Legislating in the Tax Code? Well, yeah

I’ve been enjoying the reactions to Steve Burd’s excellent new Chart You Can Trust, Moving On Up. Steve demonstrates how tax credits intended originally to help low-income or middle-class families afford college are increasingly being used by wealthier families.

But one reaction puzzles me. “They’re legislating through the tax code,” commenters have said.

To which the former legislator in me wants to respond: “Well, yeah, if they’re at all savvy they do.”

Not much is getting passed in legislative chambers these days. Legislators from both parties, supported by their most ardent partisans, often see little benefit in the kind of give-and-take that leads to compromises being passed.

So other than naming post offices, very little actual legislation gets enacted. And when there is a bill that seems likely to get through both chambers—say, a tax credit for one purpose or another—it will get loaded up. (Hence the nickname “Christmas tree bill.”)

There is another way that legislators get policy changes made even during a time when few if any bills are being passed. They get them incorporated into the budget.

Let’s say you’re the director of admissions at a state university or community college in Virginia. And let’s say you want to start recruiting for next year’s freshman class.

Before you design your marketing campaign, you’d better be aware that the Commonwealth prohibits “[a]rtwork and photographs which exaggerate or extol rather than supplement or complement permissible information.” You should also know that “[m]ass mailings are generally prohibited” as a way of reaching students.

Where would you find this guidance? Not in the State Code. Instead, it’s in the Virginia budget.

Lawmakers in Virginia (and about half the other states, according to the National Conference of State Legislatures) love to set policy in the budget. One reason: this language:

Notwithstanding any other provision of law, and until June 30, 2014, the provisions of this act shall prevail over any conflicting provision of any other law, without regard to whether such other law is enacted before or after this act;

There’s another benefit to getting your policy proposal in the budget. Eventually, legislators actually have to pass one. While citizens don’t seem to care so much about the fate of HB 2786, they do get frosty if state parks and offices shut down.

So if their state allows it and they have the juice to get their provision in the budget, most savvy legislators are happy to do just that.

I don’t see any great wave of comity settling on legislative chambers in the next two years. So my advice to any legislator who wants to get something done? Get it in the tax code or the budget.