Courts, people may stop newly merged tax, TOPS bill

House Speaker Jim Tucker never quite has gotten beyond his days as an opposition leader in the Louisiana House of Representatives willing to gum things up for the majority, and the spanner he helped toss into the works of Gov. Bobby Jindal’s legislative preferences might prevent legislation that he wants and the governor doesn’t as well as legislation they both want from coming to fruition.

Jindal had argued all session that he would not support any new taxes or increases in any form, so when he vetoed HB 591 by state Rep. Harold Ritchie, which would establish a 4 cents-a-pack tax on cigarettes starting in fiscal year 2013 after expiration of a previous like tax, technically he behaved consistently: the old tax would expire, proposed to be replaced by a new one. But given that majorities of nearly two-thirds of each chamber supported it, and likely also enjoyed a majority of public support, legislators were not amused even if not enough of them were willing to back a tax to override the veto.

But sometime after the failed veto override attempt, somebody got the idea to attach the essence of the bill to SB 53 by state Sen. John Alario that would siphon money more quickly from the Millennium Trust Fund to support the Taylor Opportunity Program for Scholars. This constitutional amendment required two-thirds approval in each chamber and is not subject to gubernatorial review. Requiring only a majority to agree, he got it and then easily the two-thirds margin to send it back to the Senate, where Alario is uncertain whether he will try to strip the bill of the taxation rider.

A lot of careful thinking did not go into this tactic. It obviously came to mind late, because had thinking ahead occurred on the tax matter, Tucker never would have let come up the override vote and gone directly instead to this tactic. By letting it happen, he forced 11 members to switch from approving HB 591 to voting against its override – a vote that could be difficult for some to explain for future elections and thereby not earning Tucker many friends from that group for any future political ambitions he may have.

It also may be unconstitutional. Art. XIII Sec. 1 of the Constitution sets out parameters for constitutional amendments, which states that they “shall be confined to one object.” Tying together revenue enhancement by a tax on tobacco to go to one fund and how tobacco suit settlement money in another fund entirely unrelated to that tax gets spent is quite a stretch, regardless of any ruling made during floor debate to consider it as germane. Any party, as soon as certification by the Secretary of State occurs, could challenge the amendment in court and the judiciary could invalidate it on this basis before it even gets to a vote by the people, a majority of whom must approve of it in any event.

That public approval also seems by no means certain, if it gets that far. While in general the last snapshots of public opinion had a majority favoring the idea of an increase in tobacco taxes, and probably a majority of the public would not be so exercised as to vote down little more than a technical change in the use of funds designed for education, the constitutionally questionable end result, the way in which it was done that appears subversive, and that it doesn’t seem that wise to lock a very specific tax permanently (without an amendment to repeal) into the Constitution all together may generate enough opposition to send that kind of amendment down to defeat.

Tucker claims he had to infect the bill with the tax in order to save it, because only that way he said could it pick up enough votes to pass the two-thirds threshold. Whether this is true is another matter but, if so, it may have signed the death warrant for the TOPS portion, which now can be stopped by the Senate, courts, or people where prior to its alteration none appeared to be an obstacle. Regardless of whether Tucker’s motive actually was pique at Jindal for acing him out on HB 591, the plague of defeat has spread from one certain casualty to another apparently healthy bill in the hopes the strength of the latter can sustain the weakness of the former and both succeed. Instead, it may have killed both. As it deals with the aftermath, the Senate needs to consider these issues.