I-1053 is apparently unconstitutional

Constitutions exist to protect the People from unjust laws and initiatives.

The Washington State Constitution specifies that a bill becomes law if a majority of legislators support it. Hence I-1053 (the voter initiative requiring 2/3 majorities of legislators to approve tax increases) would appear to be unconstitutional, as would many or all of Tim Eyman’s similar initiatives.

According to SECTION 22 PASSAGE OF BILLS of the Washington State Constitution, “No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.” (emphasis added)

In other words, the minority don’t get to decide the law in Washington State.

But I-1053 requires that “legislative actions raising taxes must be approved by two-thirds legislative majorities or receive voter approval.”

What’s particular obnoxious about I-1053 is that it seems to make it difficult or impossible to eliminate the many tax giveaways that burden Washington’s tax code. Many of these tax exemptions are special-case sweet deals for politically connected fat cats.

Many of the largest donors to the pro-I-1053 campaign were out-of-state corporations. According to this Ballotpedia article, BP Corporation donated $50,000 towards the effort. Tesoro Companies (a Texas-based refiner and marketer of petroleum products) donated $40,000. JPMorgan Chase (TX) donated $30,000. Green Diamond Resource donated $20,000.

No doubt they got a hefty return on their investment, since I-1053 would make it almost impossible to increase the state’s Hazardous Substances Tax — which is meant to help protect our waterways from dangerous runoff from petroleum products.

So while these corporations benefit, vulnerable people will lose out. The Basic Health program for poor people faces the chopping block. Hospice care for the elderly, funding for police, and education for our children will suffer.

The American education system is falling further behind other nations. But the high tech companies on which much of Washington’s prosperity depends don’t need to worry too much. Many of their employees are foreigners, with H-1B visas. I’ve worked at, and applied to, some of the largest high tech companies. In my estimation, between 1/3 and 1/2 of the engineers are foreigners, mostly Indians and Chinese. In some work groups, there are no Americans. Of course, many of these employees earn in the high six figures and so benefit from low taxation. (On the other hand, only the top 1% or 2% of Washingtonians benefit from the defeat of I-1098.)

The state constitution says: “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders.” Hence Our Legislature has a Constitutional Duty to Reform our Tax Code.

It made some sense for voters to oppose tax increases. But it made no sense at all for them to favor extension of unfair tax exemptions that benefit mostly the wealthy and the powerful. And it made little sense for them to oppose I-1098, which would have rebalanced the tax system so that the super-rich pay their fair share.

Washington State has one of the most regressive tax systems in the nation, yet the voters continue to vote against their own interest. It’s no surprise, given the dominance of media organizations such as Fox News, conservative talk shows on AM radio, and The Seattle Times, which strongly opposed I-1098 and supported I-1053.

This Sightline Daily article BP & Eyman’s I-1053: Unconstitutional has an excellent analysis of I-1053.

Unfortunately, the state Supreme Court is wary about ruling on such measures, because they concern the operating procedures of the legislature. The Supreme Court tries to keeps its nose out of the legislative branch’s affairs, as state constitutional law scholar Hugh Spitzer explained to Crosscut. The justices have twice dismissed on technical grounds challenges to minority rule initiatives. Most recently, they regarded a case brought by the Senate Majority Leader as a procedural dispute with the state Lieutenant Governor (the senate’s presiding officer, who chose to enforce I-960). Whether the Lieutenant Governor will continue to disregard the constitution, and whether the Supreme Court will allow him to do so, is anyone’s guess.

On the merits, the central legal issue is straightforward: Even in conservative Alaska, the state supreme court rejected a minority-rule ballot measure as unconstitutional, because it tried to change the constitution without going through the required steps.

In fact, Washington is the only state in the nation where minority rule has been imposed through a regular law. (In 16 states, citizens have voted to amend their constitutions to enact minority rule on votes that increase (certain) taxes. These constitutional amendments were undemocratic and ill-conceived, but at least they were legally enacted.)

Repeat a lie often enough and people start to believe it.

That’s the conservative approach to government. They keep repeating that Social Security contributes to the deficit, that taxes are too high (when, in fact, they’re lower than they’ve been in decades), that taxes and regulations are the problem, and that private companies do everything better. But this isn’t at all the case. Without government bailouts, we’d be in a serious depression. Government-run health care in many countries is both higher quality and much cheaper than America’s insurance-based health industry. Without government research we’d have many fewer technologies. Reckless deregulation was a major cause of the subprime crash. Without government regulations, many of us would be dead or ill. Without the police and FBI, we’d be in sorrier shape. Without government, we’d in fact be hunter-gatherers. Government is like a computer’s operating system: a response to libertarians and Bring on the Reagan Counter-revolution explain these points in more detail.

The article Will the Courts Overturn I-1053 explains how to overturn I-1053:

What could force the court to issue a judgment on I-1053′s constitutionality? First, the legislature would have to pass a tax increase or something that had the same effect by less than two-thirds. That is, the legislature would have to ignore I-1053′s minority-rule provisions.

Then, some outside party would have to bring suit against the tax as void because its passage violated I-1053. At that point, the courts would have little choice but to adjudicate the constitutionality of 1053.

Unfortunately, no such case will emerge unless leadership of both houses in Olympia ignore 1053. But Lieutenant Governor Brad Owen, who has presided in the state senate since 1996, has consistently enforced minority rule, under each variation that voters have approved.

Mr. Spitzer says that if and when the members of the court finally have the question squarely before them, they will almost certainly rule I-1053 unconstitutional.

I call on our legislators (Lieutenant Governor Brad Owen, in particular) to stand up for the State Constitution and vote to eliminate unfair and unsustainable tax exemptions.

No doubt the legislators fear voter backlash and wish to respect the will of the people. But I-1053 is clearly unconstitutional, and the elimination of unfair tax giveaways would, I believe, be consistent with the will of the vast majority of Washington voters.