In May 2017, Oklahoma State Legislators passed Senate Bill 845. This bill added a “smoking cessation fee” of $1.50 to every pack of cigarettes sold.

In the beginning of the legislation, lawmakers were fighting with the idea of adding a cigarette tax of $1.50; newsok reported. However, after some time, it became apparent the votes were not where they needed to be to pass the tax.

To vote a tax into law takes a majority vote, more than half of the membership. Voting a fee in only requires a simple majority, more than half of the members who are present and voting – oksenate.gov states.

The bill was passed by a vote of 51-43, according to KFOR TV; nowhere near the amount needed for a major majority.

In section 2 of the of the committee substitute amendment of Senate Bill 845, it states the purpose of the fees as follows: preventing Oklahomans from smoking cigarettes and encouraging Oklahomans who already do so to cease cigarette smoking.

The legislators got the bill passed by passing it off as a fee. However, Taxfoundation.org stated “A charge is classified as a fee if it is designed to recoup the costs of providing a service to the payer rather than discouraging a behavior or raising money for a given fund.”

An example of a fee is a toll road. The payment is tied directly to a service. To the contrary of a fee, tax revenues are often used for general governmental purposes and not specifically for the cost of providing some specified service.

On August 10, the Oklahoma State Supreme Court ruled the cigarette fee unconstitutional. “No revenue bill should be passed during the five last days of session,” states the Oklahoma Constitution. Additionally, “no revenue bills can be passed without a three-fourths majority of the vote,” 5news online reported.

Josh Brecheen, Oklahoma State representative for Bryan County, said he agrees with the Supreme Court decision to repeal the cigarette fee. “I opposed the measure for multiple reasons including the ‘fee’ label that I felt wasn’t an accurate depiction,” Brecheen said in an email interview. “The Oklahoma State Supreme has ruled on the matter and I support the court’s ruling,” Brecheen adds.

One of the main issues behind the passing was many legislators say it was passed without a majority vote, and Brecheen agrees with that sentiment. “A super majority was lacking in the passing of the measure,” Brecheen said. “A simple majority did pass it, yet based on the State Supreme Court’s ruling, that was insufficient – and I concur.”

Brecheen also said he opposed the bill due to seeing it clearly as a new tax, not a fee.

With the cigarette fee pulled, it leaves a huge gap in the Oklahoma State budget, and legislators are scrambling to figure out what to do next. According to Oklahoma Watch, there are a few ways to fix the budget shortfalls. The website stated Oklahoma could do nothing, and let the cuts to healthcare happen, or distribute cuts to other agencies and share the burden.

It is also suggested to call for a special session and have bipartisan talks, an agreement or cooperation between the two parties.

Oklahoma Watch said another fix to the budget could be to find a compromise. The Save Our State Coalition has called for major structural reforms to assist with budget shortfall.