Washington Democratic State Senator Sues to Overturn Taxpayer Protections

Published June 1, 2008

To overcome a forecast $2.4 billion budget deficit, the majority leader of the Washington state senate is suing the state to make it easier for lawmakers to raise taxes. The deficit is a result of increasing expenditures, as state tax revenues have been rising in recent years.

At issue is a provision in the 1993 voter-approved Initiative 601 (I-601) that in part requires a two-thirds vote of the legislature to raise taxes.

Arguing such a restriction is unconstitutional, Senate Majority Leader Lisa Brown (D-Spokane) in March filed a lawsuit to have the state supreme court throw out the two-thirds vote requirement. The case is Lisa Brown v. Brad Owen.

“Our constitution cannot be amended by passing an initiative or by passing a bill in the legislature. Initiatives and bills create statutes, not constitutional amendments,” said Brown. “But many constitutional scholars believe–and I agree–that one part of Initiative 601, passed by the voters in 1993, violates our constitution. That initiative required the legislature to pass any tax increase by a two-thirds majority rather than a simple majority. Our state constitution clearly states that bills pass the legislature by a simple majority. A handful of exceptions are written into the constitution, but raising taxes is not one of them.”

Liquor Tax Maneuver

Because I-601 was originally adopted in 1993, to gain legal standing before the state supreme court, Brown had to demonstrate she had suffered some injury as a result of the law. To accomplish this she arranged for a Senate vote on a liquor tax (SB 6931) increase that she knew would trigger the two-thirds vote requirement.

After the bill failed to receive the required two-thirds vote, she asked Senate President Brad Owen (D), who also serves as lieutenant governor, for a ruling on whether the two-thirds vote requirement was unconstitutional.

Owen ruled, “Senator Brown’s arguments are cogent and persuasive, but the proper venue for these legal arguments is in the courts, not in a parliamentary body. For these reasons, the [Senate] president believes he lacks any discretion to make such a ruling, and he explicitly rejects making any determination as to the constitutionality of I-601 and instead is compelled to give its provisions the full force and effect he would give any other law.”

Had Lawsuit Ready

Knowing she would receive that ruling, Brown had her lawsuit to overturn the two-thirds requirement ready to be filed against the lieutenant governor. She filed it soon afterward.

“I clearly see it [the tax increase bill] as a thought-out process,” state Sen. Joe Zarelli (R-Ridgefield) told the Tacoma News Tribune. “They want to get the initiative out of the way (before the 2009 legislative session) so they have the option of raising taxes next year with just a majority vote.”

In years past the legislature has “suspended” the two-thirds vote requirement with a simple majority vote to increase taxes. Apparently not wanting to ask fellow Democrats to take a politically risky vote to suspend the law in an election year, Brown decided to ask the court to remove the tax increase restriction for them.

Double Standard

Ironically, while complaining of the supermajority requirement for tax increases imposed on the legislature by the people, Brown saw no problem with sponsoring Senate rules requiring a supermajority vote to amend the budget on the floor.

Senate Rule 53 states, “No amendment to the budget, capital budget or supplemental budget, not incorporated in the bill as reported by the ways and means committee, shall be adopted except by the affirmative vote of sixty percent of the senators elected or appointed.”

This rule was exercised during the latest budget deliberations to thwart an attempt to remove $250,000 from the Senate budget to buy tickets for girls to attend Seattle Storm basketball games. The vote to remove the funding was 24-23 but it failed because it did not receive the required supermajority vote.

Legal Precedents

Mike Reitz, lead legal counsel for the Evergreen Freedom Foundation, notes case law supports the people’s I-601 taxpayer protections being upheld by the court.

“The California constitution has a counterpart that is nearly identical to our constitution’s ‘simple majority’ requirement. In People v. Cortez, a California appeals court held that Proposition 8, which required a two-thirds vote of the legislature to support an amendment, was not in conflict with the simple majority provision. ‘Clearly a bill which obtains the approval of two-thirds of the membership of each house has also obtained the approval of a majority of the legislators in each house,’ it ruled,” said Reitz.

Policy experts agree with Reitz’s legal analysis.

“The purpose of the constitution is to place limits on government power–not limit the freedom of individuals. If lawmakers, or the people, want to adopt a law that has lawmakers exercising less power than is given to them in the constitution–like making it harder for them to raise taxes–they are perfectly free to do so,” said Paul Guppy, vice president of research for the Washington Policy Center.

Guppy added, “What would be unconstitutional would be if I-601 attempted to give lawmakers more power than the constitution gives them. I-601 clearly doesn’t do that. Hopefully the courts will see that adopting a procedure that limits the power of the legislature more than the constitution already does is not in itself unconstitutional.”

Guppy said the state Senate’s own supermajority rules show “if lawmakers are able to place additional restrictions not found in the constitution on the passage of legislation, so too can the people.”

Jason Mercier ([email protected]) is director of the Center for Government Reform at the Washington Policy Center.