Washington Supreme Court rejects tax initiative

OLYMPIA – Legislators have waited months for the Washington Supreme Court to answer a political question that has roiled the state for two decades: Can voters force them to round up a two-thirds majority in order to pass any tax increase?

No, a divided court said Thursday: not without a constitutional amendment. Supermajority requirements in Initiative 1053 were struck down.

Because I-1053 and other similar ballot measures since 1993 have been sold as a way to rein in free-spending legislators, voters might now be asking if they need to brace for an avalanche of new taxes.

Probably not, based on comments of legislators in the wake of the court’s decision.

House Democrats said Thursday they didn’t think they could close a projected $1 billion budget gap and come up with another $1 billion for better public schools without increased revenue. But they talked more about discontinuing some existing tax credits or deductions, or continuing temporary taxes on beer and some business services, rather than a new tax.

“We don’t know what our budget situation is,” said Rep. Timm Ormsby, D-Spokane, one of the plaintiffs in the successful challenge to the two-thirds requirement. The revenue numbers won’t be known until after the next forecast on March 20, but “it is no foregone conclusion that there’s going to be a raising of taxes.”

“I think voters want us to be thoughtful, and we’re going to be thoughtful,” said Rep. Ross Hunter, D-Medina, the chairman of the House budget committee.

Senate Republicans, who dominate the coalition in control of that chamber, said they will oppose any tax increases that couldn’t muster two-thirds support in a floor vote.

“Within our coalition, we intend to protect the voters’ wishes,” said Sen. Mike Padden, R-Spokane Valley.

“The court may do what it wants,” said Sen. Mark Schoesler, of Ritzville, the Republican leader. “We will stay the course.”

Gov. Jay Inslee, who would have to sign any spending plan that gets through both chambers for it to become law, continues to say he opposes new taxes to fix the operating budget. He’s left the door open, however, to extending temporary taxes set to expire June 30.

Inslee said he was “heartened” by the decision, saying the supermajority rule “gave a legislative minority the power to squelch ideas even when those ideas had majority support.”

Thursday’s 6-3 decision features justices arguing over who is correctly divining the will of the people and the intent of the framers of the state and U.S. constitutions.

The court’s majority said it wasn’t passing judgment on the wisdom of requiring two-thirds approval for a tax increase, only on the way it came into being.

“Should the people and the Legislature still wish to require a super-majority vote for tax legislation, they must do so through constitutional amendment, not through legislation,” Justice Susan Owens wrote for the majority.

Justice Jim Johnson said in dissent that the majority was ignoring precedent to jump into a political debate.

The two-thirds majority requirement has been approved five times by voters through initiative or referendum since 1993. But such a change requires something more than a simple majority vote at the ballot box or in the Legislature, the court majority said. It needs to meet the tougher standard of a constitutional amendment: two-thirds approval in both chambers followed by a simple majority at the ballot box.

The history and language of the state and national constitutions show a “principle favoring a simple majority vote for legislation,” Owens wrote. “Washington’s government was founded as a representative democracy based on simple majority rule … . More importantly, the framers were particularly concerned with a tyranny of the minority… . Allowing a supermajority requirement for ordinary legislation alters our system of government.”

If a statute can require a two-thirds approval for tax increases, another could require a two-thirds vote, or even 90 percent, to pass any legislation, “thus essentially ensuring that those types of bills would never pass.”

In his strongly worded dissent, Johnson accused the majority of a “blatant rewrite of our constitution,” abandoning judicial restraint for an “eagerness to embroil itself in the political arena.” 

Overturning the supermajority requirement enacted repeatedly by the public disregards the state’s populist roots and misreads the framers’ intent for a “quorum requirement” to operate the Legislature, Johnson wrote. But the power of the people will prevail, he predicted.

“If the Legislature passes a tax the people oppose, the people will find a way to repeal it … . In an even more commanding exercise of their power, the people may choose to enact a constitutional amendment requiring a supermajority to pass taxes.”

On Thursday, a key Senate committee voted 13 to 10 to do just that, approving a constitutional amendment that would require the Legislature approve tax increases with a supermajority or put them on the ballot for voter approval if they pass both chambers with a simple majority.

The proposal is likely headed to the full Senate for a debate that will probably echo the back-and-forth in the Ways and Means Committee. Sen. Brian Hatfield, D-Raymond, tried unsuccessfully to amend the amendment to require a supermajority for all legislation.

The arguments made for tax votes can be made for any legislation, he said. “Let’s put this out to the people. I guarantee they’ll pass it because they don’t trust us.”

But voters haven’t approved supermajorities for everything five different times at the ballot box, Schoesler countered – only for taxes.

All the committee’s Republicans and Democrat Rodney Tom, of Medina, who leads the majority coalition, voted for the original proposal; the other Democrats voted no. If that pattern is repeated in the full Senate vote, the constitutional amendment would fail – for lack of a two-thirds majority. Even if it picks up enough Democratic support, however, it still faces tough sledding in the House.

House Democrats, who have a comfortable majority in that chamber, made it clear they would oppose the amendment if passes the Senate. They might agree to some constitutional limits on taxes, but not one like the overturned initiative, which allows tax exemptions and credits to pass with a simple majority while applying the higher standard to raise taxes or end so-called loopholes.

“No one in his right mind would ever adopt a constitutional amendment that looks like this initiative,” said Rep. Jamie Pedersen, D-Seattle.

Ormsby said if the amendment makes it through the Senate, the House should consider it. There is some irony in the fact that the two-thirds requirement was turned down by two-thirds of the court and needs that same fraction to go to the ballot, he said.

Even though his central Spokane district approved the latest version of the initiative last November, Ormsby said he’s leaning against voting for an amendment. “But I’m not going to say for sure before we’ve done our due diligence.”

The main impact of the court decision, he said, is to provide parameters for this year’s budget decisions: “It provides some clarity.”