Which is better: Constitutional or unconstitutional? A tax cut now, later, or never?
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Published: 08-Jan-2014

OKLAHOMA CITY – In December, the state Supreme Court of Oklahoma struck down a state income tax cut on technical (and eminently “fix-able”) grounds.

To be fair to the High Court, a majority of the justices have repeatedly rebuffed legislative enactments that incorporated multiple issues.

A short side-bar: A notable decision along these lines came when the court slapped down a cluster of lawsuit reforms passed in 2009, because the tidal wave of reforms (largely laudable) were all tossed into a single bill.

It took some effort, but this summer the varied tort reforms were reenacted, as 23 separate laws, during a brief special session.

Back to the state income tax cut: In the spring regular session, the Legislature enacted H.B. 2062. Late in the deliberations and debate, the Senate included two matters – the tax cut and the separate issue of state capitol improvements – in the bill’s provisions.

There were immediate predictions the law would not withstand judicial scrutiny.

Not long after H.B. 2062 was signed into law, the all-but-sainted self-appointed lawyer gadfly and agitator, Jerry Fent of Oklahoma City, sued asking the justices to hold the measure unconstitutional.

While lawyerly, his core argument was not obscure: “The Bill makes a reduction of the personal income tax rate and also creates a new fund, the Oklahoma State Capitol Building Repair and Restoration Fund.”

A unanimous 9-0 majority rebuffed the arguments of Gov. Mary Fallin and state Treasurer Ken Miller, who asserted in legal briefs that the bill related “to the common scheme of managing and apportioning taxes and therefore constitutes but one subject.”

Dear reader, don’t let those eyes glaze over.

This is a matter of some importance, especially for those who believe words matter in things like judicial interpretation, as an aspect of respect for democratic governance. To be clear, this approach is conservative and principled, not activist and unprincipled.

The Oklahoma High Court has been clear: don’t logroll. “Logrolling” is the ancient but not venerable legislative tradition of throwing two or more subjects into a single bill, in order to attract the supporters of either while deterring opponents of either, the idea being “take it or leave it.” If you want a, you must also vote for b.

The primary problem with logrolling is a principled one. The Oklahoma Constitution requires that any statute’s provisions be related to a single subject.

As Justice James R. Winchester wrote for the Court last month, “Under this test, those voting on the law in question must be able to make a choice without being misled, and also must not be forced to make an all or nothing choice between two unrelated provisions contained in one measure.  The public is entitled to a clear picture of how their elected officials have voted on a particular issue.”

Combining the capitol restoration fund with an income tax reduction put the statute in question in violation of underlying state law, which requires that any law’s provisions must be on “a readily apparent common theme and purpose.”

I have become a fan of those ubiquitous AT&T advertisements, in which an “anchor” man sits with a group of four children. 

Whether rehearsed or not, they are memorable, enjoyable and effective.

In the spirit of those, I ask: “Which is better: constitutional or unconstitutional?” To which the chorus of children, with smiling justices in the background, reply, “Constitutional!”

Then comes the voice-over: “It's not complicated, it's unanimous. Single subject means single subject.”

To which the smart-ass conservative analyst – sympathetic to the policy objectives of the legislators, but taking the justices at their word -- might add soto voce this question to legislative craftsmen/women:

“What part of ‘single subject’ do you folks not understand?”

And then, back on the policy front, one more question:

“Which is best, a tax cut now, later, or never?”

To be clear, and not complicated, it’s simple: there is no serious legal, institutional or constitutional impediment standing in the way if the Legislature and the governor choose to lower the tax burden for Oklahoma taxpayers.

It’s not a lot different than one of rules I learned in my years of Boy and Girl Scout leadership: “Keep it Simple, Stupid.” One subject means one subject.

You may contact Pat at pmcguigan@watchdog.org 

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