I-1098 is the Constitutional Unconstitutional Income Tax Initiative

Phil Talmadge

Usually it is a Tim Eyman initiative that people are reassuring themselves is unconstitutional; but in this case, a former state Supreme Court justice, Phil Talmadge, has written that I-1098's income tax would likely fall afoul of the court. (The NPI Advocate mentions that "Phil Talmadge was part of the majority that struck down Tim Eyman's first unconstitutional initiative... I-695.")

Talmadge notes first that Washington, very unusually, considers income property, and places strict limits on property tax rates. Secondly, he notes that the state constitution ensures protection against unequal taxation, which would also augur against I-1098, the "high-earners tax."

In the opposite corner is Hugh Spitzer, who argues that previous state rulings in the 1930s were based on federal rulings themselves reversed or wiped out; only two states, including Washington, still maintain income is property.

But Spitzer can't say, as Talmadge can, that he's already tried, as a legislator, to introduce an income tax, or that he authored a dissenting opinion while on the Supreme Court in 1999 that questioned the validity of the court's ruling that income was property. ("[T]hat position commanded only two other votes on the Court," Talmadge writes ruefully.)

Otherwise, supporters of I-1098 are fighting the good fight with charts and graphs that demonstrate it really is a "soak the rich" scheme. (I-1098's income tax would only kick in for any income earned over $200,000 for individuals, $400,000 for couples.)

But most eye-opening is Sightline's research that the rich don't mind getting soaked--if you weren't already persuaded of this by Bill Gates, Sr., being an I-1098 proponent. If you still have nightmares of moneybag flight, you can take heart in knowing that even with I-1098, Washington would still be very competitive with other states with income tax.

For worriers that it would not remain competitive for long, it's "deliberately stipulated in the text of the measure that any change to the income tax thresholds or rates would require a public vote."