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.

Today this legislative charade has come to fruition as several House Democrats have joined the Washington Education Association (WEA) and the League of Education Voters to file a lawsuit to overturn the four-time voter approved 2/3 vote requirement for tax increases.

Here is a copy of today’s legal filing.

The lawsuit highlights the failure of the Legislature to fund Initiative 728 and 732 as proof of harm as to why taxes should be easier to raise.

Since funding was not identified for I-728/732 (other than surplus funds) when originally adopted and the measures were subsequently suspended during tough budget times, voters were asked in 2004 to approve I-884 and in 2010 to approve I-1098 to pay in-part for the policies of I-728 and I-732. Both measures were overwhelming rejected statewide.

Reading the tea leaves of I-728, 732, I-884 and I-1098, it appears the voters supported the policies of I-728 and I-732 when they were “free” and wouldn’t hurt the budget or require tax increases but were against them when asked to raise taxes to pay for them.

Here are additional details on what the voters were promised concerning tax increases when voting on I-728 and I-732.

As for the 4-time approval of the 2/3 vote requirement, however, voters have consistently said yes to imposing this restriction on lawmakers.

Voters first enacted the 2/3 vote requirement for tax increases 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.”

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 is what the Attorney General’s Office said (in-part) back in 2008 about the constitutionality of the 2/3 vote requirement when it was last challenged in court (page 37 – legal citations omitted):

“Petitioner attempts to meet her ‘responsibility of proving that [RCW 43.135.035(1)] is unconstitutional beyond a reasonable doubt’ on the basis of a constitutional provision that, by its own terms, does not prohibit the statute that she challenges. Article 2, Section 22 provides, ‘[n]o bill shall become a law unless . . . a majority of the members elected to each house be recorded thereon as voting in its favor.’ Article 2, Section 22 establishes a constitutional minimum number of votes for a bill to become law. It only describes the circumstances under which a bill does not pass. In other words, Article 2, Section 22 does not prohibit statutes by which the legislature (or the people) express their legislative policy judgment that certain types of bills warrant greater than simple majority consensus for passage. RCW 43.135.035(1) expresses such a legislative policy judgment—that a two-thirds majority vote of each house should be required for passage of bills raising taxes. The statute hardly conflicts with the constitutional floor set by Article 2, Section 22, as any bill receiving its supermajority support has met the requirement of Article 2, Section 22 . . .

Both the framers of the constitution and subsequent legislatures and voters have recognized that certain specified actions should command the support of more than a simple majority. Petitioners, to the contrary, urge that the same constitutional convention that embraced supermajorities for some purposes intended to prohibit statutes requiring supermajorities for any other purposes. The Constitution contains no language supporting this notion, however. The framers may not reasonably be presumed to have implied the prohibition of a political mechanism that they themselves adopted through language that does not say so. Given the plenary legislative authority of the people and the legislature, and the absence of a clear constitutional prohibition, the Court should not conclude otherwise.”

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.

As evident by the latest legal challenge, however, this issue needs to finally 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.


[Reprinted from the Washington Policy Center blog]