Talk about being caught between a rock and a hard place; make that several hard places: When the Legislature convenes in January, it will face continued pressure from the state Supreme Court, which has already ruled in its McCleary decision that the Legislature has shirked its constitutional duty to fully fund public schools. In fact, the court has also found the Legislature in contempt, and satisfying the court will require a lot of money. The figure $3 billion per biennium gets tossed around, and the real number may be higher than that.
Legislators will also face new pressure from a projected $500-million budget shortfall for the biennium that starts in 2017.
And then, there's the recently-passed Initiative 1366. The latest Tim Eyman initiative gives the Legislature until April 15 to either submit a constitutional amendment that would require two-thirds votes in both houses to increase any tax — making it virtually impossible to raise taxes — or cut the state sales tax from 6.5 to 5.5 percent, reducing revenue by an estimated $1.4 billion a year. The constitutional amendment would also require a majority vote of the Legislature to raise any state fee.
The initiative racked up 51.51 percent of the vote, passing in all Washington counties except King, Jefferson, Thurston and San Juan, and winning big east of the mountains. Voter turnout was only 38.42 percent, though, meaning the measure drew "yes" votes from a tad less than 20 percent of eligible voters — which, of course, is irrelevant to its implications for the Legislature.
Eyman himself notes that this is the sixth time voters have approved an initiative that would require or let them vote for a two-thirds requirement for raising taxes. And while low turnout this year may have helped his cause, he points to the presidential election year of 2012, when his Initiative 1185 won nearly 1.9 million votes, 64 percent of the total.
Opponents have filed a complaint in King County Superior Court alleging that 1366 violates the state constitution in a number of ways. They will probably ask the court for summary judgment. If the court grants it — either way — the next step will presumably be an expedited appeal to the supremes. First step will be a hearing before Judge William Downing, currently scheduled for Jan. 19. That's eight days after the Legislature convenes.
I-1366 is, of course, the latest in a long line for Tim Eyman initiatives, which have tended to fare badly in the courts. Eyman started making money by fighting taxes back in 1999, when his Initiative 695 aimed to eliminate the state's motor vehicle license excise tax, establishing every Washingtonian's hitherto-undiscovered birthright to $30 license tabs. The initiative passed, of course, but the Supreme Court quickly ruled it unconstitutional. Not wanting to get crosswise with the voters, though, the Legislature quickly passed a law that killed the excise tax anyway, just as Eyman and voters wanted, and then-Gov. Gary Locke promptly signed it.
Eyman later launched a string of initiatives, including three (in 2007, 2010 and 2012) that required two-thirds legislative majorities to raise taxes. A 1993 initiative had already established a two-thirds rule, but the Legislature had subsequently suspended it. Another non-Eyman measure passed in 1998. In fact, the people voted "yes" on all the initiatives. But in Feburary 2013, the Supreme Court declared a two-thirds requirement unconstitutional.
Article II of the state constitution says that in order to pass, a bill requires "a majority of the members elected to each house." The court said that the language meant exactly what it said. A simple majority isn't merely a floor; it is also the ceiling.
If people want to require a two-thirds vote, the court said, they would have to amend the constitution.
So, this time Eyman et. al. set out to do just that. Or something. In familiar Eyman fashion, they packed extras into the language, adding the requirement for raising fees as well as the one for tax increases.
Opponents tried to keep the measure from even getting onto the ballot. Predictably, they failed. Earlier this year, overruling a lower court, the Supreme Court let I-1366 go to the voters. The court virtually never keeps a measure off the ballot. It won't rule on the constitutionality of an initiative, or any other law, before passage. The court will block a vote only on a measure that lies clearly outside the scope of the initiative process. (In the main Washington case on this subject, Philadelphia II v. Gregoire, a state initiative would have called — irrelevantly — for a federal initiative process.) In this case, the court said I-1366 did not necessarily lie within the scope of the initiative power, but plaintiffs "have not met their high threshold burden of showing that 1366 is clearly beyond the scope."
So, we have 1366 enacted into law. What now?
When 1366 is reviewed, says University of Washington constitutional law professor Hugh Spitzer, "The court should not have trouble finding problems."
The complaint alleges that 1366 violates the constitution by including more than a single subject, abridging the plenary power of the 2016 Legislature, and circumventing the only legitimate process for passing an amendment.
Article II, section 1 of the constitution — which Eyman has already run afoul of more than once — says, "No bill shall embrace more than one subject, and that shall be expressed in the title." I-1366 called for imposing the two-thirds rule for taxes and imposing a majority vote rule for fee increases and cutting the sales tax. Opponents argue that voters may have wanted to accomplish any one of those aims and not the others. There is no way to tell.
"I think the two subject issue is pretty clear-cut," says Paul Lawrence of the Pacifica Law Group, the lead attorney for those challenging I-1366. "You have to be clearly voting on one thing." In this case, he says you "don't know if people voted for this initiative because they wanted to lower the sales tax or did people vote for it because they wanted to amend the constitution?"
An initiative can have lots of parts, he acknowledges, citing the Costco-backed 2011 measure to privatize sales of hard liquor, but he says that they all have to be integrally related. "It depends on how you define a 'subject,'" he says. In this case, the complaint alleges that the various parts of the initiative "lack rational unity."
Eyman himself, naturally, disagrees. He refers to a legal opinion his group received last July, which concluded, "we firmly believe a challenge to the initiative's legality has no support in existing law." Attorney Richard Stephens argued that when the Supreme Court ruled the liquor initiative constitutional, it "took a very practical approach by noting that liquor and funds for public safety had effects on each other and were, therefore, germane to each other. Here, the provision for allowing people to vote on whether there should be a two-thirds vote of the Legislature for tax measures is expressly and historically tied to the subject of taxes. "
Article II of the constitution gives legislators power to legislate, without restriction other than those imposed by the constitution itself. This measure, in effect, puts a gun to their heads. They are not free to deliberate taxes and state budget implications as they presumably should be.
The complaint argues that "no bill, whether enacted by the Legislature or by initiative, may bind a future Legislature or otherwise limit its power to act." Nevertheless, "I-1366 requires the Legislature to choose between two undesirable choices, thus restricting [its] plenary law-making power. As a result, I-1366 improperly binds the 2016 Legislature and abridges its power to act."
The July analysis argues, though, that 1366 doesn't force legislators to do anything. Rather, the Legislature "may choose to [place an amendment on the ballot, or] it may not. It is the Legislature's choice."
And then there's the process for amending the constitution. Article XXIII makes that process clear: An amendment starts in one house of the Legislature. It requires two-thirds votes in both houses. Then it requires a majority vote by the people. That's it. The constitution can't be amended by statute, which is what an initiative is. Spitzer points out that before the initiative process became part of the state constitution in 1912, the idea of using it as an alternate path to amendment was debated and rejected.
Of course, citizens are free to get an amendment underway by submitting petitions to their legislators or phoning them or launching an email campaign. That doesn't mean they're free to do it by passing an initiative, the critics say.
"Anyone can petition the Legislature to do anything," Spitzer says.
"The problem here is that there is legislation. It's one thing for somebody to petition the Legislature, but to have the voters through an initiative force the process to commence is not the method that is in the state constitution."
One assumes that a court majority will be happy to find a plausible legal reason to declare the initiative unconstitutional, or possibly just outside the scope of the initiative process. It would certainly need a very good reason to sustain what past courts have made clear would be a fundamental change in our system of government, one that would raise the specter of tyranny by the majority, by a minority, or both. When the court struck down the statutory requirement for a two-thirds vote, it said that "the Supermajority Requirement substantially alters our system of government, thus enabling a tyranny of the minority. The framers were aware of the extraordinary nature of a supermajority requirement as evidenced by their decision to use it only under special circumstances. The passage of ordinary legislation is not one of those circumstances."
In the 1971 case of Ford v. Logan, the court noted that in amending the constitution, the Legislature "can only propose, it cannot effectuate, amendments. ... [T]his act of amending or repealing the basic organic instrument of government is of a higher order than the mere enactment of laws. ...This distinction has been prudently and thoughtfully included in the structure of American constitutional government, for to permit direct action by a majority to change a basic form of government would enable any given majority to remove all protections contained within constitutional frameworks."
The court suggested that when it comes to amending a constitution, slower can be better: "The safeguards against hasty or emotional action are of fundamental importance," it said. "[T]hese safeguards consist of the deliberative nature of a legislative assembly, the public scrutiny and debate made possible during the legislative process, the requirement of a two-thirds vote in each independent house of a bicameral body, and the tempering element of time. These safeguards are not to be lightly cast aside "
Lawrence echoes some of this argument. The framers of the constitution "envisioned a deliberative process," he says. In this case, "The Legislature's deliberative process has been totally undermined."
Whether or not the court still prizes that deliberative process, it has clearly staked a great deal on McCleary. And it surely knows that meeting the McCleary targets looks a whole lot less likely if any future tax hike requires two-thirds — or if annual sales tax revenue drops by $1.4 billion.
And yet, the people — 19.7 percent of them, anyway — have spoken. That may turn out to have absolutely no legal significance, but it will have political significance that could be felt in Olympia. Spitzer says, "Eyman’s goal is to force the Legislature to deal with his tax-cutting proposals, whether or not they’re constitutionally valid."
Eyman himself says much the same thing. "The real fight is in the Legislature," he explains. "'Are you going to abide by what the voters said they want?'" he asks legislators rhetorically. "If you don't do it, we're going to do a seventh initiative." That initiative would place a one-year limit on any tax increases. "We'll put it on the 2016 ballot ," Eyman says. Whether it's that new initiative or the constitutional amendment envisioned in 1366, he says, "we're all going to be voting to make it tougher to raise taxes on the 2016 ballot."
If there's no constitutional amendment before the voters, "this new initiative is probably going to pass," Eyman says. "These guys just refuse to accept that this is what the voters want."