Clean Missouri, gas tax both survived court challenges, but the road for one was rougher

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The Clean Missouri initiative and a proposed gas-tax increase have faced similar constitutional challenges during the campaign process. The gas tax quickly got the OK to remain on the ballot, while Clean Missouri went through a protracted legal battle.

But the complaints against both November ballot measures stemmed from the same general concept: The initiatives that include them deal with unrelated subjects, which makes them unconstitutional.

Jennifer Selin, a professor of constitutional democracy in MU’s political science department, said it appears that some judges saw the scope of the two measures differently.

The fuel tax measure, known as Proposition D, also includes a tax break for Olympic athletes and creates a fund for dealing with highway bottlenecks. Clean Missouri, or Amendment 1, includes restrictions on lobbying and campaign finance, a broadening of state open records laws to apply to lawmakers and changes to the way the state conducts legislative redistricting.

“One of the big problems (with Clean Missouri) was that the petition affected not just the state legislature,” Selin said. “The language relating to lobbying, political contributions, etc. could be read to extend to executive or even judicial branch officials too.”

A petition like Clean Missouri’s needs to only affect one branch of government, according to Selin. This is because the Missouri Constitution is separated into different articles for each of the three branches of the state’s government. “Any petition that is not clearly related to only one branch is presumed to be unconstitutional,” she said.

“The question (of) whether the measure (Clean Missouri) as written encompasses more than a single subject does not have an easy, straightforward answer,” said Peverill Squire, a professor specializing in American politics and legislative studies at MU.

Although Squire acknowledges that Clean Missouri does propose constitutional changes that ultimately cover two large issues, redistricting and other ethics reform particularly relating to gifts to legislators, “both are related to the state legislature and can therefore be argued to pertain to a single subject,” he said.

The same goes for Proposition D, according to Squire. “Although Proposition D on its face appears to involve several disparate topics, they all can be lumped together under tax changes,” Squire said, pointing out that Proposition D proposes statutory changes, not constitutional ones like those of Clean Missouri.

Clean Missouri initially was struck down by a judge in Cole County but was revived by a panel of appellate judges.

Regarding the different decisions made regarding the two measures, Squire acknowledges that “they are clearly matters of judicial interpretation, and different judges could easily arrive at different answers.”

Squire believes that the state Supreme Court should have been the ultimate decision maker for both ballot items, but the court has declined to consider an appeal in the Clean Missouri case.

Scott Charton, spokesman for Proposition D, emphasized that Proposition D has repeatedly been found by courts only to cover one subject matter, which is that of state revenue.

Proposition D offers three measures. Voters in November will decide if there should be an increase in the gas tax by 10 cents per gallon over several years. Revenue would go to improve Missouri’s roads and bridges.

Proposition D also exempts any prizes won at Special Olympics, Paralympics and Olympics from state income taxes and creates a fund called Emergency State Freight Bottleneck Fund, which aims to reduce traffic and improve road conditions.

The proposition’s main focus is regarding taxation, which lies within Article 10 of Missouri’s constitution, Charton said.

Benjamin Singer, spokesman for Clean Missouri, said the proposal follows the Missouri Constitution. Singer said that Amendment 1 “is clearly about one subject” and only addresses items in Article 3 of the Missouri Constitution, which deals with the legislature.

Singer and Clean Missouri supporters didn’t stop campaigning while the circuit court decision was being appealed. “We’re still getting the word out and knocking on doors,” he said before court of appeals decision.

Squire, who follows state politics closely, predicted in advance that the appeals court would reverse the decision to knock Clean Missouri off the ballot.

“In many cases, judges prefer to leave measures on the ballot and wait for any legal or constitutional questions to be considered should they be adopted,” he said.

Supervising editor is Mark Horvit, horvitm@missouri.edu.

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