The 26 Republicans who control the state senate kicked off this year's legislative session today by making an end-run around the Washington State Supreme Court. "The Supreme Court can make their rules and we'll make ours," Sen. Michael Baumgartner (R-6, Spokane), the leading proponent of today's senate resolution said. (The bill was actually sponsored by senate majority leader Sen. Mark Schoesler, R-9, Ritzville.)
No, the Republicans didn't defy the Court's McCleary ruling (yet) that says the state has to fully fund K-12 education, but they took a McCleary option off the table: New taxes.
Before the Court held legislators in contempt this September in the McCleary K-12 funding case, the Court ruled in February 2013 that the two-thirds rule to pass taxes was unconstitutional. (Voters had passed several initiatives sponsored by initiative hawker Tim Eyman mandating a two-thirds rule; the Court threw out I-1053, his 2010 version.)
The GOP passed a fool-proof filibuster on new taxes.
Today, however, the GOP majority mocked that Court ruling by changing the senate rules to say it requires a two-thirds vote for a vote itself on new taxes to advance; in essence, the GOP passed a fool-proof filibuster on new taxes.
Trying to calm the Democrats down, Sen. Joe Fain (R-47, Auburn) said the measure only dealt with new taxes, such as Gov. Jay Inslee's recent proposal for a capital gains tax (he also noted an income tax). But, he said, the new rule, did not pertain to existing taxes such as gas taxes (last week Sen. Fain actually told me he's pushing for a gas tax increase) nor for repealing tax loopholes. (Baumgartner, in fact, lamented that the resolution didn't include all taxes. "Some of us" wanted it to include all taxes, he said during his floor speech. "This is a compromise [inside the Republican caucus].")
The 24 minority Democrats tried to thwart the Republican move. Sen. David Frockt (D-46, N. Seattle), who worried that Sen. Fain's parameters were only his and so, more conservative members could argue that increasing the gas tax was a new tax, floated an amendment requiring a two-thirds vote to pass the new two-thirds rule. "If we impose a super majority [rule] then a super majority should actually agree with it," Frockt said, warning that a two-thirds rule to raise taxes would "disenfranchise two-thirds of the senate."
Frockt's liberal colleague, Sen. Andy Billig (D-3, Spokane), said the two-thirds rule jeopardized broad bipartisan compromise because it "will make it difficult to find the middle," explaining: ""Don't give up this chamber to 17 members representing a small fraction of this state."
Sen. Baumgartner defended the rule change saying that voters—who have passed Tim Eyman's two-thirds rules repeatedly, including the measure the Court found unconstitutional—want taxes to be "a last resort." The new rule, he said, didn't make new taxes "impossible," it simply guaranteed taxes would be a last resort. He also pointed out that last session the senate passed a bipartisan budget that many Democrats proudly described as a "sustainable budget" without raising taxes. This year, Sen. Baumgartner noted, the economy was rebounding and the state was looking at an additional $3 billion in anticipated revenue.
Moderate Democrat Sen. Jim Hargrove (D-24, Hoquiam) spoke after Sen. Baumgartner making "a slight correction to the previous speaker." Sen. Hargrove said the previous budget didn't address McCleary (another $1.5 to $2 billion this session) nor I-1351, the new smaller class-size initiative (estimated at $2 billion to $4 billion in new costs). There was also a Court ruling that the legislature had to fund more mental health services. (Here are the actual details on this year's budget, including the revenue rebound, which is $4 billion in the red with all the new costs.)
The Democrats also complained, in light of the Court's 2013 ruling on Eyman's I-1053 two-thirds rule, that the new rule defied the constitution. "We can't have one set of rules for us that's not in the constitution," Frockt said, pointing out, for example, that the senate couldn't just pass a procedural rule saying senators under 40 couldn't vote; he namechecked Article 2 Section 7 which says you simply have to be voting age to be a voting senator. And his Seattle cohort, Sen. Bob Hasegawa (D-11, S. Seattle, Tukwila, Renton), decrying the "tyranny of the minority" read Article 2, Section 22 out loud—the section of the constitution that the Court took up in the Eyman case that says it takes a "majority" of senators to pass bills, "not a super majority," he said.
Sen. Baumgartner, however, cited the constitution as well—Article 2, Section 9—which says each chamber can make its own rules.
The rule change actually seems unnecessary. The Republicans are in the majority and already control the floor calendar which IDs the bills that come to the floor in the first place.
Lt. Gov. Brad Owen will likely be asked to rule on the new rule when an actual taxe vote comes up. At that point, he has the authority to interpret whether it pertains strictly to "new taxes" as Sen. Fain said or whether "new" taxes actually include increasing existing taxes or closing tax exemptions.
Liberal attorney Paul Lawrence, the lawyer who argued against Eyman's rule in the Supreme Court and won, says: "The question is whether the resolution passed today is a rule of procedure or a rule of substance. It seems that the senate cratee a new rule of substance to substitute to for Tim Eyman's initiative—and doing so would be unconstitutional."
Eyman himself, who urged his supporters to contact wavering Republicans this weekend (giving out Sen. Fain's personal cell phone number), issued a jubilant email this afternoon:
Who says politicians don't listen? OK, you got me: we normally do. :) But not today. Because today the Senate Majority Coalition Caucus agreed to adopt the 2/3 tax rule. All 26 members supported it, making it tougher to raise taxes in the Senate (for the next two years). This is a massive victory for the taxpayers of our state.
The ... Senate Democrats pissed, moaned, and complained, squealing like pigs, but in the end, the vote was 26 yes...