A battle is brewing in Olympia, where a state lawmaker is going to court to make it easier to raise taxes. Senate Majority Leader Lisa Brown (D-Spokane) is asking the Washington Supreme Court to invalidate a law that could stand in the way of tax increases in 2009.

The state is facing a $2.7 billion deficit, and the news is unlikely to improve before the legislative session opens in January 2009. In order to close the gap, lawmakers must either drastically cut spending, or find new revenue.

But if the Legislature wants to raise taxes, it faces a hurdle: new taxes or fees must be approved by two-thirds of the members of each house.

This two-thirds vote requirement has long served as a moderating influence in the legislature.

The Washington Policy Center reports that the state had double-digit spending increases until the two-thirds requirement was put into place in 1993 by Initiative 601.

Since that time the legislature has re-enacted the law, temporarily suspended it, and modified it in several amendments.

But the basic requirement for supermajority approval of tax increases has remained in place.

Enter Sen. Lisa Brown.

During the 2008 legislative session, Brown proposed a $10 million liquor tax.

The measure passed with a simple majority, but failed to get the two-thirds vote needed.

Brown asked Lt. Gov. Brad Owen, who acts as the president of the Senate, to rule the two-thirds requirement unconstitutional. “A two-thirds requirement to pass certain types of bills, in my opinion, is antidemocratic and violates the Washington constitution,” Brown said.

While expressing agreement with Brown, Owen ruled that the question is one for the courts to address.

This happened on a Friday.

Brown went to court the next Monday, asking the Supreme Court to order the lieutenant governor to pronounce the bill passed.

In order to accomplish this, she asked the court to invalidate the two-thirds requirement.

Brown argues the supermajority vote requirement is unconstitutional under Article II, Section 22 of the Washington Constitution.

The provision states: “No bill shall become a law unless…a majority of the members elected to each house be recorded thereon as voting in its favor.

The Office of the Attorney General, defending the constitutionality of the law, points out that the language prohibits bills from passing with less than a majority, but does not forestall the possibility of additional supermajority requirements.

Obviously, a bill that receives a two-thirds vote has also received a simple majority vote and thereby satisfies the constitution’s minimal threshold requirements. (In the interest of full disclosure, I represent an organization that filed an amicus brief in support of the state.)

The attorney general also points out that if the legislature doesn’t like the two-thirds requirement, it could simply repeal the law…with a simple majority. But that action could have negative political consequences.

Instead, Brown is asking the court to declare the law unconstitutional.

The lawsuit is now fully briefed, and will go to the Supreme Court for a hearing on Sept. 9.

Michael Reitz is an attorney with the Evergreen Freedom Foundation.