OLYMPIA – Senate Majority Leader Lisa Brown is doing something that would make many a politician squirm: going to court to make it easier to raise taxes.
A 15-year-old law declaring that a tax increase requires a two-thirds vote of the Legislature is unconstitutional, she argues. Her fast-track lawsuit will be heard by the state Supreme Court on Sept. 9.
Defenders of the two-thirds requirement – including national anti-tax groups, small businesses and farmers – say Brown’s setting the state up for big tax increases.
Others call the lawsuit an act of political courage.
“Lisa, when she fundamentally feels that something’s the right thing to do, she’s willing to go out on a limb a little bit,” said Marilyn Watkins, acting executive director of the Economic Opportunity Institute. “Leaders have to be willing to take risks.”
Politically, the lawsuit’s probably of little risk to Brown. She’s one of the state’s most powerful lawmakers, has been in the Legislature since the early 1990s and is sitting on about $140,000 in campaign cash. She got 77 percent of the vote in Tuesday’s primary.
But the case has drawn flak for months. “Why are you displaying such an arrogant elitist’s attitude?” wrote Gary Lollis, of Mukilteo. “You work for the people of the state of Washington, not the Senate in Olympia. Remember where you came from.”
Gov. Chris Gregoire, locked in a close race for re-election, has repeatedly declined to say if she supports Brown’s case. She says she’s not familiar with the specifics.
“I know that everybody thinks that’s surprising. I have not studied it,” Gregoire said in a recent interview.
The flak was no surprise, Brown said. But after 15 years in Olympia, watching lawmakers struggle to balance a budget in an up-and-down economy, she said, it just seemed like time to clarify the law. In a representative democracy there’s a careful balance of powers, she said, and the two-thirds requirement threatens that.
The stage was set six months ago on a drizzly Friday in Olympia. Senate Democrats, led by Brown, proposed reinstating a 42-cents-a-liter liquor tax to help pay for drunken-driving patrols and alcohol treatment.
Mostly along party lines, 25 members of the 49-person Senate voted yes.
Not enough, Senate President Brad Owen ruled. He said Senate Bill 6931 could pass only if it managed to get a two-thirds vote.
Three days later, Brown filed her lawsuit. Brown said the case is being funded by donations, primarily from labor groups.
Lawmakers should be able to do something as simple as reinstate a liquor surcharge to combat drunken driving, Brown argues, so long as a majority of them agree. In a statewide vote last year, Washingtonians agreed to lift a similar “supermajority” requirement for school districts seeking property tax increases.
Washington’s constitution requires two-thirds legislative agreement for some things. Among them: overriding a governor’s veto, amending the constitution and booting a lawmaker out of office.
But most things need only a majority vote.
Unhappy with taxes, Washingtonians in 1993 passed Initiative 601. It set in place the two-thirds law that Brown is challenging. Lawmakers, including Brown, later approved it as well, and voters reaffirmed it in I-960 last year.
“People work hard for the money they earn,” said Tim Eyman, who’s made a career out of running anti-tax ballot measures. “It should be really hard for the government to take it away from them.”
But Brown’s legal argument is simple: the law didn’t amend the constitution. And the constitution requires only a majority vote.
In a brief that quotes Thomas Jefferson, James Madison and Alexander Hamilton, her lawyers argue that “majority rule has been a bedrock tenet of our democracy since its founding.” Requiring a two-thirds “supermajority,” they say, is akin to minority rule.
“There is an elephant in the courthouse,” wrote dissenting state Supreme Court Justice Tom Chambers when the high court declined to rule directly on a similar question last year. “The majority knows the elephant is there. The majority maps out a course around the elephant … It is an obvious elephant.”
Brown and two dozen other Democratic lawmakers have pushed that elephant squarely in front of the high court.
Brown’s opponents say she’s just trying to use the court to give lawmakers political cover. The Senate, as the state attorney general’s office points out in its brief opposing Brown, could have easily overruled Owen. That takes just a simple majority vote.
In fact, Democrats and Republicans have amended the two-thirds requirement heavily since 1993. Lawmakers temporarily suspended it twice. More subtly, they also repeatedly changed the way spending limits are calculated, allowing the state to spend more without triggering the two-thirds requirement.
“They can just vote it away,” Eyman said. “But Brown’s saying, ‘What can I do to avoid putting (lawmakers) on the political chopping block and asking them to take the two-thirds requirement away?’ So she went to court.”
And while there’s nothing in the constitution to require a two-thirds vote for tax hikes, the state’s attorneys argue, there’s also nothing to stop lawmakers from imposing that requirement on themselves as they have. In Eyman’s brief, his attorneys pointedly note that Brown was a sponsor of a bill in 2002 that suspended the two-thirds requirement and reimposed it in 2003.
Research by the conservative Washington Policy Center suggests that the two-thirds requirement did put a brake on state spending, at least initially. State general fund spending increases in the 1980s ranged from 13 percent to 25 percent every two years. From 1993 to 2005, however, those numbers dropped to 4 percent to 11 percent every two years.
The policy center’s Jason Mercier argues that the two-thirds requirement also gives lawmakers an excuse to temper expectations among state workers pushing for salary increases.
“If they lose that two-thirds tax restriction,” he said, “it’s going to be pretty hard to tell the unions no.”
Despite a large projected shortfall in the next state budget, Brown says, the suit isn’t meant to pave the way for a big tax increase, particularly when people are struggling to pay for things like gas and food.
“In this economic environment, that’s not the first place you look in a budget shortfall, for sure,” she said.
She recently wrote to one of the lawsuit critics, telling him what that 42-cent liquor tax would have paid for.
“And he wrote back and said, ‘Well, I agree with that,’ ” she said.