Highway Fund watch
Will this be the year constitutional balance is restored to the Maine Highway Fund by limiting contributions to the Department of Public Safety to 33 percent? Governor LePage raised the question in his proposed 2014-15 budget. The issue goes back nearly three-quarters of a century and is at the heart of a constitutional debate about diversion of public user fees.
The debate about Maine State Police funding and how much the Highway Fund should pay is not a new one. It is an issue that has been raised repeatedly over the years, as Maine has struggled to adequately fund maintenance of its highways and bridges. The percentage being paid by the Highway Fund since 1988 has fluctuated from 49 percent to 88 percent. Clearly, progress has been made in recent years in bringing the percentage down. This year, Governor Paul LePage included shifting the proportion paid from where it currently stands at 49 percent to 33 percent. The Governor included the cost shift in both the Highway Fund and General Fund budgets, in order to reflect the actual amount of time state troopers spend on traffic-related activities, as required by the Maine Constitution. The benefit to the Highway Fund is $15.1 million for the biennium. The evidence that the Highway Fund should pay no more than 33 percent is clear, although all parties agree that the state police should be fully funded.
“This issue has been somewhat of a sleeper, and we hope it will be soon put to rest,” said Maria Fuentes, executive director of the Maine Better Transportation Association (MBTA).
“The time really has come for this, and it has been great to see Governor LePage get behind it,” said MBTA President Doug Hermann. “We’ve had two different studies clearly showing the Highway Fund has been paying too much for state police. That’s money from Maine citizens’ gas taxes that we should be putting into keeping our roads and bridges safe.”
One of the studies Hermann was referring to was a 2007 report by the Legislature’s Office of Program Evaluation & Government Accountability (OPEGA) that found the Highway Fund consistently has made substantial overpayments to the Department of Public Safety and noted that only between 17 and 34 percent of state police activities were directly related to traffic enforcement.
The second was a 2011 analysis by the Department of Public Safety that supported OPEGA’s findings, noting that just 33 percent of state police activity was traffic-related. EDITOR’S NOTE: In February 2013, Maine State Police officials noted that, in 2012, troopers reporting on their activities indicated only 22 to 27 percent of their time was spent on traffic-related activities.
Despite those recent findings, the Highway Fund continues to pay a disproportionate amount for state police operations – currently 49 percent of the state police operations, or $22.4 million in FY 2012-13. “That represents more than $7.5 million annually in overpayments, money that we could be using to make essential repairs to our highways and bridges,” said MBTA’s Hermann. He said transportation advocates appreciate that the Maine Legislature has taken the matter up and asked for the time reports, the most recent of which indicate traffic-related state police activities range from 22 percent to 27 percent. “We agree with the governor, though, that 33 percent is a fair number at this time,” added Hermann.
Hermann’s comments get to the core of a battle that has been fought by the MBTA since its earliest days when the organization, founded 73 years ago as the Maine Good Roads Association, waged a multi-year campaign to have a constitutional amendment preventing the diversion of highway funds for non-highway purposes.
Mainers do not take changes to their constitution lightly. In the 179 years since voters defeated the first proposed amendment to Maine’s Constitution, there have been relatively few amendments to the document that serves as guiding principles for state government. One of the few times they have considered a change to the constitution was in 1944 when Maine voters went to the polls to determine how Maine’s highway funds were to be spent. The question was whether or not to protect Highway Fund monies from being diverted for non-road and bridge purposes, and Maine voters expressed themselves quite clearly on the matter – they voted by a margin of 8-to-2 that those funds should be protected.
“Maine voters were unequivocal,” said MBTA Executive Director Maria Fuentes. “They saw the gasoline tax as a user tax, and much like today, they paid those fees knowing their roads were desperately in need of that funding.”
Push-and-pull of politics
The question of how Maine’s Highway Fund was spent had been a subject of lively public debate since 1932, when the federal government first began collecting a 1¢ per gallon tax on gasoline. The federal gas tax had been proposed as one of a host of austerity measures by President Herbert Hoover during the Great Depression, and although those taxes were initially so unpopular with voters that Hoover lost his re-election bid, the revenues raised proved essential and brought real benefit to citizens in the form of a safer, more efficient road system.
The problem was this: the revenues the gas tax generated for states proved to be almost irresistible to state legislators who often viewed the Highway Fund as a sort of emergency fund, dipping into it to pay for any number of non-highway items.
That did not sit well with Maine voters, who in 1936 passed a citizens’ initiative restricting use of Highway Fund monies to roads and bridges by a margin of 3-to-1.
“This really was an issue that was central to how Maine citizens felt about taxation and user fees,” said President Doug Hermann. “The idea that the gasoline tax was levied on drivers to enable the government to pay to maintain the highways and bridges they used every day – that was a fundamental issue of trust for voters. The 1936 referendum very clearly stated that the Highway Fund should be reserved for the purpose it was intended – and in the end it was an extremely popular notion with Maine voters.”
The 1936 citizens’ initiative proved anything but binding. Almost before the ink was dry on newspaper accounts of the vote, the Maine Legislature moved to amend the new law to authorize diversions from the Highway Fund provided they were not “permanent.”
“Maine’s new statute proved inadequate almost immediately,” said Tim Woodcock of Eaton Peabody. Woodcock worked with the MBTA last year to research the history and legal precedents relating to Article IX, Section 19.
“Within a matter of months there was some compelling emergency and legislators used the Highway Fund to come to the rescue,” said Woodcock. “There usually was a half-hearted attempt to pay back the funds.”
One of those “emergencies” occurred when the state diverted $1.6 million to pay for old age pensions. Another $300,000 was pulled from roads to help fund State Police and more was diverted to cover the cost of a title law that was immediately repealed. Only a small portion of those funds appear to have been repaid into the Highway Fund, and by 1943, the fund was said to be short by $800,000.
Woodcock noted that some Maine leaders were not willing to let the issue rest with that legislative sleight of hand. One of those leaders was the Maine Good Roads Association (MGRA), a group of community and business leaders founded in 1939 that was an outspoken proponent of a constitutional amendment to protect the Highway Fund. MGRA was the predecessor organization to MBTA.
Woodcock said that Maine was not alone in its fight to protect Highway Fund monies. Cash strapped states throughout the U.S. had been re-appropriating road funds, and the federal government was cracking down. “At that time, they were threatening states with withdrawing the funding if they used it for non-highway purposes,” said Woodcock. “There was this real concern that Maine would be seen as scofflaws and lose its transportation funding.”
The federal threat began to work, and by 1941, 11 states including New Hampshire already had passed constitutional amendments protecting road funds. In 1943, after four years of advocating, an amendment finally came to vote in the Maine Legislature. The debate was long, thoughtful and, at times, passionate. Those opposed to the amendment worried that it would tie the legislature’s hands in the case of an emergency. Those in favor argued that the legislature had little discipline in paying back those funds allocated for emergencies and that state roads had suffered for it. One of those arguing for the amendment was a rising political star from Gardiner, Representative Burton M. Cross. Cross later served as president of the Maine Senate and was elected governor in 1959.
He gave a fiery speech in the Maine House that is recorded in the legislature’s archives, chastising the legislature for its diversions:
When the thing was all over, the highway funds were short $800,000, and nobody could explain just why it was supposed to be paid back by the towns. However, the road funds have always been short to that extent. We did not have that money for the maintenance of roads, and the people knew it. I do not think any member who has ever been out in any group discussing roads since that time will be allowed to forget that $800,000. They saw it reflected in the maintenance of their roads, the dirt roads, the state roads, and the state aid roads. The money just wasn’t there for maintenance and the roads showed it. Consequently, I think that the public demand for this thing, even though you do not get letters from the individuals on this, is nevertheless there.
Cross made the point that by diverting money from the Highway Fund after passage of the citizens’ referendum, legislators had undermined the public trust.
[Maine voters] know they voted on it and they cannot understand why they should vote on it again. If it is necessary, I would be willing to gamble any money – and I am not much of a gambling man – that the vote would be at least eight to two in favor of this amendment if it is put to the people.
Cross’ words proved prophetic. A bill calling for a constitutional referendum finally passed in both houses, and the amendment went out to Maine voters on September 11, 1943. It passed with 139,805 voting in favor and just 33,172 voting against the constitutional amendment – an 8-to-2 margin.
Not even a constitutional amendment has been able to protect the Highway Fund, and today the debate about how much the Highway Fund should pay for state police operations remains an important constitutional test.
For Eaton Peabody’s Woodcock, the issue is a philosophical one that has resounding implications for the people’s trust in state government. “This is a conscious departure from the constitution, and that has a corrosive quality,” said Woodcock. “The problem is that over the long term, it undermines public confidence in user fees like the gas tax.”
For others, the constitutional imperative is made all the more compelling by a looming $150 million annual transportation funding deficit.
“Maine can’t afford to let this continue now any more than we could in 1944,” said the MBTA’s Hermann, who noted that the diversions re-present tens of millions of dollars over the past decade.
Said Hermann: “That is money we should be spending to make our roads and bridges safer, and we know that citizens expect our gas taxes to be spent the way they were intended.”
The Constitutional Question
Advocates say, as highway and bridge funding grows scarce, it will be important to heed the constitutional imperative if Maine is to have a safe, efficient transportation system.
1944 Maine citizens pass Article IX, Section 19 of the Maine Constitution, protecting state Highway Fund revenues from being diverted to non-transportation uses.
2007 The Legislature’s Office of Program Evaluation and Government Accountability (OPEGA) issues findings that the Maine Highway Fund was paying for approximately 65 percent of Department of Public Safety operations while only 17-34 percent of department activities were transportation-related.
2007 State law is enacted (5 MRSA Section 1666) charging the governor with the task of reviewing data “quantifying the activities of the Department of Public Safety, Bureau of State Police that may be eligible for funding from the Highway Fund pursuant to the Constitution of Maine, Article IX, Section 19.”
2008 Review by the Maine Department of Public Safety found that just 33 percent of current State Police activities are traffic-related.
2013 Governor LePage releases proposed FY 2014-15 budget, reducing Department of Public Safety allocations from Highway Fund from 49 percent to 33 percent.
2013 In a budget hearing, State Police testify that 22-27 percent of state police time was spent on traffic-related activities in 2012.