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.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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