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Flunking Bill Drafting 101

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By Lowell L. Kalapa

Here we go again! Let’s have the Governor sign a poorly drafted piece of legislation just because it is a good idea. Haven’t we learned from the general excise tax surcharge fiasco, which the Governor allowed to become law, that poorly drafted legislation creates even more problems and usually at the taxpayer’s expense?

In recent days taxpayers have had to watch elected officials haggle over who is to collect the general excise tax surcharge. While the Governor and Mayor have traded barbs, it is really the legislative bodies, both at the state and county levels, who dropped the ball. First, the legislature, in its wisdom, decided that the state should collect the tax by not approving the Governor’s request to have the county collect the tax. But having made that decision, they failed to give the tax department the necessary resources to collect the surcharge.

Then, the city council was offered the opportunity to implement the state collection when the Mayor proposed loaning the department of taxation $5 million for start-up costs. But the council, in its infinite wisdom, rejected the idea.

But none of this would have happened if the Governor had actually vetoed the general excise surcharge proposal last year. At least the legislature, if it sincerely believed the surcharge was necessary, would have called itself back into session to address the Governor’s objections. In that respect, the Governor failed to do what is her responsibility, that is to reject poorly drafted legislation.

Now other pieces of legislation await the Governor’s pen. One is the legislation that would increase the tax on cigarettes over the next six years raising the rate from the current 7 cents per cigarette to 13 cents by the year 2011. Health advocates praise this move, citing that it will drive the cost of the product substantially higher and therefore deter youth from picking up the habit and discouraging those who currently smoke. 

They are blind to the fact that the increased revenues are all earmarked for a variety of purposes ranging from, ironically, funding the cancer research center to underwriting statewide trauma centers as well as community health centers. So on one hand the tax increase is designed to discourage smoking, while on the other hand, lawmakers are depending on the tax increase to fund these various health related activities. 

So what will it be? Is the message, “Stop smoking,” or is the message, “Please smoke more because we need the money to fund cancer research and trauma centers?” What is ironic is that the drafting of the bill is so poor and vague that one can interpret that instead of millions of dollars going into these activities and funds, that in fact, as drafted, each of these funds will get a penny or a penny and a half each year. Not only that, but the bill fails to recognize the last three phases of the tax increase as part of the funding mechanism for the variety of activities and causes.

However, in the end the higher cost my drive more smokers to buy their products from out-of-state sources and the increased revenues the advocates are counting on may not materialize.

Another measure would include two-liter containers under the bottle bill legislation and therefore apply the nickel per container deposit. The bill would go into effect as soon as the Governor signs it. However, no provision is made to allow distributors and manufacturers of beverages lead time with which to comply with the labeling requirements of the bottle bill legislation. That being the case, then distributors and bottlers would be in immediate violation of the law and subject to the penalties for noncompliance.

Although administratively the department of health may try to waive the immediate application of the deposit requirement for two-liter containers, they would probably have no statutory basis for doing so. Again, this is yet another example of poor handiwork on the part of the legislature on drafting the laws that govern our lives. This is another measure the Governor should put out of its misery by vetoing it.

So the ball is now in the Governor’s court. She can sign these bills to please the advocates or she can do her job and veto them and send them back to lawmakers so they can fix their mistakes and do the job right. Worthy as the causes may be, taxpayers deserve laws that actually work and are based on good common sense. Hopefully the Governor will not condone poorly drafted legislation.

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