Byko: OK, pre-K? Not so fast

Mayor Kenney shakes hands with City Councilman Derek Green after the soda tax was approved.

SUPPORTERS OF the tax might have wanted to crack open a bottle of bubbly - and I don't mean soda - Thursday after City Council passed a 1.5-cent-per-ounce tax, making Philadelphia the first city to target lots of beverages for an extra tax, not just the unhealthy sugary ones.

In his first major initiative, Mayor Kenney succeeded where Mayor Nutter failed - twice. Nutter made the "mistake" of presenting a soda tax as a health measure, which had worked in tacking a $2-a-pack tax on cigarettes.

Crafty Kenney put a coating of shiny wax on the historic tax by earmarking it for "children," meaning universal pre-K, plus upgrades to parks, rec centers, libraries, and schools, which are all child-related. That we knew.

What we didn't know until the 11th hour was that $41 million would go to the city fund balance. All told, about 20 percent of the tax revenue will go not to pre-K, but will be thrown at everything from Community College of Philadelphia to resentencing juvenile offenders to employee benefits. That's why some people, like me, called it a "bait and switch."

Kenney made pre-K the keystone of his election campaign, but neglected to say how he'd fund it. There was a momentary - about a fruit fly's life span - flirtation with "zero-based budgeting," making every city department justify its budget. It was easier to demonize what Kenney loves calling "Big Soda," which makes "enormous profits on the backs of poor people."

Even though his insanely high 3-cent-per-ounce proposal was cut in half (but expanded to almost all beverages), he won - but don't count on enrolling your child immediately.

"Quality, affordable pre-K" is not sitting in a box on the shelf. It will take time to set up. Eventually about 6,500 additional tykes will be added to the rolls, we are told.

Observers noted that Kenney held his volcanic temper in check when dealing with Council. Sure, he misled its members, but he didn't yell at them. His Twitter account was strangely subdued.

Kenney wisely introduced this twice-failed regressive measure during the honeymoon phase of his first term. By the time reelection rolls around for him and Council in 2019, this will be a dim memory, probably eclipsed by an even bigger and more awful tax.

When the dust settled, Kenney and his Arm-Twister-in-Chief, building trades leader John Dougherty, had cobbled together a majority.

However, things were shaky until the very end. Councilwoman Cindy Bass put out a proposal to increase real estate taxes to pay for pre-K, then withdrew it less than an hour later because she was told that Kenney had the nine-vote majority he needed.

One of those votes might have come from Councilwoman Jannie Blackwell, who had opposed the tax, then reversed herself. "What changed my mind was that we were there," she said, meaning Kenney had the nine votes.

I don't follow the logic of changing sides because you are in the minority, but she wasn't alone. The tax passed by 13-4, which doesn't reflect the lack of appetite for it during months of battle. Even Council President Darrell Clarke - who furiously battled Nutter over a smaller tax - voted for it. Safety in numbers for a tax most Philadelphians oppose?

Is everyone happy? No.

Clarke has called for a colonoscopy of Kenney's budget, and Philadelphia Magazine reports that Clarke's "office has been sounding the alarm about the lack of diversity among Kenney's top brass." Whoa.

I was stunned, because I look at people as people rather than as identity check marks, and I thought Kenney was the Deacon of Diversity. If you want to get attention in Philly (or in America), play the race card. Or the gender card. Or the Islamophobe card. Or the grievance card.

But now it's clear sailing, right?

Wrong.

Calling it "a thinly disguised sales tax," former Pennsylvania Chief Justice Ron Castille, in Wednesday's Inquirer, said that "only the state legislature can determine where and on what items a tax can be imposed."

The administration earlier admitted that the tax could draw a lawsuit.

Give those bureaucrats a cigar. "Big Soda" will file suit, if it hasn't already. That could block the programs until the end of a long legal process. That hinges on "Big Soda" being able to get an injunction to prevent collection of the tax, which launches Jan. 1.

Castille tells me he thinks Common Pleas Court will grant an injunction "because you will not be able to recover whatever taxes were collected. How will you give back a mother a dollar and a penny she spent on soda or 14 cents on a Starbucks coffee? You're not going to be able to make the consumer whole."

The Soda War moves from the political arena to the courts.

Put the champagne back on ice.

stubyko@phillynews.com

215-854-5977 @StuBykofsky

Blog: ph.ly/Byko