On Friday, Slog reported that an income tax initiative had been filed, prompting the following commentary from the Secretary of State’s office:
“You cannot have a graduated state income tax without amending the state constitution. The court has been clear on that,” says Dave Ammons, spokesman for the Secretary of State.
To which I have two main responses. First, the Washington State Supreme Court last explicitly ruled on this issue way back in 1933; our current slate of Supreme Court justices have never addressed this issue, and as the precedent flouting majority on the U.S. Supreme Court recently demonstrated, the opinions of the current justices are the only ones that matter. Second — and I mean this with all due respect to Dave Ammons, Secretary of State Sam Reed and the rest his office — it’s none of their fucking business.
To elaborate on my second point first, up until the moment the petitions are filed, the Secretary of State’s role in the initiative process is purely administrative, and even then the grounds for rejecting petitions are quite limited, so I can’t help but wonder why Ammons would comment on the measure’s constitutionality at all? I don’t remember Reed’s office commenting on the constitutionality of any of Tim Eyman’s initiatives. Hell, I’ve seen the SOS quietly process initiatives that don’t even amount to a complete sentence.
So while I’ve no doubt that Reed personally opposes an income tax, his office has no business nor expertise in commenting on its constitutionality.
Which brings us back to my first point, the constitutional question itself. I’ve written extensively on this subject, most recently highlighting this excerpt from the Washington State Tax Structure Committee report:
[T]here is ample reason to believe that a modern income tax, established by the Legislature or by the voters, would now be upheld. The basic reason is that [Culliton v. Chase] was based on an earlier Washington case which the State Supreme Court clearly misread. More importantly, the earlier case was based on a line of United States Supreme Court cases that have subsequently been reversed. Our Court would likely take a “clean slate” approach to the income tax today.
See that? Courts sometimes overturn earlier decisions, both old and new. Indeed, the SCOTUS just overturned a century of precedent on campaign finance law — precedent it had upheld as recently as seven years ago — so it’s kinda silly to dismiss a state income tax as patently unconstitutional based on a 77-year-old 5-4 decision that has left Washington with a legal definition of “income” that is at odds with virtually every other court in the nation, state and federal.
Furthermore, if you read the text of the proposed initiative, it becomes instantly clear that the authors have bent over backwards to accommodate the bizarre semantics that constitute our state’s current legal framework on the subject — one which, for example, allows the state to levy a nonuniform business tax on gross revenue, but not on net revenue (i.e., income). Aping the language of our existing Business & Occupation tax, the measure attempts to levy a 5% “excise tax” on joint adjusted gross incomes over $400,000 a year (9% on the portion over $1 million), while simulating exemptions by redefining the tax otherwise due as a “credit.”
Split hairs all you want, but it’s hard to understand how a reasonable person could define gross personal income as property but gross business income as not. That’s a distinction without a difference that could just as easily give today’s court the grounds to invalidate our existing B&O tax as it would the income tax this initiative proposes.
But all that is neither here nor there. The Secretary of State’s job at the moment is merely to assign the initiative a number, and transmit it back and forth between the sponsor, the Code Reviser and the Attorney General. If petitions are ultimately filed, his job will be to count and verify the signatures, and if the signature threshold is met, his next and final task will be to assure that the initiative properly appears on the ballot. At no point is the question of the measure’s constitutionality of any official concern to the Secretary of State or his spokesman.
As for the Attorney General, his job would be to defend the measure in court should it ultimately pass and be challenged, thus any effort on his part to publicly question the initiative’s constitutionality would present a conflict of interest that could undermine his ability fulfill his own office’s constitutional duties.
Indeed, as I’ve previously written, the whole constitutional question is a red herring intended to quash public debate on this very important issue. And that is the context within which Ammons’ comment should be understood.
