Rep. Chris Kelly of Columbia is chairman of the Missouri House budget committee.

After a Missouri court found that our schools were unconstitutionally unequal and inadequate, Gov. Carnahan asked the legislature to enact a tax increase to improve the quality of Missouri's elementary and secondary education. The legislature responded favorably by enacting Senate Bill 380, a $315 million tax increase designed to do just this. Since the passage of this bill, there has been substantial carping regarding the constitutionality of the increase, most notably from U.S. Congressman Mel Hancock and State Auditor Margaret Kelly.

They contend that the ta~x increase is greater than allowed by the Hancock amendment without a vote of the people (Article X, Section 17 - 20 of the Missouri Constitution). Auditor Kelly argues that the amount of the tax increase is large enough to force total state revenue above the limit set by the Hancock amendment. This argument arises from her belief that the revenue produced by House Bill 1496 (otherwise known as the Federal Reimbursement Allowance) should be counted in the Hancock amendment calculation of total state revenue. Congressman Hancock apparently agrees with this calculation.

Last year, at the written request of then Gov. John Ashcroft, I sponsored and unanimously passed House Bill 1496. Gov. Ashcroft contended that the revenue produced by this bill does not fall within the Hancock calculation of total state revenue. I agree with Gov. Ashcroft's contention. However, it is possible that he and I are incorrect and that Auditor Kelly is correct. Perhaps the proceeds from the Federal Reimbursement Allowance should be counted in the Hancock total state revenue calculation. If she is correct, then it may be that the education tax increase is above the Hancock taxation lid.

The Hancock amendment itself allows any taxpayer to sue the state, if he or she believes that either the tax or spending lids provided by the Hancock amendment have been violated. It is important to remember that the Hancock amendment does not prohibit the state from increasing any tax any amount. It simply forces an income tax refund if a tax has been increased in excess of the amount designated in the amendment. This means that one of two scenarios must be true: first, either state revenue is under the Hancock lid and the education tax increase is small enough to be passed by the legislature without a vote of the people even by Congressman Hancock's calculations; or second, the education tax increase does push state revenue above the Hancock tax ceiling and ought to trigger a refund to income tax payers. There is a simple way to determine this: both Auditor Kelly and Congressman Hancock have the same right as any other citizen to file a lawsuit to have the Hancock lid determined.

As you may have noticed, Congressman Hancock is not talking about a lawsuit, but rather about a new petition to repeal the tax increase, or even change the Hancock amendment. The question that ought to arise in every thinking person's mind is . . . why? Why doesn't Congressman Hancock simply sue the state and request a refund as provided for in his own amendment? There is an easy answer to this question: Congressman Hancock is fully aware that his own amendment may be unconstitutional. He is afraid to sue because he knows that if his amendment goes to court, there is a good chance that the refund provision will be declared unconstitutional under the equal protection clause. He is not willing to have his own amendment stand the fair test that it would get in a court of law. He is simply taking the easy and politically irresponsible route by suggesting another petition.

A petition would allow him to substantially mislead the people of this state concerning the Hancock amendment and the education tax increase, rather than face the rigors of a legitimate legal challenge. I suggest that if either Auditor Kelly or Congressman Hancock are going to be intellectually honest about their contention that the increase violates the Hancock limit, then they ought to have the political and moral courage to file a lawsuit rather than attack the school children of this state. We who supported the education plan had the courage to stand up and cast our vote. If Auditor Kelly and Congressman Hancock don't have the courage to sue, then they ought to shut up. What are they afraid of? All the members of the Missouri Supreme Court have been appointed by Republican governors.

I personally welcome a court challenge, because I would like to have a final determination on the constitutionality of the Hancock amendment refund provision. If former Governor Ashcroft and I are correct that the Federal Reimbursement Allowance should not be counted in total state revenue, then the tax we passed this year is small enough to fit within the Hancock limitation.

Senate Bill 380 was an appropriate legislative response to a court order and a request from the governor. Our action falls within the confines of the Missouri constitution. I will have to live with the political ramifications of my vote. I am fully prepared to lose an election if the worst thing my opponents can say about me is: "Let's get that S.O.B.! He voted to fix the schools."

For 10 years Missouri has suffered under the confines and the demagoguery that have arisen from the Hancock amendment. It has restricted the legislature from appropriately carrying out its charge. Our mentally and physically ill, our law enforcement officers, our senior citizens, our universities and our schoolchildren have all paid the price because of Congressman Hancock's ill-advised and simplistic method of limiting taxes. It's time for the test. If Congressman Hancock doesn't have the courage to insist on a court challenge of his own amendment, then he should be ignored by all Missourians.