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I-1185: Will the circle be unbroken on Eyman tax measures?

Lawmakers continue to huddle behind closed doors at the capitol. Credit: MathTeacherGuy/Flickr

The general election vote on Initiative 1185 won't be the last word on whether any Washington tax increase needs a two-third majority in the Legislature.

The final word may come from the Washington Supreme Court. Or it may not.

This is the political issue that won't die. In fact, it has been born, dodged a bullet, got killed, got reborn, and now simultaneously faces another bullet and another potential rebirth — all in the past five years. And there's no guarantee this cycle will stop in the near future.

This is the latest chapter in a clash between those on on the liberal side who believe the Legislature should need only a simple majority to raise taxes and close tax exemptions, and those on the conservative, tax-skittish side who believe a two-thirds majority should be needed to do so. The two-thirds requirement is the status quo, although that could change if the initiative fails in the Nov. 6 vote or the state Supreme Court rules against limiting legislative taxing powers through the initiative process.

To Washington's initiative king Tim Eyman and Republican legislators, the two-thirds requirement serves as an extra safeguard against a Democrat-dominated Legislature increasing taxes and closing tax exemptions. "We want raising taxes to be absolutely the last resort," Eyman said. " I-1185 is sort of an insurance policy."

However, Rep. Jamie Pedersen, D-Seattle, an attorney who helped map out the legal challenge to the two-thirds majority requirement now pending before the state Supreme Court, argued that one-third of one legislative chamber can stop the majority from trying to fix many of the state's problems. In an interview, he said that when state voters approve the two-thirds majority in two initiatives in the past, they were not told which state programs — such as education, colleges or health care — face budget cuts.

Pedersen noted that Washington's voters have already passed initiatives to provide training for some health workers and to reduce elementary school classes sizes, which, coincidentally, is an expensive measure that the Washington Supreme Court also ordered the state to carry out in a ruling several months ago.

Both Eyman and Pedersen point to the 2010 legislative session — the only recent session in which the two-thirds majority was not in effect —  as the best clue of how the House and Senate would if behave if only a simple majority is need to raise taxes. No broad tax increases occurred in 2010. But the Legislature added taxes to beer (28 cents per six-pack) , soda (2 cents on 12 ounces),  candy, bottled water, some service businesses, and some banks and credit-card firms. That same year, the American Beverage Association spent roughly $16 million to successfully convince voters in a public referendum to repeal the soda and candy tax increases.

Eyman interprets the 2010 tax increases at the Legislature running amok without the two-thirds majority rule. "They're just like Pavlovian dogs. They heard the dinner bell and started to drool," he said.

In contrast, Pedersen pictures the 2010 tax measures as legislators cautiously installing a few limited increases that a simple majority would actually support. "We fiddled around the margins. That's what we had the votes to do," Pedersen said.

Pedersen noted that state Rep. Reuven Carlyle, D-Seattle tried unsuccessfully this year to put time limits on tax exemptions, which would have require them to be reviewed to see if they still meet their original purposes before renewal. With the supermajority requirement in effect, that bill did not survive the one-third-plus Republican opposition. Pedersen speculated that proposal could be revived if the two-thirds-majority requirement disappears.

So far, Washingtonians have not seen any ads pro or con on the issue. Eyman raised $1.3 million for I-1185, which he said all went to collecting signatures to put the proposal on the ballot. That figure includes $400,000 from the Washington, D.C.-based Beer Institute, $210,000 from oil companies BP Oil and Conoco-Phillips, and $45,500 from the Association of Washington Businesses. Meanwhile, opponents raised $65,570 with labor groups providing the biggest chunks, according to Washington Public Disclosure Commission figures.

Opponents — led by Carlyle and former state transportation director Doug MacDonald — filed a complaint in early September with the PDC, wanting it to investigate whether I-1185 donations were being used to have its signature gatherers to simultaneously also collect signatures for the unrelated Eyman-originated I-517, which would extend petition gathering times by six months. No signatures have been yet turned into the state for I-517.

In August prior to the Carlyle-MacDonald letter being sent, Eyman emailed the PDC that the I-517 political action committee had not collected nor spent any money yet, as well as not collecting any completed petitions. However, Eyman's email said one person had printed $4,444 worth of I-517 petitions and the Virginaa-based Citizens In Charge spent $6,758 for "I-517 petitioning." Eyman provided the email to Crosscut, but declined to elaborate beyond what it said.

Regardless of how the I-1185 vote turns out, the losing side will be ready to resurrect the battle. If I-1185  passes, Democrat legislators would likely nullify it in two years — the time they need to legally wait to overturn an initiative on a majority vote. If it loses, Eyman will collect signatures to send the initiatives back to the voters next year. "It's a tug of war," Eyman said.

That's why the upcoming Supreme Court ruling could play a bigger role. 

The Washington Supreme Court recently heard arguments on a Democrat-backed appeal on whether the two-thirds requirement is constitutional. A few months from now, the court will rule on the matter. If the two-thirds requirement is constitutional, the current back-and-forth cycle will continue. If the court declares the two-third's requirement unconstitutional, then the cycle will end. "It'd be over permanently," Pedersen said.

That's because the only way to change the state constitution would be for two-thirds of both the House and Senate to pass a proposed amendment, which would then go to a public ballot. The scenario is generally regarded as extremely unlikely.

The battle might be over legally if the Supreme Court rules that a two-thirds majority is unconstitutional. But it would still be alive politically.

I-1185 and the upcoming ruling are intertwined with the gubernatorial election, the state government's budget woes, and another Supreme Court decision from last January. That January ruling is the so-called McCleary decision that the state is not adequately funding basic education — with preliminary estimates saying another $1 billion is needed to meet that mandate in the 2013-2015 budget biennium. Meanwhile, the Legislature was already anticipating a $1 billion shortfall in revenue for that budget biennium.

Then earlier this month, Washington's Office Superintendent of Public Instruction declared that an additional $4.1 billion would be needed in 2013-2015 to get the state's schools to comply with the McCleary mandate.

The new bottom line: The 2013 legislative session could start $6.1 billion in the hole if the OSPI's figures hold up.

Meanwhile, gubernatorial candidates Republican Rob McKenna and Democrat Jay Inslee have ruled out calling for tax increases, both arguing that improvements in the economy will raise the needed extra revenue without requiring cuts in non-education programs. Eyman commented, "If either is inclined to break that promise, I-1185 says 'no, you gotta keep that promise.' "

Gov. Chris Gregoire and the state Office of Financial Management say that approach won't work.

Various two-thirds majority battles date back many years. The current struggle began in 2007 when Eyman put I-960 — requiring two-thirds majorities in both chambers — on the ballot, and voters passed it. in 2008, Democratic senators got a vote for a liquor tax from a narrow majority, but short of the two-thirds threshold, in order to legally challenge I-960. But in 2009, the state Supreme Court declared that the matter was an internal legislative dispute and declined to hear arguments on the issue.

Then in 2010, the Legislature repealed I-960 because it has the power to nullify initiatives two years after they pass. But Eyman anticipated that action, and got I-1053  — also calling for a two-thirds majorty to increase taxes — on the ballot in 2010. And voters approved I-1053.

Now, the Legislature would have a chance to repeal I-1053 in its 2013 session, because the two-year waiting period will have passed next month. So Eyman worked to have the exact same initiative — I-1185, otherwise known as "Son Of I-1053" — on the ballot for voters to tackle this November. 

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