BP & Eyman’s I-1053: Unconstitutional

Minority rule violates state charter.
This post is 2 in the series: BP, Tim Eyman, and I-1053

1053 bp BIG

Last time, I explained how Washington Initiative 1053, funded by BP and written by Tim Eyman, would impose minority rule over revenues and serve as a Trojan horse for the oil industry. It would allow Big Oil to continue shirking its responsibility for stemming the flow of oil into Puget Sound and other bodies of water.

This time, a different point: I-1053 makes a mockery of the state constitution.

Constitutions are where democracies write down their rules. Amending them is how to change the rules.

I-1053 is a rule change. It would give one third of either house of the state legislature a veto over proposals to close tax loopholes or raise new revenue. It would reinstate an earlier initiative (I-960) that did the same thing, but which the legislature briefly suspended.

The legal way to implement I-1053 would be to amend the constitution. That constitution explains how it can be amended: a two-thirds vote in each house of the legislature plus a majority vote of the people.

I-1053, like I-960 before it, is a regular law. It hasn’t won support of two-thirds of legislators.

Like most state constitutions, Washington’s specifies (in Article II, section 22) that a simple majority of legislators can pass a law. Revenue measures, the subject of I-1053, are not called out for special treatment in the constitution: they are subject to majority rule.

Any initiative imposing minority rule over revenue matters violates the constitution. Why hasn’t the state Supreme Court invalidated I-960? Why can’t we rely on the Court to invalidate 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.)

Among Washington’s neighbors, Alaska, British Columbia, Idaho, and Montana operate under democratic principles: majority rule for revenue measures. Oregon voters amended their constitution in 1996 to give 40 percent plus one of either house of the legislature veto power over closing loopholes and new revenue measures.

Since Proposition 13 in 1979, California has suffered under minority rule not only for revenue measures but also to approve budgets, which has led to nearly permanent crisis in the Golden State’s governance. As the Los Angeles Times recently editorialized on a new supermajority measure, under the title “California: ruined by the supermajority“:

For more than 30 years, powerful interests have sought supermajority protections for themselves in majority vote elections. In the process, these interests . . . have created a supermajority-saturated state Constitution that makes California virtually impossible to govern.

California voters will consider a measure in November 2010 to return to majority rule for approving state budgets. The measure is polling well (pdf).

California’s form of minority rule may be extreme, but at least the state got itself into its mess through constitutional amendments, which California’s constitution allows through citizen initiatives.

Washington stands alone, not only in Cascadia, but in North America: it suffers under minority rule when it should not. It has suffered minority rule because of the timidity of the Lieutenant Governor and Supreme Court. And it may continue to endure the indignity of minority rule unless voters reject BP and Eyman’s I-1053 as not only undemocratic and bad for the state but also an attempt to skirt the state’s highest law, the constitution.

 

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Comments

  1. ef says:

    Is there any legal move to challenge the constitutionality of I-1053? It’s hard to believe that an initiative could change the constitutional requirement that legislation be adopted by a majority vote, if this is indeed a fact.

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