Suppose you sold a legal product that killed many of its users. And suppose that product constituted about one-fourth of your business income, if not more.
Suppose some people, convinced they could not make your product illegal, decided to tax it out of existence by making it too expensive for most of its users to use. You’d fight back, wouldn’t you? Their efforts could put you out of business. Sure, you’d fight them. And you’d win.
But they won’t go away. They try again and you win again. Then they try a third time and you win a third time. But they’re still out there and you’re tired of fighting them AND of spending the money it takes to fend them off.
What do you do?
Suppose you develop a plan.
Suppose you then go to people who can establish tax rates and who are always looking for any ways to make those tax rates lower for their constituents–or, at least, for some of their constituents–and you say, “Look, we can help you get there. We’ll scratch your back and you can scratch ours.”
Suppose you say, “We’ll agree to a tax increase. We’ll decide how much it should be. It should be enough to show that we’re good guys but it shouldn’t be enough to hurt our businesses, especially the business we get from all of the eight states around us that have higher taxes on the product we sell that kills many of its users. You can take the money those higher taxes raise and lower other taxes, something that will make your constituents love you. Some of the people who buy our sometimes deadly products might grumble a little bit and a few might quit buying the product but that’s okay.”
“That sounds like a super idea,” say the tax setters.
Suppose you then say, “Here is what we want in return. We want a poison pill inserted in this plan that will keep those pests away who keep circulating petitions to jack up taxes so high that we are the ones who will get killed, economically speaking of course.”
“Keep talking,” say the tax setters. Nobody says, “What?!!”
“Okay,” you say, “Here’s the deal. We want you to say that the tax that we decide is just splendid is perfectly fine with you, too, and if anybody wants to increase it, they face the possibility that they might wind up wiping out that splendid tax increase. We’re tired of citizens exercising their free right to petition their government. They need to risk a penalty if they do that. In the event an initiative petition is placed on the ballot, at that point in time whatever tax increase we have done legislatively would immediately reset to zero and the initiative petition folks would be starting at the current rate of seventeen cents a pack for their tax increase. That means, of course, that if we beat them again, their effort will have LOWERED the cigarette tax and it will stay at that level indefinitely.”
Now, suppose you tell them, “I’m being quite honest. My ultimate goal is to take legislative control of this issue and hopefully keep the initiative petitions of the future at bay.”
Suppose nobody on the committee raises any kind of question about the U. S. Constitution’s First Amendment guarantee that “Congress shall make no law respecting…the right of the people…to petition the Government for a redress of grievance,” or the Missouri Constitution’s Bill of Rights that says “The people have the right…to apply to those invested with the powers of government for redress of grievances by petition or remonstrance.”
Suppose nobody on the committee suggests that a poison pill penalty for exercising the right of petition appears to fly in the face of the state and federal constitutions. A right that incurs a penalty for its use is not a right.
Suppose nobody on the committee questions the propriety of letting an industry dictate to the state what taxes it will collect.
Don’t suppose any of the scenarios we have described could not happen in the Missouri Capitol. It did happen–last Thursday morning–although only a couple of pieces of the conversations are direct quotes from the event. This is a real proposal. It is before a real state senate committee.
Understand that the proponents of this package are doing nothing improper in advocating for their industry. Reporters of government at all levels see this kind of thing happening all the time—and all of us are part of one or more special interest groups that advocate for us. Nor is there anything improper in the sponsor’s desire to find another way to lower taxes.
Nor might there be anything improper in the filing of a lawsuit challenging this plan if it becomes state law, testing whether the creation of a penalty for exercising a right of citizenship is a limitation on that right, not to speak of being a possible violation of the oath of office to uphold the state and federal constitutions.
The Missourinet will be in the courtroom when that lawsuit is heard—just as it was in Senate Committee Room One at the Capitol last week when Senate Bill 220 was explained to the Senate General Laws Committee.
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