Clearing the smoke: Measures 49 and 50

By Scott R. Cooper, Crook County Judge
Published in the Central Oregonian of Prineville, October 2007

Two measure confront voters in November

In November, voters will be faced two measures, courtesy of the Oregon Legislature. Measure 49 is a rewrite of Measure 37, which was approved by voters in 2004. Measure 50 would raise Oregon’s cigarette tax to match Washington’s and commit the proceeds of the additional tax to the funding of a healthcare program for low-income children.

While the debate over these two measures was intense during the legislative session, most Oregonians paid little attention while the Legislature discussed the details. But we’re paying attention now: interest groups on both sides are investing playing to make sure that we do.
This month’s column is dedicated to clearing up the facts about both these measures and clearing away some of the nonsense. This column is not intended to influence your vote one way or the other, although for the sake of honest disclosure, I’ll tell you which way I’m leaning.

Measure 49
In November 2005, Oregonians passed Measure 37. The premise sounded simple: governments that reduce property values through land use regulations must either pay compensation or remove the offending regulations and allow development. But it hasn’t quite worked out that way. Many voters are now expressing dismay that large subdivisions in farm fields and cattle pastures wasn’t what they had in mind. The Legislature has run scared on this popular initiative from the start. Two sessions have tried and both have failed to find a “middle ground” to the problem of how to balance growth and protect private property rights. Measure 49 is the latest effort to placate a majority of Oregonians.

Measure 49 differs from Measure 37 in that it will allow small scale-development with a minimum of process. Property owners with a valid claim of reduced value can gain the right to divide their properties into one to three parcels. Bureaucratic hassle from state or local government or neighbors will be virtually eliminated. In trade, the opportunity to develop certain types of properties-- prime timberlands for example, will be eliminated and the option for large-scale , subdivision-level development will also be more or less extinguished. Most importantly, a landowner with a valid Measure 49 claim will gain the right to transfer his development rights to a new owner—something most courts now agree Measure 37 prohibits. For small landowners who don’t want to become developers themselves or who don’t want to become business partners with a developer, this is a big concession.

On the downside, Measure 49 treats the owner of a large parcel and small parcel just the same: both are limited to three parcels. The owner of timberlands or prime farm ground is simply out of luck. Likewise, those owners who have already spent time and money to perfect claims under Measure 37 are also out of luck: Measure 49 requires them to go through the process all over again.

How should you vote on Measure 49? Measure 49 is not perfect . On the other hand, most Oregonians now say that Measure 37 isn’t working out quite as they intended. Unfortunately, the November ballot forces you to choose: Measure 37 as it is or Measure 49. There is no middle path. I’m still not sure where I’m going to come down on this one, but I think that in the final equation, each voter has to ask himself or herself a simple question: Am I more in favor of property rights than I am of protecting the property next door from development? If so, vote no. Alternatively, if I’m more in favor or protecting the property next door than I am of preserving property rights, then I should vote yes. The choice is yours.

Measure 50
Measure 50 would raise the state cigarette tax by 84.5 cents per pack to match Washington’s tax. The proceeds would fund a state-supported health insurance program for approximately 117,000 low-income children.

Here’s what we know: a higher cigarette tax reduces tobacco consumption. Even tobacco companies agree with that fact. Best estimates are that Measure 50 would drive down cigarette consumption in this state by about 14 percent. Fact No. 2: Smoking a pack of cigarettes costs the United States about $7.50 per pack in added healthcare costs and lost productivity, according to the Center for Disease Control. If Measure 50 passes, the tax revenue from cigarettes would rise to $2.02 per pack for Oregon plus 39 cents for the federal government. You do the math: if the cigarette tax is raised, tobacco consumption will fall, healthcare costs will fall and economic productivity will rise, saving the nation about $3 for every dollar of lost cigarette tax revenue. In addition, approximately 117,000 children will have access to healthcare who otherwise might go without.

So why vote against this measure? Big Tobacco--Philip Morris and R.J. Reynolds-- and anti-tax activists present a plethora of arguments. They argue that the plan to fund children’s healthcare is unsustainable and that as revenues decline, the plan will become a drain on the state’s general fund. They argue that local governments will lose tobacco-related tax revenue. They argue that amending the Constitution to adopt the tax somehow desecrates that document. Lastly, they argue that raising revenue by constitutionally imposing taxes on specific product is “opening Pandora’s box” and inviting taxation of other activities such as eating junk food.

To me, the opponent’s arguments smack of “Methinks you protest too much.” The legislature only allocated a fraction of the money which the tax is expected to raise to funding the children’s health program, and overall savings to the general cost of healthcare of driving down cigarette consumption haven’t even been factored in. Local governments receive a negligible amount of cigarette tax revenue. Keeping the constitution pure is a fine idea—or at least it was until we starting mucking around with it shortly after statehood. It’s a little late to argue that point now. As for the “Pandora’s box” argument, I just don’t follow it: this state already levies product-specific taxes on tobacco, liquor, beer and wine, ectricity and cell phone usage, to name a few. The government’s appetite for money to pay for new programs isn’t going to be diminished based on the decision to raise or not raise the existing cigarette tax.

The opponents of cigarette tax do have one strong point: A cigarette tax is unquestionably regressive. Lower income persons who can least afford new taxes end up shouldering the greatest burden. Is that fair? Does that outweigh the potential benefit to smokers in particular and society in general of reducing cigarette consumption and reducing healthcare costs? Personally, that’s an easy choice for me, and I will vote for the measure, but value judgment is one you must ultimately make for yourself.
Whatever you decide on either Measure 49 or Measure 50, please be sure to mark and return your ballot. Government of the people, for the people and by the people begins and ends with the people’s participation.