OKLAHOMA CITY — With tobacco companies, vendors and smokers ready to take the state to court, lawmakers say they have been bracing for a lawsuit for weeks.
“I don’t know what else to say other than we warned you,” said Democratic Rep. Forrest Bennett. “We wish [Republicans] could have been negotiating in good faith with us so that we could have gotten good solutions before the final week of session but because of their inability to do that, here we are.”
The last week of session featured bickering at late-night committee meetings, as lawmakers raced to pass a budget in time to avoid a special session.
One of the bills passed during that time, a $1.50 per pack fee on cigarettes, is being challenged in the Oklahoma Supreme Court.
Senate Bill 845 “flagrantly violates…the Oklahoma Constitution,” attorney Robert McCampbell wrote in a petition to the court. “SB 845 is the Legislature’s single largest revenue bill of 2017. Yet SB 845 became law even though it originated in the Senate, passed on the final day of the legislative session, and secured bare legislative majorities.”
Lawmakers had to tiptoe around rules that make Oklahoma one of the most difficult states in which to increase taxes. All revenue-generating measures require a three-fourths supermajority in both houses to become law. They must pass before the final five days of session.
The cigarette fee is branded as such in an attempt to avoid classification as a revenue-generating bill, even though it’s estimated to fill more than $200 million worth of the state’s budget deficit.
“We spent as much time as we could warning the leadership that Constitutionally, they couldn’t pass revenue-raising bills in the last week of session,” Bennett said. “They chose to ‘legalese’ their way out of it. And we said we think people are going to catch on. They said just stop obstructing and do the right thing. We said we will end up in the courts, and here we are.”
Republican leadership acknowledged the legislation wasn’t pushed through in the ideal way, but emphasized the state needed revenue. Key members of the party told NewsChannel 4 the court would see it their way if challenged.
“We’re trying to follow both the spirit and the letter of the law of the Oklahoma Constitution,” Floor Leader Rep. Jon Echols told NewsChannel 4 last month.
Opponents dismissed the technique as “verbal hocus-pocus” in the lawsuit, noting the measure will hurt smokers, wholesalers and manufacturers.
“This court should reject the dangerous fiction that a tax is not a ‘bill to raise revenue’ if the Legislature labels the tax a ‘fee’ and slaps on a policy-oriented title and stated purpose,” McCampbell wrote. “The State now threatens to render the will of the people a nullity.”
Republican Sen. Ervin Yen, R-Oklahoma City, who voted for the bill, acknowledged he is not surprised to see a legal challenge either.
At the time, he said, supporting the bill felt like the only option.
“It’s a Catch 22,” he said. “Yes, I did vote for them knowing that they might end up going away but the other choice was to have no budget and go into special session and that just would have been stupid.”
The upsides of the bill — decreasing smoking while generating revenue — are enough for Yen to take the chance, he said.
“Surely in this building we have legal folks who look at these bills and tell leadership that if you pass this it’s going to go away when it’s challenged,” he said. “Or they say it’s going to be challenged but it will stick.”
In a statement, Gov. Mary Fallin told NewsChannel 4 she is confident the attorney general’s office is up to the task of defending the bill.
“It now is up to the state Supreme Court to decide the matter, and I hope the justices will deal with it expeditiously,” she wrote in the statement. “As we await the outcome of this matter, my office will continue to focus on ensuring state government operates in an efficient and effective manner.”