NPI's Cascadia Advocate

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.

Tuesday, September 10th, 2019

The Senate Republicans are responsible for the Sound Transit taxes they say are unfair

For near­ly three years now, Wash­ing­ton State’s Sen­ate Repub­li­can cau­cus has been wag­ing a long-run­ning mis­in­for­ma­tion cam­paign aimed at Sound Tran­sit as part of a broad­er right wing effort intend­ed to dis­cred­it the agency and over­turn the 2016 Sound Tran­sit 3 (ST3) vote, which autho­rized Puget Sound’s Region­al Tran­sit Author­i­ty to expand light rail, com­muter rail, and bus ser­vice.

At the fore­front of the effort are a trio of sen­a­tors who we con­sid­er “road war­riors” because they appear to believe that trans­porta­tion dol­lars should only go to roads and high­ways: Steve O’Ban, Mike Pad­den, and Phil For­tu­na­to.

Each of them has intro­duced or cospon­sored bills with the bare­ly dis­guised aim of either sab­o­tag­ing Sound Tran­sit’s work or gut­ting the agency entire­ly.

With their cau­cus out of pow­er in Olympia, those bills have gone nowhere. But they aren’t giv­ing up. Each of them has been busy dur­ing the leg­isla­tive inter­im iden­ti­fy­ing oth­er ways to advance their anti-tran­sit, right wing agen­da.

For­tu­na­to has launched a guber­na­to­r­i­al cam­paign with an anti-tran­sit plank, while O’Ban and Pad­den have involved them­selves in a law­suit that seeks to have the author­i­ty that the Leg­is­la­ture gave to Sound Tran­sit to raise rev­enue through motor vehi­cle excise tax­es in 2015 declared uncon­sti­tu­tion­al.

The Wash­ing­ton State Supreme Court heard oral argu­ments in that case today. While O’Ban and Pad­den did not bring the suit, they have filed an ami­cus brief sup­port­ing the plain­tiffs, who claim the Leg­is­la­ture vio­lat­ed Arti­cle II, Sec­tion 37 of the Con­sti­tu­tion when it passed the 2015 Con­nect­ing Wash­ing­ton pack­age.

The State of Wash­ing­ton dis­agrees, as does Sound Tran­sit, and are ask­ing the Supreme Court to affirm the tri­al court and dis­miss the case.

I read O’Ban and Pad­den’s ami­cus brief last week; it was authored by O’Ban on behalf of both of them. O’Ban appears to have cre­at­ed the brief with the objec­tive of intro­duc­ing a slew of doc­u­ments into the case file that attempt to impugn Sound Tran­sit’s cred­i­bil­i­ty and the agen­cy’s com­pli­ance with state law.

O’Ban and Pad­den claim that Sound Tran­sit mis­led the Leg­is­la­ture when the House and Sen­ate were con­sid­er­ing 2ESSB 5987, the rev­enue com­po­nent of the Con­nect­ing Wash­ing­ton trans­porta­tion pack­age, because Sound Tran­sit’s lead­ers did not pitch the autho­riza­tion of addi­tion­al rev­enue author­i­ty as need­ed for a pack­age that would ulti­mate­ly include $54 bil­lion in planned expen­di­tures.

But there’s a very good rea­son that Sound Tran­sit did­n’t throw around a $54 bil­lion num­ber at the time 2ESSB 5987 was being con­sid­ered by the Leg­is­la­ture: the agen­cy’s board had­n’t yet drawn up an ST3 plan to sub­mit to the vot­ers. That would have been putting the cart before the horse.

The agen­cy’s lead­ers did­n’t know then how big the pack­age would be, as no deci­sion had been made. Sound Tran­sit asked for — and got — leg­isla­tive approval to levy addi­tion­al sales tax­es, motor vehi­cle excise tax­es, and prop­er­ty tax­es to bring light rail, com­muter rail, and bus ser­vices to more places in the region.

Those tax­es rep­re­sent only a por­tion of the $54 bil­lion total. Most of the rest is fund­ing obtained from financ­ing — the sale of bonds.

The rea­son the pack­age end­ed up being $54 bil­lion was because Sound Tran­sit found out from its pub­lic out­reach that vot­ers (and rid­ers + poten­tial rid­ers) want­ed to vote on a big­ger pack­age with a larg­er port­fo­lio of projects.

Accord­ing­ly, Sound Tran­sit’s Board of Direc­tors opt­ed for a more ambi­tious Phase III sys­tem expan­sion plan. And vot­ers approved it just a few months lat­er.

Though the ST3 oppo­si­tion cam­paign failed to per­suade vot­ers that Propo­si­tion 1 should be reject­ed, it nev­er real­ly end­ed. It instead mor­phed into var­i­ous oth­er efforts, like the fake “inves­ti­ga­tion” Pad­den and O’Ban insti­gat­ed two years ago into Sound Tran­sit’s con­duct, this law­suit, and Tim Eyman’s Ini­tia­tive 976. All attempts to over­turn the will of the vot­ers in a high turnout elec­tion.

In the imme­di­ate after­math of the elec­tion, ST3’s oppo­nents decid­ed to regroup, adopt­ing the mantra we lost a bat­tle, but we’re going to win the war.

They launched a fero­cious, mul­ti-pronged series of attacks on Sound Tran­sit, accus­ing the agency of mis­lead­ing leg­is­la­tors and dup­ing vot­ers.

To date, none of their attacks have cost Sound Tran­sit any rev­enue. But if either this law­suit or Ini­tia­tive 976 suc­ceeds, then ST3 will be sab­o­taged.

And that is their objec­tive: oblit­er­ate what­ev­er ST3 fund­ing they pos­si­bly can so the agency can’t deliv­er the projects that vot­ers approved in 2016.

They have focused specif­i­cal­ly on try­ing to nix Sound Tran­sit’s motor vehi­cle excise tax (MVET) author­i­ty because they have assessed that the MVET is the ST3 rev­enue source that is eas­i­est to man­u­fac­ture out­rage over.

Since 2016, Sen­a­tor O’Ban has invest­ed a lot of ener­gy in stok­ing out­rage over Sound Tran­sit’s “unfair car tab tax­es”. He even made Sound Tran­sit’s vehi­cle fees the focus of a franked mail piece sent out by his leg­isla­tive office back in 2017.

Con­trary to what they seem to want every­one to think, it is not Sound Tran­sit that decides what a car is worth. It’s the state agen­cies, like DOL, that car­ry out the laws approved by the Leg­is­la­ture of the State of Wash­ing­ton.

O’Ban and the Sen­ate Repub­li­cans have some nerve blast­ing Sound Tran­sit for “unfair car tab tax­es” when they are the ones respon­si­ble for hav­ing decid­ed that Sound Tran­sit should use an old val­u­a­tion sched­ule for cal­cu­lat­ing what tax­pay­ers should pay, at least until the year 2028.

See, back in 2015, when the House and Sen­ate were putting togeth­er the Con­nect­ing Wash­ing­ton pack­age, O’Ban’s col­league Doug Erick­sen of What­com Coun­ty object­ed to the use of the old­er val­u­a­tion sched­ule that has so often been assailed as unfair. Erick­sen intro­duced an amend­ment to oblige Sound Tran­sit to use the new­er vehi­cle val­u­a­tion sched­ule adopt­ed by the Leg­is­la­ture in 2006.

On Feb­ru­ary 27th, 2015, Erick­sen rose on the Sen­ate floor to speak to his con­cerns and move his amend­ment, Amend­ment 53.

The Sen­ate Repub­li­cans, who then held the major­i­ty, could have vot­ed as a bloc to adopt Erick­sen’s amend­ment. But they did­n’t.

Instead, they split.

Some of them vot­ed with Erick­sen in favor of the amend­men­t’s adop­tion. Oth­ers, like then-Trans­porta­tion Chair Cur­tis King of Yaki­ma, (who spoke against the amend­ment), vot­ed it down along with most Democ­rats.

I’m told by leg­is­la­tors that O’Ban was among the nays on Erick­sen’s amend­ment. It was­n’t a roll call vote, so I don’t know for sure. But if O’Ban *was* a nay, that makes his yap­ping about “unfair car tab tax­es” all the more duplic­i­tous.

Why would some of the Sen­ate Repub­li­cans vote down Amend­ment 53? The answer is that they knew that Sound Tran­sit was already receiv­ing MVET rev­enue that had been pledged to pay off bonds using that old­er val­u­a­tion sched­ule, and it real­ly would­n’t make sense to use one sched­ule to cal­cu­late part of a vehi­cle own­er’s MVET owed while using a dif­fer­ent sched­ule to cal­cu­late the rest.

Demo­c­ra­t­ic Sen­a­tor Marko Liias explained this dur­ing his brief speech against Amend­ment 53 on the floor. Sound Tran­sit Gen­er­al Coun­sel Desmond Brown and Paci­fi­ca Law Group’s Paul Lawrence (attor­neys for Sound Tran­sit) explained it all over again, even quot­ing Liias, in their reply brief to the plain­tiffs in the case that was heard today for the ben­e­fit of the Wash­ing­ton State Supreme Court.

Here’s Brown and Lawrence:

The Sen­ate Trans­porta­tion Com­mit­tee bill report explained that “[t]he depre­ci­a­tion sched­ule remains the same as the MVET sched­ule in effect for the exist­ing MVET until the bonds are repaid and then the sched­ule switch­es to the sched­ule that is in effect at the time the MVET is approved by the vot­ers.

Dur­ing the floor debate, Sen­a­tor Erick­sen expressed dis­sat­is­fac­tion with this approach and pro­posed Amend­ment 53 to make three changes: (1) repeal the exist­ing depre­ci­a­tion sched­ule then cod­i­fied in RCW 82.44.035, (2) enact a new depre­ci­a­tion sched­ule to replace the repealed RCW 82.44.035, and (3) elim­i­nate Sound Transit’s author­i­ty to apply the 1996 depre­ci­a­tion sched­ule to the new 0.8% MVET.

Sen­a­tor Liias spoke against the amend­ment explain­ing that because the exist­ing 0.3% MVET must be cal­cu­lat­ed using the 1996 depre­ci­a­tion sched­ule until the bonds are repaid, “it didn’t make sense for the peri­od of time that there are bonds over­lap­ping for tax­pay­ers to have two dif­fer­ent val­ues for their car based on the two dif­fer­ent val­ues that are in the statute.…”

Sen­a­tor Liias argued that the Leg­is­la­ture should “stick with the old table until the bonds are paid off and then switch to the new improved and upgrad­ed tables for ease of col­lec­tion and to make it more sim­ple for our tax­pay­ers as they pay these tax­es…”

Amend­ment 53 failed a floor vote.

The Sen­ate then passed [2ESSB] 5987.

At the House com­mit­tee hear­ing, Rep­re­sen­ta­tive [Matt] Shea intro­duced Amend­ment H2685.1, which was sub­stan­tial­ly iden­ti­cal to Sen­a­tor Ericksen’s Amend­ment.

The House Trans­porta­tion Com­mit­tee reject­ed the amend­ment.

Thus, these two reject­ed amend­ments, one in the House and one in the Sen­ate, would have repealed and replaced the exist­ing depre­ci­a­tion sched­ule enact­ed in 2006 (RCW 82.44.035) and would have removed the require­ment that the 1996 sched­ule apply to the new Sound Tran­sit MVET autho­rized by the [2ESSB] 5987.

To reit­er­ate, the Sen­ate Repub­li­cans had the pow­er in 2015 to insist on lan­guage in the Con­nect­ing Wash­ing­ton pack­age that would have pre­vent­ed the use of the old­er val­u­a­tion sched­ule for the por­tion of the MVET that was slat­ed to be increased with ST3. But instead they opt­ed to keep the old sched­ule in use.

And for a sen­si­ble rea­son.

Dis­ap­point­ing­ly, rather than admit their part in this to the peo­ple who are upset about their post-2016 vehi­cle fees, the Sen­ate Repub­li­cans have repeat­ed­ly attacked Sound Tran­sit and made the agency their bogey­man, using Dori Mon­son and Tim Eyman’s well worn play­book.

They instruct­ed Man­ka Dhin­gra’s 2017 Repub­li­can oppo­nent Jiny­oung Englund to make vehi­cle fees an issue in her cam­paign. She did, but to no avail, as vot­ers in the 45th Leg­isla­tive Dis­trict hand­i­ly backed Dhin­gra for the posi­tion.

And now they are sup­port­ing both this law­suit and Tim Eyman’s I‑976.

They hope at least one, or maybe both, will suc­ceed so they can real­ize their goal of sab­o­tag­ing Sound Tran­sit 3. Of course, if I‑976 is imple­ment­ed, it would defund many state and local trans­porta­tion projects, not just Sound Tran­sit’s region­al projects. But that’s a price that true road war­riors will glad­ly pay.

The law­suit, on the oth­er hand, more nar­row­ly tar­gets the pro­vi­sion of the leg­is­la­tion that gave Sound Tran­sit the author­i­ty to increase its MVET. Tay­lor Black is the first of the named plain­tiffs, and so the case is known as Black v. CPSRTA.

Black and the oth­er plain­tiffs are rep­re­sent­ed by attor­neys who have also rep­re­sent­ed dis­graced ini­tia­tive pro­mot­er Tim Eyman: Joel Ard and David DeWolf.

While Eyman enthu­si­as­ti­cal­ly sup­ports their law­suit, he’d pre­fer to over­turn ST3 with I‑976, because then he would get the cred­it for hav­ing sab­o­taged the expan­sion of light rail north to Everett, south to Taco­ma, west to Bal­lard and West Seat­tle, and east to Issaquah and down­town Red­mond.

Con­sid­er­ing that the plain­tiffs could­n’t con­vince a tri­al court judge to rule in their favor and con­sid­er­ing that prece­dent appears to be on Sound Tran­sit and the State of Wash­ing­ton’s side, our guess is that this law­suit will end in fail­ure.

Regard­less, we expect Sen­ate Repub­li­cans to con­tin­ue attack­ing Sound Tran­sit in the years ahead. They seem very eager to undo the tran­sit por­tion of the Con­nect­ing Wash­ing­ton pack­age while keep­ing the high­ways por­tion, essen­tial­ly reneg­ing on the deal they struck with Democ­rats to keep Wash­ing­ton rolling four years ago. All while fail­ing to acknowl­edge to vot­ers that they bear the respon­si­bil­i­ty for the deci­sion not to change how vehi­cles are val­ued.

There’s way too much bad infor­ma­tion about Sound Tran­sit cir­cu­lat­ing, whether on social media, talk radio, or oth­er venues. The Sen­ate Repub­li­cans are respon­si­ble for a good chunk of it, and they must be held to account for it.

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