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Editorial: Tax issue worth the attention of high court

Wed., Aug. 3, 2011

The tension between the laws voters or their elected representatives adopt and whether they pass constitutional muster is unavoidable in democracies, which is why courts were established to operate above the political fray.

On the federal level, this tension is currently playing out with the health care reform law adopted by Congress and signed by the president. Many states, including Washington, have joined the battle over whether the law is unconstitutional.

On the state level, this tension arises over whether a voter-approved initiative requiring two-thirds majorities in both houses of the Legislature to pass tax increases violates the Washington state Constitution. Some legislative Democrats, labor groups and the League of Education Voters recently filed a legal challenge to I-1503. Similar to the “Obamacare” fight, where only Republican attorneys general are launching challenges, this battle is being waged only by Democrats and sympathetic interest groups.

In both cases, speedy decisions by the respective supreme courts would be best, so that governments can either move forward or begin making adjustments to the rulings.

Initiative 1053 is the latest effort to impose supermajority requirements on tax-hike bills. It can safely be called “the will of the people” because it was adopted by a majority of voters. The Spokesman-Review editorial board endorsed its passage. But today’s popularity doesn’t tell us whether the state’s founders intended to establish this higher standard for passing a bill.

The plain language of the state constitution says a “majority” is needed to pass a bill from one house to another. Where supermajorities are required (i.e., school bonds), the constitution notes the exception. There are no listed exceptions for general tax increases or the elimination of tax exemptions.

To set up this legal challenge, House Democrats wrote a bill that would end a tax exemption (and therefore raise taxes) on out-of-state banks. The extra revenue was earmarked for education programs. It was approved by a majority – but not a supermajority – of House members, so Speaker Frank Chopp did not send the bill to the Senate. The plaintiffs claim that an unconstitutional standard decided the issue and that it would take a constitutional amendment to impose the wishes of I-1053.

However, the state constitution also features prominently the power of the people to petition government for direct actions, which is a reflection of the populist era when the state constitution was written. So this presents an interesting legal question.

State Sen. Lisa Brown brought a similar challenge two years ago against I-960 (a predecessor to I-1053), but the Supreme Court rejected it on procedural grounds, saying the matter was a parliamentary dispute within the Legislature.

The court could try to duck the issue again, with a similar argument (e.g., “we can’t predict what the Senate would’ve done”), but we think the justices need to hit the constitutional issue head-on, because it isn’t going to go away. This type of dispute is precisely why the court was created.