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Eyman’s supermajority initiative: Tougher sale this time

Tax hater Tim Eyman drew boos at the transportation listening tour. Credit: Credit: John Stang

Another election year, another go-round with Tim Eyman, the initiative king. I’m doing everything I can as a volunteer in opposition to this year’s Initiative 1185, so bear in mind that I am co-chair of the No on 1185 Committee as I share at Crosscut some of the featured themes of the debate.

Initiative 1185 is Eyman’s effort to renew the requirement for supermajority approval – a two-thirds vote in each chamber – to pass most tax legislation in Olympia. Eyman does this every two years (we last saw it as I-1053 in 2010) because otherwise the legislature has the power to set aside the initiative-spawned supermajority rule by simple majority vote. Thus, Eyman’s I-1185 campaign this time around will re-hash his same themes of I-1053 two years ago. The basic Eyman contention: Only the supermajority constraint protects us from a legislature indifferent to taxpayers and bent on hog-wild fiscal profligacy.

Sequels by formula, however, are tricky business. Batman & Robin nearly did Batman in for good. I-1185 in today’s circumstances could be quite a different proposition from I-1053 that Eyman correctly boasts was handily passed two years ago. This year his war chest has been contributed by almost no one but the likes of BP and three other big oil companies, plus the Washington, D.C. mega-lobby Beer Institute. Over $1 million seems to have been run through by the paid signature gathering effort to get I-1185 on the ballot. Suggestions have been reported by The Stranger’s David Goldstein, and are now under investigation by the Public Disclosure Commission, that some of the money may have been improperly diverted to other Eyman causes.

On the other side, we opponents will be volunteering our efforts with the benefit of no war chest at all much beyond what will pay for a website and a facebook page. So don’t expect I-1185 commercials to clutter up your cable channel on either side’s account.

But visibility in political currency may come anyway because, quite unlike the stand-alone contest over I-1053 two years ago, in this Democrat Jay Inslee opposes it. Will there be a coattail effect? If so, which direction will it run?

Another difference from two years ago lies at the fiscal heart of the matter. That is the much-worsened state of the budgetary landscape, now distinctly overhung by Eyman’s supermajority approach. Driving to frugality in government, as I-1053 voters may have hoped for in 2010, is one thing. Arriving at penury, as we have fallen into by 2012, is quite another. We see all around us shrunken social services, closed state parks, crumbling roads, gaps in public health protections. But the gravest marks of fiscal impoverishment are the cuts to state funding for K-12 public education and our public colleges.

The scale of cutbacks in education funding, tied to the supermajority rule’s blockading of a balanced fiscal responses to the recession, has been very large. Against the baseline of 2008, successive budges for 2009-2013 have cut state funding for K-12 education on the order of $2 billon.

That problem is spotlighted in the state Supreme Court’s McCleary declaration last January, ruling that the state is failing its paramount constitutional duty adequately to fund public elementary and secondary schools, and setting a deadline for fixing it.

The cost of remedying the McCleary situation is understandably still unsettled. But the number seems never to be pegged at less than $1 billion in the next budget, and climbing significantly after that. Both gubernatorial candidates have offered brave but perhaps wishful assertions that this can be done without tax increases. But those claims have run into a barrage of sober assessments earnestly emanating from Gov. Gregoire’s Office of Financial Management and widely echoed among those close to the education funding discussion.

Starkly put, how much more damage will be done and how long will rescue be delayed if passage of I-1185 tightens the supermajority blockade just as the education funding crisis hits legislators and the new governor struggling with the next state budget?

It’s probably that question first and foremost that has already produced the most newsworthy development in the I-1185 campaign. In 2010, a government-weary and wary business community basically aligned with Eyman’s urging of supermajority virtues. Not this year. The largest business group in the state, the 2,200-business-strong Seattle Metropolitan Chamber of Commerce, last week reversed its 2010 position and joined the opposition to this year’s I-1185: “Locking the legislature into a supermajority requirement for another two years would make it virtually impossible to address our state’s education funding crisis,” the Chamber said.

Some very nasty trends in benchmarking Washington education against other states have clearly gained business leaders’ attention. That potent argument is joined with parents’ concerns for their own children’s future and Supreme Court judges’ focus on the constitutional duty to fund education. According to data assembled by the Washington Education Association from most recently available U.S. Census Bureau statistics, Washington citizens’ average revenue contribution to the public schools per $1,000 of personal income, stood in at $41.54 in 2009. That is 13 percent below the national average andputs our state's ranking at 44 among the 50 states. To measure from another angle, spending per pupil, the recently convened Joint Task Force on Education Funding learned in August was 7 percent below the national average.

Such figures are particularly hard to explain and painful to accept in a state that ranks twelfth in per-capita income, 7 percent above the national average in 2010. And also for a state (ours) that ranks well below the middle in state and local tax burden — the authoritative national watchdog Tax Foundation reported us for 2009 at 29th from the top. That was already down two notches from 2005 and below Idaho, Oregon, California, North Carolina, South Carolina, Michigan, and Hawaii, among others.

That’s a worrisome supermajority-encumbered foundation for getting K-12 education (to say nothing of the critically important early learning programs) back on track in our state.  And if you hope and believe – as everyone seemingly agrees – that the knowledge-based economy is the necessary niche for a prosperous state in the future, the $1.4 billion in recent cuts to state funding for higher education move any needle that tracks the wisdom of fiscal policy past deeply troubling to red-zone bizarre.

For higher education, cuts in state funding are directly linked through the supermajority requirement to shrinking financial aid and skyrocketing tuition that have been so cruel to ordinary families and their children. That’s because when taxes can’t be adjusted under the supermajority regimen, the only alternative is greater reliance on tuition and fees not subject to the chokehold. The result for many young people is doors slammed shut to higher education and for businesses a slender and under-prepared workforce Most agree that these are a very bad, very shortsighted directions.

Facts also tell a story — a very different story from Eyman’s handwringing plaint — about whether today our state government is fundamentally out of fiscal control in the first place. Just from 2010 to 2012, total state spending fell by about 10 percent as a share of the entire state economy, now for the first time in memory breaking below the level of $5 of spending for $100 of our citizens’ aggregate personal income.

That being so, why is it such a compelling investment for big oil companies and beverage and restaurant interests to fund four-fifths of the contributions so the paid signature gatherers in the mall parking lot can deliver I-1185 to the ballot?

The simple answer is that the supermajority requirement is the special interests’ perfect stratagem. With it they only need handfuls of legislators’ votes to defeat majority rule, and to guard the privileged positions of some very special and reluctant taxpayers — themselves! And there is this crazy oddity of special interest appeal in the supermajority rule: It takes a supermajority to repeal an existing tax loophole, but only a majority to create a new one.

Thinking about the future of Eyman-ism in our state and the special interests that support it, I’ve pondered the application of the old saw that begins, “You can fool some of the people all of the time,” and so on. Diving into the tangential question of whether that was first said by Abraham Lincoln or P.T. Barnum, or either of them, I came upon James Thurber’s sad dictum that perhaps best captures the world of special interest influence now eager to provide the mother’s milk of Eyman initiatives: “You can fool too many of the people too much of the time.”

That’s the bet they have placed and Eyman has brokered.

These interests are no strangers to faith in their power to market brazen versions of their brands. BP: “We take actions that are relevant to local circumstances, mutually beneficial and designed to create enduring solutions, as opposed to short term fixes.” The Beer Institute: “Committed to developing sound public policy that focuses on community involvement and personal responsibility.”

Maybe the reckoning comes when you can’t fool the ultimate custodians of the state constitution, our judiciary. Here enters yet another new wrinkle compared to 2010. It’s long been suggested that the supermajority requirement violates our state constitution. The constitution says that our legislature passes ordinary laws, and no exception for revenue matters, by majority vote. However, until July, no court in this state had ever actually ruled on the fit between Eyman’s supermajority initiatives and that constitutional pronouncement.

That changed when King County Superior Court Judge Bruce Heller took the effort to slog past jurisprudential thickets of “standing” and “justicability” in which prior challenges to the supermajority rule by initiative had always bogged down. He then made short and simple work of the central constitutional issue. Setting apart several special topics explicitly carved out in the constitution itself, he held the rule to be exactly what the constitution says: majority enactment for the legislature to make a law. Not supermajority hurdle or mini-minority veto. It’s the constitution.

Neither a law passed by initiative nor even a law passed the legislature itself can tinker with the power of majority legislative law making that is laid in our foundational rules of representative democracy. This holding seems axiomatic: If a representative democracy is to function, accountability lies in electing and un-electing our representatives, not in empowering minority factions to paralyze a legislature’s ability to make the laws.

Judge Heller’s ruling threw an interesting sidelight on the constitutional point by examining the legal landscape of supermajority tax measure restrictions in 13 other states. Unlike here in Washington, every one of them has acted by direct incorporation of the rule into the state constitution itself. Elsewhere there has been straightforward amendment of a state constitution, the route Eyman has never pursued. He has always chosen the end run by imitative. In the only other state where the outside-the-constitution end run strategy has been tried and brought to court, the Alaska Supreme Court in 2007 reached the same result as Judge Heller did: unconstitutional.

The state Supreme Court has agreed to review Judge Heller’s decision and has scheduled lawyers’ arguments for September 25. In agreeing to take the case the upper court chose not to order a stay of Judge Heller’s order pending the review. Following November balloting and before the legislature convenes in January, a dispositive result will likely emerge from the Supreme Court. (The case also creates a tricky political situation for Attorney General McKenna, whose office obliged to defend Eyman's earler initiative 1053, since it is a state law.)

If supermajority supporters are feeling cocky that the Supreme Court will reverse Judge Heller, they certainly aren’t acting that way. Washington Policy Center think-tankers suggest that to make Washington like other states, a constitutional amendment really should be sought. That will be the only available course if the Supreme Court agrees with Judge Heller.

Maybe that’s the debate we now should have, once and for all. Of course, when think tanks weigh in, all kinds of interesting new arguments emerge. Perhaps the anti-tax Washington Policy Center will have the chance to rebut the very interesting recent study from Wisconsin that shows (and explain why in the nuances of fiscal policy) that states with the strictest supermajority requirements have suffered higher non-farm job losses in the recession than states with limited supermajority requirements. The class of states with no supermajority requirements have fared less badly and experienced lower job loss than either. The Wisconsin study also notes that for two states whose bond ratings were downgraded (Arizona and Nevada) Moody's mentioned supermajority laws as a contributing consideration

Many of these new factors were definitely not in play in 2010 when the voters passed I-1053. These factors suggest this: The further you look and the deeper you dig, the more trouble you find with the supermajority requirement. Perhaps for Eyman, back to P.T. Barnum, or was it Lincoln, the famous saying will soon apply: “You  can fool some of the people all of the time, and all of the people some of the time, but you can’t fool all of the people all of the time.”

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