Are super-majorities in the legislature unconstitutional?
They may well be, but don't expect a gun-shy state supreme court to deal with the explosive question.
KCTS-TV
Majority rule, one-man-one-vote, blah, blah, blah. Tell it to Scott Brown, who made it clear well before he routed Democrat Martha Coakley for Ted Kennedy's old Senate seat that he'd give the Senate's Republican minority the one vote it needed to filibuster the Obama health plan to death. Or tell it to Tim Eyman, currently gathering signatures for an initiative that would keep the legislature from raising taxes without two-thirds votes of both houses.
The state and federal constitutions both require majority votes to pass legislation, and super-majorities to accomplish some specific things: Congress needs two-thirds to remove a judge or a president, for example, and the state legislature needs two-thirds to alter or suspend an initiative within the first two years after it passes. Neither document says anything about a super-majority to raise taxes, or a filibuster that can only be averted by a cloture vote of 60 percent.
Thomas Geoghan argued recently in The New York Times that the modern filibuster is unconstitutional. Geoghan suggested that recent Republican use of the filibuster has made 60 percent necessary to pass virtually any legislation, and he quoted that old populist Alexander Hamilton in Federalist 75: "All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority."
This is an interesting argument, but it's all abstract. No one expects the U.S. Supreme Court to tell the Senate it can't have its filibuster. The one-person-one-vote rulings from the early 1960s don't apply. Besides, those rulings say how we must vote for our representatives. They say nothing about how our representatives vote once they're in office.
Eyman's stated concern is, of course, that once those representatives get into office they tend to vote for higher taxes. This has been a focus of his many initiative campaigns, but it was also a focus of initiatives well before Eyman got into the act. In 1993, Washington voters approved Initiative 601, which limited the annual increase in state spending to an expansion factor that considered only inflation and population growth. Government could no longer grow faster than the state's population or economy. The state could exceed that limit only if two-thirds of each house approved or if the governor declared an emergency.
The legislature reaffirmed the two-thirds requirement a couple of times, but legislators also suspended it and created exceptions. Three years ago, Eyman introduced Initiative 960, which he said would close the loopholes that legislators kept finding. Among other things, I-960 reiterated the two-thirds requirement. Opponents tried to keep it off the ballot, arguing that it was unconstitutional, but they failed. The state supreme court said that it wouldn't consider the substance of an initiative before the people had passed it. And pass it the people did.
To override 960's supermajority requirement within the first two years, legislators would have needed to meet the constitution's own supermajority requirement for amending initiatives, which was clearly not going to happen. But after two years, the legislature can amend or suspend an initiative with a simple majority. That's what everyone expects the legislature to do this year — which is why Eyman has launched his campaign to require the same two-thirds yet again.
Jason Mercier of the Washington Policy Center points out that — even with solid Democratic majorities — "they haven't yet tried to flat-out repeal that provision." This sends "kind of an odd message." On one hand, the legislative majority finds the supermajority requirement enough of an impediment to suspend it. On the other, the majority evidently realizes that voters like the requirement, and won't risk offending them by actually repealing it. Legislators "can read the tea leaves," Mercier says. "It's already been enacted three times by the voters."
This year, the legislature will presumably come up with a tax plan that avoids the most draconian cuts that would otherwise be needed to close the $2.6 billion budget gap. It will suspend the two-thirds requirement so that the tax measures can pass. And then Eyman's initiative will reimpose the two-thirds requirement for another two years.
The Seattle Times and other papers around the state have said don't do it. The people voted for 960, and the legislature should respect the popular vote. But legislators have no chance of mustering a two-thirds vote for much of anything, so their real-world high-pain alternative to suspending 960 is to accept the cuts of Gregoire's first budget by default. Or maybe to rearrange those Titanic deck chairs a little bit so that the cuts spare one program and strike another. Tax reform is out the window, but really, tax reform had never gotten in.
Washington's supermajority rule puts it in good company, or at least in company. Americans for Tax Reform's Center for Fiscal Accountability website lists 16 states in which an initiative or referendum has established supermajority voting requirements for raising taxes. In 1978, California's Proposition 13, better known as the first modern state property-tax-limit initiative, imposed a two-thirds rule on the Golden State's legislature. Mercier suggests that California's is still the most draconian limit on state spending; it requires two-thirds of both houses not only to raise taxes, but to pass a budget. It's had a huge and mostly dire effect on the state, which has watched its schools and universities, once near the top, plunge dramatically downward.
Still, California wasn't the first state to require a supermajority Ever since the Great Depression, Arkansas has required a 75 percent supermajority for raising property and certain other taxes; the requirement doesn't apply to sales or other new taxes passed since that date. Louisiana and Mississippi required supermajorities in 1966 and 1970. Florida passed a 1971 referendum that requires a 60 percent supermajority, but only for corporate income tax.
All of those other states have written supermajority requirements into their constitutions. Washington is the only state in which the requirement is merely statutory. Therefore, Washington is the only state in which one can ask whether or not requiring a supermajority violates the state constitution
Hugh Spitzer, who teaches Washington constitutional law at the University of Washington law school, says it seems pretty clear that if the state supreme court were somehow forced to vote on the issue, the court would find the two-thirds rule unconstitutional. But so far, the court has managed to duck the question.
"The court is terrified of having to make a decision," on the constitutionality of a supermajority, Spitzer suggests. "They do everything they can" to avoid it.
Two years ago, Senate Majority Leader Lisa Brown tried to get Initiative 960 thrown out. The Senate was considering a bill that would have jacked up the tax on some kinds of liquor. Lieutenant Governor Brad Owen, presiding over the senate, said that the bill required a two-thirds majority to pass. When it failed to get two-thirds, he announced that it had failed. Brown sued, asking the court for a writ of mandamus ordering Owen to decide the bill had passed. She also asked the court to declare the two-thirds requirement unconstitutional. The court said that it was being asked — improperly — to intervene in a spat over senate rules. It wasn't going to do that: "(W)e will not interfere with the internal workings of the senate to examine the procedures by which a bill failed." The court couldn't order the lieutenant governor to rule a certain way: A writ of mandamus would be inappropriate. Therefore, the suit failed. Therefore, the court didn't have to consider the constitutional issue.
Spitzer suggests that the court would be forced to consider it if a simple majority of the legislature passed a bill, and somebody then challenged the legislation on the grounds that it had been passed improperly. Barring that, the justices will probably keep ducking and dodging.
Mercier suggests that the legislature could lay all the controversy to rest if it put the supermajority before the voters as a constitutional amendment. If the people said yes, there would be no more argument about its constitutionality, no more chance for legislators to wait two years and then use a simple majority to suspend it. But he doesn't expect to see that happen. The Dems know the people would say yes.
And Republicans have no need to ask. For the time being, fans of the supermajority requirement don't really have to worry about its constitutionality. As long as the Supreme Court ducks the issue and the people keep saying yes, who cares whether it's constitutional or not? "Eyman knows it's unconstitutional," Spitzer suggests. "He doesn't care."
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Comments:
Posted Tue, Feb 9, 8:44 a.m. Inappropriate
Hugh Spitzer is correct. Eyman knows 960/1053 are unconstitutional and he just doesn't care. It's all the better for him in any case. If the court struck it down, he'd have to stop running the same thing over and over again, which would force him to find some more complicated plot to put before voters.
Chasan doesn't mention that at the same election where voters narrowly approved 960, they also passed a constitutional amendment which lowered the bar for passage of school levies from a supermajority to a simple majority. That constitutional amendment will certainly have an effect on the success of the or failure of the school levies on the ballot today. If voters understand that majority rule is what's at stake, they won't vote for an Eyman initiative. The narrow margin of passage suggests that this isn't the overwhelmingly popular idea Eyman claims it is. And no wonder, it's totally inconsistent with, um, democracy!
Posted Tue, Feb 9, 8:45 a.m. Inappropriate
"Mercier suggests that the legislature could lay all the controversy to rest if it put the supermajority before the voters as a constitutional amendment. If the people said yes, there would be no more argument about its constitutionality, no more chance for legislators to wait two years and then use a simple majority to suspend it. But he doesn't expect to see that happen. The Dems know the people would say yes."
Horrors! God forbid that the people should have any say in the matter.
Posted Tue, Feb 9, 8:55 a.m. Inappropriate
People DO have a say in the matter. It's why we elect our state legislators. This is a representative democracy. It's what the founders set up when they wrote the U.S. Constitution. Live with it.
Posted Tue, Feb 9, 9:16 a.m. Inappropriate
I-601 and I-960 are clearly unconstitutional. The Legislature is using the 2/3 requirement when it wants to and is voiding it when it wants to.
Ironically 2/3 of the public has never supported these measures. Both I-601 and I-960 were passed by small margins. If they had needed to receive a 2/3 vote to pass, neither would have been law. In the third measure it was hidden away in the fine print, not even mentioned in the ballot title.
Posted Tue, Feb 9, 2:25 p.m. Inappropriate
There's a reason the Speaker of the House says, upon approval of a bill: "The bill having received a constitutional majority is declared passed." Constitutional Majority being the operative words of course.
In suppressing the will of the Senate majority, our dear Lt. Governor, presiding over that body apparently said something like: "The bill having received a constitutional majority is declared not passed, due to a statute that I deem to overrule the constitution."
There's a reason I've never trusted that guy.
Posted Tue, Feb 9, 3:09 p.m. Inappropriate
I agree with all of the above, vote out the current majority. It's far easier than expecting them to do the right thing.
Posted Tue, Feb 9, 7:21 p.m. Inappropriate
Careful with that Cameron -- voting out the current majority and replace them with the Party of No, would not be an improvement!
Posted Tue, Feb 9, 9:02 p.m. Inappropriate
Prove it. 26 years of Democrat control has given us the current situation, it couldn't get any worse than the current crowd.
Posted Tue, Feb 9, 10:13 p.m. Inappropriate
Cameron, the Republican Party is controlled by forces who believe all taxes are bad and the only thing to do with taxes, no matter the problems faced by the community, is to cut them. Put them in charge and watch us emulate California (where it takes two-thirds majorities to pass a budget or raise any tax.
If the Founders thought that two-thirds was the appropriate percentage to raise a tax rate, they would've put it in the constitution. Instead, they adopted Majority Rule, and I'm with Majority Rule.
Posted Wed, Feb 10, 6:09 a.m. Inappropriate
Who runs the California Legislature again? Which party is in the majority? Arnold is Governor calls himself an R, but acts like a D
If majority rule is the only way to go why does it still take a super majority to pass a school bond? Will the Democrats change that too?
It's all about performance and the Democrats have failed.
Posted Wed, Feb 10, 7:35 a.m. Inappropriate
Sigh...When there's a 2/3rds vote to do anything, the minority party is in charge, Cameron. That's why Republicans like supermajority requirements so much -- they get their way either way.
Posted Wed, Feb 10, 10:30 a.m. Inappropriate
Cameron,
If 50% + 1 is good enough to pass a de-facto constitutional amendment, it's sure as hell good enough to pass a tax increase. As others have pointed out, Eyman's 2/3 requirement passed with bare majorities, and wouldn't have prevailed under the (unconstitutional) standard it sought to oppose.
But by all means, keep whining and shrieking about gubm't and taxes, I find your angst quite amusing!
Posted Wed, Feb 10, 10:44 a.m. Inappropriate
Enjoy your majority rules bankruptcy! September is coming ( You know, when the Treasurer says the State will be out of money. You folks seem to enjoy being abused, sort of a Seattle/Stockholm scenario.
Posted Wed, Feb 10, 11:11 a.m. Inappropriate
The myth being pushed by thr Republicans and Eyman is that somehow tax cuts are good for the economy and the more taxes are cut, the better the economy. There is also the philosophy that any tax increase is bad. This simplistic nonsense does match up with the real world.
The real issue is what the revenue collected in taxes is spent for and whether this helps the economy or not. Also of concern is who is taxed, and whether it is fair or regressive.
Spending money to support our infrastructure like roads and trains and public transit supports the economy by moving people and goods. Health care and education for kids invests in our future workers. Police and fire and emergency workers protect us from harm. Government provides lots of services that people use.
Washington State's problem is that it taxes low and middle income folks at a much higher percentage of their income than those with more wealth. This is unfair. While the conservative Tax Foundation said we rank 8th highest in terms of income per capita, we rank 35th lowest in terms of state and local taxes collected.
A high earners income tax (for those making over $200,0000) would help to make our current tax system fairer as well as provide much needed revenue to meet our social needs.
Posted Wed, Feb 10, 2:23 p.m. Inappropriate
Ah yes the KCDCC speaks. How much do you make Steve and how much do you send in voluntarily. If you are not sending extra money in to Olympia voluntarily, but you want others to pay more, you are a typical Democrat and a hypocrit.
PS you are not very good at setting up strawman examples.
Posted Wed, Feb 10, 4:53 p.m. Inappropriate
Um, Cameron, which one of the frequent Republican/Eyman arguments that Zemke quoted 100% accurately was a "strawman" example?
You know, like one saying that if you don't voluntarily send money to Olympia you're a hypocrite?
Posted Wed, Feb 10, 10:21 p.m. Inappropriate
If you are for more taxes nothing is stopping you from sending the State Treasurer the amount you feel you are under taxed. If you are not doing that now, voluntarily , you are a hypocrit
Here is your strawman statement:
"The myth being pushed by thr Republicans and Eyman is that somehow tax cuts are good for the economy and the more taxes are cut, the better the economy. There is also the philosophy that any tax increase is bad. This simplistic nonsense does match up with the real world."
It's really more of a myth being pushed by Democrats and Zemke, than a strawman.
Posted Wed, Feb 10, 10:40 p.m. Inappropriate
Um, Cameron, what part of that isn't basically a near-verbatim reiteration of what every supply-side Republican has spouted as gospel since the era of the Robber Barons? I suppose there used to be sensible Republicans (Dan Evans types, or even GW Bush the Elder) who realized that there were times when taxes had to be raised to stimulate the economy and whatnot, but they are apparently no longer welcome in your party.
When Democrats (like me) are asked to pay additional taxes by our government as a result of restoring the constitutional simple-majority threshold for imposing them, we won't be hypocrites for supporting the Legislature changing I-960 until and if we bitch about it.
Posted Thu, Feb 11, 7:13 a.m. Inappropriate
So cite it. The logical inverse of Zemkes statement is that Democrats spout higher the taxes are and the less disposable income the people have the better for economy.
Republicans and Independants pay their full share of taxes, otherwise they go to jail, just like Democrats. Most folks who can think realize that sending additional funds to a group of people who have misspent what they already have is not necessarily the smartest thing to do.
You are a hypocrit if you advocate for higher taxes for others and possibly yourself, complaining that you are taxed far too little, but you refuse to
voluntarily send the government the amount you feel you are being under charged. You are not willing to act unless you are compelled by law to do so. Why? You have identified and complained about the problem and you have the means to correct the situation sitting in your checking account.
If everyone who voted for the current majority would simply voluntarily send in the amount of funding they feel is necessary to operate properly, we would have no defict. If you don;t you are a hypocrit, wanting others to so what you are not willing to do.
Posted Thu, Feb 11, 8:48 a.m. Inappropriate
Actually, the logical inverse of Zemke's statement is a little thing called Keynesian economics, which I would suggest that you Google.
And while you're at it, you might try looking up "hypocrisy" in a dictionary, because your definition is sorely lacking. Indeed, it is the very definition of a "strawman" argument, which you might also try looking up.
Posted Thu, Feb 11, 8:53 a.m. Inappropriate
...or to put a finer point on it, if someone thinks taxes should be raised as a matter of policy and then pays them without complaint, that's not hypocrisy. Your construct is simply absurd.
When a "family values" anti-gay Republican is caught canoodling with another man in a bathroom stall, it is.
When a pro-Vietnam Republican dodges the draft, it is (say what you will about Bill Clinton, but avoiding the draft when you oppose a war is NOT hypocrisy).
I could go on, but I get the sense that you're more into truthiness than truth....
Posted Thu, Feb 11, 1:39 p.m. Inappropriate
Put a fine point on this, you say you are for higher taxes, you have the ability to pay those taxes, but you will not until you are compelled to do so by the law. You talk the talk, but will not walk the walk unless there is a governmental gun to your head. Hypocrit.
Posted Thu, Feb 11, 1:46 p.m. Inappropriate
...running up long-term deficits by cutting taxes and starting illegal wars? Hypocrisy.
Posted Thu, Feb 11, 1:51 p.m. Inappropriate
...and please learn to spell "hypocrite."
Posted Thu, Feb 11, 1:55 p.m. Inappropriate
...and just to get back on point - requiring supermajority votes for taxes, unconstitutional.
Demanding that a 50 + 1 vote on an initiative be able to impose supermajority votes in perpetuity - idiotic.
Posted Fri, Feb 12, 6:46 p.m. Inappropriate
and a fine time was had in the club house by all!
Posted Sat, Feb 13, 2:41 p.m. Inappropriate
Gotta be careful with the old "you're a hypocrit(e)" attack when it comes to taxes, lest you be drawn into a total tangent. It's a common defense used by conservatives when cornered. Just remember that you can't beat them with logic -- you have to trump them with a higher political value.
I like to respond to this type of attack with something along the lines of: "What I do with my money after I pay my taxes is none of your damn business. Taxes, however, are a matter for public debate and decision -- and each of our legislative representatives should have an equal vote in deciding who should pay and how much."
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