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.
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Tim Eyman, the Democrats' bête noire: You can only get away with blaming him for so long.

They may well be, but don't expect a gun-shy state supreme court to deal with the explosive question.

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


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.