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Senate Republicans propose constitutional amendment to prohibit unfunded mandates

A group of Republicans in Washington’s state Senate, including Minority Leader Mike Hewitt and Republican floor leader Mark Schoesler, have teamed up with two Democratic senators (Nick Harper, Debbie Regala) to propose a constitutional amendment that would prohibit unfunded mandates.

(An unfunded mandate is an initiative that creates a new service or requires a service to be provided by the state, but does not specify a way to pay for it).

The amendment, which is still in draft form, was prefiled today as Senate Joint Resolution (SJR) 8218. We have added it to the Olympia Newsriver under Open Government & Elections, and we invite you to join us in tracking its evolution.

The amendment would add the following text to Article II, Section 1 under subsection (a), which describes the initiative power:

No initiative may be placed on the ballot if it is determined by the secretary of state that the initiative fails to provide a new or enhanced revenue source to pay for any increase instate obligations or duties that are created by the initiative. The office of the governor, or a subdivision thereof, in consultation with the secretary of state, the attorney general, and any other appropriate state or local agency, shall prepare a fiscal impact statement for an initiative. A fiscal impact statement must describe any projected increase or decrease in revenues, costs, expenditures, or indebtedness that the state or local governments will experience if the ballot measure were approved by state voters. A fiscal impact statement must indicate by fiscal year the impact for the remainder of the biennium inwhich the bill or resolution will first take effect as well as a cumulative forecast of the fiscal impact for the succeeding four fiscal years.

The Associated Press’ Mike Baker, who works out of the AP’s Olympia bureau, got reaction to the proposed amendment from Governor Chris Gregoire, SEIU Healthcare 775NW, and initiative profiteer Tim Eyman. Gregoire is supportive; SEIU has reservations, and Eyman is opposed (no surprise there).

NPI shares SEIU’s view.

Adam Glickman, a spokesman for the union that represents care workers and supported Initiative 1163, said his group was interested in new initiative rules, as long as they had similar restrictions for measures cutting the budget. For example, if an initiative eliminates a tax or funding source, the proposal would have to detail an area to cut.

“We’d be open to considering a change in the initiative process that required any initiatives to ultimately be budget neutral,” Glickman said.

In its current form, the draft amendment doesn’t require that initiatives be budget neutral – it simply prohibits unfunded mandates. But, as Glickman points out, that’s just one side of the coin. Initiatives that slash or squeeze revenue without specifying cuts (Tim Eyman’s favorite kind) are similarly problematic, and those ought to be prohibited as well, if we’re going to change the rules.

Washington State arguably has the fewest limits on the initiative process of any state in America (with one major exception: our initiative process cannot be used to amend our state Constitution). Most other states have more stringent requirements for getting statutory initiatives on the ballot than we do.

Utah, for instance, specifies that the sponsors of a proposed initiative must hold a certain number of public hearings in different regions of the state before their measure may qualify for the ballot. Maine, meanwhile, prohibits nonresidents from circulating initiative petitions, and requires that each sponsor find at least five other cosponsors before an initiative will be approved for circulation.

And Alaska’s Constitution says that initiatives may not “dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation.”

Alaska also requires that initiatives be “in proper form” before petitions may be printed. If Alaska’s Department of Law find that an initiative is not in proper form (e.g. it violates Alaska’s Constitution), the Lieutenant Governor (who serves as The Last Frontier’s chief elections official) may refuse to certify the initiative.

Washington’s initiative process is unquestionably in need of reform. It isn’t transparent or deliberative enough. We believe the following three reforms would strengthen the spirit and integrity of the process without dramatically altering it.

  • Legal review of initiatives. As mentioned, Alaska requires that initiatives be “in proper form” before they may be approved for circulation. When an initiative is submitted, Alaska elections officials forward it to the Department of Law, which analyzes the measure and then recommends whether it should be certified or rejected. We should do the same. We already scrutinize bills through the legislative process – we should also scrutinize initiatives.
  • Citizen cosponsors. We should require initiatives to receive a certain number of cosponsors (for instance, five hundred) before advancing to the signature gathering stage. A citizen could still file an initiative individually and get his or her idea out there, but it would not be able to proceed without cosponsors. This would make corporate astroturfing more difficult without hindering the momentum of efforts that are truly grassroots.
  • Provide opportunities for public input on ballot titles. An initiative’s ballot title is the text that appears along with the initiative number on the actual ballot, and precedes the question, “Should this measure be enacted into law?” The Constitution requires that the Attorney General’s office prepare ballot titles, but does not require that the Attorney General provide the public with opportunities to participate in the drafting of the ballot title language. As a consequence, ballot titles for most initiatives are written by just one or two of the state’s lawyers, with little to no feedback.

In addition to these reforms, we’d like to see more oversight of the signature gathering industry. We already have laws on our books that require firms to protect their workers, but it’s not clear that the signature gathering firms in this state are complying with those laws. We need to make sure that individuals who are being paid to circulate petitions are being treated fairly by their employers. Corner-cutting and flagrant violations of worker protection laws should not be tolerated.

While requiring initiatives to be budget neutral is an idea worthy of consideration, there are potential pitfalls – as exemplified by the current draft of SJR 8218.

First, 8218 makes the secretary of state responsible for deciding whether an initiative is an unfunded mandate. We don’t think that’s appropriate. Any legal review of an initiative should be carried out by the attorney general’s office.

Second, it fails to specify when this determination should be made. At the time the initiative is filed? At the time that initiative petitions are submitted for verification? The proposed amendment doesn’t say. Any legal review ought to be completed before an initiative moves to the signature gathering stage.

Third, it lacks an appeals process for challenging a determination. There needs to be one. That way, the executive branch is not the final arbiter of an initiative’s fate.

Thankfully, SJR 8218 is itself a resolution, not an initiative. Like other bills and resolutions, that means it has to go through the legislative process, where it will be analyzed, scrutinized, and critiqued. There will be opportunities for imperfections to be addressed if and when it moves forward. We need to create similar opportunities in our initiative process by making it more deliberative and transparent.

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  1. By Morning Rundown for December 19th, 2011 on December 19th, 2011 at 10:00 AM

    […] Senate Republicans propose constitutional amendment to prohibit unfunded mandates […]