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Dec. 11, 2019

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In Our View: ‘Title-only bills’ do end-run around transparency

The Columbian
Published: November 25, 2019, 6:03am

Another court challenge surrounding a new Washington law should shine a much-needed spotlight on an egregious legislative practice.

As we editorially noted last week regarding voter-approved Initiative 976, laws must adhere to the constitution, regardless of how many voters desire them. The same is true for bills passed by the Legislature and signed by the governor.

Questions about the legality of House Bill 2167, adopted this year, likely are headed to court, following a lawsuit filed by the Washington Banking Association and the American Bankers Association. That bill essentially will double the Business & Occupation tax to 3 percent for banks with an annual net income of at least $1 billon. It was passed in the waning days of the session as the Democratic-led Legislature adopted a slew of new taxes to pay for the largest budget in state history.

The banking associations argue that HB 2167 violates both the state constitution and the U.S. Constitution’s Commerce Clause by creating “an unconstitutional differential tax rate for in-state and out-of-state institutions.”

We will leave questions of constitutionality to the courts. But the lawsuit should bring attention to the absurd use of “title-only” bills by the Legislature.

HB 2167 was introduced in April as a “title-only” bill, meaning there was a general statement that it would concern tax revenue while providing no details. Only toward the end of the session were the blanks filled in.

The practice is designed to allow lawmakers a deceptive path around the state constitution, which requires legislation to be introduced at least 10 days before the end of the session. Adequate lead time gives legislative committees time to properly vet a bill and gives the public time to weigh in with testimony.

Those safeguards were sorely lacking with HB 2167.

Details of the legislation were filled in on the morning of April 26, two days before the scheduled end of the session. Some 90 minutes later, a hearing was held before the House Finance committee. The bill quickly advanced to the floors of both Democratic-led chambers; it passed the House 53-43 the day it was introduced and passed the Senate 25-24 the following day.

Notably, the bill did not receive an analysis from the Department of Revenue until after the Legislature had adjourned.

HB 2167, which is expected to generate $130 million over the two-year budget cycle, might or might not be sound policy. But hastily pushing legislation through Olympia without proper analysis clearly is not in the best interest of the people.

As Rep. Brandon Vick, R-Vancouver, told The Columbian’s Editorial Board in the weeks after the legislative session: “The transparency was awful. It was awful. These policies are done this way because they can’t defend it in public.”

Toby Nixon, president of the Washington Coalition for Open Government, told Crosscut that the move was not necessarily illegal, but: “I think it’s a clear violation of the intent and the spirit of the state constitution, which clearly says that bills introduced in the last 10 days of the session require a two-thirds vote. And it did not have a two-thirds vote.”

The legality, as mentioned, will be up to the courts. But lawmakers from both parties should work to end the practice of title-only bills. Such bills reflect a deceptive strategy that undermines transparency and the notion of an open government that is beholden to the public. The truth is, we need to see what’s in a bill long before the Legislature passes it.

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