A fundamental flaw of debt limitations for state and local governments

Abstract

Debt limitations, though adopted with the noblest of intentions, have failed to reduce governmental borrowing because of the ease with which they can be circumvented. This article identifies a critical deficiency of debt limitations: the difficulty of developing a definition of debt that is broad enough to prevent governments from using subterfuges to increase borrowing capacity and yet is sufficiently narrow to enable them to carry out their assigned functions. It reviews the history of debt limitations and the judicial interpretations of them. It shows how courts have analyzed leases and other executory contracts that create debts so as to permit form to take precedence over economic substance.