This one's a head scratcher.
Remember I-1053?
This initiative passed in 2010, and established (or re-established to be precise) that a two-thirds majority is required to raise taxes by the State Legislature.
Okay...
Check this out:
That seems pretty self explanatory.
Notice there is no language about initiative measures taking precedence over articles of the Constitution, just measures in the legislature.
Did you notice that?
The Constitution requires only a majority vote to pass a bill, and notice further that there are not words expressly declaring otherwise. Even for bills that raise taxes.
What the State Constitution does do is limit the amount of taxes that can be raised in a given year.
Then there is the fact that according to Article VII, Section 2 of the Constitution only a three-fifths (60%) vote of support from the electorate is required to exceed the 1% annual limit on levies.
And even then, the bill passed into law to exceed the levy limit, like any other bill, only requires a majority vote to pass in the Legislature (according to our own Constitution)
So, Initiative 1053 has the effect of amending at least two articles in our own State Constitution (The Majority Vote to pass a bill Article, the Less Than Two-Thirds Vote of the Electorate to Pass High Levies Article), and suspending a third (the Constitution is Mandatory article).
So, the question is: Can the people effectively amend the State Constitution they themselves ordained by passing an initiative with a majority vote?
That doesn't seem likely.
look at...
Now, last I checked, two thirds of both branches of the Legislature didn't propose an amendment to the Constitution to require anything other than a majority vote to pass a bill into law, including a bill that would raise taxes.
Notice further, that nowhere in Article XXIII is there any mention of the Constitution itself being subject to amendment by either Initiative or Referendum.
I think I have my questions for that Initiative discussion on May 17th.
The articles of the State Constitution are either mandatory or they aren't.
Remember I-1053?
This initiative passed in 2010, and established (or re-established to be precise) that a two-thirds majority is required to raise taxes by the State Legislature.
Okay...
Check this out:
Washington State Constitution
Article I, Section 29
CONSTITUTION MANDATORY. The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.
That seems pretty self explanatory.
Article II Section 1
...initiative measures, whether certified or provisionally certified, shall take precedence over all other measures in the legislature except appropriation bills
Notice there is no language about initiative measures taking precedence over articles of the Constitution, just measures in the legislature.
Article II Section 22
PASSAGE OF BILLS. No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.
Did you notice that?
The Constitution requires only a majority vote to pass a bill, and notice further that there are not words expressly declaring otherwise. Even for bills that raise taxes.
What the State Constitution does do is limit the amount of taxes that can be raised in a given year.
Then there is the fact that according to Article VII, Section 2 of the Constitution only a three-fifths (60%) vote of support from the electorate is required to exceed the 1% annual limit on levies.
And even then, the bill passed into law to exceed the levy limit, like any other bill, only requires a majority vote to pass in the Legislature (according to our own Constitution)
So, Initiative 1053 has the effect of amending at least two articles in our own State Constitution (The Majority Vote to pass a bill Article, the Less Than Two-Thirds Vote of the Electorate to Pass High Levies Article), and suspending a third (the Constitution is Mandatory article).
So, the question is: Can the people effectively amend the State Constitution they themselves ordained by passing an initiative with a majority vote?
That doesn't seem likely.
look at...
ARTICLE XXIII, Section 1.
Any amendment or amendments to this Constitution may be proposed in either branch of the legislature; and if the same shall be agreed to by two-thirds of the members elected to each of the two houses.
Now, last I checked, two thirds of both branches of the Legislature didn't propose an amendment to the Constitution to require anything other than a majority vote to pass a bill into law, including a bill that would raise taxes.
Notice further, that nowhere in Article XXIII is there any mention of the Constitution itself being subject to amendment by either Initiative or Referendum.
I think I have my questions for that Initiative discussion on May 17th.
The articles of the State Constitution are either mandatory or they aren't.
ApexNerd, You've landed on a pet peeve of mine.
ReplyDeleteIt is absolutely ridiculous for the Governor and Legislature and courts to treat the 2/3rds requirement as anything but a fraud.
In order to be law, 1053 would have to directly and specifically change the language of the state Constitution, which--amazingly!--allows governments to govern and problem solvers to solve problems. That is what it is designed to do.
The framers of the Constitution were very careful in assigning what items might require supermajorities to do and undo. They were equally careful not to unduly tie the hands of people we elect to solve problems, preventing them from solving problems. Remarkable, isn't it?
Olympia pussyfoots around these Eyman restrictions when instead they should be challenging them in court and kicking them to pieces.
...following on to your larger question, ApexNerd, of whether the state constitution is subject to referendum...
ReplyDeleteI’m interested in what the eminent law scholar Hugh Spitzer has to say on this point, but I imagine that it is—in the same manner as the federal Constitution is also subject to amendment by petition, even though the federal government is not strictly referendable. Washington State IS referendable, almost to a fault. Moreover, the Washington constitution--like those of most states who drafted their constitutions after issues of federal primacy and the federal model were resolved in the 1860s-70s--is closely structured and designed after the federal model.
In a fully proper procedure, petitioners would signal their interest in a change to the constitution. Voters would endorse. Legislators would consider the matter, then present an actual proper constitutional amendment back as a Referendum to the People.*
I believe this is how it is settled at the federal level, although without a national vote on the petition. It is merely approved by a majority of states and sent to Congress for consideration. I believe Congress is under no compulsion to do so.
*Note again how most of these checks and balances were trammeled by the Eyman initiative.
Thanks Tim...
ReplyDeleteI'm no Constitutional Scholar, so bear with me here.
I looked at the procedure for amending the Constitution and it seems pretty straightforward.
There is no provision in the Constitution that "expressly" allows for an amendment by way of referendum.
But more to the point, I-1053 was not an initiative that amends the Constitution.
I don't believe you can amend a Constitution as a side effect of passing an initiative.
Constitutional experts, of which there is no shortage here in Whatcom County, feel free to sound off.