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The Gristle

A simple majority

Wednesday, March 6, 2013

A SIMPLE MAJORITY: In a bold but not entirely unexpected decision, the Washington State Supreme Court last week struck down the supermajority requirement binding the Legislature. Mirroring similar decisions in other states, including Alaska, justices found such restrictions—despite their popularity with voters—impose the “tyranny of the minority” on lawmakers and make obstruction the operative principle in government.

“The supermajority requirement unconstitutionally amends the constitution by imposing a two-thirds vote requirement for tax legislation,” justices found. “More importantly, the supermajority requirement substantially alters our system of government, thus enabling a tyranny of the minority. The framers were aware of the extraordinary nature of a supermajority requirement as evidenced by their decision to use it only under special circumstances. The passage of ordinary legislation is not one of those circumstances.

“If the people and the legislature wish to adopt such a requirement, they must do so through constitutional amendment,” justices wrote, noting their opinion is supported by other states that have similarly addressed this issue.

Six Supreme Court justices agreed in support of constitutional democracy. Of the three dissenting opinions, only one argued the people’s power of direct legislation essentially overwhelms constitutional concerns. The final two believed the issue was not yet ripe for the court and wanted to punt it back to the legislature.

The decision greatly assists lawmakers in revising the state’s revenue portfolio to fund public schools, in an environment where even efforts to close loopholes and make revenues more transparent without touching the tax rate are deemed “tax increases,” easily blocked by a handful of legislators. As such, it is the anticipated bookend to a ruling by justices last year that found the legislature was not doing enough to meet their constitutional duty to fund schools. Justices could hardly scold on that failure without providing tools to succeed.

The decision drew howls from Republican leadership, the overstimulated minority able to use voter-approved supermajority requirements to obstruct and hijack those efforts.

“The court has opened the floodgates of taxation,” complained Sen. Pam Roach (R-Auburn), chair of the senate’s government operations committee and primary author of the GOP response.

Of course, no such floodgates are opened. The Democratically controlled legislature has shown no interest in ignoring voter initiatives and raising taxes. Two years after an initiative becomes law, lawmakers are free to tinker with its innards; lawmakers have made no effort to tinker with a series of tax restrictions imposed by voters dating back to 1993. That was, in fact, the complaint of two justices, that such initiatives were not yet ripe for the courts, not justiciable, having never received adequate challenge by the paralyzed legislature or the governor.

In a cycle of tax revolt dating back two decades, professional signature gatherer Tim Eyman has built a lucrative personal empire using corporate (oil) money to brilliantly goad single-issue voters activated through the 1990 motor voter act to create what is—by far—the most regressive tax structure in the United States. Putting anti-tax restrictions on the ballot year after year,—even as past restrictions were still in effect—has allowed Eyman to pocket hundreds of thousands of dollars. In a succession of initiatives from I-601 in 1993 through the most recent I-1105, Eyman and his cohorts have suffocated the state’s financial portfolio. State general fund revenues as a share of the state economy have collapsed from 7 percent in 1995 to under 4.7 percent in 2012, the Washington State Economic & Revenue Forecast Council reported in December. The effect is a permanent structural deficit. Probably worse from a policy perspective, the supermajority requirement empowers an obstructive political faction almost permanently in exile in Washington—state Republicans—and places them fully in command of spending policy: We’re not electing them in numbers, but they sure are in control.

“The supermajority requirement gave a legislative minority the power to squelch ideas even when those ideas had majority support,” Gov. Jay Inslee commented. “That is inconsistent with our fundamental form of representative democracy. Majority rule is a foundation of our system of government.”

Sen. Doug Ericksen pledged to redouble efforts to change the state constitution to require supermajorities to raise taxes, the so-called Roach amendment supported by the 25-member GOP caucus, which is indeed the correct path to address the restriction. Yet—as Inslee notes—the framers of the state constitution were extraordinarily careful in proscribing supermajorities, in balancing the rights of the minority not to be overwhelmed against the rights of the majority to govern as elected.

“The seven supermajority requirements in the original constitution were all relegated to special circumstances, not the passage of ordinary legislation,” justices observed in their decision. “These circumstances included expelling a member of the legislature [one could expel the entire opposition through this procedure] or overriding a veto.”*

By contrast, they warned, “a simple majority of the people or the legislature could require particular bills to receive 90 percent approval rather than just a two-thirds approval, thus essentially ensuring that those types of bills would never pass. Such a result is antithetical to the notion of a functioning government and should be rejected as such.”

Wise words, in a sweeping decision.

*Ironically, another supermajority requirement is the two-thirds threshold needed in the Senate and House to propose disruptive changes to constitution like the Roach amendment. Half doesn’t do it. The framers were smart like that.

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