Maureen Hart of the Washington state attorney general’s office addresses the state Supreme Court Tuesday.

OLYMPIA, Sept. 25.—Will big tax hikes be kept off the table in next year’s Legislature? It’s the Supreme Court’s call, now that oral arguments have been heard in a challenge to the state’s two-thirds-for-taxes rule – the one big thing that has stood in the way of tax increases during these tough budget times. The high court heard argument Tuesday in a case with big implications for lawmakers in 2013.

On one side are the Democratic lawmakers and special interest groups dependent on state spending who say a majority of the Legislature ought to be free to raise taxes if it chooses. On the other are the majority of Washington voters who have passed the rule in initiative form four times since 1993. A whopping 64 percent said yes to I-1053 in 2010, requiring a difficult two-thirds vote of the House and Senate before taxes can be increased. In practice the rule means majority Democrats need help from minority Republicans to pass tax bills, not something Republicans offer freely. Another such measure is on the way to the ballot in November. If the court allows the rule to stand I-1185 could put the handcuffs on lawmakers for at least another two years.

“I think it is not overstating it to say that in a lot of ways how well our state government can function is at stake today,” said state Rep. Jaime Pedersen, D-Seattle, one of the lawmakers who set the case in motion. “For the last 18 years we have been in a situation where a small minority of one house of the Legislature can control the question of how much money is available to spend. We have the possibility of restoring majority rule for the legislative process today.”

The packed courtroom at the Temple of Justice Tuesday illustrated the high interest in the case. Every seat was filled by lawmakers, state officials, constitutional scholars and political players, all of them trying to read the mood of the court from the questions the justices asked. The question today isn’t just whether the Supreme Court will toss out the rule, but also whether it will choose to make a decision.

Fourth Try for Opponents

It is the fourth time that the high court has been asked to rule on whether the supermajority rule is constitutional. So far the court hasn’t been persuaded to weigh in. Previous challenges have been dismissed for procedural reasons, and it appears this challenge has the same central flaw. It asks the court to rule on a hypothetical issue, rather than on a situation involving an actual bill. Only in a general way can opponents say their interests have been harmed. They’re saying the rule stands in the way of full funding for basic education. “Teachers are being laid off, classes are being cut,” argued attorney Paul Lawrence, representing Pedersen, 11 other Democratic lawmakers, a gaggle of education groups, teachers and parents. The argument might have some appeal for a Supreme Court that has ruled the state isn’t spending enough on K-12. There’s also a different legal tactic. Opponents seek a “declaratory judgment” rather than a more intrusive “writ of mandamus,” which requires action by legislative officers.

But there’s no telling whether a few small tweaks will do the trick. The court has been reluctant to inject itself into the political arguments that rage at the statehouse. And even the Legislature’s most ardent tax advocates have been reluctant to set up a legal scenario that would place the matter before the court in a clearly legally proper way. The last ruling from the court, on a 2008 challenge from Senate Majority Leader Lisa Brown, noted that the Legislature could always pass a tax bill in defiance of the law. That would almost certainly throw the matter into the courts for a ruling. The problem is that likely would create political heat for the Legislature.

Justice Debra Stephens said she has trouble seeing the difference between the previous challenges and this one. “It doesn’t sound like much of a test of judicability at all,” she said. “Just that it’s important, and we have an argument that it’s unconstitutional.”

Solicitor general Maureen Hart, defending the initiative for the attorney general’s office, said plaintiffs are making a political argument, not a legal one. “Their interest is in greater spending for programs that they support. That is a political interest. It is not a legal interest. Their interest is in passing tax increases that a simple majority vote of the Legislature could pass, when the Legislature has chosen not to do that. That is a political interest, too, not a legal interest.”

Evidence from an Old Newspaper

Though there’s no telling whether the court will ever get around to the central question, the constitutionality of the rule is one of the oldest arguments around, dating back to the first challenge in 1993. The problem is that the constitution’s language is convoluted to the extreme, and not even a college-trained grammarian can explain with any certainty what it means. It describes how votes are supposed to be taken in the Legislature: “No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.”

The official journal of the state constitutional convention offers no explanation. So is it a minimum or a maximum? Opponents maintain the majority-vote language is hard and fast, and no further requirement can be imposed without an amendment to the constitution. Yet there’s no provision requiring an amendment. So Hart of the attorney general’s office says the people ought to be able to impose additional requirements with an initiative, or the Legislature with a statute. “The language sets a minimum,” she said. “It describes only the minimum number of votes that are required to pass a bill.”

An old argument, yes. But there’s a new wrinkle to it, thanks to a justice who apparently has been spending some time in the newspaper archives. Justice James Johnson said an account of the debate in the Seattle Times of Aug. 9, 1889 makes the intent clear. Apparently the founding fathers worried whether everyone would make it to Olympia for the opening day of legislative sessions, a big issue in horse-and-buggy days. They had to decide whether a bill could be considered passed by a majority of those present or a majority of those elected. They decided the latter.

It was a quorum issue, nothing more, Johnson said. If the framers really wanted to say that a majority vote is all that is required, they could have put it that way. “Tell me why they didn’t use this simple way of saying it,” he said.

Lawrence insisted Johnson was missing the point. It’s not about what the framers meant. It’s all about proper procedures for amending the constitution.

On the other hand, Justice Tom Chambers posed a derisive question, wondering whether lawmakers could legally pass a bill insisting that all bills must be signed by Santa Claus.

Plenty at Stake

Tim Eyman, the ballot-measure promoter who was behind I-1053 and this year’s I-1185, was watching from the back of the room. Hard to say how this one’s going to come out, he said. “Oral arguments are like a Rorschach test – you can see whatever you want.”

But some of those questions were zingers, he said.

There’s plenty riding on the decision, said Kris Tefft of the Association of Washington Business, who filed a friend of the court brief supporting the attorney general’s position. The course of the 2013 Legislature will depend on whether the tax-vote restrictions remain in place. But even if the court throws the rule out, that won’t be the end of it, he said. The popular rule might be revived in the form of a constitutional amendment. “It would elevate this matter to an issue that will be with us for some time, as a debate over whether to amend the constitution.”

Your support matters.

Public service journalism is important today as ever. If you get something from our coverage, please consider making a donation to support our work. Thanks for reading our stuff.