Article by Erik Smith. Published on Tuesday, July 26, 2011 EST.

Dem Challenge to Washington Voters Faces an Uphill Battle – Lawmakers Can’t Prove Injury

Normally a no-no: House Speaker Frank Chopp reads his speech during the scripted exchange on the House floor May 24. 

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, July 26.—Democratic lawmakers and a pair of allied interest groups have filed their long-expected challenge to the Washington voters who keep on making it harder for them to raise taxes.

            With a lawsuit filed in King County Superior Court Monday, 12 House Democrats, the Washington Education Association and the League of Education Voters seek to overturn the two-thirds-vote requirement that voters imposed on the Legislature last year. They say the rule prevents legislators from “exercising their constitutional right to advance bills through the legislative process and prevents the public from receiving the benefit of those bills.”

            The problem is that the people just don’t seem to appreciate the favor. Last year’s vote was the fourth time in 18 years that they have put the Legislature in handcuffs. It looks like the Dems are going to have a tough time wriggling out. There aren’t many differences between this lawsuit and another filed by Senate Majority Leader Lisa Brown in 2008. The state Supreme Court rejected that suit on procedural grounds, without ever ruling on the constitutional question.

This latest attack has the same big weakness as the last one – none of the lawmakers or the interest groups can prove that they were injured by Initiative 1053, the latest version of the supermajority requirement. The Legislature has never gone all the way. It has never passed a tax and had it signed by the governor, only to have it fail to become law because the House and Senate couldn’t muster a two-thirds vote. Even if that were to occur, the court would still have to decide – is it any of its business?

All legal questions aside, there’s a bigger political one. Is it smart to attack a wildly popular law, passed the last time by 64 percent? Republicans say the Democrats just handed them a central issue for the 2012 governor’s race. The state Republican party gleefully pumped out a press release Monday in which state chairman Kirby Wilbur posed a question that had suddenly become obvious: 

“We need to know what Congressman [and Democratic gubernatorial candidate] Jay Inslee thinks of this. Does he support overturning the will of the people? Jay, we can’t hear you. Do you support overturning Initiative 1053? Jay, are you there?”

            Worked Like a Charm

The stakes are high on this one, not just for the education lobby and other groups dependent on state spending, but also for the business interests that backed 1053 last year for their own protection. The measure blocked tax increases during one of the state’s biggest budget nightmares.

Lawmakers ran about $3 billion short of the amount they needed to prop up the spending plans they adopted during the boom years of the last decade. Majority Democrats in the House and Senate might have been willing to raise taxes in the middle of a recession, but the two-thirds vote requirement made it practically impossible. Republican votes were needed, and the GOP wasn’t about to budge.

So to balance the budget, lawmakers were forced to make deep cuts, many of them antagonizing key constituencies of the Democratic party. The Democratic disarray was so intense that minority Republicans in the Senate were granted a seat at the table during budget talks. In the end, social service programs and higher education programs got deep cuts; unionized state employees took modest ones.

All in all, it wasn’t such a bad result, said Gary Chandler, vice president of government affairs for the Association of Washington Business, which struck a rare alliance with initiative promoter Tim Eyman to pass the measure last year. “Were it not for I-1053, we undoubtedly would have had new taxes and higher taxes,” he said. “Instead, it forced Olympia to prioritize, work together in a bipartisan manner and live within its means – which is what most of state’s employers and families are being forced to do right now anyway. State government should be no different.”

            The ‘Freshman Project’

The issue is partisan as they come. Republicans universally support the measure, not just because it gives them power in the Legislature but also because it forces the fiscal discipline that is one of their cardinal principles. It also gives them a chance to slam the other guys. “At a time when so many families and small businesses are adjusting to economic realities and living within their means, House Democrats feel that state government shouldn’t have to,” said House Minority Leader Richard DeBolt.
           The supermajority requirement also enjoys support from moderate Democrats, whom it empowered in this year’s budget debate. But it certainly doesn’t fit the mainstream Democratic view – that the majority party ought to rule, every time. A band of newly elected Democrats in the state House spent weeks preparing this challenge, as part of what they called a “freshman project.”
           The setup came one day before the Legislature adjourned. The Dems ran a bill on the House floor May 24 that would have revoked a tax break for banks and steered the money toward K-12 education. That’s a tax increase. The bill got a majority vote, with 52 voting yes. But it wasn’t a supermajority – 66 was the magic number – and House Speaker Frank Chopp ruled that it had failed.

What made the debate striking was a scripted exchange that took place before the vote between three House members and Speaker Chopp. Reading from his notes – normally a no-no in the House – Chopp maintained that he couldn’t declare the bill had passed unless two-thirds of the members said yes.

The members inquired as to whether the House might overturn his ruling. They could, Chopp said, but it had happened only once in the history of the state, some 60 years ago – and that was in the Senate, not the House.

And then the vote took place with the result everyone expected.

A Constitutional Question

            The scripted “colloquoy” on the House floor was intended to show the court that lawmakers didn’t have any options, explained state Rep. Jamie Pedersen, D-Seattle, in an interview last month. Pedersen was one of the three members, all lawyers, who staged the play on the floor. “We came across some facts that we thought were important to get on the record, showing an exhaustion of remedies. What we found as we looked into the question was that there had never been a successful appeal of a speaker’s ruling.”

For years critics in the Legislature have taken it as an article of faith that the supermajority requirement is unconstitutional. The state constitution says merely that “no bill shall become law unless on its final passage… a majority vote of the members elected to each house be recorded thereon as voting in its favor.”

By imposing a supermajority requirement, voters are laying an additional rule on top of the requirements imposed by the constitution. And the whole argument is rather simple. Opponents say the voters can’t do that. Supporters say yes they can.

Court is Reluctant

Pedersen points out that the constitution is pretty specific on other voting requirements, requiring 60 percent or two-thirds approval for other types of measures. If the state’s founding fathers, back in 1889, wished to allow another rule to be imposed, then surely they would have spoken up 122 years ago.

The counter-argument is that nothing in the constitution prevents the voters from going further. That’s the line taken by the state attorney general’s office, which defended the last supermajority requirement, Initiative 960, when Senate Majority Leader Brown filed her suit in 2008. The attorney general’s office maintains that the constitution sets a floor, not a ceiling.

It’s worth noting that attorney general Rob McKenna, who led that fight, is the only announced Republican candidate for governor in 2012. The Dems asked him last month to step into the case, a precursor to their own lawsuit. The office declined, in a letter that called the legal arguments “invalid” and “an inadequate basis” for a suit.

The legal argument is one thing, but getting the court to rule on it is a hurdle all by itself. This marks the fourth time since 1994 that opponents have tried to force the issue into the legal arena. But the Supreme Court has ruled repeatedly that opponents have to show first that they have been harmed and the court is their only recourse.

Its ruling in the 2008 case appeared to mock the tactic. Brown challenged a similar decision by the Senate’s presiding officer, Lt. Gov. Brad Owen, that blocked a liquor-tax increase. Writing for the court, Justice Mary Fairhurst said the courts were being asked to settle a political argument the Legislature can settle on its own. It’s simple. If the Legislature wants to raise taxes, all it has to do is to take a two-thirds vote. If the Ds have a problem with the Rs, that’s their problem. Or it can take a vote to repeal the initiative. That takes a two-thirds vote the first two years, and a majority vote thereafter – which explains how the Legislature keeps repealing the supermajority requirement and why the voters keep reimposing it.

“Having failed to convince Owen to make a legal determination, [Brown] asks this court to make a parliamentary ruling,” she said. “We decline to do so.”

           No Real Difference

Nothing has really changed, said attorney Michael Reitz of the Freedom Foundation, a right-leaning think tank that filed a friend of the court brief in 2008. In that case, Brown and her attorneys went straight to the Supreme Court by filing a writ of mandamus. This time the Dems are starting in King County Superior Court, perhaps taking a gamble that a lower court might see things their way.

But the issue remains the same. The opponents can’t demonstrate that they have exhausted all their remedies – and they never can. Nor can they demonstrate that they have been harmed, which denies them standing to file a suit. Though the complaint mentions several tax increases that have failed in the state Legislature for lack of a two-thirds vote, none of them have gone all the way through the process.

            That’s important, Reitz explains, because a bill that passes only one house may not pass the other. Until it actually happens, it’s all a matter of speculation. And if a presiding officer rules that a bill has failed for lack of a two-thirds vote, the ruling can always be overturned by a vote of the chamber. The fact that the Legislature hasn’t done it in 60 years doesn’t make a whit of difference. It still has the option.

“Once again we have public officials litigating for more money and to countermand the desire and the will of the taxpayers who have voted repeatedly for these types of restrictions on the Legislature,” he said. “I think it is a slap in the face of all the taxpayers that have voted for these measures in the past.”

Kids in a Candy Store

Kris Tefft, the attorney for AWB who filed another friend-of-the-court brief opposing Brown’s suit in 2008, said the issue of standing will be a central point of argument. “You don’t really have a specific case or controversy here,” he said. “You’re still asking the court to basically issue a constitutional advisory opinion on an abstract political question. That said, I do acknowledge this is a different approach – starting in King County and seeking a declaratory judgment/injunction, versus starting in the Supreme Court and seeking a writ restraining a state officer. But I foresee an aggressive fight over standing/justicability before the matter ever gets to the merits, if it does.”
            Much has been made of the fact that the initiative was brought to the ballot by Eyman, the love-him-or-hate-him promoter of ballot measures that have put a crimp in state spending over the past dozen years. Yet the first two times, Eyman had nothing to do with the supermajority initiatives – Eyman’s first involvement in the issue came with Initiative 960 in 2007.

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