Land of the Free and the Home of the Brave?

by Tom Yamachika, President, Tax Foundation Hawaii

Here in Hawaii, people like me often complain about lack of transparency, government overreach, and similar issues.  But think about it.  Does our government overreach?  Yes.  Why does it do that?  Because we let them.

Part of our culture here is to do anything we can to get along.  Let things slide.  Let bygones be bygones.  And we get taken advantage of.

Remember back in 2015 when the Foundation filed its “Stop the Skim” lawsuit against the State because the State was scooping 10% of the Honolulu Rail surcharge?  The City & County of Honolulu was being hurt but didn’t take action.  Other private businesses were being hurt but didn’t take action.  When we filed suit, we faced court hearings where the State’s attorneys were sneering, “Judge, obviously there’s nothing here.  This surcharge has been in place for a decade.  Why hasn’t the City challenged it?  Why hasn’t any other taxpayer challenged it?  Why didn’t the Foundation challenge it in the last ten years if it was so bad?”

The Foundation pressed ahead anyway.  We lost the suit in 2019, but in 2017 lawmakers changed the amount of the surcharge skim from 10% to 1%.  Taxpayers emerge victorious!

Now, we are in the age of the pandemic, with the Governor flexing his emergency powers to suspend all kinds of laws on the books.  One thing he did about a year ago, which we wrote about here, is that he completely stopped sharing the Transient Accommodations Tax with the counties even though the Hawaii Constitution and the law provided for the sharing.  With tourist arrivals through the floor, there wasn’t a lot of TAT to go around anyway, but a small trickle is still more than a big fat zero.  We suggested that this was government overreach.  The counties were being hurt, and what did the confiscation of TAT money have to do with our emergency?  I was waiting for one of the counties to sue, and then argue to our Judiciary that the Governor went too far.

I’m still waiting.  It’s been a year.

What happens if the Foundation sues?  Then the State will go to court saying, “Judge, this pipsqueak foundation is just screeching in the wilderness.  This is really a matter between the State and the counties, and if none of the counties are willing to man up then this matter doesn’t belong in court.”  At least when we challenged the rail skim, we were paying some GET so we could show a connection between us and the dispute.  This one does seem to be a dispute only between the State and the counties, and it’s tougher to justify the Foundation’s standing to sue.

Will the counties sue?  Nah!  At the county government level, we all want to get along.  Let bygones be bygones.  Besides, if a particular county makes noise, won’t it be squashed flatter than a pancake the next time the Legislature meets?

What happened to “Land of the Free and Home of the Brave”?  Battles are fought all the time to keep freedom alive.  And the battles of today don’t use muskets and sabers.  Some of them are in the courtroom.  Others are in the court of public opinion. 

Although sometimes I groan when I hear of lawsuits or other antics of activist groups, I give them credit for getting off their duffs and doing something to remedy injustice. 

Not all of us were meant to be the gladiators.  For those of us who aren’t, there are other ways to show bravery.  Complain about government oppression or overreach to a legislator.  Tell an organization that does gladiator work that you appreciate their battle.  Maybe send a few dollars their way so they can keep up the good fight. 

But don’t just sit back and let yourself be stomped on.  Our Founding Fathers didn’t.  They endured ridicule and violent opposition.  They shed blood.  And they formed what we sing about as the Land of the Free and Home of the Brave.