Lt. Gov. Brad Owen ruled Monday that the Washington Senate's new internal procedural rule to require a two-thirds majority to pass any new taxes is unconstitutional.
So ... the Senate went ahead and did what it was about to do on Friday before Democrats requested his ruling.
The Senate voted 27-22 to send a transportation revenue bill to the House Monday with an 11.7-cents-per-gallon gas tax increase and with a so-called "poison pill" to shift transit money to roads if Gov. Jay Inslee installs a low-carbon-fuels standard.
But Owen’s ruling also means that if the House sends new carbon emissions and capital gains taxes to the Senate this spring, the Democrats would have to pick up only three GOP votes instead of an extra 10 to pass those bills in the upper chamber.
For 22 months, the GOP-controlled Senate had been unable to get a transportation package to a negotiating table with the Democratic-controlled House, which passed a proposal in 2013. However, the revenue portion of the House proposal will likely change before those talks will begin, because a new carbon emissions tax proposal is being explored in the lower chamber.
Until February, the Majority Coalition Caucus -- currently 25 Republicans and one Democrat -- could not get more than 13 members of its own caucus to vote for a proposal. Last month, Senate Democratic and Republican negotiators finally reached a compromise designed to get a majority of the Senate votes -- with both sides having qualms about aspects of the compromise.
The Senate passed most of the package Friday, but stalled when Democrats -- unhappy with the poison pill provision -- requested that Owen, presiding officer of the Senate, rule on whether a two-thirds majority would be needed to pass the revenue bill. Besides increases to the existing gas tax, the transportation measure included two new fees, which are technically new taxes.
On Jan.13, the majority coalition -- over Democratic objections -- installed an internal procedural rule to require a two-thirds majority on a preliminary vote before any new tax would be allowed to a final floor vote. The GOP wanted to install an almost insurmountable barrier to any carbon emissions or capital gains tax bills that might emerge from the House.
Republicans wanted to circumvent a Washington Supreme Court ruling that requiring a two-thirds majority for any tax hike was unconstitutional. The GOP argument for the Jan.13 rule was that the new two-thirds requirement was an internal procedure and not a law.
On Monday, Owen ruled that since the revenue bill contained the two new fees, the two-thirds rule would apply. A few minutes later, though, Owen ruled that the two-thirds-majority requirement is unconstitutional.
Owen called the rule “an end run around the Supreme Court." Owen said the two-thirds majority rule was "not an act to slow down legislation, but an act to stop legislation. ... The Senate cannot pass a rule that violates the state constitution."
After the ruling, 20 majority coalition members and seven mostly moderate Democrats voted for the gas tax bill, and 16 Democrats and six strongly conservative Republicans voted against it.
The poison pill portion of the bill drew objections from all the Democrats, and led to the 16 "no" votes. The six Republicans did not like the gas tax increase.
The seven Democrats voting for the bill said that, despite their objections to the poison pill, they wanted to set the stage for negotiations with the House. "Even though there are issues we all have, remember, this is a process," said Sen. Steve Hobbs, D- Lake Stevens and the lead Democratic negotiator in the Senate’s negotiations on the bill. Hobbs voiced hope that the poison pill could be removed later.
Sen. Brian Dansel, R-Republic and a GOP "no" vote, said: "Twelve cents a gallon affects people in my district who drive rigs and go long distances. ... This is going to be awful for people in rural districts."
The Democratic-controlled House probably won’t address the Senate proposal until April at the earliest. The House Democrats want to hold off on dealing with several matters until they unveil their proposed 2015-2017 operating budget in late March.
It’s unclear whether the House Democrats want to enact Inslee’s capital gains tax proposal and all or part of his proposed carbon emissions tax into their budget. Inslee wants to spend part of his proposed carbon emissions tax on transportation to trim the probable gas tax increase. And any capital gains and the remaining money from a carbon emissions tax proposal — if they are in the House budget — would likely go to implementing a 2012 Supreme Court ruling on teacher-student ratios in Grades K-3.
Complicating the House Democrats’ picture is that their leaders have not decided yet whether to implement a 2014 voter initiative to improve teacher-student ratios in Grades 4-12, or to try to send that initiative back to voters in November. Plus, the House Democratic leaders say they want to nail down the education funding picture prior to tackling the transportation revenue situation — meaning the end-of-session negotiations will likely have education and transportation issues intertwined.
In addition to the poison pill, the Senate Democrats hope, negotiations with the House could also revisit some other parts of the transportation measures that Republicans insisted on. One of those issues is the maximum funding option for Sound Transit to put before voters. The Senate measure puts the maximum request at $11 billion, but Democrats hope to raise that to $15 billion.
The Senate also voted along party lines Friday to transfer sales tax revenue on the state’s transportation-related construction projects from the state’s general fund to a transportation-related fund. That’s roughly $1 billion over the 16-year lifespan of the entire transportation package. The general fund provides money to education, social services and numerous other functions. Democrats argued this money is needed to meet the state education requirements needs from a 2012 Washington Supreme Court ruling and a 2014 initiative to drastically improve teacher-student ratios in Grades K-12.
Republicans have countered that the sales tax change actually corrects an improper but long-running use of transportation money for non-transportation purposes.