By Dan Calabrese ——Bio and Archives--August 6, 2013
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Today, states and localities engineer most of their borrowing through what Briffault calls “non-debt debt,” a term for bonds designed to avoid legal restrictions on borrowing. For example, courts in some states have decided that when a state’s independent authorities issue bonds, that borrowing isn’t restricted by constitutional debt limits—even if taxpayers are ultimately on the hook for it. If a legislature takes on debt itself, that also doesn’t count against constitutional restrictions on borrowing, according to the judiciaries in some states. Briffault estimates that such evasions are responsible for three-quarters of state debt and two-thirds of municipal obligations incurred through bond offerings. The growth of this kind of borrowing helps explain why state and local debt outstanding from municipal securities has blasted from $2 trillion (in today’s dollars) in 2000 to nearly $3 trillion today—real growth of 50 percent in little over a decade.
Judges have proved especially eager to approve evasions of debt limits when they’re the ones demanding that states or localities spend money. Back in 2001, New Jersey’s activist supreme court mandated that the legislature embark on a project of building and refurbishing schools (see “The Court That Broke Jersey,” Winter 2012). To comply, Trenton lawmakers announced a plan to borrow $8.6 billion through a bond offering—a shockingly high sum. Taxpayer groups reacted with such outrage that officials knew that voters would never endorse the move. So the legislature decided to channel the borrowing through an independent authority. The taxpayer groups sued, but the state supreme court brushed their objections aside, arguing that a clear precedent existed for such borrowing. The state quickly burned through half of the borrowed money on patronage and inefficient construction practices, so it borrowed another $3.9 billion, again through the authority. Taxpayers, needless to say, will foot the bill.I see a fundamental threat to our entire system of government in all this. The political class wants to spend, period, with no restraints. When restraints are placed on their ability to spend, they find clever ways around them - often with the complicity of the judiciary - and the media do not call them on it because they are either a) too dumb to recognize what's going on; or b) ideologically in support of what's happening and thus disinclined to blow the whistle. The public keeps getting told that everything is fine, and that every promise that's been made can be kept, until one day it is no longer possible to hide the truth - and then you're Greece. Or Detroit. Or the United States of America, quite possibly at a point in the future that will arrive much sooner than anyone thinks. Someone had better start shining a spotlight on this. I don't think the mainstream media will, and few in the political class are inclined to do so. But if it doesn't happen, I am honestly not sure the American system of government will survive.
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