Democrats in the state Capitol weren’t about to let a little thing like the Washington Constitution stop them from raising taxes. As the legislative session wound down last weekend, they used a constitutional loophole to cut the public out of debate and pass the surprise tax increases. Closing that loophole should be the first order of business when lawmakers return to Olympia next year.
The authors of Washington’s 1889 constitution didn’t want the Legislature to rush bills at the end of the session when there wouldn’t be enough time for review and deliberation. They therefore included Article 2, Section 36 in the constitution, which reads in relevant part: “No bill shall be considered in either house unless the time of its introduction shall have been at least ten days before the final adjournment of the Legislature, unless the Legislature shall otherwise direct by a vote of two-thirds of all members elected to each house.”
In other words, give everyone at least 10 days to read, consider and debate a bill. If there simply isn’t time left and it’s so important that it warrants hurrying, rally a supermajority.
Some lawmakers figured out a workaround, though. The constitution forbids introducing a bill less than 10 days before the end of session, not amending one. They therefore invented “title-only bills.”
As the name implies, those are bills with a title but no substance. They are empty vessels introduced before the 10-day deadline into which lawmakers can cram anything without having to get a two-thirds majority. Lawmakers introduce a bunch of them every year just in case they’re needed. This year, there were 26, and lawmakers wound up using four.
Even some Democrats opposed the increases and the underhanded way their colleagues passed them.
“I don’t know why this [bank tax bill] didn’t go through a financial committee. It should have,” said Sen. Steve Hobbs, D-Lake Stevens, during debate. “The fact of the matter is that this policy was slapped in a title-only bill and jammed through at the last minute.”
If Democrats had run the bill through the banking committee, they might have slowed down because there’s a good chance it violates the U.S. Constitution by treating in-state and out-of-state banks differently.
“What’s the point of passing a bill if we know we’re going to get sued for a violation of the Constitution’s Commerce Clause and then we’re going to have to spend a bundle of legal money defending that lawsuit? We will never get a single penny of revenue from this bill,” warned Sen. Mark Mullett, D-Issaquah. He chairs the Senate banking committee and probably knows what he’s talking about.
Mullett said he wanted to get a formal legal analysis of the bill before the vote, but the attorney general’s office was closed for the weekend.
Both Democrats and Republicans have supported title-only bills in the past, but during the past two decades, they’ve primarily been a Democratic trick. Maybe Republicans would use them more, but to pull off passing a bill in just a couple of days really requires control of both chambers of the Legislature and probably the governor’s office – the trifecta that Democrats now hold.
What makes title-only bills particularly odious, aside from the fact that they exist simply to skirt the intent of the state constitution, is that they deny Washingtonians an opportunity to be engaged participants in their government.
Normal bills go through committees that have hearings at which anyone, especially people directly impacted by a bill, can testify. There’s a deliberative, public process.
Title-only bills are a rush job. They almost always were negotiated behind closed doors and, as with the bank tax, are half-baked because they didn’t go through the normal legislative process. Washington deserves better.
In 2014, Republican lawmakers, including Spokane Valley’s Sen. Mike Padden and Rep. Matt Shea, sponsored legislation to ban title-only bills, but it went nowhere. Now that even some Democrats are condemning the practice, they ought to try again.