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Raising taxes does, indeed, take a 2/3rds vote, Brad Owen rules

Post by Joe Turner on Feb. 29, 2008 at 1:07 pm with No Comments »
February 29, 2008 1:07 pm

The Senate and House are both “committing news” at the same time, so I’m playing catch-up. (I’m trying to listen to the House debate a financing plan for the Highway 520 bridge, and Brad Owen, Senate president, issued a crucial ruling.)

Owen sided with Tim Eyman and Initiative 960 supporters by ruling that a bill to raise state liquor taxes would require a supermajority vote — that is, 33 of 49 votes — instead of a simple 25-vote majority to pass. That was for Senate Bill 6931.

Consequently, even though the vote was 25-21, the effort to raise the liquor tax for more State Patrol drunken driving crackdowns and drug and alcohol treatment failed.

Here’s the roll call:

Patrol funding

Senate vote on 3rd Reading & Final Passage


Yeas: 25 Nays: 21 Absent: 1 Excused: 2

Voting Yea: Senators Brown, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Hobbs, Jacobsen, Keiser, Kline, Kohl-Welles, Marr, McAuliffe, McDermott, Murray, Oemig, Prentice, Pridemore, Regala, Rockefeller, Shin, Spanel, Tom, and Weinstein

Voting Nay: Senators Benton, Berkey, Carrell, Delvin, Haugen, Holmquist, Honeyford, Kastama, Kauffman, Kilmer, King, McCaslin, Parlette, Pflug, Rasmussen, Roach, Schoesler, Sheldon, Stevens, Swecker, and Zarelli

Absent: Senator Morton

Excused: Senators Brandland and Hewitt

Here’s what Senate Majority Leader Lisa Brown, D-Spokane, had to say about the whole episode. (Just for the record, there were six of her Democrats among the “Republicans” who voted against the liquor tax hike.)

OLYMPIA – Senate Democrats say a failed measure to provide more resources for DUI enforcement and treatment illustrates the flaw in Initiative 960’s requirement of a two-thirds vote to raise new revenues.

Senate Bill 6931 would have imposed a 42-cent-per-liter surcharge on state liquor sales.

"We have good public policy – good public safety policy – that we’d like to pass, but the supermajority requirement hamstrings that effort," said Senate Majority Lisa Brown, D-Spokane. "It would have been nice if the Republican minority could support stronger DUI enforcement, but unfortunately that wasn’t the case. I-960 creates an obstructionist situation, which we believe is unconstitutional."

The measure garnered the constitutionally required 25 yes votes, but not the 33 yes votes required under I-960.

Here is Lt. Gov. Brad Owen’s ruling in its entirety:



(February 29, 2008)

In ruling upon the inquiry raised by Senator Sheldon as to the application of Initiative Number 960 to Senate Bill 6931, as well as the point raised by Senator Brown as to the Constitutional duties of this body, the President finds and rules as follows.

The President begins by addressing the argument raised by Senator Brown as to a possible conflict between the Constitution and I-960 with respect to the number of votes required to pass a measure. The Constitution is the preeminent law of our state, and all other laws and rules applicable to this body are unquestionably subordinate to the Constitution. Nonetheless, the President has taken an oath to uphold all of the laws of our state and nation, including both Constitutional and statutory law. Whatever the merits of Senator Brown’s legal argument—and the President is inclined to agree with her arguments—it is not for him to decide legal matters. Under our Constitutional framework of separation of powers, the authority for determining a legal conflict between the Constitution and a statute is clearly vested with the courts. It is for this reason that the President has a long-standing tradition of refraining from making legal determinations, and he does so, again, in this case. Senator Brown’s arguments are cogent and persuasive, but the proper venue for these legal arguments is in the courts, not in a parliamentary body. For these reasons, the President believes he lacks any discretion to make such a ruling, and he explicitly rejects making any determination as to the Constitutionality of I-960 and instead is compelled to give its provisions the full force and effect he would give any other law.

Turning now to the issue raised by Senator Sheldon as to whether or not the surcharge imposed by this measure is a tax or a fee, the President takes note of his prior rulings and the plain language of I-960 in making this determination. In so doing, it is worth noting that I-960 includes a very broad definition of tax, covering ‘any action or combination of actions by the legislature that increase state revenue deposited into any fund, budget, or account.’ The President still believes that there is a distinction between a ‘tax’ and a ‘fee,’ just as there was under Initiative Number 601—indeed, I-960, itself, speaks of both taxes and fees. As a result, the President’s earlier body of precedent for determining fees and taxes under I-601 is still instructive, albeit working within this tighter definition of ‘tax’ set forth in I-960.

Harmonizing these past rulings with the specific language of I-960, the President believes that there must be a very close nexus between those paying a fee and the purpose for which that fee is being used; absent this tight connection, a revenue action is more properly characterized as a general tax, not a specific fee.

Applying this analysis to the measure before us, the President does find a connection between collecting a charge on liquor and spending the proceeds on increased drunk driving patrols and drug treatment, but he believes the nexus is not sufficiently direct under the tighter definition of I-960—that is, the connection between those paying the surcharge and the purposes for which it may be used is not narrow. The purposes are very noble and desirable, but they are not directly connected to those paying the surcharge: Many who pay the surcharge will benefit from increased patrols, but so will the general populace; likewise, almost all who pay the surcharge will not need drug treatment programs. Because the purposes for which the surcharge’s proceeds will be spent are not specifically connected with those who will pay the surcharge, it should more properly be characterized as a tax, not a fee. For this reason, a supermajority vote of this body—that is, 33 votes—is needed for final passage, and Senator Sheldon’s point is well-taken."

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