Constitutional brinksmanship

Over on Crosscut, Daniel Jack Chasan asks the question: “Are super-majorities in the legislature unconstitutional?

Simple answer: of course they are… except for, you know, those super-majorities specifically prescribed within the constitution.

Think about it. Washington state’s constitution mandates a two-thirds legislative super-majority to place a constitutional amendment on the ballot, an intentionally difficult legislative hurdle. And unlike in California, Washington’s constitution cannot be amended via initiative.

But if constitutionally prescribed legislative majorities, like that required to amend the constitution itself, can be changed through a simple majority vote — either of the legislature or through a citizens initiative — then there’s really no point in having a constitution at all. What sets a constitution apart from, and primary over the rest of our laws is the extra effort it takes to modify it; if the majority provisions can be changed via simple majority, than so can the constitution, making it in essence, just another set of statutes.

The fact that I-960 makes it more difficult to pass legislation, rather than less, is neither here nor there. The constitution is the constitution.

So why has the Washington State Supreme Court never thrown out I-960 or its predecessor I-601 as unconstitutional? Because its never been forced to rule on the issue.

Hugh Spitzer, who teaches Washington constitutional law at the University of Washington law school, says it seems pretty clear that if the state supreme court were somehow forced to vote on the issue, the court would find the two-thirds rule unconstitutional. But so far, the court has managed to duck the question.

“The court is terrified of having to make a decision,” on the constitutionality of a supermajority, Spitzer suggests. “They do everything they can” to avoid it.

Huh. So here’s an idea that I’m confident my friends in the Democratic caucus will never embrace: why not just up the ante on Tim Eyman’s game of constitutional brinksmanship, and fight fire with fire? If Tim is going to insist on repeatedly running initiatives that increase the majority required to pass certain forms of legislation, then the Legislature should pass a bill — on a simple majority vote — that increases the majority required to qualify or pass certain types of initiatives.

You know, we could attempt to increase the number of signatures necessary to qualify an initiative for the ballot from 8 percent of the previous gubernatorial turnout to 12 percent, and/or increase the majority required for passage at the polls from a simple majority to say, 60 percent.

Of course, such legislation would be challenged, and of course, the Supreme Court would strike it down. You just can’t change such constitutionally prescribed majorities through simple legislation.

And that would settle that constitutional issue, once and for all.

Comments

  1. 1

    rhp6033 spews:

    Yea, but old Tim would argue that the state Supreme Court was only striking down THEIR initiatives, and it didn’t apply to HIS initiatives. Of course, that argument has no logical merit, but that hasn’t stopped him in the past.

    How about this one: The legislature is allowed to set it’s own proceedural rules. For example, the U.S. Senate rules regarding filibuster and a 60% majority to end debate are simply proceedural rules, not engraved in the Constitution. How about the Democrats amend the proceedural rules of the U.S. Senate to end debate at 55% of a vote of the Senate?

  2. 2

    rhp6033 spews:

    By the way, insurance companies are set up so most of their money is tied up in investments, so that it appears that their operating profits (premiums less claims less overhead) only shows a slight profit. This is the “reasonable” operating profit which they advertise to the public as showing them barely squeeking by. In reality, their combined earnings from investments and operating income yields them a very healthy profit, in most years.

    But when the stock market turns down, they use the other set of numbers, which combine investment returns with operating expenses. They cry about how much money they are losing, and how they have to make it up with (current) premium increases. They complain that if the state regulators don’t allow the rate increases, they will be “forced” to withdraw from that state’s market. Normally you could say “good riddence, and don’t let the door hit you in the rear on your way out”, but in some cases the insurur has, through mergers and acquisitions, a virtual monopoly on the market of that particular region.

    That’s also when you hear them arguing about the need for “tort reform”, trying to put any and all obsticles in the way of anyone actually, you know, COLLECTING on a claim. No matter how it is construed – pre-approval of malpractice lawsuits by doctor/insurer panels, limitations on attorney fees or punative damages, the whole goal is to make it too expensive for the small guy to get to court and have his case considered by a jury of his pears.

  3. 3

    rhp6033 spews:

    Oops, # 2 should have been posted under the previous topic, “Health Care Reform, GOP Style”. My bad.

  4. 4

    spews:

    The Dem caucus may take the bait to give it to Eyman up the bum like this, but the circumstances would probably have to be exactly right. It wouldn’t be the sort of thing you’d risk on anything less than a winning hand.

    I’d be shocked if Eyman didn’t read your blog, though, so I can bet if he and the Fagans haven’t already gone over this possible threat to their business model, they will now.

  5. 6

    lorax spews:

    That’s what was tried in 2008. As long as Brad Owen presides over the Senate, he won’t allow a tax bill to pass with less than 2/3. Democratic legislators can’t control him.

  6. 7

    Daddy Love spews:

    5 L

    What are you talking about? Our constitution declares definitively that a simple majority is all that is required to raise taxes. Do you know what that means? Apparently not. What it means is that a simple majority is all that is required to raise taxes.

  7. 9

    Zotz spews:

    Love the suggestion, Goldy. And politically, you just have to hold up a picture of the hell that is California…

  8. 10

    TT spews:

    @7 – there is a clause in the WA constitution that explicitly says “only a simple majority vote shall be required to raise taxes”? No qualifiers or anything? Then how the hell do these crappy initiatives stand???

    I really hate the initiative process.

    – TT

  9. 11

    Crusader spews:

    Daddy Love – if that’s so what are your Demorat heroes in Olympia waiting for? Oh I get it, sales tax is regressive, so we really need a state INCOME tax but that’s unconstitutional! You guys are so screwed.

  10. 12

    Crusader spews:

    TT – who cares if you hate the initiative process. It’s like saying you hate the air.

  11. 13

    lebowski spews:

    @7…I just did a quick(very quick) search through Article VII of the state constitution…I didnt see anything mentioning a “simple majority” as you say.

    I may have missed it…can you please quote and reference the section where it states “Our constitution declares definitively that a simple majority is all that is required to raise taxes”.(your words).

    Thanks in advance.

  12. 14

    lebowski spews:

    Here is a reference to needing a super-majority- the point being that there are areas where a supermajority is needed other than amending the constitution:

    SECTION 24 LOTTERIES AND DIVORCE. The legislature shall never grant any divorce. Lotteries shall be prohibited except as specifically authorized upon the affirmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this Constitution, by referendum or initiative approved by a sixty percent affirmative vote of the electors voting thereon. [AMENDMENT 56, 1971 Senate Joint Resolution No. 5, p 1828. Approved November 7, 1972.]

  13. 15

    Crusader spews:

    If the people of WA state really hate the rich as much as Goldy does, there will be 2/3 in favor of enacting a progressive income tax. But polling usually shows no more then 40% in favor of such a thing. Alas, what is a Horse’s Posterior to do?

  14. 16

    spews:

    lebowski (Jeff Bridges farts in your general direction for sullying the name) @14 mentions a specific area in which a supermajority is required in the Legislature. In citing Article II, Section 24, he conveniently skips Section 22, just above it:

    SECTION 22 PASSAGE OF BILLS. 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.

    That’s the basis of Goldy’s post. That’s the standard for all legislative action, aside from specific exceptions such as the one cited by lebowski.

    Leave it to the dope to pretend not to notice Section 22.

  15. 18

    spews:

    TT @17 —

    That’s because the Constitution originally stated that the Legislature couldn’t grant a divorce or establish a lottery at all. A later amendment permitted lotteries … with a 60% vote specifically required.

    They’re listed together, I suppose, because the writers wanted to enumerate all specific prohibitions (really, there are only two?) in a single Section.

  16. 19

    TT spews:

    @12 – Well, “hate” was a bad choice of words, I admit. What I should have said is I prefer Representative Democracy (as in the US Constitution) to the mix of Representative and Direct Democracy we have in the WA Constitution. Direct Democracy might work in the Internet age on its own, where the people would directly make both the hard (cut services) and easy (cut taxes) choices, but giving the people the say for easy things (cut taxes, reduce class sizes, etc.) and then leaving the hard mess up to the Legislature doesn’t work well in my opinion.

    And that and $4 will buy you a double latte. :)

  17. 20

    Crusader spews:

    TT – I agree that the people are schizophrenic passing tax cuts or voting down tax hikes and then electing a socialist legislature. Very weird.

  18. 22

    Proud To Be An Ass spews:

    Does not the Legislature have “standing” here to sue? After all, it’s their perrogitives that are being trampled with Timmy’s 60% supermajority requirement for passing tax hikes, is it not?

    Who’s gonna’ tell Robbie McK that he has to argue the case on the State’s behalf?

  19. 23

    Roger Rabbit spews:

    “if the majority provisions can be changed via simple majority, than so can the constitution, making it in essence, just another set of statutes”

    Goldy, for a nonlawyer, you have a remarkable grasp of legal concepts.

  20. 24

    Roger Rabbit spews:

    @1 The Senate should, by simple majority vote, change all Senate votes to simply majority votes. Anything else is undemocratic. And it was, after all, the Republicans who shouted out for “up or down votes” not so very long ago, so any objection to this from them would be hypocritical in the extreme.

  21. 26

    lebowski spews:

    @21…that would be against the state constitution: the state must treat all citizens(and in this case, parties) equally.

    just sayin….

  22. 29

    Roger Rabbit spews:

    @26 When did a constitution or the notion of equality ever stop you assholes from doing what you wanted to? And if you can do it, why can’t we?

  23. 32

    Perfect Voter spews:

    N @16, thanks for pointing out the Majority Rule clause of the State Constitution. You shut down the doubters real quick.

    I’ve noticed, here and over on Crosscut, nothing from Tim Eyman today. I know he follows these stories and jumps in when he thinks he can score some points. With his absence, I sense that he knows these authors are correct. He knows his initiatives can’t trump the constitution, rather he relies on the political timidity of enough legislators to let him prevail anyway.

  24. 34

    rhp6033 spews:

    # 32: Yep, it’s all muscle-flexing and intimidation. His initiatives regularly fail to meet constitutional muster, but if he gets enough votes the legislatures start acting like a bunch of scared rabbits (no offense intended, RR).

    Eyman won’t run for office because he doesn’t want the responsibility of actually having to actually BALANCE THE BUDGET, he wants to take credit for the easy part (Reduce taxes! Free money for everyone!), and leave it up to everyone else to deal with the consequences. Kind of like the kid who talks you into having a party at your house when your parents are out of town, then doesn’t stick around to clean up the mess or explain to your parents how the jello got into her prize goldfish pond.

  25. 35

    Mr. X spews:

    @32,

    I noticed that too, but I can’t help but think that you are seriously overestimating Mr. Eyman’s intellectual honesty.

    If 50% + 1 is good enough to pass a de-facto Amendment to the Washington State Constitution, right-wing kiddies, it’s also good enough to pass a legislatively approved tax increase.

    Whiners.

  26. 36

    gee spews:

    nuce cinokex diybke revrse irony political theater idea!

    now back to reality.

    if the 2.3 thing is unconstitutional we have a bunch of legislators including democratic party legislators acting unconstitutionally all the time. they need to get the guts to stop, to support majority rule and the constitution, throw out the 2.3 rule that empowers the illegal minority to rule, that is, to rule illegally, and just stop being the usper huge pansies pushovers crybabies and gutless wonders that they are.

    the ocnstitution is clear in providin supermajorities for certain things only and this means simple majority for everything else so the entire democratic caucus is guilty of acting unconstitutionally every day they act like that initiative is legal.

    the reason the superme court hasn’t addressed this is the democrats don’t have the courage to make them address it. they’d have to simple say it’s unconstitutional and it won’t be followed and get sued. they’re just too damn scared to do that, the cowards.