The Loophole in Grover Norquist's Anti-Tax Pledge

Republicans wondering if they'll violate it if they allow some of the Bush tax cuts to expire should read the fine print.

Americans for Tax Reform President Grover Norquist holds up a copy of his organization's anti-tax pledge. (Jonathan Ernst/Reuters)

Grover Norquist is once again a subject of controversy. His 20-year-old Taxpayer Protection Pledge is being rejected by more Republicans than ever before, and in the GOP-controlled House only 219 members continue to support it. Recent reporting would have you believe he's being snubbed left and right as the prospect of a fiscal cliff looms over negotiations over the sun-setting of the Bush tax cuts and sequestration-driven automatic budgets cuts.

In truth, the Americans for Tax Reform pledge is one of the most widely misunderstood promises in Washington. While members of Congress like Sen. Lindsey Graham and Rep. Peter King have explicitly signaled a willingness to "violate the pledge" as part of getting to a grand bargain that also includes entitlement reform, in reality, it's incredibly unlikely that we'll see Republicans voting for true tax hikes in any form.

That's because no matter what politicians like Graham, John McCain and Saxby Chambliss are saying now, the way Americans for Tax Reform defines a tax hike is flexible enough to leave today's congressional Republicans with plenty of wiggle room.

A promise to oppose tax increases sounds simple enough, but it gets far more difficult to define in our complex modern legislative environment. As president of the anti-tax Americans for Tax Reform, Norquist has for decades pushed politicians running for office to sign the group's pledge saying that they'll fight to prevent tax increases if elected. ATR touts these candidates around the country as solid anti-tax advocates and promotes its own work with politicians who are pledge signatories. As ATR describes it: "The idea of the pledge is simple enough: Make them put their no-new-taxes rhetoric in writing."

Signatories of the Taxpayer Protection Pledge promise that in Congress they will "oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses, and ... oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates."

But there's an important twist: ATR uses a current-law baseline for defining a tax increase. So if no action at all is taken on the expiring Bush tax cuts, the pledge would not be violated.

How is that possible, you say? It's easy -- and a necessary part of the pledge. If the expiration of temporary tax cuts counted against a legislator as a tax increase, then the very existence of a temporary tax cut would violate the ATR Pledge. And so would the act of voting for such a temporary measure. Only permanent cuts would count as an anti-tax position, since a vote for a tax cut that sunsets is also vote for taxes to go up again at some future date. That would mean that everyone in Congress who voted for the Bush tax cuts has also already voted for a tax increase. As well, depending on how long it takes for cuts to sunset, counting the end of a temporary cut against legislators could awkwardly hold new members of Congress accountable for something they weren't around to vote for in the first place, where the cuts were marked as a decrease. Taking an absolutist view on temporary cuts would rapidly make the whole pledge untenable.

"Not continuing a tax cut is not technically a tax increase," Norquist told the Washington Post editorial board last year. The waters get muddy, however, when it comes to the distinction between what counts when it comes to the pledge -- and what the ideal-world policies pushed by Americans for Tax Reform are. Norquist clarified later that even though "There are certain things you can do technically and not violate the pledge.... Let me be clear, Americans for Tax Reform would oppose any effort to weaken, reduce or not continue the 2001, 2003 Bush tax cuts." To summarize: Allowing the expiration of the Bush tax cuts would not count as an affirmative effort to hike taxes or a violation of the pledge, but Norquist and Americans for Tax Reform still don't want that to happen.

This technical out means that a negotiated tax reform package merely has to keep taxes below the revenue baseline that's established by the full expiration of both the Bush tax cuts and the Obama-era temporary payroll tax cut in order to satisfy the letter of Taxpayer Protection Pledge. The full expiration of these tax cuts would see tax revenues rise higher than even what President Obama's budget expects, because Obama would like to keep the tax cuts for the middle class. To satisfy the pledge, tax revenue merely has to be held below the historically-high levels that would occur in the event of full expiration for all income levels. That makes it nearly inconceivable that Republicans will actually violate their anti-tax pledge -- despite their own widespread misunderstanding about what it is they've actually signed.

As Norquist said at the Washington Ideas Forum, "the pledge is to the American people, not to me." This is why there could be a discrepancy between what the Taxpayer Protection Pledge actually commits them to and what Americans for Tax Reform advocates for. And this is why Sens. McCain, Graham and Chambliss wouldn't be a violating the pledge if they vote for a tax reform package that includes allowing tax rates for the wealthy to return to Clinton-era levels.

Norquist's discussion with Chuck Todd at the Washington Ideas Forum was illuminating. In a closing exchange, Todd asked, "If Republicans agree to a tax reform that has Mitt Romney paying more in taxes, is that a violation of your pledge?"

"No," Norquist responded. What he wants, he clarified, is "no tax increase overall."

Representatives from Americans for Tax Reform declined to comment for this story.