I-960 headed for Court’s ‘unconstitutional’ pile

The taxpayer high fives concluding the raucous special session last week echo like the sound of one hand clapping. A little good was done, certainly, but no lasting victories have been won. Although lawmakers reinstated the 1 percent property tax limit, they clearly are not bound to lift tattered initiatives from the state Supreme Court’s discard pile and enact them as legislation. The Democratic majority has little reason to do so.

Hundreds flocked to Olympia to witness a dramatic display of bravado and resignation, populism and pragmatism. And I’m not just talking about Tim Eyman.

Although the governor said the session wasn’t about the initiative sponsor, that’s not entirely accurate. It was. But it was more about 2008 politics, Dino Rossi, and the messages sent by voter-approved initiatives. In that mix, the Eyman effect gets muddled.

I find his impudent insolence about as fresh and appealing as Tonight Show reruns, but it seems to work for him. He can now claim plausibly he’s 2-for-2 in having legislators replace what the Court rejects. I’d call him a political Bigfoot, but Sasquatch avoids the cameras.

When Initiative 695 failed to pass constitutional muster, the Legislature gave us $30 car tabs. They pointedly left out the second prong of the initiative, however, which would have required public votes for tax increases.

Then came last week’s restoration of the Initiative 747 property tax cap. Maybe to show that the session wasn’t just about Eyman, lawmakers added a hastily drafted tax deferral program.

Democratic leaders and the governor came in for sharp criticism from the party’s liberal base, including some of their legislative colleagues. One liberal blogger complained of “Democratic capitulation to deluded libertarian interests.” Others were less kind.

While the I-747 restoration received strong bipartisan support in the Democratically-controlled legislature, Republicans displayed most of the tax cap fever. Few in either party feel good about the tax deferral legislation. It’s not over. Already, legislative leaders have placed tax reform on the agenda for the 2008 session. For Democrats that probably means a progressive redistribution of the tax burden. Republicans will push for limits and cuts.

Majority Democrats will surely want to show that they can do more than reinstate laws they opposed in the first place. Even the new 1 percent cap may be short lived.

So when the state Supreme Court tosses out Initiative 960, which narrowly passed in last month’s low turnout election, no one should expect lawmakers to pick it up. I say when because the Court recently telegraphed its hand. The foreshadowing came in a case challenging the way lawmakers manipulated and retroactively amended the Initiative 601 spending limit in 2005 and 2006 to raise taxes. Adopted by the voters in 1993, and much amended since, I-601 established a spending limit and required voter approval of tax increases that lifted spending above the limit.

All nine justices agreed lawmakers had the constitutional authority to adjust the limit, even retroactively. The five-member majority opinion sparked four independent concurrences. Two of them specifically argued that I-601 unconstitutionally ties lawmakers’ hands, an issue the majority opinion chose not to address.

Justice Tom Chambers argued that the initiative “is unconstitutional because it purports to condition an entire class of legislation on voter approval. That is direct democracy. That is not our system.” Chief Justice Gerry Alexander agreed.

Unlike voters in California and Oregon, Washington voters cannot amend the constitution by initiative. The majority opinion left open the question of whether I-601 passes constitutional muster. But it’s likely that most members of the Court, possibly all except Justices James Johnson and Richard Sanders, think the initiative’s restraints on legislative authority are unconstitutional. With passage of I-960, which raises similar issues, they’ll get another chance to weigh in. Expect the initiative’s restrictions on legislative tax-raising authority to fall.

When they do, lawmakers will not rush to replace them. After years of amendment, Initiative 601 had few teeth left. Regardless of what the courts do, I-960 could anticipate similar oral surgery.

The lesson to the voters is clear. Pay attention to judicial elections. And don’t rely on statutory initiatives to control taxes and spending. If you want conservative fiscal policy, elect fiscal conservatives.

Richard S. Davis, vice president-communications of the Association of Washington Business, writes every other Wednesday. His columns do not necessarily reflect the views of AWB. Write Davis at richardd@awb.org or Association of Washington Business, P.O. Box 658, 1414 Cherry Street SE, Olympia, WA 98507-0658.

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