Senate considers tax rule change

By Jason Mercier
The 2015 Legislative Session is set up to be on the most historic gatherings of lawmakers in Washington since the founding of the state. Not to disappoint, on the first day a potential fight over Senate rules may unfold.

According to a press release:
“A proposal to change the Senate’s voting rules to make it harder to raise taxes will be one of the first items of business when the Legislature convenes Monday.

Sens. Doug Ericksen, R-Ferndale and Michael Baumgartner, R-Spokane propose new rules that would require a two-thirds vote of the state Senate for any measure that increases taxes. In effect their proposal would re-enact the state’s popular two-thirds-for-taxes law, which was approved by Washington voters five times between 1993 and 2012. The state Supreme Court declared the law unconstitutional in 2013.”

Last December we posted this blog discussing the potential for a Senate rules change to implement the intent of the five-time voter approved tax restriction.

Along with questions about what the scope of such a rule may cover, the most important question sure to be asked is whether the Legislature has the power to adopt such a rule in light of the Supreme Court's 2013 ruling. Under that ruling a majority vote is required on final passage for a tax increase. Article 2, Section 9 of the state Constitution, however, makes it clear the Legislature can set its own procedural rules.
The answer to whether the Legislature can adopt a procedural rule concerning tax bills is "Yes," assuming the Court abides by its prior rulings including the most recent unanimous one in 2009 where the Court said:

"The right of a legislative body to exercise its legislative powers will not be invaded by the judicial branch of government." State ex rel. Gunning v. Odell, 58 Wn.2d 275, 278, 362 P.2d 254 (1961) (citing Household Fin. Corp. v. State, 40 Wn.2d 451, 244 P.2d 260 (1952)), modified, 60 Wn.2d 895, 371 P.2d 632 (1962). Essential to the exercise of legislative powers is the ability of each house to govern its own proceedings. Wash. State Farm Bureau, 162 Wn.2d at 301 ("'A legislative assembly, when established, becomes vested with all the powers and privileges which are necessary and incidental to a free and unobstructed exercise of its appropriate functions.'" (internal quotation marks omitted) (quoting State ex rel. Robinson v. Fluent, 30 Wn.2d 194, 203-04, 191 P.2d 241 (1948))); Zylstra, 85 Wn.2d at 755 (Utter, J., concurring) (internal procedural powers are prerequisite to the exercise of legislative power); City of Fircrest v. Jensen, 158 Wn.2d 384, 394, 143 P.3d 776 (2006) (inherent authority of self-governance protects functioning as independent branch), cert. denied, 549 U.S. 1254 (2007); cf. Juvenile Dir., 87 Wn.2d at 245 (the judiciary has inherent authority to protect itself in the performance of its constitutional duties); see also Spokane County v. State, 136 Wn.2d 663, 668, 966 P.2d 314 (1998) (the need for all branches "to maintain effective control over their respective affairs cannot be overstated"). In addition to this inherent power, our constitution specifically confers on each house of the legislature the right to "determine the rules of its own proceedings," article II, section 9, and charges the lieutenant governor with administering those rules as president of the senate. CONST. art. III, $ 16.

Our system of government allows each branch to exercise some control over the others in the form of checks and balances, but the power to interfere is a limited one. Juvenile Dir., 87 Wn.2d at 239. We will not interfere where doing so will "'threaten[ ] the independence or integrity or invade[ ] the prerogatives of another [branch].'" Carrick, 125 Wn.2d at 135 (quoting Zylstra, 85 Wn.2d at 750). Thus, we will reluctantly act as impartial referee between branches of government in order to maintain a constitutional balance between them, Washington State Legislature v. State, 139 Wn.2d 129, 137, 139, 985 P.2d 353 (1999), but we will not referee disputes over parliamentary rulings between members of the same house. . .

The power to establish and administer the procedural rules of the legislature has been committed solely to the legislature--not to the judiciary. CONST. art. II, $$ 9, 32. These internal rules are essential to the senate's effectiveness as a legislative body . . .

Based upon separation of powers concerns, this court has traditionally abstained from considering internal legislative functions surrounding the passage of a bill. "The legislature has plenary power to enact, amend, or repeal a statute, except as restrained by the state and federal constitutions." Wash. State Farm Bureau, 162 Wn.2d at 306 (citing State ex rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 248, 88 P.3d 375 (2004)). Just as the legislature may not go beyond the decree of the court when a decision is fair on its face, the judiciary will not look beyond the final record of the legislature when an enactment is facially valid, even when the proceedings are challenged as unconstitutional.

The bottom line, the power to set its own procedural rules rest solely with lawmakers and the Court has already said injecting itself into this process would be a "grave violation of separation of powers."
The Court has been clear that once a bill is brought up for a vote on final passage it only needs a majority vote for approval. That said, there is no constitutional requirement for a bill to be brought up for a vote in the first place and lawmakers are free to determine the procedural process that proposed legislation most follow.

Voters in Washington have enacted or affirmed the two-thirds vote requirement for tax increases five times during the past 20 years:

• 2012: Initiative 1185 - Required a two-thirds vote in the legislature or voter approval for tax increases (passed statewide with 64 percent yes vote and approval in 44 of the 49 legislative districts)
• 2010: Initiative 1053 - Required a two-thirds vote in the legislature or voter approval for tax increases (passed with 64% yes vote)
• 2007: Initiative 960 - Required a two-thirds vote in the legislature or voter approval for tax increases (passed with 51 percent yes vote)
• 1998: Referendum 49 - Affirmed the tax limitation provisions of 1993’s Initiative 601 (passed with 57 percent yes vote)
• 1993: Initiative 601 - Required a two-thirds vote in the legislature or voter approval for tax increases (passed with 51 percent yes vote)

Allowing the people to vote on a constitutional amendment, like the one proposed by SJR 8200, would be representative of the public will and would help end the debate over tax limitation once and for all. In the meantime, senators can show their commitment to implementing the will of the people as reflected by the consistent support at the ballot box for this taxpayer protection, by placing the requirement into Senate rules.