Constitutional conundrums

Big tobacco arrived in Oregon this fall with a warning - Oregon's state constitution is in danger, and voters have to protect it.

This November, voters will decide whether Oregon should be the first state in the nation with a tobacco tax cemented in its constitution when they decide to approve or reject Measure 50, the state's ballot measure to increase the tax on a pack of cigarettes by 84.5 cents per pack to fund health insurance to uninsured children. But opponents warn such a tax will pollute the constitution and open up the flood gates to other taxes.

"It's the first of its kind, and it truly is a first in terms of setting a tax issue in the state constitution," said J.L. Wilson, spokesman for the Oregonians Against the Blank Check, an organization campaigning to defeat Measure 50. "If this passes, you've got to be prepared to face other taxes in the constitution because legislators will take the path of least resistance to get them passed."

However, the constitution was not the first place state legislators tried to pass the tax increase, and some have viewed Measure 50 as a last-ditch effort by assembly Democrats.

In the last legislative session, a bill version of this ballot measure failed because it did not have sufficient Republican support needed to pass.

However, state Democrats had a backup plan - the state constitution. Many legislators felt the goal of better children's healthcare was the most important issue, not how it was reached.

The last legislative session was coming to a close, and "we were not willing to leave the session without doing something on the child health care issues," said Russ Kelley, a spokesman for Democratic House Speaker Jeff Merkley. "We said 'We're running out of time here, and we have got to do something, so let's put it on the constitution.'"

While it may sound odd, statutes to raise revenue need a three-fifths vote of approval in both chambers to pass out of the legislature, but constitutional amendments only need a simple majority, or 51 percent, to pass.

"It probably sounds backwards ... but it's just one of those quirky things about the Oregon Constitution," Kelley said.

Democrats hold 18 of 30 seats in the Senate and 31 of 60 seats in the House, the exact simple-majority numbers they needed to put the issue to voters.

Now the campaign against the cigarette tax increase is flying under the banner of saving Oregon's constitution and not allowing politicians to meddle in the regality of the document.

One TV commercial shows two working-class people worried about a potential amendment while dropping the word "constitution" about every six seconds and flashing it on the screen twice. Another portrays a man who appears to be a nervous politician with a big 15-foot document in front of him that he is altering while looking over his back to see if anyone's watching.

But alterations to Oregon's constitution aren't really that rare of an occurrence. In 1902, voters decided to approve a system that makes it easier to amend the constitution, and in the past 105 years they have done so 240 times. The document has become a patchwork of articles strung together with revisions, amendments, petitions and initiatives - all adopted by the people.

Only two of these articles refer to taxes however, and both are only regulations on taxes, not increases. One refers to property tax limitations and the other dictates how fuel tax revenue can be spent.

"From what I understand, the Oregon constitution is quite a unique document," said Gene Borio, co-founder of the group Tobacco.org.

Now voters will decide if there is danger simmering below the surface of this ballot measure, or if the constitution can handle a new tax. And legislators who face an uphill struggle to pass a tax increase with a floor vote will have a gauge to measure how difficult they are to pass with a constitutional vote.

"If you're going to get something on a constitutional amendment on the ballot, you only have to get a few more signatures," said Paul Warner, a state legislative revenue officer. "While it's very hard to get revenue raising issues to pass with the legislative three-fifths majority, it is even harder to get them to pass with the public."

jreed@dailyemerald.com

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