The Gas Tax and the State Constitution

Martin references Josh Feit’s post on using the state gas tax to fund transit. Here’s Feit:

The current working transportation budget for 2009-11 puts only 4.4 percent of the $5.9 billion total into transit. And even if legislators were more-transit friendly, the rules governing transportation funding—Constitutionally, the gas tax cannot be used on transit—would have only permitted them to put about 7.3 percent of the money into transit.

I’m not a legal scholar, but David Goldstein spoke with one a couple years back and concluded that we can in fact tax gasoline to fund transit, without resorting to a constitutional amendment. The key is that it has to be a sales tax, not an excise tax:

Article II, Section 40 specifically refers to “excise taxes.” There’s nothing in the Constitution that says we can’t also levy a sales tax on motor vehicle fuel, and there’s nothing to mandate how such revenues might be spent. Thus all the hooey we’ve been fed about how we can’t spend gas tax dollars on anything but roads and ferries is exactly that… a bunch of hooey. A simple majority in both houses, and the stroke of the governor’s pen is all we need to create a dedicated fund for building mass transit. And of course, the people are free to vote yea or nay via referendum or initiative.

This isn’t just amateur legal analysis on my part. I checked with a constitutional scholar who assured me that my reading was correct, and that similar proposals have indeed been debated from time to time. And it’s not such an original or off the wall idea; nine other states already levy both sales and excise taxes on gasoline.

To my knowledge, Goldy hasn’t revisited the issue, so I have no idea if any new information has come to light regarding it. Still, I thought it worth sharing.