Washington State SuperMajority Rule Gets Judicial Scrutiny


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In November 2010, Washington State voters reached an unfortunate verdict and passed Initiative 1053, a law which mandates that the legislature assemble a two-thirds “supermajority” for any legislation deemed to raise taxes.

These supermajority requirements are not only anti-democratic but make sustainable and fair tax reform difficult because they, in effect, require legislators to enlarge one tax loophole in order to diminish or eliminate another. That’s right: in this upside down world, closing a loophole is a tax increase, so you have to create a new one or cut a tax to offset any that you close.  In short, majority-plus requirements like Washington’s provide yet another incentive for politicians to convolute the tax code with special interest giveaways.

Until, that is, a judge decides such a law is not just dumb, but unconstitutional. And in a bit of good news, Washington State’s legislative supermajority requirement for raising taxes and closing tax loopholes was recently struck down by a superior court judge for “[violating] the simple majority provision” of the state constitution.

In his decision, Judge Bryce Heller stated that the framers of the Washington constitution were well aware of supermajority rules (they required them to amend or repeal voter-passed initiatives, for example), and therefore the simple majority rule on tax and other legislation was intended by those framers and can, therefore, only be changed with an amendment to the state constitution. 

State Attorney General Rob McKenna (and now Republican candidate for governor), who defended the initiative in court, pledged to appeal the decision directly to the state Supreme Court.

Aside from the legal questions at issue in this case, several organizations have recently pointed out the damaging fiscal effects of supermajority requirements. The lawmakers and education organizations that brought the suit are concerned that the law prevents a majority of lawmakers from sufficiently funding state services such as education and transportation. They also point out a state Supreme Court’s ruling from last year concluding that Washington State is not, in fact, meeting its constitutional obligation to fully fund basic public education.

Moreover, as the Washington State Budget & Policy Center wrote prior to the ruling, Initiative 1053 has prolonged the state’s recession “by forcing unnecessarily deep cuts to health care, education, and other job-creating investments.” The Center reports that the state’s budget has been cut by more than $10.6 billion over the past three years.

The DC based Center on Budget and Policy Priorities lays out how supermajority rules also force lawmakers to raise fees, tuition and other revenue devices not covered by the law, as well as depress capital investments (investors are less willing to buy bonds from states with such requirements). Furthermore, with so few votes necessary to dictate legislative outcomes—for example, the Washington rule required the objection of only 17 senators to derail any bill—supermajority laws “increase the power of extremists and special interests” who can hold hostage even popular legislation.

It’s all very common sense that the supermajority requirement be struck down. (One setback to this case might result from a recent vote in the state legislature that was politically designed to “prove” a supermajority can be achieved on tax issues. It’s complicated and you can read more about it here.)  With the AG’s appeal, the state Supreme Court will be taking up the case, and both sides are hoping for swift action: the plaintiffs want to see more funding for schools and see the democratic process restored, while the law’s opponents want to get on with the task of shackling the Evergreen State’s government.

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