Washington voters have for the past several election cycles approved citizen initiatives that restricted the extent to which the legislature could impose new taxes. But despite explicit constitutional language making clear that the legislature’s power is inferior to that of the people when they pass citizen initiatives, some forces in Washington asked the state supreme court to rule that the people cannot exercise such control over the legislature. The Freedom Foundation was one of several groups who filed legal arguments defending the initiative process (you can read our brief), and tomorrow the Washington Supreme Court will hand down its ruling which should answer the question: is the government subject to the will of the people, or must the people be subject to the will of the government?
"All political power is inherent in the people, and governments derive their just powers from the consent of the governed..."
Although the Washington Constitution makes clear that the people of this state are supposed to be the ultimate political authority and that the powers of the legislature are subject to the will of the people as expressed through their power of initiative and referendum, a majority of the Washington Supreme Court this morning rejected the voters' clearly and repeatedly expressed determination that the legislature's taxing power should be limited.
The most important takeaway from the majority's opinion is that the people are at the mercy of their elected officials. If they cannot impose restrictions on the legislature through their use of the initiative, their only hope of restraining the legislature is to adopt a constitutional amendment. But (somewhat ironically) the Washington Constitution requires amendments to originate in the legislature and to earn a two-thirds majority vote in both houses before they are referred to the voters. As a result, the people can only impose the desired restraints if they get the cooperation of the very body they intend to restrain - which is not exactly a recipe for success because the last thing most lawmakers want is limitations on the laws they can make. Nevertheless, if Washingtonians intend to affirm the constitution's promise that they are the state's ultimate political authority, they must elect legislators who will agree to submit to them a constitutional amendment giving the people a more adequate means of exercising that political authority.
I'll continue to update this post with more thoughts on the majority and dissenting opinions, so check back throughout the day.
I'm going to try to explain how the majority of the Washington Supreme Court reached the conclusion that their six votes were more important than the nearly 1.6 million votes cast in favor of I-1053, which required the support of two-thirds of each house of the legislature for any law that would increase taxes on Washingtonians.
The justices were focusing on the meaning of Article II, section 22 of the Washington Constitution, which states that "No bill shall become law unless on its final passage... a majority of the members elected to each house be recorded thereon as voting in its favor." The question was whether this provision means that (barring any other special constitutional requirements) a majority vote in each house is the only requirement that could be imposed on the votes necessary to pass a bill, or whether the people could use their initiative power to raise the bar for certain types of bills.
Six justices on the Washington Supreme Court determined that Article II, section 22 makes the majority vote requirement both a minimum threshold for a bill to pass the legislature and a restraint on the people's ability to protect themselves from certain types of laws by establishing supermajority requirements on the legislature. To reach this conclusion the majority claimed that the framers of the Washington Constitution never intended that ordinary legislation should be subject to anything other than a simple majority vote, and they pointed to the Federalist papers to justify inferring that allowing the people to impose a supermajority requirement for certain types of legislation would allow "special interests" to hijack the legislature's ability to govern.
Justice James M. Johnson authored a dissent that really hits the nail on the head, relying on several of the arguments the Freedom Foundation advanced in its amicus brief. He pointed out that the most important constitutional concern - which was ignored by the majority - is the primacy of the people when it comes to political authority in this state. The majority focused like a laser on whether the framers of the Washington Constitution intended for the legislature to be able to pass laws imposing additional constraints on the lawmaking process, but this is irrelevant to the question really before the court: insofar as the people are the ultimate political authority and have reserved the power of initiative, which is superior to the power granted to the legislature, may the people use the initiative process to impose restrictions on the lawmaking process? Justice James Johnson's dissent both debunked the majority's mis-reading of history and hammered home the irony that for all of the majority's expressed concern about a "tyranny of the minority," the reality of the situation is that their six votes were being used to eliminate a measure that more than 63% of Washington voters have repeatedly approved. This is my favorite passage from his opinion:
"[T]he prospect of tyranny (or corruption) of the majority was a far more pressing concern for drafters of a state constitution. While the United States Constitution was created to grant limited and enumerated powers to the federal government, the Washington State Constitution was created to limit the broader, nearly plenary, police power of the state. In 1889, the framers were justifiably worried that a legislature would harm minority groups through abuse of its power. The historical record is replete with criticism in this vein. A supermajority requirement for the passage of legislation is a powerful tool for combating abuse by a short-term majority and addresses the concerns of the framers."