Special session: 'Insanity is putting the same thing up over and over again, knowing it will fail'

Tuesday’s actions set up a floor vote in the House as soon as Wednesday, but passage is far from certain. The bill will require 76 of the current 100 votes in the House and has significant opposition in both parties.

“The votes, when this comes to the floor, … are not there,” said Rep. Eric Proctor, D-Tulsa. “Insanity is putting the same thing up over and over again, knowing it will fail.”

The special session that began Monday became necessary when the Oklahoma Supreme Court ruled in August that the process by which the $1.50 per pack cigarette levy was approved during the regular legislative session violated the state constitution.

New taxes need a supermajority of votes to pass the Legislature, and attempts last spring to get the required 76 House votes for a cigarette tax failed, causing leadership to present it as a “fee,” which, since it is not labeled a tax, would require only 51 votes. The state Supreme Court didn’t buy the distinction.

House Bill 1099 again proposes the levy as a tax, which would require 76 votes in the House and 36 in the Senate. On Tuesday it passed the House Joint Committee on Appropriations and Budget by a 19-9 vote and the corresponding Senate committee 10-2.

Senate Minority Leader John Sparks, D-Norman, said he was concerned that the House would pass the cigarette tax and gavel out of special session without passing additional revenue-raising measures.

Sparks, who cast one of the dissenting votes, said he preferred to vote on a package deal rather than on one item.

He said he thought the committee was playing “a bit of chicken” by letting this go.

Committee Chairwoman Kim David, R-Porter, said the Senate wants a package deal with recurring revenue to create stability.

If the cigarette tax is the only thing that is passed, lawmakers will have to make targeted cuts to state agencies, David said.

Sen. Dan Newberry, R-Tulsa, said he was concerned that the measure would give tribal smoke shops an unfair advantage, but he said he was voting for the measure to continue the discussion.

Under compacts with tribal government, tribal smoke shops collect state tobacco taxes but a portion of that — generally 50 percent — is rebated to the tribes. Nontribal retailers fear that those rebates will be used to subsidize smoke shop operators, thus allowing them to cut prices.

Senate Republicans don’t need any Democrats to get to 36 votes, but House leadership does — especially since a sizable faction of House Republicans oppose just about any tax increase at all.

“I don’t believe in raising taxes,” said Rep. John Bennett, R-Sallisaw, one of four Republicans to vote against the bill in committee Tuesday. “This tax will drive my constituents five miles into Arkansas to buy cigarettes and other items.”

“There is waste in government,” he said. “Let’s hold these agencies accountable, make sure they cannot cut anywhere else, and then send (this) to vote of the people.”

Committee Chairman Kevin Wallace, R-Wellston, said polling shows strong support for the tax and said Democrats are too inflexible.

Even if approved, the cigarette tax could not take affect until late December or early January, meaning net receipts are expected to be only about $120 million.

The remaining $95 million would have to come from other sources.

Senate Republicans have proposed a 6 cent per gallon hike in the motor fuel tax and have proposed excluding wind turbine construction from the sales tax exemption given manufacturers.

House Republicans want to use carryover and the constitutional reserve fund, known as the “rainy-day fund,” to make up the difference.

House Democrats, who voted 5-2 against the cigarette tax in Tuesday’s committee meeting, say they favor it only as part of a package that includes an increase in the gross production tax or an increase in the income tax for high earners.