Mike Mcinnaly

(Oregon Capital Chronicle) Republicans might not have gained as many seats as they had hoped in the November election, but they won enough to prevent Democrats from raising taxes without Republican support.

They bragged about that on social media and in statements, saying it means they can block new tax proposals in the upcoming session.

“Oregonians spoke in the recent election by breaking the supermajority in the Legislature. Republicans will respond in the upcoming legislative session by holding strong against growing government or taxes,” the Republican’s House minority leader, Rep. Vikki Breese-Iverson of Prineville, said in a statement.

A party needs a “supermajority” or the support of three-fifths of both chambers to pass tax proposals or renew them. Democrats have enjoyed supermajorities in at least one chamber in 10 of the past 20 years. During the past four years, they had a supermajority in both chambers,

Democrats still control a majority of the seats in both chambers, but with neither party holding a supermajority, it will be more difficult for lawmakers to pass new taxes or increase existing ones in the next two sessions.

Democratic Rep. Julie Fahey of Eugene, the House majority leader, told the Capital Chronicle that the three-fifths requirement rarely comes into play in the day-to-day operations of the Legislature. Most of the bills passed by the Legislature attract votes from both sides of the aisle, she said.

Besides, Fahey said, voters don’t care that much about legislative supermajorities – they just want legislators to tackle Oregon issues. She said it’s possible that “more attention is paid to the supermajority than perhaps is relevant for actually governing.”

In some regards, the numbers bear that out: The supermajority requirement is an issue only with a handful of bills each session, and those are bills that involve taxation in some way. That’s because the supermajority requirement is part of a push by lawmakers and voters over the last quarter-century to make it more difficult to raise taxes.

Legislative amendment

The supermajority requirement is a relatively recent addition to the oft-amended Oregon constitution. The proposed amendment was approved by the 1995 Oregon Legislature (a session in which Republicans held substantial majorities in each chamber). Measure 25 won approval by voters in the 1996 primary election by about 60,000 votes. Only two Oregon counties – Benton and Multnomah – voted against the measure.

Its passage coincided with a heightened interest in taxes in Oregon, experts say.

“Taxes as a general issue were sort of a statewide concern” at the time, said Mark Henkels, a professor of politics, policy and administration at Western Oregon University in Monmouth.Measure 25 was part of a wave of conservative populism that focused in part on taxation.

In 1990, voters had approved Measure 5, which capped property tax rates. And in November 1996 – six months after voters approved Measure 25 – they approved Measure 47, which rolled back and capped property tax assessment values.

Tax concerns loomed large in other Western states as well: In 1992, for example, Colorado voters added to their state constitution a “Taxpayers’ Bill of Rights,” which authorizes refunds to taxpayers if revenue exceeds set spending limits – something similar to Oregon’s “kicker” tax refunds.

Ten other states have some sort of supermajority requirement, but most of those states impose it only on specific expenditures or late budgets. California eliminated its supermajority requirement in 2010.

In Oregon, a 2018 effort to expand the “raising revenue” portion of the constitution so that it would also require supermajorities to curtail tax breaks or raise fees was roundly defeated by more than 550,000 votes and lost in 35 of Oregon’s 36 counties. Only voters in Lake County favored the measure.

How it works

The supermajority requirement applies in cases in which legislators are proposing new taxes, such as the corporate activity tax that passed in the 2019 session.

But Chris Allanach, the legislative revenue officer, said the requirement can come into play in other cases as well. For example, Allanach wrote in an email, a three-fifths vote is required for proposals to increase personal income tax rates.

Taxes with expiration dates – such as the timber harvest tax, which sunsets every two years – require supermajorities to be reinstated. In all, however, Allanach wrote, the three-fifths requirement only comes into play a few times during a session – and, in some cases, attorneys in the Legislative Counsel’s office must determine whether a particular bill requires a supermajority.

Fahey said that in many cases, relatively noncontroversial revenue measures typically attract sufficient votes to pass, and that votes come from both sides of the aisle. She pointed to a bill from the 2021 session to remove the sunset provision on a tax on aviation fuel. The bill – the only one she could recall from 2021 that required a supermajority – passed the House on an initial 53-6 vote that included many Republicans voting “yes.”

“The vast, vast majority of the work that we do is bipartisan,” Fahey said.

That’s true, responded Reagan Knopp, the chief of staff for Senate Minority Leader Tim Knopp of Bend. But Republicans still remember the 2019 vote that approved the corporate activity tax, proceeds from which are funneled to Oregon K-12 schools. The bill passed without a single Republican vote during a session when Democrats held a supermajority.

“You don’t want to raise taxes very often,” Reagan Knopp said, especially with the U.S. and Oregon facing a potential economic downturn. He said Republicans are considering measures during the 2023 session to change the corporate activity tax. The tax currently is applied only to taxpayers with taxable commercial activity above $1 million; one potential change GOP lawmakers are eyeing is lifting that threshold to $5 million; in other words, only taxpayers with more than $5 million of taxable commercial activity would have to pay the tax. Knopp said this change would benefit small businesses.

Encouraging bipartisanship

While some, like Knopp, see the supermajority requirement as an important check on the Legislature’s ability to raise taxes and other revenue, other legislative observers see it as a symptom of Oregon’s inability to pursue meaningful tax reform.

Still others, like Western Oregon University’s Henkels, think the supermajority requirement may promote measure of bipartisanship.

With Democrats lacking a supermajority for the 2023 session, Henkels said he’d be surprised to see Democrats push a bunch of “absolutely partisan measures that are inherently controversial.” And he said he expects to see Gov.-elect Tina Kotek make an effort “to find ways to not be so divisive for a little while” – and he thinks Democratic Rep. Dan Rayfield, speaker of the House, is following suit.

Henkels also recalled conversations he’s had with longtime legislative employees who have told him that sessions such as in 2010, when the House was evenly divided between the parties, “were some of our best, our most effective, legislative sessions.”

“We’re not quite like Congress,” Henkels said. “You know, we’re not that polarized.”