Republican responses to tobacco fee/tax spike illustrate party divisions

From Oklahoma conservatives at the state Capitol in Oklahoma City — all around the Sooner State, in fact – first-wave responses to last week’s widely anticipated state Supreme Court decision axing a tobacco tax levy were all over the proverbial map.
While the state’s chief executive and her legislative allies expressed disappointment in the ruling, many GOP critics of the process used to enact the levy, as well as the substance of the measure, applauded the judicial ruling. Some comments reflected political positioning in advance of next year’s campaign season. 
This CapitolBeatOK report focuses on the diverse reactions among the state’s Republican leaders.

On August 10, in rapid response to the state High Court, concerning what her staff press release called “a smoking cessation fee approved this past legislative session,” Governor Mary Fallin sent this statement to CapitolBeatOK and other news organizations:
“I am disappointed to hear the Supreme Court struck down the smoking cessation fee, but I certainly respect the justices’ authority. I will be discussing with legislative leaders from both parties the need to address the $215 million shortfall this will create for the Department of Human Services, the Department of Mental Health and Substance Abuse Services and the Oklahoma Health Care Authority, the three agencies that received the bulk of the money that was to be generated by the cessation fee.
“These agencies and the people they serve cannot sustain the kind of cuts that will occur if we do not find a solution. My belief is we will have to come into special session to address this issue.”
The stricken measure was Senate Bill 845 (
Senate Bill 860, the General Appropriations bill, appropriated the second portion of revenue that would have been generated from the smoking cessation tax (deemed a “fee” by advocates) to these entities in the following amounts:

Oklahoma Health Care Authority would have received $70 million (about 7 percent of its total appropriation).
The Department of Mental Health and Substance Abuse Services would have received $75 million (about 23 percent of its total appropriation).
The Department of Human Services would have received $69 million (about 10 percent of its total appropriation).

As the Fallin release stated, “With the tobacco cessation measure struck down, and without other legislative intervention, those agencies receiving apportionments or appropriations outlined above will not get these funds.”
Senate Bill 845 directed that the revenue in question it would be apportioned as follows:
The first $1 million deposited to the ABLE Commission Revolving Fund, then:
All amounts in excess of $1 million to the Health Care Enhancement Fund.

In its ruling, crafted by Justice Patrick Wyrick (newest member of the Court), a unanimous majority opined: 
“If this quintessential excise tax can be transformed into a fee merely by calling it a fee and adding some regulatory gloss to the measure enacting it, then the promise of Article V, Section 33 – a promise made to citizens in 1992 when they went to the polls and enacted the amended version – will be an empty one. The ‘tax relief’ to be expected from the requirement that all ‘future bills “intended to raise revenue” . . . be approved by either a vote of the people or a three-fourths majority in both houses of the Legislature’ will have been illusory. And that, we think, would be an abject failure to carry out ‘the manifest purpose of the framers and the people who adopted it.'”

Forceful applause for the judicial ruling came from Gary Richardson, a former U.S. Attorney who this year is seeking the Republican nomination for the 2018 governor’s race. Concerning the demise of the $1.50 per pack revenue-enhancer, Richardson said: 
“We are encouraged by the Supreme Court upholding the intent of SQ 640, which was passed by the voters in 1992 to require either a super-majority of the legislature to raise revenue or send the measure to a vote of the people. We were fully supportive of this challenge as it violates Article 2, Section 33 of the Oklahoma Constitution just like the three bills I challenged in court.”
In his statement sent to journalists around the state, Richardson said: “It is heartening to see the Supreme Court bring clarity to this issue. We hope that Supreme Court will view our challenges to the car sales tax, electric and hybrid vehicle fees, and the decoupling of the standard deduction through the same lens when they release their decision on the other challenges to the revenue-raising measures.”
Lt. Gov. Todd Lamb, a leading GOP candidate for the state’s top political job, commented: “I am not surprised by the court’s ruling regarding the cigarette fee measure as I believe it contradicts the intent of SQ 640.
“With the ruling, the legislature must now focus first and foremost on identifying existing state funds to allocate to the healthcare-related programs that were scheduled to receive appropriations from the cigarette fee measure. It is my belief this can be done without drastic cuts to agencies. State government can and must operate more efficiently, and this ruling provides an excellent opportunity to start that process.” Lamb broke with Gov. Fallin early in the legislative session, when he stepped down from her Executive Cabinet because he disagreed with her advocacy of a wide range of tax increases.
State Rep. Josh Cockroft, R-Wanette, said in an online post after the Court decision: “While I don’t personally agree with the ruling, I do have some observations: 1 – I am not a lawyer. I am a pastor and legislator. 2 – I completely respect the Court’s responsibility to check and balance the other branches of government. 3 – Should the legislature head to special session, I will continue to fight vigorously as I have always done to properly fund core services, seek efficiencies, and eliminate waste.”

David van Risseghem, who runs a highly-trafficked political site (Sooner Politics) wrote: “I was offended at the arrogance of the legislative leaders, in pushing unconstitutional taxes. But I am disgusted with the insolence of those who will not take correction and humbly learn from their errors; and apologize to the people for such dangerous actions and waste of public resources.
“It’s time for Josh Cockroft and the rest of the leadership to repent or be replaced by more trusted conservatives. House Republicans have got to have leadership they can trust. This team needs to admit their mistakes.” 
On August 11, state Rep. Mark McBride, R-Moore, went directly to the Sooner Politics blog to post, “I’ve read many of your posts over the last few days and felt that I should give a response.” Encouraging readers to contact him with their views, McBride reflected, “It looks like we will be going into special session , I know many of you are strong Christians and I would ask that you lift us up in prayer, ask God to give us the wisdom we need to govern and do right by the people of Oklahoma. There are a lot of good men and women in the legislature. Let’s not eat our own but try to work together. …”

In a House staff press release, Speaker of the House Charles McCall, R-Atoka, commented this way on the Court’s ruling: 
“The Court has made their ruling and now it is up to the Governor and legislative leaders to agree on the best course of action moving forward.
“It is important to remember that the reason our budget has been suffering is because Oklahoma families and businesses have been struggling. State revenues are a reflection of the people of our
state. When our citizens have less money in their pockets to spend the state will realize less revenues. I am a firm believer that government must live within its means.
“The tobacco fee for health care was passed in an effort to avoid significant budget cuts. After House Democrats refused time and again to support increased revenue measures, the fee was our only opportunity to balance the budget without deeper cuts. The minority party decided to play games with the budget, and now that opportunity has passed.
“I look forward to working with the Governor and the Senate to overcome this latest challenge.”
Note: Editor Pat McGuigan contributed to this report.