Legislature can trap Jindal in political no-win situation

Perhaps the Louisiana Legislature will double-dog dare Gov. Bobby Jindal on tobacco taxes, thereby forcing him into what could be a no-win position.

Boosted by a report recommending increasing tobacco taxes as a less-painful means by which to raise revenues for a budget scrounging for these, which might draw in as much as $275 million annually if hiking the cigarette tax to the level of most surrounding states, this option intrigues legislators. The Jindal Administration has consented to this deployment, but only if the revenue gets shunted to a pot that funds a special fee increase for residents paying tuition at colleges in an effort to induce revenue neutrality through a continually-shifting, if not convoluted, arrangement.

But legislators may not buy the abstruseness of this plan and may feel boldness coursing through their veins after they prevailed against Jindal four years ago on a renewal of a cigarette tax. Then, a bill by state Rep. Harold Ritchie (who personifies the alpha and omega of the issue by being both a smoker and funeral director) attempted to jack up the tax. As the 4-cent-a-pack tax rolled off and needed renewal, Jindal declared any next version, even if identical in measurement, was a new tax violating his standard of no new taxes not offset in tax cuts elsewhere. It passed but Jindal vetoed it and an effort to override it failed.

Undaunted, and having zipped it through the chambers relatively early in the session, Ritchie later was able to amend the bill’s essence onto an unrelated constitutional amendment allocating money from the state’s tobacco settlement, sending the measure of questionable but not challenged constitutionality to the voters who approved the strange beast, despite the silliness of enshrining a tax dedication into the Constitution. Now, atavistically Ritchie skipped the middleman this session and introduced HB 77, which jacks the cigarette tax to $1.18 per pack by amending the Constitution.

The bill relies upon the same reversion to stupidity, if not worse by not even bothering to dedicate the funds to some purpose reasonably related to the activity of smoking, of sticking a revenue-raising measure into the Constitution rather than by statute, undoubtedly for the same reason as in 2011 in that the governor cannot veto proposed amendments, as this seems does not link to an offset elsewhere in the Constitution. Yet the dynamics that ushered that previous measure past the Legislature aren’t the same, not just in failing to dedicate it to something related to costs to government from smoking, but also in lacking pairing with another and popular measure not increasing taxes in the proposal. Whether just a flat out tax cemented into public policy as a part of the Constitution can get the two-thirds approval required in each chamber to send it to the people is another matter, much less gaining popular assent.

And this raises another question: why not just go for the gusto and forget about the inelegance of putting taxes into the Constitution and the risk that the measure would meet defeat at the ballot box – and only helpful at first for the last six months of fiscal year 2016, for as written it could go into effect only after half the fiscal year had passed since it would not go to a vote before October, explaining why the amount that it is was chosen – and simply pass it by statute? After all, the same two-thirds majorities needed to get it on the ballot would pass it not only as a new tax as the Constitution demands, but would provide an override-proof margin in case, as seems in the offing, legislator sentiment discards the unwieldy tax credit for college idea.

If the Legislature strikes earlier, it would get a tobacco tax increase to Jindal well before the end of the session, negating his ability to cast a veto after the session’s end that would prevent a chance to override the veto without a veto session; again, the two-thirds vote to pass it likely can be recaptured. But if it failed, the amendment idea could be a fallback position.

Still, that next choice leaves the possibility of voter rejection, which if that happened would cause incredible problems as the budget would go out of balance by a couple of hundred million dollars with only six months to make deep cuts. So what the Legislature could do is dare Jindal to veto it after the session’s end by passing a similar or identical bill close to adjournment. If that happens, this leads to four distinctly unpalatable scenarios for Jindal.

If then the Legislature calls itself into a veto session, it could try to override, and if it failed once it may well fail again. Yet in the final analysis, even if that repeated, it can set itself up to create the same tough choices for Jindal

For the menu remains the same even without the calling of a veto session. He could be given the job of hatchet man to make cuts, with one option being use of the line-item veto and another or in combination with this using powers specified in the Constitution for him to exercise in these situations of deficit. However, if by then he had decided to run for president, whatever he does in this way may not look so good just months before the first primary elections. Or, lastly, he could try to fob that off on the Legislature by calling a special session to force it to come up with cuts. Yet the large majority of its members will be running for reelection, and they may decide there’s less electoral downside to trying to ram increased tobacco taxes through than in being tarred with unpopular spending cuts. So in this session they could simply pass another such increase and dare another veto. They also could do nothing, but politically it might look better if they kept trying in order to deflect blame.

The point is, the buck stops with the governor on both bills and cuts needed during a fiscal year when a deficit is recognized, and the Legislature, if a majority of its members have guts, it can put him in the position where he is the last man standing, having either to dole out potentially unpopular cuts – and some may prefer this over the tax hike because they feel it’s the only way to force fiscal, structural, or spending priority changes – or to swallow the tax increase.

So, regardless of the motivations to force him into a fight or flee posture, this could be done and may prove a more effective and certain strategy appealing to a broader set of motivations than by the amendment strategy. While these may serve legislators’ electoral needs, any of these outcomes could force Jindal, who has staked much of his political image on holding the line on taxes, to act in a disadvantageous way for his political future.