If Representatives Haler and Klippert are successful in securing passage of HJR 4208, Washingtonians may finally be able to rest assured that tax increases will require a supermajority vote of the legislature.

According to the proposed constitutional amendment:

(1) A tax increase may be imposed only by a favorable vote of three-fifths of the members of each house of the legislature.

(2) For the purposes of this section, “tax” means a charge imposed on a person, property, or transaction for the general support of government.

(3) For the purposes of this section, “tax increase” includes, but is not limited to, a new tax, an increase in a tax limit, a tax rate increase, an expansion in the legal definition of a tax base, and an extension of an expiring tax.

(4) This section does not apply to:

(a) A tax that must be used exclusively for highway purposes under Article II, section 40 of this Constitution; or

(b) A tax (i) that is enacted pursuant to an emergency previously declared in law with the favorable vote of three-fifths of the members of each house of the legislature and (ii) that expires not later than twelve months after the effective date of the emergency declaration. The law declaring the emergency must state the nature of the emergency.

Washington voters have either enacted or affirmed a two-thirds vote requirement for tax increases four times: 1993 (Initiative 601), 1998 (Referendum 49), 2007 (Initiative 960) and 2010 (Initiative 1053).

Voters also approved Initiative 695 in 1999, which expanded the two-thirds vote requirement to include voter approval of increased state and local taxes, fees, and charges. The requirement that taxes could only be raised with voter approval, and never directly by the legislature, was later ruled unconstitutional by the State Supreme Court.

Ironically, using only a simple majority vote, the legislature has suspended the two-thirds vote threshold three times. This occurred most recently during the 2010 Legislative Session, when lawmakers passed SB 6130. The two previous times the legislature suspended the two-thirds requirement were in 2002 (SB 6819) and 2005 (SB 6078).

Despite numerous legislative amendments to the section of law (Revised Code of Washington 43.135) containing the two-thirds vote requirement, the legislature has never fully repealed the voter-passed mandate that tax increases require a two-thirds vote.

In fact, in 2006 the legislature shortened its own 2005 suspension and voted explicitly to reinstate the two-thirds vote requirement so its suspension ended a year sooner than it would have otherwise (SB 6896).

It was in response to the 2010 suspension of this provision that 64 percent of the voters adopted Initiative 1053 last November.  Requiring a supermajority vote for tax increases is not unique to Washington. Sixteen states (counting Washington) have some form of supermajority vote requirement for tax increases. Of these, only Washington’s supermajority vote requirement is part of ordinary law — all the others are part of that state’s constitution.

As shown by the relative ease with which the legislature has repeatedly suspended the two-thirds vote requirement, constitutional protections are ultimately needed. Rather than continue the current practice of “suspending” the law every time lawmakers want to raise taxes, while at the same time saying they are honoring the will of the voters and technically leaving the law on the books, they should refer the question to voters in the form of a constitutional amendment.

Although HJR 4208 is proposing a three-fifths versus two-thirds vote requirement, providing the voters the opportunity to consider this proposal would allow the debate about a supermajority requirement for tax increases to be put to rest once and for all, while providing taxpayers with predictability about whether this protection will exist from year to year.

Jason Mercier is the director of the Center for Government Reform at the Washington Policy Center. He serves on the Executive Committee of the American Legislative Exchange Council’s Tax and Fiscal Policy Task Force and is the private sector chairman of ALEC’s Fiscal Federalism Working Group. He is a contributing editor of the Heartland Institute’s Budget & Tax News, serves on the board of the Washington Coalition for Open Government, and was an advisor to the 2002 Washington State Tax Structure Committee. In June 2010, Governor Gregoire appointed Jason as WPC’s representative on her Fiscal Responsibility and Reform Panel. Jason holds a Bachelor’s degree in Political Science from Washington State University.