“If a pertinacious minority can controul the opinion of a majority respecting the best mode of conducting it; the majority in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will over-rule that of the greater.”
Thus wrote Alexander Hamilton in the Federalist Papers, and thus cited the majority of Washington’s Supreme Court in striking down the supermajority requirement for tax increases.
Pertinacious. Stubbornly tenacious. Perversely persistent. A perfect word for the anti-tax absolutists – a legislative minority – who now control the budget.
And, though the justices made a point of stressing that their ruling was more about the way it was implemented than the principle of the supermajority, the majority’s ruling – or perhaps, at 6-3, we should call it the supermajority’s ruling – contained a lot of excellent reasons that we should have grave reservations about these laws we keep passing.
Key among them is simply this: The supermajority has created a superminority in Olympia. It has, in a very real way, changed the fundamental nature of our government to satisfy a single principle. If we can do that, Justice Susan Owens asked in the majority opinion, why not go further? Why not a 75 percent requirement for tax increases? Why not an 83 percent majority requirement for cutting mental health care services? Why not a 92.7 percent requirement for road construction projects?
“While the current Supermajority Requirement applies only to tax increases, if carried to its logical conclusion, the State’s argument could allow all legislation to be conditioned on a supermajority vote,” Owens wrote. “In other words, under the State’s reasoning, a simple majority of the people or the legislature could require particular bills to receive 90 percent approval rather than just a two-thirds approval, thus essentially ensuring that those types of bills would never pass. Such a result is antithetical to the notion of a functioning government and should be rejected as such.”
Presuming that what we want is a functioning government, that is. I’m not sure everyone does.
On Thursday, the court ruled that a supermajority requirement approved by citizens’ initiative illegally amends the state constitution. Supporters of the provision will doubtlessly work now to legally amend the constitution in the Legislature. It would take a two-thirds vote in both chambers and a simple majority of voters afterward.
The majority justices said a simple legislative majority is the standard for passing “ordinary legislation.” Our supermajority requirements have made the whole idea of paying for government an extraordinary proposition. It enshrines anti-tax zealotry as the state’s default position and hands the reins to a minority whose pertinaciousness has never, ever yielded to an idea that would bring an extra penny to the purse.
The majority justices argue that – at least under the constitution as it stands now – raising taxes or not raising taxes is ordinary legislative business, not some radical no-man’s land. If we want to make that so, we need to amend the constitution.
“Our holding today is not a judgment on the wisdom of requiring a supermajority for the passage of tax legislation,” the majority wrote. “Such judgment is left to the legislative branch of our government. Should the people and the legislature still wish to require a supermajority vote for tax legislation, they must do so through constitutional amendment, not through legislation.”
The dissenting justices argue that the majority justices – those six – became a tyrannical minority themselves, in overturning laws that voters have again and again supported. They predict that voters will not stand for it, and history – not to mention our all-powerful impulse to get something for nothing – suggests they are correct.
But it’s bad policy. Supermajority supporters say that it’s a good idea to have broad support for tax increases – and yet they don’t seem to share the desire to require the same broad support for anything else (like the supermajority initiatives themselves, which have never achieved anything more than simple majorities). And they fail to recall that Washingtonians have also voted in favor of other priorities.
Lowering class sizes, paying teachers better, raising the minimum wage – these are all values that Washington voters have approved in large numbers. None of them should be turned into the single value that drives state government. Our collective voice is not so clear and singular. Balancing these values is the proper role for elected representatives, dealing with budgets that change from year to year, and subject to the discipline of voters at the ballot box.
The supermajority serves a single master, and a single master only. The arguments in the court’s ruling illustrate why some of us remain, on this question, a pertinacious minority.