The Gristle
Madisonian Madness
MADISONIAN MADNESS: The people who put together our state constitution were pretty clear about what decisions require supermajorities. They were clear about what the public could alter by initiative. Fiddling with the state’s financial profile was not among them, a Seattle judge decided last week.
King County Superior Court Judge Bruce Heller invalidated a voter-approved initiative that requires a two-thirds majority of the Legislature to raise taxes or close tax loopholes, finding the restriction violates the state Constitution.
“While initiative measures reflect the reserved power of the people to legislate, the people in their legislative capacity remain subject to the mandates of the constitution,” Heller wrote—meaning if voters want to fundamentally change the way their government functions, they need to get inside the engine, not twiddle the dials. His opinion was brief, and not particularly surprising to many observers who’ve long understood the workings of the constitution cannot be changed by statute but by amendment. And the constitution is clear on what monkey business requires a supermajority.
Under Article II, a simple majority—and only a simple majority—is required for bills to become law.
Heller spent most of his brief discussing the “justiciability” of the issue, whether the matter is ripe to be heard by the courts. The question arises because—despite all the hue and cry, and the rending of garments—lawmakers have never challenged voters’ persistent efforts to place controls on their taxing and budgeting authority. They’ve essentially shrugged and gone along with it. Should the high courts wade in where the Legislature has declined to act?
Initiative 1053 was approved by Washington voters in November 2010 and has made it difficult for lawmakers to adopt tax increases. Similar measures were pushed by voters in 1993, 1998 and 2007. The Washington Budget and Policy Center estimates the succession of these measures has crippled the state’s economic vitality by as much as $10.6 billion. Certainly they’ve prevented the kinds of dramatic overhaul of the state’s tax ad revenue systems voters crave. Under supermajority requirements, all it takes is a small confederacy of jackasses to stall years of needed, helpful reforms.
The requirement has instead empowered and emboldened radical (yet ineffective) approaches to state policy and governance, a situation brought sharply into focus earlier this year when minority Senate Republicans used a procedural trick to tip over the state budget, plunging the Legislature into weeks of protracted squabbles that fell far short of revolution.
Heller’s ruling will likely put the measure before the Washington Supreme Court this fall, as both sides agreed in advance that the case would be appealed no matter which way the judge ruled. That tees up the issue to be a powerful wedge issue in November. And, like most wedge issues, it’s more about style than substance.
Our Madisonian instruments discourage the tyranny of the majority by yielding subtle power to the dedicated and organized minority. The Republican Senate, for example, used just such a parliamentary trick last session to seize temporary control of budget authority. But the authors of our constitutional framework also understood such instruments were not intended to be used perniciously or permanently, for that imposes a tyranny of a less democratic sort. The supermajority requirements they did impose were of a particular class, designed to make this created balance extraordinarily difficult to overturn. They were intended to place the levers of government on a high shelf out of reach of weak coalitions of 50% +1. They were not intended to gum up or wreck those levers.
Scarcely 10 minutes after the ruling, state Attorney General Rob McKenna—campaigning for the office of governor—issued a press release, announcing his office would fight Heller’s ruling.
“We believe these voter-enacted laws are constitutional, and we are determined to defend the will of the voters, just as we defend laws passed by the Legislature,” McKenna said. This is the AG’s job, of course, to defend the laws of the state and the rights of voters. Less defensible is the Republican’s pandering glee in declaring, “Several times, voters have sent a clear and consistent message about tax increases, and it’s within their legal rights to do so.”
McKenna also addressed the matter of justiciability, noting, “We believe that this suit is not appropriate for judges to resolve, in part because the Legislature has not chosen to enact a tax increase by majority vote.”
Whatcom’s campaigning Republicans in the 42nd District wasted no time in joining the chorus.
Nitwit Rep. Jason Overstreet, who primped to voters the constitution would be his sole guide for governing (despite that document’s silence on issues like antibiotics and electric lights), appears baffled by the meaning of Article II.
More sanguine, Rep. Vincent Buys issued a press release, outlining the legislative history of I-1053.
“Overturning a ballot measure that passed multiple times undermines the voice of the people,” Buys asserted. “If there is a true need to increase taxes, or repeal a tax incentive, the Legislature can still enact it. This court case was a political move by those who wanted an easier way to raise taxes on hardworking citizens.”
Yes, the original plaintiffs were educators and schoolteachers, annoyed by the erosion of public education in the State of Washington through decades of misappropriation and inaction by legislators. They successfully sued the state to fund public education, protected under the constitution. Now they’re attacking the publicly erected barriers to that funding.
Buys also thanked Sen. Doug Ericksen, who led the charge of 42nd District lawmakers. Ericksen announced he will seek a constitutional amendment requiring a two-thirds vote to raise taxes.
“In the wake of yet another decision to strike down the will of the people to make it hard to raise taxes, I am drafting a constitutional amendment to put the Initiative 1053 standard where it cannot be touched by the courts or lawmakers,” Ericksen fumed. To royally and eternally gum up the works, he added, “I also will introduce a constitutional amendment requiring a straightforward four-year balanced budget and a constitutional amendment to prohibit a state income tax.”
To this the Gristle says,
Good.This is exactly how the matter should have been handled all along: Changes to the actual structure of state government should be handled by and through changes to the state constitution.
Only one little hurdle: Our Madisonian instruments require a supermajority of both Houses to change the state constitution. It was designed that way to forbid or forestall a mercurial change in how our representative republic works simply because we disagree with its outcomes.
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