Using the Constitution to Escape the Constitution

Amendment 5 on the August 4 ballot • Part one of a two-part series on what the text of Amendment 5 actually says

Before you decide how to vote on Amendment 5, ask yourself one question its supporters would rather you skip past: why is a tax bill in the Missouri Constitution at all?

The General Assembly passes tax legislation every year. It does not need your permission to do so. Rates go up, rates go down, exemptions come and go — all by ordinary statute, all without a single constitutional amendment. If the legislature believes Missouri should trade its income tax for a bigger, broader sales tax, it has a building in Jefferson City where that kind of thing gets done.

So why is this plan on your ballot instead?

Because this plan cannot survive contact with the constitution we already have. The Missouri Constitution contains protections — put there by voters, some of them decades ago — that would stop this scheme in its tracks. The only way around those protections is to amend around them. That is not a side effect of Amendment 5. It is the point of Amendment 5.

Count the "Notwithstandings"

You don't have to take our word for it. Read the actual text of the measure and count how many times it uses the phrase "notwithstanding any provision of this constitution to the contrary."

It appears four times.

Think about what that phrase means. It is the legal equivalent of saying: we know the constitution forbids what we're about to do, so we're declaring the constitution overruled for this purpose. A proposal that has to say "notwithstanding the constitution" four times is telling you, in its own words, that it does not fit the constitution. It fits a tax bill. It's wearing a constitution as a disguise.

And look at which provisions those four clauses override. This isn't boilerplate. Each "notwithstanding" is aimed at a specific protection Missouri voters put in place:

• The Hancock Amendment's requirement (Article X, Section 18(e), approved by voters in 1996) that large new revenue increases must be approved by a vote of the people;
• The 2016 taxpayer protection (the current Article X, Section 26, approved by 57% of voters) that flatly prohibits expanding sales tax to services that weren't taxed in 2015;
• The highway funding guarantee (Article IV, Sections 30(b)–(d)) that dedicates taxes on vehicles and fuel to roads and bridges, and prohibits diverting that money anywhere else.

Every one of those protections exists because Missourians voted to bind their own government. Amendment 5 asks you to unbind it — and to do it using the very document those protections live in.

Missouri Has Put Dates in Its Constitution Before — But They Pointed the Other Way

Supporters will tell you there's nothing unusual here. Missouri's constitution has contained time frames and phase-in schedules before, and that's true. The 2004 motor vehicle sales tax reallocation ran on a multi-year schedule. The conservation and parks sales taxes come up for periodic voter renewal. Temporary transportation taxes have been proposed with built-in expiration dates.

But notice what every one of those precedents has in common: the clock ran against the government. A temporary tax expires. A phase-in schedule completes and goes dormant. A renewal requirement forces a program to come back and justify itself to the voters. In each case, the time limit was a leash — a constraint on the state's power that tightened over time.

Amendment 5 turns that tradition inside out. Its five-year window doesn't make a tax expire or a government power sunset. It creates a period during which your constitutional protections are switched off, so that the legislature can act free of them. During the window, qualifying legislation is exempt from the Hancock Amendment's voter-approval requirement and exempt from the constitutional guarantee that vehicle taxes fund roads.

A constitutional time limit should make the government's power expire — not make the people's protections expire.

That is the difference between a leash and a hall pass. Every date Missouri voters have previously written into their constitution was a leash. This one is a hall pass.

What "Temporary" Covers — and What It Doesn't

Let's be precise here, because this is the part of Amendment 5 that is easiest to misunderstand — in both directions.

Two different things could be "temporary" in this amendment, and only one of them is.

The first is the window. On this, the text is clear, and we don't dispute it: the special exemptions are available only to legislation "enacted within five years of the effective date of this amendment." After five years, that door closes. The legislature cannot pass new legislation claiming these exemptions in year six or year ten. If that were the whole story, "temporary" would be a fair description, and this section wouldn't exist.

The second is what happens to the legislation that gets through the door — and here the text says nothing about an ending. The amendment provides that qualifying legislation's revenue "shall not be considered new annual revenue" under the Hancock Amendment and "shall be exempt" from the highway funding provisions of Article IV. There is no companion sentence saying those exemptions expire. The five years is a deadline for passing the legislation; it is not an expiration date for its exemptions. The most natural reading is that any legislation enacted during the window carries its exemptions indefinitely — for as long as the tax exists.

Picture what that means. Suppose Amendment 5 passes and the General Assembly enacts the big tax-swap bill in 2028 — a broader sales tax base, a higher rate, or both. Our constitution says that any increase in state taxes on motor vehicles is dedicated money: 10% to counties, 15% to cities, 75% to the state road fund (Article IV, Section 30(b)). And Missouri courts have guarded that guarantee jealously — they have held that even the interest earned on the road fund, and even the fees charged for copies of motor vehicle records, are highway-user revenue that cannot be diverted to general revenue. When Amendment 5's expanded, increased sales tax reaches into everything Missourians buy and do with their vehicles, the road fund would ordinarily have a serious constitutional claim to its share.

The exemption in Amendment 5 exists to extinguish that claim before it can ever be raised. And here is the point: fast-forward to 2040, twelve years after the swap bill passed. That revenue is still exempt. There is no date on which the old protections come back for it. The door closes after five years, but everything that walked through it never comes back under the rules.

Don't take our word for why the exemption is there — take the drafters'. Lawyers writing a constitutional amendment do not spend words waiving a constitutional provision they never expect to trigger. The exemption is their own legal team's admission that, without it, a real portion of this new money would belong to Missouri's roads.

Now, is that reading certain? No — and that's part of the problem. The drafting is genuinely ambiguous, and nobody will know for sure until a court rules on it, likely years after billions of dollars have already moved. So here is the fair way to put it: supporters can truthfully tell you the window is temporary, because it is. What they don't tell you is that the exemptions it hands out have no end date written anywhere in the text. Amendment 5 asks you to gamble on which reading a future court adopts — with the state's largest taxpayer protection as the stakes.

A constitutional amendment moving this much money should not leave its central question hanging on the grammar of a single sentence.

Constitutional Mistakes Are Load-Bearing

There is one more reason the constitution is the wrong tool for this, and it's the most practical of all.

Amendment 5 doesn't just state a principle. It embeds machinery: revenue-growth triggers, offset formulas, a 97% local rollback calculation, twelve-month implementation clocks, rate calculations by the State Auditor. That is the working guts of a tax bill — complicated, interlocking, and untested anywhere.

When a statute has a flaw — a formula that doesn't work, an unintended consequence, a drafting ambiguity like the one above — the legislature fixes it in the next session. That's routine. It happens every year.

When a constitutional provision has a flaw, fixing it requires another statewide election: another joint resolution or petition campaign, another ballot, another multi-million-dollar fight. Every defect in this machine gets welded into the state's foundational document, beyond the reach of ordinary correction. The people asking for your vote in August are asking you to make their experiment permanent before anyone has seen it run.

You Can Want the Goal and Still Refuse the Method

Here is what this argument is not: it is not an argument that Missouri's income tax is sacred. Reasonable, principled conservatives can and do favor eliminating it. If the General Assembly wants to make that case, it should make it the way tax policy has always been made in this state — by statute, in the open, subject to the constitutional protections Missourians have voted for, and fixable when it goes wrong.

What Amendment 5 offers instead is a plan that suspends the voters' own safeguards in order to pass, hides a possibly-permanent exemption inside a "temporary" window, and locks its untested machinery where no legislature can repair it. A government that must escape its constitution to enact its agenda is telling you something important about the agenda.

The constitution is the people's leash on the government. Amendment 5 hands the leash to the other end.

Part two of this series will walk through Amendment 5's fine print — the exceptions and carve-outs its drafters wrote in, and what each one admits about the plan.