Tax Profligation Challenged
By: Stan Ward
SQ 640 was perhaps the most prolific grass roots amendment ever to the Oklahoma Constitution. Following on the heels of HB1017, the so-called education reform act, SQ 640 coalesced civically minded citizens across the state. Underfunded in dollars, but with the fervor of religious zealots, taxpayers tired of bloated state government and tax increases every time the Democratic-dominated Legislature met, gave of their time, talent, and energy to change the Constitution to reflect the will of the people demanding fiscal responsibility.
Fortunately Oklahoma has a constitution that is widely admired by many, but cursed by the power brokers and seekers. Rooted and spanned in the Populism of the early 20th Century, it is unlike many states’ constitutions. Our Oklahoma Constitution makes clear the intent of the Founding Fathers that legislative power of this state is vested in we the people and that the Legislature has only that power to legislate that is expressly delegated to it. Article V, Section 1 of our Constitution further states: “The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.” Legislative powers are constitutionally reserved and retained by the people and exercised through the initiative and referendum processes as set forth in Article V, Section 2. So in the truest and legal sense the people of Oklahoma are an at large legislative body. As expected, professional politicians in the decade of the 1990's did not like to share power or reduce tax burdens. They fought an extremely well-financed fight to defeat SQ 640 and challenged repeatedly in the courts the right of the people to legislate through the initiative process. However, the will of the people expressed by their vote on this initiative petition prevailed in March, 1992. And for over twenty-five years the amended Article V, Section 33 of our Constitution has been the law of Oklahoma.
Most Oklahomans strongly concur with the statement that the power to tax is the power to destroy. That sentiment was evident in the passage of SQ 640. The people spoke in 1992 like they did in 1941 when they legislated through the referendum petition process Article X, Section 23 of the Oklahoma Constitution into law. This is the budget balancing amendment that unlike the federal version proscribes deficit spending. Our Legislature can only spend that which is appropriated. Thus the Legislature was reined in by we the people from profligate spending at a time when we were at the tail end of the Great Depression and the advent of WWII.
Without serious argument, Oklahomans possess this unique ability to legislate through the initiative and referendum processes. But it is not easy, quick, or economic to do so. The power brokers over the years have done all in their power to place the legislative power outside the constitutional reach of most citizens. At a cost of hundreds of thousands, if not millions of dollars, the initiative process has been made grossly burdensome to exercise.
A lot happened when the fabled Rip Van Winkle went to sleep. He awoke to a different world. Analogously, like Rip our Governor and Legislature apparently fell into a deep slumber in 2014 and 2015 and failed to realize that we are still a state largely dependent on an oil and gas economy. They failed to see the oncoming freight train and the effect a depressed oil and gas industry would have on the ability to appropriate revenue. As constrained by Article X, Section 23, the Legislature has now enacted other methods and means to go forward and raise revenue. Sadly, our leadership does not have the fortitude to cut expenses and downsize government in economic hard times. Instead the bromide is to raise revenues. However, a quarter of a century after SQ 640, the Legislative and executive branches controlled by the Republicans proposed a plethora of new taxes. With shocking disdain for the conventions of the Constitution and a public that voted Red in all 77 counties, the Legislature set about to circumvent Article V, Section 33 and raise revenues to offset an 878 million dollar deficit.
Article V, Section 33 is an easy amendment to read and understand. It has these restraints on raising revenues:
1. All revenue bills must originate in the House of Representatives;
2. No revenue bill can be passed during the last 5 days of the session;
3. All revenue bills must be passed by a 3/4's majority vote of the House of Representatives and Senate and approved by the Governor; and
4. No revenue bill can go into effect until after 90 days of the enactment.
This is really pretty simple to understand. But tax hogs, like swine, are rarely satiated. They have a huge appetite and regrettably chose to violate the clear language and intent of the Constitution. Court challenges now abound and it will be left to the Supreme Court to decide if this political chicanery will stand. Once again citizens have arisen to protect the sanctity of our Constitution from legislative and executive abuse and thank God that our system allows a constitutional right to access the courts for relief.
It is impossible to predict with total accuracy what any court will do, and the 640 cases are no exception. Lawyer-politicians in the Attorney General’s office are left with the daunting task of defending these revenue raising laws that facially violate Article V, Section 33 in multiple ways. But like the courageous lawyers who defended mass murderers Roger Dale Stafford and Timothy McVeigh, they have professional obligations to provide the best defense as possible. At the end of the day let’s just pray that there will be justice for all in our state’s highest court.
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