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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Monday, March 2nd, 2015

Lieutenant Governor Brad Owen upholds majority rule in the Washington State Senate

In a victory for democracy, sense, and the rule of law, Democratic Lieutenant Governor Brad Owen today ruled that a Republican-engineered Senate rules change to require two-thirds votes to advance revenue-raising bills is unenforceable because it violates the Washington State Constitution.

Owen, who presides over the state Legislature’s upper chamber in his capacity as President of the Senate, was first asked last Friday by Senator Annette Cleveland of Clark County whether rules adopted by Senate Republicans back in January to make advancing revenue bills more difficult would be applicable to SSB 5987. That’s the component of the Senate Republican-backed transportation package that would raise the gas tax and levy new vehicle fees to raise money for building highways.

The Senate opted to pause consideration of SSB 5987 in order to give Owen time to consider Cleveland’s point of order, research the question, and rule on the matter. Today, the Lieutenant Governor delivered his ruling.

Republicans had suggested that SSB 5987 would not need to get a two-thirds vote because it did not raise any new revenue. But Owen found otherwise.

“Senate Bill 5987 raises the gas tax as well as a number of transportation related fees. Unlike previous initiatives [I-601 and Tim Eyman’s I-601 clones], merely increasing an existing tax or fee does not trigger the new supermajority vote rule. There must be the creation of a new tax,” Owen said.

After examining the bill, Owen concluded that three of its provisions (Sections 201, 211, and 212) authorized new revenue, as opposed to increasing existing revenue sources. Concluding his ruling, Owen declared: “The President rules that Substitute Senate Bill 5987, in its current form, triggers Senate Rule 64 and thirty-three votes are required to advance the bill from second to third reading.”

Democratic Senator Steve Hobbs of Snohomish County then proceeded to challenge Rule 64 itself, asking whether or not it was constitutional.

Owen responded with an extremely well-argued and carefully researched ruling which found that the two-thirds vote provision conflicted with the Washington State Constitution and would therefore not be enforced. Said Owen:

Supermajority voting requirements, particularly for procedural matters, are found throughout the Senate Rules, and have been present since the first legislature. (Rule 31 of the 1889 Senate Rules created a supermajority voting requirement in order to change a Special Order of Consideration.)

For example, a supermajority vote is usually required to immediately advance a measure from Second to Third Reading, to pass a bill on the same day it is introduced, and to temporarily suspend most of the Senate Rules. These are traditional supermajority voting requirements, and are widely accepted as constitutionally appropriate limits on the rapid exercise of power by a political majority.

These supermajority provisions present a different issue. In contrast to the other procedural supermajority requirements found in the Senate Rules, these “new tax” provisions do not act to slow down legislation; they act to stop legislation that creates a new tax until a two-thirds supermajority can be persuaded to support it. It is important to note that there is no way to avoid this barrier other than to suspend the rules, which coincidentally also requires a two-thirds vote.

He went on to explain:

In sum, a two-thirds supermajority procedural requirement for ordinary legislation violates the Constitution. It does not matter that the procedural hurdle precedes the vote on final passage.

A rule requiring a supermajority procedural vote may constitutionally delay a majority for a reasonable time, as Senate Rules currently provide, but when the rule does not provide that majority with a valid means to pass measures in the form the majority intends, the President has no choice but to follow the dictates of the Constitution, as he did in following the Locke decision, and as he does today.

Finally, the President has repeatedly stated that he does not rule on constitutional questions. This is generally true. Certainly, the President has avoided making such rulings, when the question is not related to a process mandated by the constitution.

That reluctance does not apply when the body steps outside the limitations established by the Constitution or Supreme Court, either through the adoption of rules or consideration of other legislation in a manner or form that allows the Senate itself to act unconstitutionally. The President has previously stated, “The Senate cannot pass a rule that violates the State Constitution.” Perhaps that statement should be clarified to read, “The Senate may adopt an unconstitutional rule, but the President will not enforce it.”

And with that, the Senate went ahead and proceeded to consider SSB 5987. It ultimately passed by a vote of twenty-seven to twenty-two. It was not a party-line vote: Most Republicans voted in favor, joined by some Democrats. And most Democrats voted against it, joined by some Republicans.

Had it needed a two-thirds vote, it would have failed. But the Constitution of Washington State is very clear. Article II, Section 22 says that bills shall pass by majority vote. The Supreme Court has correctly interpreted majority vote to mean greater than fifty percent: no more, and no less.

I can’t think of a vote I’ve witnessed more tinged with irony than this one.

Consider what happened today: By a majority vote, the Washington State Senate adopted a bill that raises a substantial amount of revenue with primarily Republican votes… after Democrats had succeeded in knocking down the unconstitutional barrier that Republicans had set up to block consideration of Governor Inslee’s proposed capital gains tax and pollution charge. Unreal.

It’s truly fitting that the Republicans got tripped up by their own supermajority vote scheme. They got Owened today. (Sorry, couldn’t resist…)

Readers may recall that several months ago, cheered on by Tim Eyman in a furious onslaught of emails, Republican Senators Doug Ericksen and Michael Baumgartner had proposed bringing back the two-thirds vote requirement struck down in League of Education Voters as a Senate rule.

But not everyone in the Senate Republican caucus was willing to go along with that, because it would mean giving Democrats a ton of leverage when it came time to vote on a transportation package… which Republican leaders were determined to make a priority after having failed to deliver a plan two years in a row.

So Baumgartner and Ericksen tweaked their proposal to only subject what they called new revenue to a two-thirds threshold. The Senate Republican caucus was able to unify around this, and got it added to Senate rules over the unanimous opposition of Democrats, who correctly denounced it as unconstitutional.

Democrats signaled they would bring a challenge to the Republicans’ scheme as soon as an opportunity presented itself.

That opportunity arrived on Friday, and the challenge was brought.

Brad Owen has now delivered his ruling. In doing so, he has upheld the Constitution of the State of Washington and put Senate Republicans in their place. We can all be thankful we have a lieutenant governor who takes his oath of office seriously and cares about upholding our cherished tradition of majority rule, which is a crucial aspect of our plan of government that dates back to statehood.

Republicans still have a majority in the Senate, of course. So long as they all stick together, they can decide what the Senate does.

But, like Owen, they must abide by the Constitution. They can’t ignore provisions they don’t like. And they can’t ignore Supreme Court decisions they don’t like.

It is truly sad that Republicans remain obsessed with gutting majority rule in our statehouse…. a key principle of republicanism. Fortunately, their latest attempt to sabotage Article II, Section 22 has failed. Our founders gave us a plan of government with checks and balances. Today, that system worked.

After Owen handed down his decision, Republican Senator Michael Baumgartner rose to complain. “I’d like to comment on your decision,” Baumgartner began.

“At your peril,” the Lieutenant Governor replied.

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2 Comments

  1. An elected leader who believes in the rule of law! How refreshing.

    # by Kristen Armijo :: March 4th, 2015 at 4:28 AM
  2. It goes to show, the LT Governor does matter in the scheme of things.

    # by Mike Barer :: March 4th, 2015 at 6:14 AM