Critics worry cigarette tax plan has constitutional flaw

KANSAS CITY, Mo. -- Some legislators are worried that a proposed constitutional amendment to increase cigarette taxes for health care has language that could tie their hands in setting Medicaid spending.

The language also appears to conflict with part of the Missouri Constitution that prevents ballot measures from spelling out how lawmakers spend money. Critics say the confusion could open the measure to a legal challenge even before it gets on the ballot next November.

Generating millions

The amendment would raise taxes on cigarettes from 17 cents to 97 cents a pack and raise taxes on other tobacco products from 10 percent to 30 percent. All told, state officials estimate the measure could generate $351 million to $499 million a year.

The money would be dedicated to paying doctors and hospitals more to treat Medicaid and uninsured patients; providing debit cards for uninsured people with certain conditions to help cover medical expenses; and funding anti-smoking programs.

The proposal has a section that reads: "The net proceeds from the tax imposed by this section shall constitute new and additional funding and shall not be used to replace existing funding as of July 1, 2006, for the same or similar initiatives and programs."

The section also says the state "shall not reduce the level of funding" that now goes to Medicaid programs.

'A serious problem'

"That is a serious problem," Senate President Pro Tem Michael Gibbons, R-Kirkwood, told The Kansas City Star for a story Friday. "That absolutely guarantees my vigorous opposition to the effort. What they appear to be saying is, we (lawmakers) no longer have control over any of our social and medical spending for vulnerable people in this state."

House Budget Committee chairman Brad Lager, R-Maryville, asked the House's legal advisers to examine the provision.

"I think that any initiative that takes away the General Assembly's authority to prioritize spending is inappropriate," Lager said. "We elect senators and representatives to prioritize spending."

He said the language could mean Medicaid and other social programs will always get higher priority than education or other needs.

The language also appears to conflict with a section of the state constitution that says ballot measures can create a new tax dedicated for a particular purpose but initiatives can't tell lawmakers how to spend existing money.

The Missouri Petroleum Marketers and Convenience Store Association, which opposes the tobacco tax proposal, could mount a legal challenge before it gets on the ballot.

Tobacco tax supporters say concerns about a constitutional conflict are unfounded and that lawmakers ultimately could not be forced to spend money on Medicaid.

"We also know realistically nothing we put in this particular ballot measure can determine what the Legislature does with general fund revenues," said Steve Lipstein, president of BJC HealthCare of St. Louis and a key supporter.

He said the language was meant to assure voters that lawmakers won't take money now going to Medicaid and shuffle it elsewhere when new revenue comes in.

The Committee for a Healthy Future, made up of hospitals and other health care groups, must gather about 150,000 signatures by early May to get the measure on the ballot.

Some social welfare groups are pursuing their own tobacco tax proposal, raising taxes the same amount but dedicating most the money to restoring Medicaid cuts enacted this year.