Lawmakers’ own words key to revenue challenges

REVENUE measures passed by the Legislature are being challenged in court left and right. Lawmakers have been accused of playing word games and pretending measures that increase revenue are not “revenue measures” subject to constitutional restrictions.

What’s astounding is how often challengers are directly quoting lawmakers’ own public statements to make the case that the politicians were well aware their actions violated the state constitution.

That document requires that revenue measures must originate in the House of Representatives, cannot pass in the final five days of the legislative session, and must receive the support of three-fourths of the members in both the House and the Senate to become law. Several revenue measures approved in this year’s session appear to violate at least one of those restrictions, and often more.

Take the cigarette “cessation fee” of $1.50 per pack. That measure has been challenged by tobacco manufacturers and wholesalers. Their lawsuit notes the Legislature tried and failed on multiple occasions to pass a $1.50-per-pack tax. Then, in the final days of session, the same basic proposal was resurrected as a “fee” in Senate Bill 845 and described as a health measure.

But the lawsuit notes the “fee” did not originate in a health committee, but in the appropriations committee, a sign lawmakers were looking for revenue, not health benefits.

During debate, the lawsuit notes, House Appropriations and Budget Chairwoman Leslie Osborn, R-Mustang, referred to previous cigarette tax bills as SB 845 “in its former form.” Asked why the measure was now a fee and not a tax, Osborn replied that calling the measure a fee was “the only way we could do it” and that lawmakers “had to be rather creative.”

Fee revenue is supposed to go to support specific activities. Thus, a smoking cessation fee would go to smoking-related health expenses. But during Senate debate, the lawsuit notes, legislators “confirmed that the vast majority of SB 845’s revenues would not be dedicated to smoking-related costs.”

Lawmakers’ public comments are also highlighted in a lawsuit filed by Gary Richardson, a Republican candidate for governor who has challenged several measures raising revenue.

House Bill 2348 ends the practice of adjusting Oklahoma’s standard deduction for inflation, which effectively increases citizens’ income tax burden every year despite technically leaving rates unchanged. Richardson’s lawsuit notes Rep. Lewis Moore, R-Edmond, carried the bill on the House floor, and was asked directly if the bill was a revenue measure. Moore responded that he didn’t believe HB 2348 was a new tax; it just “changes the tax.”

Richardson also points to other apparently selfcontradictory comments made by lawmakers when advancing House Bill 2433, which imposed a new sales tax on car purchases.

Oklahoma courts have not historically relied on “legislative intent” when reviewing challenges to state laws. This is based in part on the fact that what politicians say and the real reasons for their actions can be two different things.

Still, it’s telling that Oklahoma lawmakers’ strategy for defending these revenue measures in court relies, in part, on convincing judges that they shouldn’t take seriously anything those same lawmakers say.