If there's one thing everybody knows about this contentious special session, it's that legislators can't directly raise taxes or close tax loopholes.

Except... everybody's wrong.

Yes, Tim Eyman's Initiative 1053, passed in 2010, requires a two-thirds supermajority in both houses for any tax increase or exemption repeal, and with Republicans adamantly opposed to new revenue of any kind for any reason, that supermajority is impossible to obtain. But if there's another thing that everybody knows about this contentious special session, it's that I-1053's supermajority provisions are blatantly unconstitutional. So if Democrats wanted—I mean, if they really, really, wanted—they could just plain ignore it.

Here's how it works. If House Speaker Frank Chopp, as a point of order, rules that a revenue bill only requires a simple majority to pass, and that bill passes by a simple majority, then the bill has passed the House. And if the president (or presiding president pro tempore) of the Senate rules as a point of order that this same revenue bill requires a mere simple majority to pass, and that bill passes by a simple majority, then the bill has passed the Senate. And if Gov. Chris Gregoire then chooses to sign that bill into law, it's law. Simple as that.

Of course, lawsuits would ensue, but that's exactly the point of this exercise. Ever since voters first approved a supermajority requirement with I-601 in 1993, opponents have attempted to challenge the constitutionality of this provision, and each time, the state Supreme Court has managed to weasel out of ruling on the underlying issue. Either the issue wasn't ripe, or the plaintiffs didn't have standing, or, as in 2009's Brown v. Owen, all nine justices ruled that "This court will not interfere in the internal proceedings of a legislative house to overturn a ruling on a point of order." See what's so clever about the process I've described above? In Brown v. Owen, the justices have already given it the green light. All that remains is for the court to rule on the constitutionality of the supermajority requirement itself:

WASHINGTON STATE CONSTITUTION
ARTICLE II, SECTION 22 PASSAGE OF BILLS. No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.

That seems pretty damn clear. Throughout its text our state constitution declares what majorities are needed to do what. A simple majority, for example, to pass a bill or to constitute a quorum; a two-thirds majority to override a gubernatorial veto or amend a redistricting plan. But nowhere in its text does the constitution permit the people to amend the same via citizens initiative. Thus it is Article II, Section 22 that defines the majority necessary to pass a revenue bill, not I-1053.

The point is, if the Democratic majority had the will, the unity, the discipline, and the balls, it could pass any revenue package it wanted on a simple majority vote, and enact that bill into law. But the Dems, alas, have none of those things.

The truth is, the Dems barely have the votes within their own caucus to secure the simple majority necessary to put a modest revenue package on the ballot, let alone pass one legislatively. So all this talk about how I-1053 ties their hands is just that. Indeed, I've come to believe that despite their protestations, many Dems secretly welcome I-1053 as a means of avoiding politically inconvenient votes.

In short, I-1053's supermajority provision isn't as much a requirement as it is an excuse.

To repeat, the votes aren't there. Years of recruiting socially liberal/economically conservative candidates in suburban districts have left the Dems with only a putative majority in the Senate on fiscal issues, and a bare majority in the House. And even if Dem leaders were capable of imposing the sort of rigid party discipline necessary to pull this off (the kind of party discipline at which Republicans excel), it would be entirely outside the character of the Democratic Party to pursue such a boldly defiant legislative strategy. But that doesn't mean that it can't legally be done.

As a matter of policy, I-1053's unconstitutional supermajority provision only remains in force as long as the Democratic majority refuses to defy it, and as such, it is legislators who have effectively tied their own hands.