Is I-601 constitutional? For taxpayers that may be the $2.5 billion question.
Earlier this year Senate Majority Leader Lisa Brown filed a lawsuit to make it easier to raise taxes by challenging I-601's requirement for 2/3 vote of the legislature in order to raise taxes. Brown believes this supermajority requirement is unconstitutional, a claim opponents of I-601 have made since it was adopted in 1993.
Defending the law the Attorney General argues the 2/3 vote requirement is just fine.
The following is from the state's June 9 brief in support of I-601:
"[I-601] neither amends nor purports to amend article II, section 22, and accordingly, it is not infirm on that basis, as Petitioner suggests. By its plain language, article II, section 22 establishes only the minimum number of votes constitutionally required to enact bills. It does not prohibit the Legislature or the people from enacting statutes that require a larger majority when they deem greater legislative consensus advisable. Indeed, the framers’ recognition of the value of supermajority requirements as part of Washington’s fundamental law supports the conclusion that the framers did not foreclose enactment of such requirements as a matter of statute." (page 9)
"In the 14 years since RCW 43.135.035(1) was enacted, the Legislature has not chosen to repeal the statute or permanently amend its two-thirds vote provision, although it could have. Notably, the Legislature has amended the two-thirds vote requirement of RCW 43.135.035(1) on two occasions to substitute a majority vote requirement for designated periods. See Laws of 2002, ch. 33, § 1, amending RCW 43.135.035(1) to substitute a majority vote requirement for the 2001-2003 biennium; and Laws of 2005, ch. 72, § 2, amending RCW 43.135.035(1) to substitute a majority vote requirement from the effective date of the 2005 act through June 30, 2007. For these reasons, this case presents neither an actual existing controversy, nor the mature seeds of one, and rather posits a speculative hypothetical issue for academic debate." (page 31)
"Article II, section 22 provides, '[n]o bill shall become a law unless . . . a majority of the members elected to each house be recorded thereon as voting in its favor.' Article II, section 22 establishes a constitutional minimum number of votes for a bill to become law. It only describes the circumstances under which a bill does not pass. In other words, article II, section 22 does not prohibit statutes by which the legislature (or the people) express their legislative policy judgment that certain types of bills warrant greater than simple majority consensus for passage. RCW 43.135.035(1) expresses such a legislative policy judgment—that a two-thirds majority vote of each house should be required for passage of bills raising taxes. The statute hardly conflicts with the constitutional floor set by article II, section 22, as any bill receiving its supermajority support has met the requirement of article II, section 22.
A California court construed its essentially identical constitutional provision in just this way. People v. Cortez, 6 Cal. App. 4th 1202, 8 Cal. Rptr. 2d 580 (Cal. Ct. App. 1992). The constitutional provision at issue in Cortez provided in relevant part, 'No bill may be passed unless . . . a majority of the membership of each house concurs.' Cortez correctly reasoned that a requirement for a legislative supermajority did not conflict with the passage of bills clause of the California Constitution because, 'Clearly a bill which obtains the approval of two-thirds of the membership of each house has also obtained the approval of a majority of the legislators in each house.' The constitution merely restricts the passage of bills to those that obtain at least majority approval, rather than establishing an affirmative rule that all bills receiving a majority must be deemed passed.
Petitioner essentially asks this Court to amend article II, section 22, to treat it as if it read (in common bill drafting format to show changes): '((No)) Every bill shall become a law ((unless)) if . . . a majority of the members elected to each house be recorded thereon as voting in its favor.' This reading would transform the phrasing from a 'negative' minimum requirement to a 'positive' universal standard. The court should reject the Petitioner’s invitation to rewrite the Washington Constitution in this way." (page 38)
"Both the framers of the constitution and subsequent legislatures and voters have recognized that certain specified actions should command the support of more than a simple majority. Petitioners, to the contrary, urge that the same constitutional convention that embraced supermajorities for some purposes intended to prohibit statutes requiring supermajorities for any other purposes. The Constitution contains no language supporting this notion, however. The framers may not reasonably be presumed to have implied the prohibition of a political mechanism that they themselves adopted through language that does not say so. Given the plenary legislative authority of the people and the legislature, and the absence of a clear constitutional prohibition, the Court should not conclude otherwise." (page 48)
Well said.
Taxpayers should be encouraged by the Attorney General's vigorous defense of the law. Oral arguments before the State Supreme Court should occur this September. We'll likely know sometime next year when the Court rules if it will allow Brown's lawsuit to "rewrite the Washington Constitution" and strike down the will of the people.
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