In The Power Broker, Robert Caro’s legendary biography of Robert Moses, Caro describes how Moses was fully capable of getting his way by writing things in legislation that none of the legislators understood, even as they passed it. In one example early in Moses’s career (which I am going to do from memory and not look through the entire 1,200-page book for), Moses wanted to take over control of water rights off of Long Island. So, he drafted a rather innocuous bill that contained an opaque reference to legislation from the mid-1800s about water rights off of New York, but which otherwise was written in the same manner as all other water rights–related issues that the legislature was familiar with in the 1920s. None of the legislators or their aides bothered to find and read that mid-1800s law (which was probably much harder to do before computers), so they voted on and passed a new law that they thought did X, when it in fact it did Y. Moses, of course, wanted it to do Y, and by the time the legislature discovered the difference it was too late to do anything about it.
This brings us to the recent Missouri Supreme Court ruling on whether or not counties can collect the sales tax on marijuana in incorporated parts of a county. The court ruled that counties can only collect the tax in the unincorporated parts of a county. This is what the state constitutional amendment said, so in that respect the court’s decision makes sense. However, the way the constitutional amendment was written had a different definition of “local government” than was previously used and generally understood in Missouri. Do you think most (or any) voters read to page 19 of a 38-page ballot description to see that, in this case, the definition of a county only applied to unincorporated areas?
Longtime former Missouri State Senator Clifford Jones used to say (I’m paraphrasing here), “You can pass any bill you want. Just let me write the definitions.” That is what the ruling by the Supreme Court is rewarding, and perhaps it had no other choice in the matter. We let initiative petition writers create a major change regarding how local governments operate, which very few people will see or understand, and then that change becomes law.
To be clear, county taxes are almost always collected countywide, not just within unincorporated areas. Yes, there are a few other exceptions, such as utility taxes, but that doesn’t justify initiative petition writers using obscurity as their ally, as in this case. (I am not disputing that a majority of Missourians wanted legalized marijuana. My concern is with the use of legal minutiae in initiative petitions to get other changes made at the same time.)
Missouri needs to reform initiative petition rules to make amending the Constitution more difficult. (In a future post, I will go into more detail about the specific reforms we need.) Otherwise, we will be subject to more well-funded, out-of-state efforts to change Missouri laws using seemingly popular ideas as cover for making major legal changes via obscure and unread ballot language. Did you read the 38-page document that accompanied the marijuana vote and described all of the legal changes? I doubt it.
Robert Moses would be proud of efforts to get what you want by secrecy. We are a republic, not a direct democracy, and we should act like it. Missouri needs initiative petition reforms.
