Article by Erik Smith. Published on Wednesday, June 01, 2011 EST.

A Strange Q&A on House Floor Sets Up a Hopeless Court Case – But Could Force Attorney General to Defend Tim Eyman Just Before Gubernatorial Election

State Rep. Laurie Jinkins poses a curious question of House Speaker Frank Chopp.

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, May 31.—The smartest folks around the state Capitol never take things at face value. But a strange debate on the House floor just before this year’s legislative session ended last week has even the canniest insiders scratching their heads. They’re wondering how clever the Democrats were trying to be.

            On the second-to-last night of the legislative session, the majority Democrats in the state House staged a debate on a tax bill that didn’t stand a chance. House Bill 2078 would have ended a $100 million tax break for out-of-state banks and put the money into schools. It was doomed from the start, just like any other move to raise taxes this year. Initiative 1053, approved by voters last fall, requires a two-thirds vote, and Democrats could muster only 52 – just over half the House.

            Suspicious minds might have seen it as a routine attempt to embarrass the other team, forcing Republicans to vote for Wall Street and against children, and providing ammo for political ads in the next election. But it was something more than that. A curious scripted question-and-answer session between the House speaker and three members took place just before the vote on the House floor, apparently laying the groundwork for a new court challenge to I-1053. 
            It’s one of the longest-running arguments at the Capitol, dating back to the first time Washington voters imposed a supermajority requirement on the Legislature with Initiative 601 in 1993. Is it constitutional? Voters keep passing the two-thirds rule and lawmakers keep suspending it whenever it becomes easy. If lawmakers could dispose of it once and for all, the majority would rule. Tax hikes also would be simple and Democratic majorities wouldn’t have to negotiate with Republicans.

            Except – there’s a problem with that explanation. The case looks hopeless. Opponents have challenged the rules three times already before the state Supreme Court, and they have lost every case. Nothing has changed. And while many Democrats take the cause as an article of faith, there is nothing to suggest the high court would even consider their argument.

            But here’s one thing a challenge might accomplish. It could force state Attorney General Rob McKenna to defend the initiative in court – and by extension, Tim Eyman, the love-him-or-hate-him initiative promoter who has twice succeeded in passing supermajority measures. On the eve of Republican McKenna’s widely-expected bid for governor in 2012, Democrats are trying to paint the two as toxic twins. And a court battle could tie McKenna to a figure many regard as a nasty substance you scrape from the bottom of your shoe.

            In other words, what happened last week might have been an ordinary bit of political strategy. Or it might have been something truly outstanding.

            The ‘Freshman Project’

            They called it the “freshman project” – a bill introduced and carried by the first-term members in the House Democratic Caucus. Sponsored by state Rep. Laurie Jinkins, D-Tacoma, and signed by 47 others, this one took aim at business tax loopholes – the popular rallying cry this tight-budget year for the left and the Democratic mainstream.

            By the time it got to the House floor the only break the bill canceled was for big out-of-state banks. They don’t pay B&O tax on mortgage interest for first-time homebuyers. The bill would have made them cough up and would have redirected the money to teacher salaries in kindergarten through third grade. “We can do something with that money,” Jinkins said. “We can save the jobs of 1,300 teachers in this state. We can make a difference for tens of thousands of children.”

            Republicans rolled their eyes when they saw that one coming. Surely the Dems could have found $100 million somewhere in that $32 billion budget they passed, they said. In an interview on TVW’s Inside Olympia program two days later, House Minority Leader Richard DeBolt said, “It was political theater to get a vote on people so they could go and put political hit pieces on them.”

            And if it wasn’t for that odd exchange on the floor, that’s all the freshman project might have been.

            Reading Their Lines

            Normally members are forbidden from reading speeches on the floor. They’re supposed to speak from the heart, not from the page. But the rule doesn’t apply when they’re trying to set up a legal argument that might be reviewed by a court. There’s a word for this type of question-and-answer session – they call it a “colloquy.”  

            The fact that House Speaker Frank Chopp was staring at his script the entire time was one clue. Another was the fact that he was on the dais in the first place. Chopp rarely presides over the House. Unlike House speakers of the past who relished the job, the vast majority of the time Chopp hands the gavel to others and watches from a sofa in the rear of the House chamber, or casts his votes using the pushbuttons in his office.

            “It was like they were doing a read-through for a play,” said Mike Reitz of the Freedom Foundation. “And they kept stumbling over their lines.”

            First Jinkins rose to a “point of parliamentary inquiry” and asked how many votes were needed to pass the bill. Chopp cited the precise section of the Revised Code of Washington that incorporates Initiative 1053. He discussed the principles of the law that establish why ending a tax break is really a tax increase. And then he ruled that 66 votes were required.

            Questions Keep Coming

            Next, Rep. Jamie Pedersen, D-Seattle, asked whether Chopp had the authority to determine whether the law was constitutional.

            Chopp said he couldn’t – that was a matter for the courts. Were he to do so, he could be charged with malfeasance, he said.

            “Having personally faced this ambiguity for 13 years, the speaker would appreciate clarification from the courts on how to resolve the differences between the provisions of the constitution and the statute,” he said.

            Then Rep. David Frockt, D-Seattle, asked whether the members of the House could overturn Chopp’s ruling and declare the law unconstitutional. Chopp offered a legal dissertation on the subject, basically saying that a majority could vote to overturn the ruling, but that the House can’t declare a law unconstitutional, either.

            “Wow,” said Jinkins when it was all over. “You know a lot.”

            Sets Up Challenge

            Pedersen has since confirmed that the lawmakers were laying the groundwork for a legal challenge – not that it comes as a surprise. The last challenge, to the similar Initiative 960, started the same way. In that 2008 case, Senate Majority Leader Lisa Brown, D-Spokane, sought a similar ruling from Lt. Gov. Brad Owen on a liquor-tax bill, and the supermajority requirement shot it down. Brown argued that the constitution prohibits voters from imposing voting requirements on the Legislature. That’s because the constitution says “No bill shall become a law unless on its final passage … a majority of the members elected to each house be recorded thereon as voting in its favor.”
             The argument is that the supermajority requirement changes the constitution, voters can’t do that unless the Legislature sends an an amendment to the ballot, and so voters can’t heap additional rules on the Legislature. The counter is that the constitution sets a floor, not a ceiling, and nothing says the voters can’t set a higher bar. The attorney general’s office makes that point every time a challenge is filed.
            Pedersen, a Seattle attorney, told the Olympian that the three lawmakers are working on a new approach – hence the somewhat different set of questions that faced Chopp last week. 

            None of Our Business, Court Says

            The real trouble with the constitutionality argument is that the Supreme Court has never found a reason to consider it. In 1994, public-employee unions and other interests argued they would be harmed when Washington’s first voter-approved supermajority requirement took effect. The court said they lacked standing because they hadn’t actually been harmed.

            In 2007, a similar coalition tried to keep I-960 off the ballot. The court said it wouldn’t rule before an election.

            And in 2008, after 960 passed, the court said Brown hadn’t exhausted all her options. The Senate could always vote to overturn a ruling from Lt. Gov. Brad Owen. The Legislature’s rules don’t require members to declare a law unconstitutional – they can overturn a ruling for any reason they choose. Or the Legislature could just overturn the initiative. The first two years after passage, it takes a two-thirds vote of both houses; after that, a simple majority. It might be hard to get a two-thirds vote, but the option is always there. And that’s the central problem – the Legislature’s options will never be exhausted.

            It’s not up to the courts to decide whether the Legislature’s rules are proper, wrote Justice Mary Fairhurst for the court.    
            “Having failed to convince Owen to make a legal determination, [Brown] now asks this court to make a parliamentary ruling,” she said. “We decline to do so.”

            A Hopeless Case

            For years Democrats have been saying the supermajority requirement is improper. Last year former Senate Ways and Means Chair Margarita Prentice declared during a hearing that it was “clearly unconstitutional,” and Brown insists the case could be won if the Supreme Court would just listen to the argument.

Yet it isn’t so clear. Briefs filed by McKenna’s office make a simple argument – you have to take the constitution at its word. Opposition briefs, meanwhile, largely assert that the position is preposterous and make convoluted arguments based on rulings from out-of-state cases where laws, constitutions and precedents are much different.

             There’s really only one way opponents could force the court to decide the merits of the argument, said Kris Tefft of the Association of Washington Business, who filed a friend-of-the-court brief against Brown in 2008.

That would be for lawmakers to ignore the law, overturn adverse parliamentary rulings, pass a tax with a simple majority, and then battle the inevitable lawsuit all the way to the top. The House, the Senate and the governor – all of them would have to cooperate. “But that invites enormous political risk and scrutiny from the media, and that’s why I don’t think you’ll ever see a justicable challenge to 1053.”

            Reitz filed a similar brief for the Freedom Foundation. He said he wonders if the court will even agree to hear a new case. “I don’t know what this new challenge could be that would make it any different than the last one that went down in blazes.”

            Follows Campaign Script

            If the case can’t be won, why would the Democrats bother?

It may have more to do with politics than the law. Right now McKenna, who has yet to declare, is poised to run the strongest Republican gubernatorial campaign in ages. Early polls show him running even with or ahead of his likely Democratic opponent, Jay Inslee. The attorney general’s office can’t comment on issues likely to be involved in litigation. But certainly any challenge would force the office to defend the supermajority requirement, just as it has done twice during McKenna’s administration and once under now-Gov. Christine Gregoire, a Democrat.

That also would force McKenna, just before the election, to fight shoulder-to-shouler with Tim Eyman. The conservative initiative promoter was behind 1053 and the earlier 960, and appears to be one of the most polarizing figures in the state – at least among the small percentage of voters who follow state politics closely. During his last few anti-tax campaigns, opponents have tried to make Eyman’s involvement an issue. That suggests they have access to internal polling showing his name to be a liability.

Already a state Democratic Party website does its best to link McKenna to Eyman. “Take a look at some of the people he counts as his allies in his endless pursuit of higher office,” it says. Eyman’s name is at the top of the list. “More often than not throughout his career, Rob has shared Tim Eyman’s priorities and helped get them on the ballot,” it states.

            Will Motivate Democratic Base

The whole thing smacks of a campaign tactic, says Scott Stanzel, president of Stanzel Communications and campaign manager for last year’s anti-income-tax campaign, Defeat 1098:

“We are 18 months out from the 2012 election, there are no announced candidates for governor and Democrats are desperately trying to tear down Rob McKenna,” he said. “They’ve launched negative websites and run ads attacking Attorney General McKenna, because they know he has significant support among independents and Democrats. In 2008, when Barack Obama won Washington 17 points, Rob McKenna demonstrated his crossover appeal by winning the state by 19 points.

            “The attempt by Democrat leaders and their government employee union allies to rile up voters with anti-Eyman rhetoric in 2010 failed because Washingtonians evaluated the issues and overwhelmingly decided to reject higher taxes and more runaway spending in Olympia.  Despite having their hats handed to them on the recent tax initiatives, Democrats will trot out these tired old tactics in an attempt to resuscitate their liberal base and stave off a voter-administrated housecleaning in 2012.”

            Meanwhile Eyman doesn’t buy the argument that his name is a liability. It sure didn’t seem to hurt last time. And defending an initiative approved by nearly two-thirds of the voters? That’s a no-brainer. “I’m sure Rob McKenna would say ‘please, throw me into that briar patch,'” he said. “Defending an unpopularly passed initiative, that would be different. He was defending Initiative 960 when it was passed with 51 percent of the vote.

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.