Questions surround taxes to fund schools – and if voters overturn them

State Republicans, long opponents of raising revenue to meet the state Supreme Court’s order to fully fund basic education by 2018, have been floating a new argument in recent days: Paying for education with higher taxes might be unconstitutional.

Their reasoning? That relying on new tax revenue isn’t a reliable way to fund public education — something the state constitution defines as a “paramount duty” — because such tax increases could be overturned by voters at the polls.

The new argument from Republicans has emerged following the latest court order in the school funding lawsuit known as McCleary, in which the Supreme Court ruled in 2012 that the state wasn’t meeting its constitutional duty to amply provide for basic education.

On Sept. 11, the Supreme Court ruled the state was in contempt over the Legislature’s failure to produce a long-term school funding plan. The court held off on imposing sanctions until after the Legislature’s 2015 budget-writing session, but said it expects action next year.

Since the contempt ruling, Republican lawmakers have argued that using new taxes to fund public schools might fail to satisfy the court, given the potential for those tax measures to be overturned by the voters through the state’s initiative and referendum process.

“I think according to the courts’ own words in the McCleary case, basic education should be funded as a first priority before any other statutory requirements and obligations,” said state Rep. Chad Magendanz of Issaquah, who is the top Republican on the House Education Committee, in an interview last week. “If we put together a solution for McCleary that depends on new taxes that could fail on referendum, we’re not doing that.”

Republican state Sen. Bruce Dammeier, who is a leader for his caucus on education issues, said that relying on new taxes to fund education is “falling into the same trap that the Supreme Court is admonishing us for.”

“By making funding our schools dependent upon whether you increase taxes or not, I don’t see how that is in line with what the court has said and what the constitution says about education being our paramount duty,” Dammeier said the day the court issued its contempt ruling.

But lawyers on both sides of the aisle said last week that there is no constitutional issue with raising taxes to fund K-12 education – even given the potential that voters might reject those increases, as they did with taxes on soda, candy and bottled water in 2010.

“The constitution just says you have a paramount duty to provide for education,” said Nicholas Brown, general counsel for Democratic Gov. Jay Inslee. “It doesn’t say anything about how you fund it. I would be shocked if the Supreme Court says using taxes is unconstitutional.”

Republican state Sen. Steve O’Ban, a constitutional lawyer from University Place agreed.

“I don’t see the constitutional problem,” said O’Ban, who favors funding education before other parts of the state budget. “Whether we do that with existing revenue or find it necessary to raise taxes, that’s a separate consideration from the funding requirement of the constitution.”

Seattle attorney Phil Talmadge, a former Democratic lawmaker who served six years on the state Supreme Court, said he disagrees with how the court has approached the McCleary lawsuit. Like some current lawmakers, Talmadge said he thinks the court has intruded upon the Legislature’s role as the state’s policy-making body by “setting what constitutes the basic education obligation of the state.”

Still, arguing that tax increases won’t pass constitutional muster is silly, Talmadge said.

“The argument that, ‘well, if we pass a tax it might somehow be rolled back by (political activist) Tim Eyman or someone else’... is not much of an argument,” Talmadge said. “What other choice do we have about funding basic education than to enact tax measures to support it?”

Republican leaders argue that projected growth in sales tax revenues can help fund schools without raising taxes, and that the Legislature should consider taxes only to fund other areas of the budget besides education.

“The only way to be certain (to avoid a fight over taxes being constitutional) is to fund education first,” Senate Republican Leader Mark Schoesler of Ritzville said.

Yet the state has other constitutional obligations besides educating students, Talmadge said. The state is required to maintain safe conditions in its prisons, and provide services for the developmentally disabled and mentally ill, he said.

Legislative staff estimate that funding basic education reforms already approved by the Legislature will cost $3.5 billion more per two-year budget, and those measures don’t address the entirety of the McCleary decision.

State Sen. David Frockt, D-Seattle, said that lawmakers always have to worry about whether the laws they pass will be repealed by the voters — McCleary or no McCleary.

“You have to factor in, ‘OK, where is public support? How can we make the case to the public that whatever action we take is the right course?’ That’s nothing novel,” said Frockt, who co-chairs the legislative committee responsible for responding to the McCleary case.

Some lawmakers unhappy with the Supreme Court’s actions have asked whether the court will hold Washington citizens in contempt if they vote down tax increases.

Brown, the governor’s general counsel, said discussions about the constitutionality of taxes and whether to hold voters in contempt are “academic, more than realistic.”

“Legislators wanting to talk about this more than what they are going to do in January is frankly part of the problem we have here,” Brown said.