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ANALYSIS: Fuel retailers sue over ‘compelled speech’ at the gas pump

Budget included language notifying consumers that state suspended a 2-cent tax hike

A diesel gas pump in Joliet. Tuesday, May 10, 2022, in Joliet.

“As of July 1, 2022, the state of Illinois has suspended the inflation adjustment to the motor fuel tax through Dec. 31, 2022. The price on this pump should reflect the suspension of the tax increase.”

Those two sentences may be coming to a gas pump near you – unless a trade group representing gas stations is successful in its lawsuit to stop what they believe is government-compelled speech.

The language essentially alerts drivers that the state’s motor fuel tax won’t increase by a little over two cents per gallon for the next six months as previously scheduled under law.

But it won’t decrease either, instead remaining at 39.2 cents through the end of this year.

The annual increase became law in 2019, when the state doubled the motor fuel tax from 19 cents to 38 cents per gallon and indexed it to inflation each year to fund a bipartisan $45 billion long-term plan for road and bridge upkeep.

No signage was required to mark the legislature’s action at that time.

The language requiring the signage was written into the fiscal 2023 revenue bill, Senate Bill 157, which made up one prong of the state’s operating budget that was signed into law on April 19.

Illinois fuel retailers who fail to “post or maintain” the signage announcing the tax hike suspension on every pump for the next six months could be fined up to $500 daily. A lawsuit is challenging the requirement.

That measure also pushed the 2022 increase into January 2023, to be followed by another increase six months later.

No signage will be required after either of those increases.

But fuel retailers who fail to “post or maintain” the signage announcing the tax hike suspension on every pump for the next six months could be fined up to $500 daily.

That didn’t sit well with the Illinois Fuel and Retail Association, which filed a lawsuit Thursday in Sangamon County alleging that the signage requirement violates their rights under the First Amendment and 14th Amendment to the U.S. Constitution and Article 1, Section 4 of the Illinois Constitution.

According to the lawsuit, there is no “legitimate governmental interest” in compelling the signage. It quotes state Rep. Mike Zalewski, a Riverside Democrat, who defended the provision in a committee hearing by saying an Illinoisan may see the sign and “maybe they’ll read about the good things we did.”

“That’s not a compelling government interest,” IFRA CEO Josh Sharp said in a phone call. “That’s just forcing retailers to do PR work for you on the state’s behalf, and we can’t live with that. Our members aren’t willing to live with huge fines and penalties and we’re suing to stop it.”

The lawsuit is aimed at the Illinois Department of Revenue and its director, David Harris, seeking an injunction to prevent the sticker mandates from taking effect. The suit also names Sangamon County State’s Attorney Dan Wright, who would be enforcing the mandate in the county.

The Pritzker administration has pointed to the language being almost identical to a provision signed by Republican Gov. George Ryan in 2000, which required signs stating Illinois had “eliminated the state’s share of sales tax on motor fuel.”

This year’s amendment doesn’t eliminate the sales tax on motor fuel – consumers will still pay the 6.25% rate on top of the 39.2-cent motor fuel tax.

But Pritzker spokesperson Jordan Abudayyeh said the 2000 language still sets the precedent for the new signage requirement.

“Informing consumers of the gas tax relief they are entitled to is a practice that dates back to 2000 under a Republican administration and does not promote the governor or the lawmakers, including nearly every Republican, who voted for the measure,” she said. “However, it ensures consumers see the benefit of bipartisan action.”

The governor’s office is sticking by the language, just as it did in the final days of the legislative session when there was still time to amend it.

Ultimately, a late amendment removing the language put forth by a Republican went nowhere, and the wide-ranging tax relief proposal passed almost unanimously in both the House and Senate.

It’s hard to vote against $1.8 billion in tax relief, even if Republicans criticized the temporary nature of the bill that also included an expansion of the earned income tax credit, direct payments to Illinoisans and a one-year moratorium on the state’s grocery tax beginning July 1.

But while the bill requires grocers to post about the tax changes on consumer receipts or on a sign in the store, it doesn’t provide for fines for those businesses. That, the fuel retailers argue, amounts to a violation of their equal protections under law.

With gas prices pushing $5 per gallon ahead of the Memorial Day holiday, any relief will likely be welcomed by Illinois drivers.

But it might be wishful thinking to believe that, should the court allow it to move forward, the signage will have the Pritzker Administration’s desired effect – particularly considering the publicity that is already accompanying the lawsuit.

Jerry Nowicki is the bureau Chief of Capitol News Illinois, a nonprofit, nonpartisan news service covering state government that is distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.

Jerry Nowicki Capitol News Illinois

Jerry Nowicki works for Capitol News Illinois