good in this. The Republicans have their own problems welcoming back to their party a governor they were happy to lampoon just days ago. The Republican Governor’s Association said in November 2015 that Justice was “a selfish businessman who consistently put his interests before anyone else’s, especially taxpayers.” The West Virginia Republican Party said in July 2017 that “Jim Justice embarrasses our state every single day.” These statements were catalogued by the Democratic Governor’s Association, who are now firing their own invective at Justice when formerly they embraced him. The hypocrisy on both sides of this sad event makes you want to take a shower.

Not all politicians lack character.  One thinks immediately of Sen. John McCain on the Republican side and former President Obama on the Democrat side. But if character is the trait of steadfastness to principle when the going gets tough, Jim Justice has failed us miserably. It is hard even to see what he hopes to gain from this switch of party affiliations. Perhaps he expects larger campaign contributions from Republicans than he raked in from the Democrats whom he deceived in 2016. Maybe he wants to bask in the Mar-A-Lago sun. One thing is certain, though. The question of what he has to gain is the right question to ask.

West Virginia’s Budget Disgrace

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The soap opera in Charleston appears to be over. After failing to come together on any meaningful changes for increasing revenues or reforming the tax structure, the Legislature adopted a “bare-bones” budget that cuts more deeply than ever into valuable state programs. This was a default to the lowest common denominator and a failure of statesmanship. It defers many important questions for a later Legislature. One Delegate said that the budget was the result of “complete and utter dysfunction.” The process wasted everyone’s time and money.

While there is blame to go around, this result was the product of opposing positions taken by members of the same political party. Senate Republicans insisted that there would be cuts to personal income taxes or nothing. House Republicans insisted on broadening the sales tax base and were suspicious of income tax cuts in a deficit environment. Week after week neither side moved. The Democrats were impotent on the sidelines and the Governor lurched from one folksy hyperbole to the next, offering some bone-headed proposals of his own. The whole process was a disgrace.

The Legislature gathered in general session knowing in advance that revenues in the state’s General Revenue Fund were projected to fall short of the spending level from last fiscal year. The shortfall was roughly $500 million. There has been agreement on both sides of the aisle that tax reform will be necessary for West Virginia to stabilize and increase revenues and avoid volatility in our budgeting.

But for many Republicans, particularly a Senate faction led by Robert Karnes (R, Upshur), tax “reform” meant radical reductions to the personal income tax, the largest single source of state revenue. Karnes and his crowd actually think that cutting income tax for wealthy “job creators” will raise revenues.  By allowing these people to keep more of what they make, reasons Karnes, they will leap into action, juicing up business and the economy. This widely debunked nonsense was exposed most recently by the Kansas experience where substantial income tax cuts put the state’s economy into the toilet.

Karnes and the Senate Republicans labored under a false belief that also afflicted House Republicans. It can be reduced to a simple equation: tax = bad. In an environment where we needed more revenue to avoid harmful cuts, only the House Republicans were willing to put their toe into the water to find new revenue sources. Even then, House Republicans wanted to add new items upon which to levy sales taxes rather than raise the tax rate itself, presumably so they could then claim they didn’t raise taxes. They rejected a Senate bill because it “amounted to a tax increase.” The conservative Tax Foundation, which followed the situation in West Virginia closely, said “It would almost be easier to enumerate the taxes the legislature didn’t consider as possible solutions to the budget shortfall over the past few months.”

West Virginia has well-documented problems. On just about any measure of successful governance we are last in the country or very close to it: per capita income, workforce participation rate, educational attainment, health indicators and obesity, opioid addiction. You name it. Governor Justice’s initial proposed budget recognized that important spending on education and social programs had to be retained in order to ensure that we did not become a failed state. But later he seemed to lose his head by aligning himself with Senate Republicans and their income tax cuts, presumably on the theory that even a bad idea is better than no idea. In the end he lost respect from everyone, even members of his own party.

The best summary of the cuts our FY 2018 budget will make versus the spending from FY 2017 (which itself involved cuts from prior years) has been provided by the West Virginia Center on Budget and Policy.   The budget cuts $7.5 million from colleges and universities and $2.5 million from community and technical colleges. Public broadcasting was cut nearly $1 million, the line item for the Division of Culture and History was cut 14%, and the West Virginia Commission on Women, the Division of Educational Performance and the Tobacco Education Program were all completely defunded.

We need some new thinking and new leadership who recognize that good government is expensive and that we cannot cut our way to prosperity. If West Virginia is determined to elect Republicans to majority roles in the House of Delegates and Senate, these public servants need to rise above squabbling among themselves, reject the latest fashion in right-wing economic theory, and a find a way to grow revenues over the long haul. Yes, that might mean even raising taxes, which West Virginians would welcome if we applied the revenue toward solving some of our many problems.

 

The West Virginia Budget Crisis

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Remember the large budget deficit that confronted West Virginia lawmakers at the start of the legislative session? One estimate in November 2016 was that in FY 2018 (beginning July 1, 2017) we would generate only $4.055 billion in revenue, roughly $500 million short of anticipated spending. That brought many legislators to Charleston for the general session prepared to strip spending down to a bare minimum and force the state “to live within its means.” Fortunately, those views softened when confronted by political reality.

Now projected FY 2018 revenues are about $40 million better than first predicted due to an improving coal market and a $33 million transfer from general revenues to the Workers Compensation Fund that won’t be made. But the remainder of the budget shortfall hasn’t disappeared. How the shortfall will be closed is the subject of a House and Senate conference committee meeting today. So far, the fiscal and political stress created by the shortfall has caused Governor Justice and quite a few legislators to behave as if any idea – even a demonstrably bad one – is better than nothing.

June 12 is the sixteenth day of a special session devoted to this project. The extension to allow the conference committee to meet expires on June 13 and if a solution is not reached immediately the tax reform effort may be abandoned entirely. The two opposing camps are the Governor and Senate Republicans — who want to reduce income taxes — and nearly the entire House who want to raise sales tax rates and coverage without reducing income taxes.

Neither approach is progressive. Sales taxes hurt lower and middle income citizens who have no choice but to spend almost all of their income on taxed items. Because income taxes are generally paid more heavily by wealthier citizens, the proposed income tax reductions coupled with the sales tax increases would result in an overall tax decrease for the wealthy but an overall tax increase for lower and middle income taxpayers. According to the West Virginia Center on Budget and Policy, the plan lowers taxes on the top 20% of West Virginia households and increases taxes on the remaining 80 percent of households.

Nevertheless, a sales tax increase seems likely to be in any budget deal. But it is uncertain what the new rate will be. The conference committee is now considering an increase from 6% to 6.5%. Whatever higher rate is chosen, it would be applied to previously untaxed items such as telecommunications services, digital goods, electronic data processing services and health fitness memberships. The 6.5% rate is projected to raise $96 million in FY 2018 and $106 million in FY 2019.

Beyond that, the thinking of the Governor and the Senate Republicans has come unmoored. They want to reduce income taxes by 7% in FY 2018 and in similar amounts staged over coming years. What should trigger these further reductions has been the difficult issue. Senate Republicans have only agreed to this “modest” series of reductions in income tax because opposition to their original proposal was fierce. An income tax reduction is the brain child of Sen. Robert Karnes (R, Upshur), a conservative ideologue, who headed the Senate Select Subcommittee on Tax Reform. You may wonder how a reduction in income tax collections will close the budget gap?

You’ve heard the Republicans’ answer before – tax cuts will lead to more growth and job creation, which will lead to higher tax collections. The problem is this theory has never worked. While there may be some small growth benefit in tax cuts, it never amounts to as much as the tax revenue lost. This played out painfully over a decade in Kansas, which finally abandoned its tax cutting regime by adopting tax increases passed by a Republican legislature over the veto of Republican governor Brownback.

But it is Governor Justice who has gone the furthest into fantasyland. After properly opposing massive spending cuts that would have rendered West Virginia a shell, Justice has gone over to the income tax views of the Senate Republicans in order to get a deal. He defends their position because “just think of how far they’ve come” from their original proposal to cut income taxes 30%. In other words, we should all support a bad proposal because it is not insane like the first one.

Governor Justice has engaged in what can only be described as weak and illogical explanations for his positions. He acknowledges that increasing sales taxes may swamp any benefit low and moderate income taxpayers would get from a reduced income tax. But then referring to that reduction he asks why we wouldn’t want to “give money back to the guy mowing the grass?” When pressed he has further supported the reduced income tax idea by suggesting it would be “a great move for our image and a great move to potentially bring people to our state.” Don’t bother looking for any hard numbers.

Governor Justice also has urged the adoption of a tiered coal severance tax that would generate less tax revenue when coal prices are low and increased revenue when they are high. The net impact would be a $49.9 million reduction in severance tax collections for FY 2018. This proposal is either the result of strong coal industry lobbying or faulty thinking, or perhaps both. Surely other industries in the state with greater economic impact than coal, such as healthcare, would benefit from favored tax treatment. This is just one more example of pandering to extractive industries that do not represent our future.

So in the end, how does Governor Justice believe the budget gap will be closed? He predicts an additional $100 million in tax collections from economic growth that will result from the tiered coal severance tax and his $2.8 billion infrastructure spending plan. This guesswork, called “dynamic scoring,” is so speculative it would make Donald Trump blush. There are easily a hundred ways that this tax revenue could fail to materialize even if the infrastructure plan is pursued. This is why state budgeting based on estimates of economic growth is considered unsound.

Governor Justice once appeared to be the sensible, stable player in the budget and revenue battles. Now he seems to be the chief inmate in the asylum.

 

 

 

Replacing West Virginia’s Income Tax with a Consumption Tax Promises Huge New Deficits for the Future

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West Virginia Senate Bill 335, now pending before the Senate Select Committee on Tax Reform, would phase out West Virginia’s income tax and impose an 8% consumption tax on a broad range of transactions. The legislative “findings” that precede SB 335 assert that a major change like this to our tax structure would be both fair and fiscally sound. As to fairness, this assertion is demonstrably false. SB 355 would increase the tax burden on low income and working class taxpayers and give wealthier taxpayers a substantial overall tax break.

In the face of at least a $500 million budget deficit this fiscal year and perhaps a larger one next fiscal year, West Virginia is in dire need of a tax plan that will grow long-term, stable revenues. Unfortunately, SB 335 would at best provide only temporary revenue relief and portends mounting future budget deficits. This revolutionary change to our tax structure would be bad law and worse policy.

It is important to understand how SB 335 would change West Virginia’s tax structure. The personal income tax is the state’s largest revenue source and makes up approximately 45% of the state’s General Revenue Fund Budget. Income tax collections for FY 2018 are expected to be $1.8 billion. Under SB 335, the personal income tax would be repealed on January 1, 2018 and replaced with a flat tax rate of .6% in 2018, .4% in 2019 and .2% in 2020. According to the fiscal note attached to the Bill, this would result in decreased income tax collections of $650 million in FY2018, $1.8 billion in FY2019 and $2.0 billion in 2020.

To replace that revenue, SB 335 would create a broadly based 8% consumption tax that would apply to the same sales as the current sales tax, but with the following enhancements: (1) food for home consumption, (2) non-medical professional services such as legal, accounting, engineering, architecture, real estate, advertising, funeral, and the like, (3) personal services such as hair, nails, skin care and non-medical personal home care, (4) public utility services such as electricity, natural gas, water, sewer, telecommunications, solid waste, and the like, and (4) numerous direct use purchases by business, electronic data processing, mobile home sales, health fitness services, and much more.

These consumption tax changes would result in tax collections to the General Revenue Fund of around $1.2 billion in FY2018 to $1.33 billion in FY2019. The figures do not account for “leakage” of sales by consumers who would make purchases in surrounding states with a lower consumption tax. Matching the projected decrease in income tax collections with the increase in projected consumption tax collections, the fiscal impact of SB 335 would be the following:

  • FY2018 — $550 million
  • FY2019 — ($370 million)
  • FY2020 — ($440 million)
  • FY2021 — ($610 million)

The increased revenues in FY2018 are produced only because the consumption tax increases would begin in July 2017 while the decreased income tax collections would not begin until January 1, 2018.

The fiscal note by the State Tax Department makes the following observation:

The proposed bill represents the most massive tax reform effort of any State in recent memory. Most states commit significant resources toward adequate measurement of tax reform impact on businesses and residents prior to adoption of a significant change. The resources and timeframe for the preparation of this fiscal note are woefully inadequate to properly measure the cumulative extent of all consequences associated with proposed changes.

Why then rush to consider SB 335? One argument for this change in the tax structure is that it would stimulate economic growth. But eliminating the state’s income tax can’t be counted upon to do this. The fiscal note states that SB 335 would effectively increase taxes on business inputs by an amount that is at least double the potential income tax savings on business profits. Meanwhile, the West Virginia Center on Budget and Policy notes that for the period 2005 to 2015 the nine states with the highest income tax had 5.6% GDP growth while the nine states with no income tax grew GDP only 3.2%.

Ask any merchant whether she would prefer to pay income tax on business income or be the state’s collection agent for a hefty consumption tax on her customers. My bet is that the income tax would be favored overwhelmingly. A consumption tax relentlessly faces the customer in each transaction and so discourages sales. This would be particularly true for businesses that deal in products and services that have never before been subject to the state’s sales tax. On the other hand, a business can plan for and sometimes mitigate the effects of an income tax through lawful deductions, credits and deferrals. Not so with a consumption tax.

If the West Virginia legislature truly wants to create stable future revenues for all the important work government has to do, while keeping West Virginia “open for business” as our state marketing slogan once promised, it needs sober up about what replacing the income tax with a consumption tax would really do.

 

 

Eliminating the Income Tax and Creating a New Consumption Tax: Bad Law and Worse Policy

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Mischief is well on its way to becoming law in West Virginia. The Republican-controlled Senate Select Committee on Tax Reform is about to propose to the full Senate the passage of SB 335, which would phase out the state income tax and transform the current 6% sales tax into a broader 8% consumption tax. The conceptual basis for the proposed law is that the state provides the marketplace in which sales can take place so that vendors and purchasers who engage in transactions should be required to pay for the privilege of using that marketplace. If that silliness weren’t enough, the Bill’s legislative findings provide the following gem of a non sequitur. “The Legislature further finds that, in the free market system, the best judge of a purchaser’s ability to pay, for the purchase of the goods and services, is the purchaser, and, thus a broad-based consumption tax is firmly based on that principle of sound and fair taxation.” There is nothing sound or fair about this revolutionary change in West Virginia’s tax structure and it should be stopped in its tracks.

The fiscal soundness of SB 335 will be addressed in the next post on this site, upcoming promptly. But it is on the question of fairness where SB 335 fails us badly. Consider the point in the legislative findings that the purchaser is in the best position to know whether he has the ability to pay for a purchase. That may be true in the abstract, but completely misses the point when it comes to a consumption tax. There are many of our fellow citizens who are poor and spend only on the necessities of life – food, clothing, shelter, and the like. For them these purchases are not optional. They are not in a position to ponder whether “ability to pay” might lead them to decline such a purchase. For consumption by low-income citizens there is no magical marketplace of free choice like that existing in the dream world of some legislators.

Contrast this with the choices available to the financially comfortable. The purchaser of school clothes for kids in a well-to-do family has many options and certainly could choose to purchase less expensive clothing. But really, the ability to pay for a purchase is not the question for these consumers. It is their willingness to pay for the purchase plus the tax. And suppose the well-to-do purchaser decides not to make a purchase because of the tax. That would only hurt state tax revenues and thereby the operation of state government. The ideological foolishness of a consumption tax is quite apparent from this. The logical effect of making every business transaction 2% more expensive will be to make those transactions smaller in amount, less frequent, or avoided altogether. One can imagine many purchases being made across the border in states with a lower consumption tax.

One thing is certain – enacting SB 335 will shift a greater tax burden onto West Virginia’s poor and working class and away from wealthier taxpayers. Low income taxpayers, including seniors dependent on social security, are not currently subject to high income tax rates and do not pay much in total income taxes. Higher income taxpayers pay considerably more income tax. Contrast a consumption tax, which doesn’t concern itself with how wealthy you are, only how much you spend and on what things. As mentioned, SB 335 proposes to raise the state consumption tax from 6% to 8%. If it passes, the total tax paid by the low income taxpayer will rise slightly because of the additional 2% tax on his purchases, while the wealthy taxpayer will get a nice overall tax reduction. This is because the additional 2% sales tax paid by the wealthy taxpayer on her purchases is far less than the income tax she would avoid.

Sen. Robert Karnes (R-Upshur, 11), the same legislator who chairs the Senate Select Committee on Tax Reform, has sponsored two bills that are apparently intended to blunt criticism of the fairness of SB 335. One, SB 377, calls for a payment of up to $200 to be made by the state to low income senior citizens who file a yearly claim to receive it. The actual amount of the payment would be based on a declining percentage of the taxpayer’s income above the federal poverty level. SB 378 would create a similar payment, called an “earned income credit,” for low income workers. This is a misnomer because there would be no West Virginia income tax against which to credit it.

The inadequacy of these two sops is obvious. First they do nothing for the low-income unemployed who have no earned income to report. This omission is consistent with the view of many conservatives that if you are poor and unemployed it must be your fault. Second, these “credits” bear no relationship to the amount of additional consumption tax low-income individuals will be forced to pay. For example, a person earning $20,000 who is forced to spend it all to survive will pay an additional consumption tax of 2% on all purchases — a total of $400 in additional tax. Neither of the proposed “credits” could ever be more than $200. Finally, they require the taxpayer to file an additional tax document and wait for approval of the once per year payment. This does nothing to help him make ends meet on a day to day basis.

Even if such a major change to our tax system could solve our budget problems (more on that later), how can it be called fair when it benefits the rich and further burdens the low income residents of the state?

Republican Senators Propose Replacing West Virginia’s Income Tax with A Higher New Sales Tax

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Only nine states in the nation have no state income tax. However, there is considerable support in the West Virginia Senate to phase out our income tax completely by 2021 and replace lost revenue by raising the state’s sales tax to 8% from 6% and eliminating many sales tax exemptions. The effort in the Senate is being led by Sen. Robert Karnes (R-Upshur, 11) sponsor of SB 335. If the Bill in its present form is enacted, West Virginians would soon begin paying sales taxes on new items such as groceries, internet streaming services, haircuts, professional services, and more. The Bill is co-sponsored by eighteen other Republican Senators, including Panhandle Senators Craig Blair (R-Berkeley, 15) and Charles Trump (R-Morgan, 15).

Karnes told the Huntington Herald-Dispatch that West Virginia currently collects $1.9 billion from the income tax, which is 45% of the state’s $4.5 billion general revenue fund. The state collects approximately $1.2 billion from the sales tax. If all sales tax exemptions were eliminated, Karnes said the state would receive an additional $2 billion in revenue. Of course, there is no way all sales tax exemptions would be ended, particularly for things like medical services, day care services, and the like. The whole situation is fluid but the Senate Select Tax Reform Committee, of which Karnes is Chair, wants to move quickly. It rejected a motion to await the preparation of a “fiscal note” designed to predict the fiscal impact of the Bill.

Without a fiscal note, adopting a major change to the state’s tax structure seems reckless. Governor Justice has said that it would be “phenomenally risky” to make major changes to the state’s tax laws during a budget crisis. In fairness, the Select Committee will probably not take final action until there is a fiscal note. But there seems little point to working on a major change to the tax structure that may end up being a non-starter because it won’t raise more revenue. West Virginia is facing a $500 million budget deficit this fiscal year and perhaps a larger deficit next fiscal year. What we want is our Legislature to get busy working on a fair tax system that generates enough revenue to close the budget gap and promotes economic growth that will form the basis for stable future revenues.

There is reason to doubt that eliminating the state’s income tax will actually promote economic growth. The West Virginia Center on Budget and Policy reports that for the period 2005 to 2015 the nine states with the highest income tax had 5.6% GDP growth while the nine states with no income tax grew GDP only 3.2%. Perhaps there is no causal relationship here, but it makes one wonder and should cause the Republican sponsors of SB 335 some concern.

On the question of fairness, one thing is certain – enacting SB 335 will shift a greater tax burden onto West Virginia’s poor and working class and away from wealthier taxpayers. Low income taxpayers, including seniors dependent on social security, are not currently subject to high income tax rates and do not pay much in total income taxes. Higher income taxpayers pay considerably more income tax. This is the nature of a progressive tax. Contrast a sales tax, which taxes consumption. The sales tax doesn’t concern itself with how wealthy you are, only how much you spend and on what things.

Consider two hypothetical taxpayers. A taxpayer making $30,000 spends every dollar of his income supporting his family with shelter, food, clothing and other necessities. A taxpayer making $250,000 supports her family with relative ease and also consumes luxury goods, but still saves 20% of her income. Unless there are exemptions in the sales tax structure for necessities, under SB 335 our low-earning taxpayer will pay an additional 2% sales tax on 100% of his income, while the wealthier taxpayer will pay an additional 2% on only 80% of hers. In most cases, the total tax paid by the low income taxpayer will rise slightly, while the total tax paid by the wealthy taxpayer will drop considerably. This is because the additional 2% sales tax paid by the wealthy taxpayer on consumption is far less that the income tax she saves.

Sen. Patricia Rucker (R-Jefferson, 16) removed her name as a sponsor of SB 335. Perhaps she had second thoughts about the wisdom of the Bill. So should the rest of the Republican members of the Select Committee.

Corporate Tax Cuts to Stimulate Job Creation: They Never Work

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We should be open to any legislation or tax policy that stimulates job creation. But we should also be on guard against legislation or policy that merely sounds good, without subjecting it to a rigorous evaluation of its costs and benefits. Among the West Virginia Legislature’s new Republican majority, it is fashionable to call for corporate tax cuts as a way to unleash job creation. Unfortunately, this thinking is more the product of ideology than of solid analysis. The idea of corporate tax cuts to stimulate job growth has one main problem – it never works.

New Senate President Mitch Carmichael (R-Jackson, 04) recently formed a Select Tax Reform Committee in the Senate, saying

We must examine every method to improve the West Virginia economy, and that certainly will include         comprehensive tax reform. Our focus is to create private sector jobs and opportunities for our citizens… Other states have achieved significant growth as a result of fundamentally overhauling their tax code. Why wouldn’t the West Virginia Senate pursue tax strategies that have a proven record of success in other states?

West Virginia is now facing a $400 million budget deficit. If the tax reform Sen. Carmichael describes will raise revenue now, he and his colleagues can be political heroes. On the other hand, if he intends to cut taxes – losing present revenue – in exchange for uncertain future job growth, he is on a fool’s errand.

West Virginia has relentlessly cut corporate taxes in the past decade. In the period 2007 to 2014, the Legislature reduced the business franchise tax from .7% to zero and reduced the corporate net income tax rate from 9% to 6.5%. Yet West Virginia is still a laggard in job creation and there are many of our fellow citizens unable to find work. It is regrettable that our leaders do not demand a thorough evaluation of the effectiveness of these earlier tax cuts before embarking on new ones. But West Virginia is not alone in this.

Our neighbor Ohio has shot itself in the foot over the last decade by cutting corporate taxes almost to zero in the hopes of stimulating job growth with no real success. Between 2005 and 2010, Ohio sharply reduced income tax rates and eliminated Ohio’s corporate income tax. While the country as a whole has gained jobs since then, Ohio has lost jobs. More recently, Ohio passed a tax-cut package that included income tax reductions and business-owner tax breaks. Yet Ohio job growth continues to lag the country as a whole.

Then there is the Kansas experience.  Led by Republican Governor Brownback in 2013, the Kansas Legislature passed a series of tax cuts on owners of “passthrough” businesses that opened up a $420 million budget deficit.  The Topeka Capital Journal later reported the rueful comments of one Republican legislator, who said that the evidence didn’t exist that the tax cuts led to meaningful growth and probably never would.

Why don’t corporate tax cuts work to stimulate job growth? There are several reasons.

  • tax cuts are like handing corporations a big check with no requirement that they spend the money on creating more jobs;
  • often the tax cuts go directly to a corporation’s bottom line to be distributed to out-of-state shareholders and other owners;
  • if the tax cuts are actually spent by corporations they can easily be spent in other states, or in ways that do not create jobs, such as part of bloated CEO pay;
  • corporate income taxes are such a small part of the cost of doing business in a particular state that cutting taxes will not be an inducement to locate new business in West Virginia versus other states; and
  • corporate tax cuts increase the likelihood of budget deficits that will result in spending cuts on public services that corporations value in locating new business, such as police, fire protection, good schools and recreation.

Of course, we expect our Legislature to adopt a workable budget, filling the deficit hole while generating enough to sustain and expand the important work that only government can do. None of us should criticize the Legislature for action and innovation. But corporate tax cuts are not the answer if we simply hope they will stimulate job creation.

If tax reduction is so important, why not link it to job creation in some accountable way? Why couldn’t we offer a tax credit to small business that would be eliminated for that business the next year if it has not created a certain number of new jobs? This scheme is familiar to state and county development authorities because it is sometimes used in the arrangements with corporations that receive tax inducements to open a new factory. And it would be similar to the “pay for performance” that corporations love. But in this case if corporations don’t perform by creating new jobs, they don’t get paid with state tax revenues.