Minority rule under I-960 imperils your constitutional rights

Does our state constitution allow a minority of lawmakers to prevent good public policy from becoming law?

This is the question at the heart of a case I have brought before the state Supreme Court, which heard arguments earlier this month.

I am challenging the provision in Initiative 960 that requires two-thirds of lawmakers to approve any measure that raises revenues required to fund essential public services.

I've raised this challenge because there is an important constitutional issue at stake that deserves clarification, and because I strongly believe better public policy and better budgets will result from a process that is not stymied by a minority of legislators.

First, a few facts of the case.

In 2008, Senate Democrats voted on a bill to reinstate a surcharge on liquor sales. The 42-cents-per-liter surcharge had been in place for a number of years but expired in 2007. We believed it was appropriate to revive the surcharge in order to fund more drunken-driving enforcement to help prevent alcohol-related accidents on our streets, and more alcohol treatment to help prevent the destruction caused by problem drinking.

In the 49-member Senate, the measure received the 25 votes by which legislation is routinely adopted. However, it did not receive the 33 "yes" votes required for "a tax measure" under I-960, and the president of the Senate, Lt. Gov. Brad Owen, ruled that the measure did not pass.

That's when I decided to file suit.

The Washington Constitution requires a simple majority in both the Senate and the House to pass a bill. The constitution provides some exceptions to the simple-majority rule, and spells out situations that require a two-thirds vote. These include calling a special session of the Legislature, impeaching an elected official and amending the constitution itself.

The constitution does not require a two-thirds vote to raise necessary revenues. To impose such an extraordinary requirement means the constitution must be amended, which I-960 did not do.

Neither initiatives nor statutes can amend the constitution. Our constitution protects our basic liberties and sets out the framework for the balance of powers among the branches of government.

I'm not looking to overturn I-960, which also requires legislative approval of fee increases, and certain public disclosure of all tax-increase and fee-increase proposals. I've crafted a very narrow challenge to the two-thirds requirement.

The essence of my argument is this: If an initiative passed by the people can change the constitution to require a supermajority vote on tax measures, then an initiative could require a similar vote requirement on any type of legislation — such as civil rights or property rights. This would certainly circumvent the common-sense meaning of majority rule.

That's why I've asked the Supreme Court to rule on the constitutionality of I-960. It makes sense to clarify whether our laws are constitutional, and this is an area where clarity is critical. Legal scholars agree that, when in conflict, the constitution trumps statutes.

If the court rules that I-960 is unconstitutional, the higher vote threshold for tax measures could still be imposed by amending the constitution. This is exactly what occurred last year, when the supermajority threshold for passing local school levies was changed — by a constitutional amendment — to a simple majority.

It is meaningless, in my view, to pass public policy without funding it. The supermajority requirement on revenue measures essentially holds all legislation hostage to the views of a minority of legislators. I see that as fundamentally anti-democratic.

I agree with James Madison when he said that, under a supermajority requirement, "in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority."

I also believe people in Washington state expect to see government get results, not be log-jammed year after year by the kind of filibusters that plague Washington, D.C.

I respect the will of the people when they pass an initiative. I also respect the will of the people when they elect their representatives and senators and send us to Olympia to get the job done. I especially respect the oath I have taken five times to uphold the laws and constitution of the state of Washington.

Supporters of I-960 surely did not intend to undermine the rules that make our constitutional system of government work. It's their constitutional rights — and yours, and mine — that are imperiled by the precedent set in I-960. I am hopeful that the Supreme Court will see fit to protect these rights for all of us.