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Senate Rules Change Poses Problems, but Chances Better Than Two-Thirds-for-Taxes Constitutional Amendment

Senate Ponders Alternate Ways to Reimpose Popular Voter-Imposed Rule Thrown Out by Supreme Court Last Week

Lt. Gov. Brad Owen.

Lt. Gov. Brad Owen.

OLYMPIA, March 4.—The Senate’s Majority Coalition Caucus might be eager to reimpose the two-thirds-for-taxes rule the Supreme Court lifted from the Legislature last Thursday, but it ain’t gonna be easy.

If lawmakers want to amend the constitution, the idea runs into the same roadblock that pretty much prevented lawmakers from raising taxes all those years when the public kept passing the rule by ever-increasing margins. It takes a two-thirds vote of the House and Senate to send a constitutional amendment to the ballot. So a balky minority can stand in the way. And even if the Senate were to say yes, the Democrat-controlled state House is about as likely to bring it up for a vote as it is to pass a resolution honoring Washington native Glenn Beck.

But another, more subtle idea – one that was floated during the hours after the Supreme Court issued its ruling – now has lawmakers and their attorneys flipping through the lawbooks and wondering if there might be a way to make it stick. Members of the Republican-leaning majority caucus are pondering a internal rules change that might accomplish the same thing, by requiring a two-thirds vote of the upper chamber for any bill that raises taxes

Lt. Gov. Brad Owen says it’s a bad, bad idea, and the most obvious way of going about it would run afoul of the state constitution. But never underestimate the creativity of lawmakers when it comes to drafting legislation – after all, that’s their job. Not that such a rule could ever restrain a determined Legislature, but it could be used for maximum political-embarrassment value sometime in the years ahead.

Stop Us Before We Tax Again

Lawmakers have been pondering this one for quite awhile – there were plenty of hints where the Supreme Court might be headed, long before it bounced the two-thirds-for-taxes rule that has hung over the Legislature for much of the last 20 years. The rule, passed five times by Washington voters since 1993, has required a two-thirds vote of the House and Senate in order to pass any bill that raises taxes. Wildly popular with voters, the latest version, I-1185, passed with 64 percent of the vote in 2012, winning in all but five legislative districts in the city of Seattle. The state Supreme Court had declined to rule on three previous challenges, arguing that it would interfere with the internal workings of the Legislature — and it noted that lawmakers had plenty of parliamentary ways to get around the rule short of taking a two-thirds vote.

But the court of late has been demonstrating an increasingly liberal and activist bent, particularly with its McCleary decision last year that held the Legislature must find a way to pay for a basic-education bill it passed in 2009. That’s going to cost $1 billion dollars or so this session, at the very least. And by making it easier for the Legislature to raise taxes, the court may have been pointing the direction it hopes lawmakers will follow.

The decision has lit a fire under an effort to pass a constitutional amendment that would set things in stone and put the matter beyond the court’s reach. The Senate Ways and Means Committee last Thursday passed Senate Joint Memorial 8205, setting the stage for a vote on the full Senate floor. “It is a very simple concept, but it is a powerful message, and the message is that there should be a higher bar when it comes to taxes,” said Senate Majority Leader Rodney Tom, D-Medina. “The people of Washington state did not send us down to Olympia to raise taxes. The people of Washington state sent us down here to prioritize spending, live within our means and move this state forward.”

But let’s just say the handwriting is already on the wall for the amendment. The measure was passed by the committee on a 13-10 vote, with every member of the Senate Democratic Caucus voting no. Even if all 25 members of the Majority Coalition Caucus vote yes, it’s going to take eight members of the Democratic Caucus to vote along with them. The vote Thursday was a pretty clear indication that ain’t gonna happen. Meaning that the vote on the Senate floor will serve mainly to provide material for campaign brochures for the Republican candidates who challenge Democratic incumbents in the next campaign.

The rule-change, though – that’s a different matter.

Rule Change Requires Majority Vote

A change to the Senate rules requires only a simple majority – and thus it is a much more likely possibility. Tom says the Senate is looking into ways that might be done. But here’s the trouble. According to the Supreme Court decision Thursday, the constitution stipulates that a simple majority is all that is required to pass a bill. The Senate can’t simply pass a rule that overrides the constitution and requires a two-thirds vote on a tax bill, says Lt. Gov. Brad Owen.

“That would clearly be unconstitutional,” he says. In fact, the issue has come up before, in 2009, when the Senate rules posed a clear conflict with the constitution. It says the lieutenant governor “shall have the deciding vote in case of an equal division of the Senate.” But the Senate rules, adopted on the opening day of each session, said the lieutenant governor couldn’t cast a deciding vote on final passage of a bill. Owen maintained the constitution supersedes any rule the Senate chooses to pass – and in fact it required him to cast a tiebreaking vote. And so, on a day when Sen. Don Benton, R-Vancouver, was absent and the Senate was split 24-24, Owen cast the deciding vote on SB 5433, a bill that gave more authority to local governments to spend tax money.

So the simplest route is out. The Senate has to find another way. One possibility – it could require a two-thirds vote to advance a tax bill from the Rules Committee onto the Senate floor. “There are a number of things you could finagle around, but clearly it is just a way to get around the ruling of the Supreme Court,” Owen says. And he isn’t saying how he’d rule on such a proposal – he says he has to see the exact language first.

Bad, Bad Idea

But Owen is willing to say what he thinks of the two-thirds concept. “I think two-thirds is an absurd test – it is so undemocratic. I could understand something larger than 50 percent-plus-one. Maybe you should have a higher test, like for instance bond bills require 60 percent. But two-thirds? You can’t get two-thirds to save a child from a burning building.”

A constitutional amendment is the way to go, rather than a rule change, Owen says. “You know, the constitution says a certain thing, and you don’t pass rules to get around the state constitution, just like you don’t pass rules to get around the United States Constitution. In my mind, I think that anything you do to get around the constitution is just wrong. You change it.” And if you can’t find the votes to pass an amendment – you live with it.

One thing worth noting – if a way can be found to draft a new rule that passes constitutional muster and it can be passed with a majority vote, then the same rule can always be repealed by a majority vote as well, the very next time the Senate power shifts hands again. Though it might make for a long and noisy debate aimed at shaming any party that tries, which might suit some political purposes. State Sen. Tim Sheldon, D-Potlatch, a key player in the majority coalition, says he wishes the Senate had moved on the idea on the opening day of the session, when the Senate formally adopted its rules for the year – this way a rule change looks like a reaction to the Supreme Court decision.

Go for the Gridlock!

State Sen. Brian Hatfield, D-Raymond.

State Sen. Brian Hatfield, D-Raymond.

When the constitutional amendment came up in the Senate Ways and Means Committee last week, Brian Hatfield, D-Raymond, offered a puckish amendment. Why stop at two-thirds votes for tax bills? Why not require two-thirds votes on every bill? Of course it would shut down the Legislature and make it impossible to do anything — but isn’t that the idea? “If we are going to go halfway, let’s not do it,” he said. “Let’s go all the way and have true gridlock and super-minority rule on everything we do here.”

The amendment, predictably, was shot down by the committee on a voice vote. Hatfield maintains that he was entirely serious — though you might wonder how deeply that tongue is planted in his cheek. Why, the public would love it, he says. “It was kind of a put up or shut up,” he says. “It is based on a false premise, that we can’t be trusted, we always do the wrong thing. And in this case, that all legislators want to do is raise taxes, and anybody who follows this even remotely knows that is the last thing a legislator wants to do, unless you live in one of those five Seattle districts.”

The whole thing is silly, he says. The way things work these days, any tax the Legislature passes is bound to go before voters. If lawmakers don’t put it on the ballot themselves, the voters are sure to do it for them, by gathering signatures to run a referendum, or placing a repeal initiative on the ballot. If the Senate majority forces a vote on a constitutional amendment or a rule change, the only real value to anyone is pure embarrassment. “That’s what this is about. It is pure politics.”

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