by
Jason Mercier
, Washington Policy Center
It appears the new motto in Olympia is "If we can't beat voters, sue em."
Governor Gregoire has now joined with Democrats in the House and Senate calling on the Courts to throw out the nearly 20 year old requirement that tax increases require a 2/3 vote claiming the restriction is unconstitutional.
According to The Olympian :
"Gov. Chris Gregoire said
Tuesday she thinks a court challenge is needed to show whether tax increases in
the Legislature actually require a two-thirds vote to be enacted.
Several House Democrats set the stage for a possible court challenge when they
brought a bill closing a bank-tax exemption to a floor vote May 24. The bill
got 52 votes, enough for a majority, but it failed to meet the supermajority
test of 66 yes votes required by Initiative 1053.
The tax vote came the night before lawmakers adjourned their 30-day special
session. House Speaker Frank Chopp said from the podium that he could not rule
on the constitutionality question as speaker but welcomed a court’s help on the
issue.
'I think there is a real argument to be made that you can’t restrict the
Legislature in that regard,' Gregoire, a former three-term attorney general, said
Tuesday. 'I don’t know what the court would say in the end, but I do think it
is a legitimate legal challenge.'"
In the waning hours of the "budget focused" special session Democrats in the House and Senate both attempted to cue up votes on a tax bill not assumed in the budget that no one expected to pass. The strategy was to try to gain legal standing to sue the voters to overturn the 18 year old 2/3 vote requirement for tax increases.
Voters first enacted this policy in 1993 with I-601, reaffirmed it 1998 with Referendum 49, reenacted it in 2007 with I-960, and again last year with 64% approving I-1053.
The Legislature has also enacted the 2/3 vote restriction including a 2006 bill that was signed by Governor Gregoire. That proposal (SB 6896) was primarily focused at redefining the spending limit adopted in 1993 to facilitate the large increase in spending that help set the stage for our current budget challenges. To throw voters a bone when rewriting the spending limit, Democrats also ended their 2005 suspension of the 2/3 vote requirement a year early. According to the bill report for SB 6896:
"The authority of the Legislature to increase state revenues without a two-thirds vote is terminated on June 30, 2006."
Voting for SB 6896 were:
Senators Berkey, Brown, Doumit, Eide, Fairley, Franklin, Fraser, Hargrove, Haugen, Jacobsen, Kastama, Keiser, Kline, Kohl-Welles, McAuliffe, Poulsen, Prentice, Pridemore, Rasmussen, Regala, Rockefeller, Shin, Spanel, Thibaudeau, and Weinstein.
Representatives Appleton, Blake, Chase, Clibborn, Cody, Conway, Darneille, Dickerson, Dunshee, Eickmeyer, Ericks, Flannigan, Fromhold, Grant, Haigh, Hasegawa, Hudgins, Hunt, Hunter, Kagi, Kenney, Kessler, Kirby, Lantz, Linville, Lovick, McCoy, McDermott, McIntire, Miloscia, Moeller, Morris, Murray, O'Brien, Ormsby, Pettigrew, Quall, Roberts, Santos, Schual-Berke, Sells, Simpson, Sommers, Springer, Sullivan, B., Sullivan, P., Takko, Upthegrove, Williams, Wood, and Mr. Speaker (Chopp).
Despite numerous legislative amendments to the law, the Legislature has never fully repealed the mandate from voters that tax increases require a two-thirds vote and in the case of SB 6896 in 2006, Democrats voted to reinstate the restriction a year early.
Not able or willing to fully eliminate the 2/3 restriction legislatively, opponents have tried over the last 18 years to get the Court to throw out the requirement. Here are the Governor's comments yesterday where she discussed her hope the Court would now intervene:
It was a little odd to hear the Governor point to California's 2010 election results as proof voters don't want a 2/3 vote requirement for tax increases. While it is true California voters adopted Proposition 25 last November which removed their 2/3 vote requirement for passage of the budget, Prop 25 explicitly retained the 2/3 for taxes. This is from the text of Prop 25 :
“This measure will not change the two-thirds vote requirement for the Legislature to raise taxes.”
California voters also went a step further last November adopting Proposition 26 which extended the 2/3 vote requirement for tax increases to the adoption of new fees.
Regardless of what voters in California have done the ones that matter are here in Washington where on four separate occasions they have supported the requirement that tax increases receive a broad consensus to be enacted.
Seeing how the Court has had 18 years (since I-601 in 1993) and multiple opportunities to rule on 2/3 but has refused to do so there is no guarantee the latest ploy to gain legal standing will work.
The Governor is right, however, that this issue needs to be put to rest. The only sure way to end this debate once and for all is for voters to have the opportunity to vote on a constitutional amendment.
Lawmakers opposed to this policy
could simply use their talking points from 2005 when they placed a
constitutional amendment on the ballot to
reduce the vote threshold needed for voter approved school
levies
. At the time several lawmakers said they didn't necessarily support
the policy but the voters should have the opportunity to weigh in. Seeing how
the voters have already weighed in four times for the 2/3 vote requirement for
tax increases it would be better to let them resolve the debate instead of
hoping for a judicial hailmary.
Of the
sixteen states with supermajority tax restrictions
, only
Washington's is statutory.
It is time to put all the cards on the table and let the voters decide with a constitutional amendment in a winner take all pot – not try to deal from the bottom of the deck with the ever elusive judicial card.