Don't give state lawmakers a bailout

January 7, 12:24 AMWashington Law ExaminerMichael Reitz

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The news of Washington state's projected $5 billion deficit upset the holidays of many state lawmakers. Black Friday, indeed. Though revenue will increase 5 percent for the next state budget, it will not be enough to cover the slew of new spending and policies legislators have proposed.

The tab is coming due, and the beholden seek to dig deep into the wallets of taxpayers rather than properly prioritize with the money they have. Lawmakers quietly are looking to the Supreme Court of Washington to make that happen.

The Legislature could raise taxes as a way to solve the manufactured budget crunch, but tax increases require approval by two-thirds of the members of both houses -- a difficult threshold in the best of times.

That two-thirds requirement was included in Initiative 601, approved by voters in 1993.

In years past, the Legislature has gotten around this hurdle by suspending the two-thirds requirement. But Initiative 960, approved in 2007, made it more difficult to circumvent the law.

Enter Sen. Lisa Brown. The majority leader claims that the restriction on tax increases is unconstitutional, and she took the argument to the state Supreme Court. Getting there was a small parliamentary feat. In the 2008 legislative session, Brown introduced a liquor tax increase. The bill failed to get the required votes from two-thirds of the Senate.

Brown asked Lt. Gov. Brad Owen, who presides over the Senate, to declare the two-thirds requirement unconstitutional. While professing agreement, Owen declined to make a constitutional ruling.

Armed with a tailor-made lawsuit, Brown asked the Supreme Court to invalidate the two-thirds requirement and allow the bill to pass. Brown argues that the Washington Constitution prohibits supermajority requirements for tax increases when it says: "No bill shall become a law unless ... a majority of the members elected to each house be recorded thereon as voting in its favor."

The Attorney General's Office, charged with defending the constitutionality of the two-thirds requirement, says the constitution simply prohibits the passage of bills with less than a majority, leaving open the possibility for a supermajority requirement. And, as the Evergreen Freedom Foundation pointed out in an amicus curiae brief, the delegates of our state constitutional convention were adamant about restricting legislative encroachments on individuals' pocketbooks. The attorney general also argued that the separation of powers doctrine prevents the Supreme Court from arbitrating a legislative dispute.

During the oral arguments, several Supreme Court justices seemed concerned about meddling in the internal workings of the Legislature. "If the court plunges headfirst into the legislative process, how far are we going?" asked Justice Barbara Madsen.

This all comes to a head with the ever-increasing multibillion-dollar budget deficit. It is dangerous to budget one-time-only funds to pay for ongoing expenses, but that is exactly what the Legislature has done. Just last year, lawmakers increased general fund spending by $215 million, despite signs of a seriously weakening economy and a reduced revenue forecast.

Rather than reducing the rate of spending growth, legislators are hoping the justices will provide a last-minute rescue, à la Bruce Willis, by striking down the two-thirds requirement and paving the way for easy tax increases. Let's hope the Supreme Court doesn't give lawmakers the bailout they want.

Originally printed in the Seattle Post Intelligencer by Michael Reitz and Amber Gunn