Will new state budget skirt law meant to protect transportation money?

Year after year the state budget has diverted money meant for transportation to pay the bills. It’s a good bet the fiscal 2027 budget will do it again.

Illinois’ sales tax on gas is supposed to go into a “lockbox” for transportation, but lawmakers aren’t adhering to that mandate.

For years the state has diverted sales tax revenue on gasoline to fill gaps in the budget, arguably violating the transportation fund lockbox provision in the Illinois Constitution.

Lawmakers show no signs of changing course.

In 2016 Illinoisans overwhelmingly passed the “lockbox” constitutional amendment to prevent transportation-related revenues from going to non-transportation expenses. Article IX, Section 11(a) reads:

No moneys, including bond proceeds, derived from taxes, fees, excises, or license taxes relating to registration, title, or operation or use of vehicles, or related to the use of highways, roads, streets, bridges, mass transit, intercity passenger rail, ports, airports, or to fuels used for propelling vehicles, or derived from taxes, fees, excises, or license taxes relating to any other transportation infrastructure or transportation operation, shall be expended for purposes other than as provided in subsections (b) and (c). (Emphasis added)

Subsections (b) and (c) list what the money may be used for, including costs for construction, maintenance, repair and improvement of roads, rail or airports and the costs for administering transportation-related laws.

Subsection (d) says the money can’t be diverted for other budget purposes:

None of the revenues described in subsection (a) of this Section shall, by transfer, offset, or otherwise, be diverted to any purpose other than those described in subsections (b) and (c) of this Section. (Emphasis added)

But in every single annual budget since the amendment passed, part of those revenues have gone to the State Treasury or the General Revenue Fund. Not until fiscal 2022 did the state dedicate even 20% of its share of the sales tax on gas to the Road Fund, with a plan to increase the percentage every year until 100% would go to the Road Fund by fiscal 2026.

Even those increases have been delayed — as the law stands, only 64% of those revenues are deposited into the Road Fund, shifting to 80% into the Transportation Fund and Downstate Transportation Fund beginning in fiscal 2027. Of the funds left over, one fourth goes into the Common School Fund and the other three-fourths go into the General Revenue Fund.

The state has labeled the held-back revenue “delayed transfers,” but that would indicate the money is eventually transferred into the lockbox. It’s not. It’s being used for other purposes, and it’s not clear from recent proposals from Gov. J.B. Pritzker whether the trend will continue.

Defenders of the practice may point to the 2016 ballot summary and lawmaker statements at the time supposedly contradicting the amendment, but it is the text of the amendment that matters.

And while courts will look to ballot summaries and legislative histories to interpret the text, that’s only if a law or amendment is ambiguous.

The text of the “lockbox” amendment is not ambiguous.

The Illinois Supreme Court previously ruled that the language “clearly demonstrates an intent by the drafters to encompass the entire swath of proceeds from taxes, fees, excises, and license taxes by using the … catchall language. Specifically, ‘any other’ means everything else not already listed.”

The court therefore found the amendment “plain and unambiguous.”

But for years the state has ignored the plain and unambiguous meaning of the words. Meanwhile, Illinois’ roads are rated worse than the national average, with the state seeing a relatively steady decline in road quality since 2015. Yet the General Assembly has continued to arguably unconstitutionally use gas sales tax revenue to close budget gaps.

When lawmakers finalize the budget this session, they should protect that money for transportation-related expenses, as the plain text of the Illinois Constitution requires.