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Roll Call

Boehner's Counteroffer Might Not Violate Tax Pledge

Bill Clark/CQ Roll Call

So, does Speaker John A. Boehner’s offer of $800 billion in new tax revenue violate his pledge not to raise taxes?

It’s part of a broader question that Americans for Tax Reform President Grover Norquist doesn’t like to talk about: Can a pledge-signer let taxes go up and still comply with the no-new-taxes pledge?

So far, Norquist hasn’t issued a ruling on the Boehner offer, but in the past, he has acknowledged that there are ways to let tax increases happen without falling afoul of the pledge — and Boehner’s offer could easily be interpreted as complying.

Norquist, in an interview on MSNBC on Tuesday, dodged whether Boehner’s offer violates the pledge.

“We really have to see it written down,” Norquist said. “You have to look at the whole package.”

Norquist, however, has tried to keep his pledge, and the rules for it, hazy. It’s not in his interest to point out its loopholes.

It seems like a paradox, but Norquist himself has held that allowing the Bush-era tax cuts, alternative minimum tax relief and other provisions to expire — and, in effect, jumping off the fiscal cliff — would not violate the pledge.

“If there were no vote in Congress and taxes rose automatically, then no politicians would have voted for higher taxes and no elected official would have broken his or her pledge,” Norquist wrote last year in The New York Times.

So, ironically, Republicans can allow what would be one of the biggest tax increases in American history by triggering the fiscal cliff without falling afoul of an anti-tax pledge.

That’s part of the thinking behind the suggestion earlier this year by Sen. Patty Murray, D-Wash., that Republicans would have an easier time cutting a tax deal after Jan. 1.

But there’s nothing magical about the Jan. 1 date. Temporary tax breaks expire all the time, and Norquist hasn’t labeled Republicans who failed to extend them as pledge breakers.

Why would that somehow apply to expiring tax breaks for the wealthy?

Turns out, there is precedent for letting tax breaks for the wealthy expire and still winning Norquist’s blessing. At the end of 2010, Republican lawmakers cut a deal that restored 2009-level estate tax rates in 2011 and 2012. In 2010, the estate tax rate was zero. Under the 2010 lame duck tax deal endorsed by Republican leadership, the estate tax rate rose from nothing to 35 percent. But the rate would have risen even higher without the deal.

That’s the kind of thinking behind Rep. Tom Cole’s reasoning in a recent Politico interview, when he suggested that House Republicans pass an extension of tax cuts for the middle class right away. The Oklahoma Republican contended that passing middle-class tax cuts now would not violate the pledge even if those for the wealthy separately expire, and Norquist has not disputed Cole’s assertion.

John Kartch, a spokesman for ATR, also declined to comment on what possible deals might violate the pledge.

“Doesn’t make any sense to get into hypotheticals,” he said in an email last week. “Right now ATR is focused on insisting that first, the negotiations over major legislation be broadcast on C-SPAN, as [President Barack] Obama promised in 2008, and second, any final legislation should be posted online for seven days so the American people can inspect it for themselves.”

Norquist has also said, in emails last year to Roll Call and an interview with National Journal, that offsetting tax relief for the AMT would not violate the pledge. And AMT relief just happens to cost roughly the same as the $800 billion that Boehner has offered — yet another way his offer could be seen as complying with the pledge.

Norquist has also written letters where he points to scores by the Joint Committee on Taxation as the arbiter of whether the pledge has been violated.

In a letter last year to “gang of six” Republican Sens. Michael D. Crapo of Idaho, Tom Coburn of Oklahoma and Saxby Chambliss of Georgia, Norquist pointed to the JCT scores as an arbiter.

Norquist spoke of “the Taxpayer Protection Pledge you made to your constituents and the American people to oppose and vote against legislated net income tax increases.  . . .  ‘Legislated tax increases’ mean (by definition) those tax hikes scored as such by the JCT.”

Under that definition, what Boehner is actually proposing is a tax cut on the order of more than $4 trillion, rather than an $800 billion tax increase. That’s because the cost of extending tax relief for a decade will be scored as a massive tax cut by the JCT.

The JCT scores tax changes relative to current law, not current policy.

Brendan Buck, a spokesman for Boehner, told Roll Call on Tuesday that Boehner’s staff has not talked to Norquist about the issue.

But he pointed to Boehner’s bottom line of preventing an increase in marginal tax rates.

“We’re not raising tax rates because we think it’s not good for jobs, not because of a pledge,” Buck said.

When pressed on MSNBC, Norquist went beyond whether a particular deal might comply technically with the pledge or not. What ultimately matters is what voters think, he said.

“The Republicans who have made that commitment to their constituents have to be able to look at their constituents and say, ‘I didn’t raise your taxes.’ That’s the key question you have to handle,” Norquist said. “At the end of the day, is it credible to say that you didn’t raise taxes or did you?  . . .  It has to pass the laugh test.”

Some other conservative activists and some Hill GOP aides believe Norquist will find a way to rule that any deal embraced by the bulk of the party complies with the pledge. Their theory is that Norquist’s perception of power comes from most Republicans toeing his line, and the minute the pledge spell is broken, Norquist’s hold will as well.

One conservative activist told Roll Call that Norquist’s pledge “has more holes in it than Swiss cheese” and predicted Norquist would find a way to back leadership.

Norquist went to great lengths to preserve the pledge’s near-perfect record last year, when the bulk of GOP senators voted for a Coburn amendment eliminating the ethanol tax credit. Norquist ruled that the amendment itself violated the pledge, but pledge signers were free to sign it if they also supported another amendment proposed by Sen. Jim DeMint, R-S.C., that included big tax cuts.

DeMint’s amendment, however, never came up for a vote.

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