State budget sitting on shaky constitutional foundations (Capitol Update)

Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1991. He currently practices law in Tulsa and represents clients at the Capitol.

Wow! I admit I never saw this coming. When the legislature returned for its last week of regular session, I thought members would quickly come to some sort of revenue and budget agreement to at least keep the state going, if not to fix our fiscal dilemma. I thought that because I know there are enough people of good will in the House and Senate, both Republicans and Democrats, who understand the situation and want to make things work. Apparently, they tried briefly on Monday to do that, and then the governor and legislative leadership decided to move on into troubled legal waters.

If you’re looking for a silver lining, the bright side of this is that, even in the face of a fiscal crisis, Republican legislative leaders decided not to proceed with alarming budget cuts to state agencies, most of whom — from education to corrections — are already unable to responsibly fulfill their duties to the public. But my fear, and prediction, is that the relief of the fiscal crisis is only temporary and will soon be replaced with both a fiscal and constitutional crisis. Legislative leaders, with the active collusion of the governor, decided to simply interpret away State Question 640. I don’t like SQ 640. I didn’t vote for it when it passed a vote of the people, and I regret that it passed. But, for the love of Life, it is now Article V Section 33 of the Oklahoma Constitution!

It’s hard to know exactly what are next steps because the future is in the control of those whose taxes were raised and the courts. Will the tobacco and automobile industries, and perhaps others, file suit, and what form will those actions take? How quickly will they be resolved, and what will happen with the revenue in the meantime and afterward? No one can really count on this budget surviving, and as grateful as one might be for the effort, if you believe in the rule of law and constitutional government, it’s hard to root for a positive outcome. If lawsuits are filed, which is probable, the best outcome would be original jurisdiction by the Supreme Court and a quick decision before irreparable harm occurs.

Tobacco manufacturers and sellers fought for the past two sessions a $1.50 per pack cigarette tax increase, and then in the last 5 days of session the $1.50 “tax” became a $1.50 “fee” with the revenue earmarked essentially to the same place as the tax was to go. The bill started in the Senate and was passed the last day of session in the House with a simple majority rather than the ¾ majority required by Article V, Section 33. It’s difficult to see how this survives. And, parenthetically, I’m wondering if it will produce the $275 million expected since the House failed to pass the emergency clause.

And, to me, the auto industry has an even greater grievance than do the smokers. There wasn’t a whisper of a new sales tax on the purchase of new and used cars until the last 4 days of session. Then, a “committee substitute” in the Joint Committee on Appropriations and Budget produced a 1.25 percent sales tax on vehicles that was passed in both chambers with less than a ¾ vote. There was little time for debate, consideration of consequences or reaction from the public. This is likely why the Constitution prohibits revenue bills in the last 5 days of session, which as I recall is a prohibition that precedes SQ 640. It would probably be a smart thing, when everyone catches their breath, for the governor and leadership to begin figuring out what they are going to do when this thing falls apart.

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Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

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