NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Friday, September 28th, 2012

Frank Blethen’s Seattle Times tells Supreme Court to bring back Tim Eyman’s I‑1053

Well, that did­n’t take long.

Less than sev­en­ty-two hours after the Supreme Court heard oral argu­ment in League of Edu­ca­tion Vot­ers v. State of Wash­ing­ton (the legal chal­lenge to Tim Eyman’s Ini­tia­tive 1053), Frank Blethen’s Seat­tle Times released an edi­to­r­i­al telling the Supreme Court to bring back Tim Eyman’s I‑1053, which was struck down in May by King Coun­ty Supe­ri­or Court Judge Bruce Heller.

Repub­li­can guber­na­to­r­i­al can­di­date and cur­rent Attor­ney Gen­er­al McKen­na — whose office is defend­ing I‑1053 on behalf of the state — has asked the Supreme Court to throw out the case and not even decide if I‑1053 is con­sti­tu­tion­al or not. Fail­ing that, he wants the Court to legit­imize Eyman’s two-thirds scheme anyway.

In briefs and in oral argu­ment, McKen­na and his team have claimed that Arti­cle II, Sec­tion 22 of the Con­sti­tu­tion, which spec­i­fies that the thresh­old for pas­sage of bills is a major­i­ty vote, only sets a floor and not a ceil­ing.

In oth­er words, they’re argu­ing the thresh­old can­not be low­ered by statute, but it can be raised to some­thing high­er. Like two-thirds for bills that raise rev­enue. Or three-fourths for the same. Or nine-tenths for oth­er types of bills.

Or unan­i­mous con­sent for all leg­is­la­tion, period.

I exam­ined their argu­ment in depth yes­ter­day and explained (at great length) why it does­n’t make sense. I’m not going to repeat that post word for word here, but I will sum­ma­rize the main point I was mak­ing, which is this: In a democ­ra­cy, there is no prin­ci­ple more basic than major­i­ty rule with minor­i­ty rights. In ancient Greece, democ­ra­cy was con­sid­ered to mean gov­ern­ment by the many, as opposed to an autoc­ra­cy or oli­garchy, where pow­er is con­cen­trat­ed in the hands of a few.

With­out major­i­ty rule, there can be no democ­ra­cy, because deci­sions end up get­ting made by the few instead of by the many.

Major­i­ty rule, and major­i­ty vote, can only mean greater than fifty per­cent. No more, no less. Oth­er­wise, the out­come is not in the hands of the many, it’s in the hands of the few. I illus­trat­ed this point yes­ter­day with a series of pic­tograms. When a two-thirds vote is required in our House and our Sen­ate, it means thir­ty-three rep­re­sen­ta­tives and sev­en­teen sen­a­tors con­trol the out­come, because they can block their col­leagues from tak­ing action.

Frank Blethen’s Seat­tle Times and Rob McKen­na’s legal team argue that the def­i­n­i­tion of major­i­ty is flex­i­ble. They’re wrong. A super­ma­jor­i­ty is not a major­i­ty, just as a sub­ma­jor­i­ty is not a major­i­ty. Allow­ing thir­ty-three rep­re­sen­ta­tives and sev­en­teen sen­a­tors to block rev­enue leg­is­la­tion is as demo­c­ra­t­ic as allow­ing one-third of each house to pass such bills. The sce­nario I’ve just described is mere­ly the inverse of the same uncon­sti­tu­tion­al idea.

If major­i­ty can mean 66.6%, it can also mean 75%, 90%, or 100%. Or maybe even nine­ty per­cent plus San­ta Claus, as Jus­tice Cham­bers joked on Tues­day. That is the total­ly illog­i­cal inter­pre­ta­tion of Arti­cle II, Sec­tion 22 that Rob McKen­na and Frank Blethen want the Supreme Court to bless.

Con­sid­er the con­se­quences of that inter­pre­ta­tion. I could spon­sor an ini­tia­tive requir­ing unan­i­mous con­sent of the Leg­is­la­ture to mod­i­fy any reg­u­la­tion. It would be con­sti­tu­tion­al, accord­ing to Rob McKen­na and Frank Blethen. All I would need to do to cre­ate end­less grid­lock in the state­house would be to get vot­ers to sign off on an ini­tia­tive insti­tut­ing a new vote require­ment under a cer­tain set of cir­cum­stances. Cue dys­func­tion and turmoil.

The peo­ple who wrote our Con­sti­tu­tion delib­er­at­ed and debat­ed where it made sense to give con­trol over the out­come of a vote to the few instead of to the many, as David Perez’ research shows. They con­clud­ed that under nor­mal cir­cum­stances, the many should pre­vail, and that is why the words “major­i­ty of the mem­bers elect­ed to each house” appear in Arti­cle II, Sec­tion 22.

The McKenna/Eyman/Blethen inter­pre­ta­tion rests on a very flim­sy, unsup­port­able argu­ment, as David Gold­stein explains in The Stranger:

If the edi­tors had actu­al­ly both­ered to read the briefs in LEV v. State instead of just par­rot­ing Rob McKen­na’s press releas­es, they might have under­stood why Solic­i­tor Gen­er­al Mau­reen Hart spent most of her time before the court argu­ing jus­ti­cia­bil­i­ty. It is because the neg­a­tive phras­ing argu­ment, upon which the state’s defense of super-majori­ties whol­ly relies, was already reject­ed by the court in 1998’s Ger­berd­ing v. Mon­roe.

Ger­berd­ing chal­lenged the con­sti­tu­tion­al­i­ty of I‑573, the term-lim­its ini­tia­tive approved by vot­ers in 1992, and over­turned by the court in 1998. And in its defense of I‑573, the state adopt­ed the same failed argu­ment that it is using today (and that the edi­tors “believe” sim­ply because McKen­na told them so): That the neg­a­tive phras­ing of Arti­cle II, Sec­tion 7 estab­lish­es a floor for qual­i­fi­ca­tions, not a ceiling.

SECTION 7 QUALIFICATIONS OF LEGISLATORS. No per­son shall be eli­gi­ble to the leg­is­la­ture who shall not be a cit­i­zen of the Unit­ed States and a qual­i­fied vot­er in the dis­trict for which he is chosen.

In Ger­berd­ing, both the state and inter­venors argued that the neg­a­tive phras­ing of the clause implied a statu­to­ry pow­er to add addi­tion­al qual­i­fi­ca­tions on top of those spec­i­fied in the Con­sti­tu­tion. But cit­ing mul­ti­ple prece­dents, includ­ing a U.S. Supreme Court deci­sion, the major­i­ty reject­ed this argu­ment, writ­ing that “the Court rec­og­nized the qual­i­fi­ca­tions clause pro­vides an exclu­sive list of qual­i­fi­ca­tions, notwith­stand­ing its neg­a­tive phras­ing.”

Alaska’s Supreme Court reached the same con­clu­sion in the 2007 case Alaskans for Effi­cient Gov­ern­ment v. State of Alas­ka, which I have repeat­ed­ly cit­ed over the years, and dis­cussed exten­sive­ly in 2010. That case regard­ed a mea­sure that was sim­i­lar to I‑960, I‑1053, and I‑1185. Alaska’s Depart­ment of Law advised the Lieu­tenant Gov­er­nor of Alas­ka that the mea­sure was uncon­sti­tu­tion­al, so he refused to cer­ti­fy that it was in good form. (In Alas­ka, ini­tia­tives can’t go to the sig­na­ture gath­er­ing stage until they have under­gone a pre­lim­i­nary review for form).

The spon­sor of that mea­sure, Karen Bretz, sub­se­quent­ly asked the courts to over­turn the Lieu­tenant Gov­er­nor’s deter­mi­na­tion. The Alas­ka Supreme Court heard the case on appeal and sided with the state, writing:

AFEG insists that the neg­a­tive phras­ing of Sec­tion 14’s major­i­ty-vote clause — “[n]o bill may become law with­out an affir­ma­tive vote of a major­i­ty” — should be read as sig­nal­ing the framers’ intent to set a floor, not a ceil­ing: to require at least a major­i­ty vote while allow­ing laws impos­ing stricter require­ments. If the framers had intend­ed to require no more than a major­i­ty vote, AFEG con­tends, they would have draft­ed the clause to read: “Any bill may be enact­ed by an affir­ma­tive vote of the major­i­ty of the mem­ber­ship of each house.”

But as the state cor­rect­ly observes, oth­er courts inter­pret­ing con­sti­tu­tion­al lan­guage have wise­ly refrained from attribut­ing any auto­mat­ic sig­nif­i­cance to the dis­tinc­tion between neg­a­tive and pos­i­tive phras­ing. Here, for exam­ple, had the framers said “any bill” rather than “no bill,” AFEG’s log­ic would just as read­i­ly com­pel the anom­alous con­clu­sion that sec­tion 14 was meant to set a ceil­ing but not a floor — that a major­i­ty vote would be the max­i­mum need­ed to enact any bill, but the leg­is­la­ture would remain free to spec­i­fy a sub-major­i­ty vote as suf­fi­cient to enact laws deal­ing with spec­i­fied sub­jects, as it saw fit.

Not coin­ci­den­tal­ly, in the foot­note to the first sen­tence of the sec­ond para­graph, the Alas­ka Supreme Court cites Ger­berd­ing. And that’s because Ger­berd­ing is part of the estab­lished case law. It was decid­ed by our Supreme Court, not Alaska’s, but our jus­tices are peers of Alaska’s jus­tices, and vice ver­sa. It would be appro­pri­ate and fit­ting if our Court cit­ed AFEG in their forth­com­ing decision.

Frank Blethen, on the oth­er hand, wants the Court to ignore Ger­berd­ing and AFEG and make a rul­ing based on polit­i­cal considerations:

On no mat­ter of pub­lic pol­i­cy, except per­haps the income tax, have the vot­ers of Wash­ing­ton been any clear­er. In a few weeks, they will very like­ly pass Ini­tia­tive 1185, reset­ting the two-thirds bar for anoth­er two years.

The suc­cess of that mea­sure should be not­ed by the court.

No. It would be entire­ly inap­pro­pri­ate for the Court to take any notice of how well Ini­tia­tive 1185 does in Novem­ber. The Supreme Court is a court of law, not a court of pub­lic opin­ion. When a jus­tice is elect­ed or reelect­ed, he or she is required to swear (or affirm) the fol­low­ing oath of office:

I do solemn­ly swear (or affirm, as the case may be), that I will sup­port the Con­sti­tu­tion of the Unit­ed States and the Con­sti­tu­tion of the State of Wash­ing­ton, and that I will faith­ful­ly and impar­tial­ly dis­charge the duties of the office of judge of the supreme court of the State of Wash­ing­ton to the best of my ability.

Were Frank Blethen and his edi­to­r­i­al writ­ers pay­ing atten­tion in civic class? The role of the Attor­ney Gen­er­al’s office is to defend vot­er-approved ini­tia­tives. The role of the Supreme Court is to defend the Constitution.

If the Court finds that an ini­tia­tive approved by the peo­ple or a bill signed into law by the gov­er­nor vio­lates the Con­sti­tu­tion, it is the Court’s duty to strike it down. It is not the Court’s duty to decide whether a statute is good pub­lic pol­i­cy or not. I‑1185’s exis­tence is there­fore only rel­e­vant to LEV v. State in that it is a reminder that a jus­ti­cia­ble con­tro­ver­sy exists.

Blethen & Co. are also wrong in assert­ing that “On no mat­ter of pub­lic pol­i­cy… have the vot­ers of Wash­ing­ton been any clearer.”

As I doc­u­ment­ed last week, on this mat­ter, the elec­toral his­to­ry is mixed. Vot­ers nar­row­ly approved I‑601 in 1993 while defeat­ing I‑602 (a sim­i­lar, more extreme mea­sure); in 2007, the peo­ple nar­row­ly approved I‑960 while also approv­ing HJR 4204, which abol­ished super­ma­jor­i­ty vote require­ments for school levies.

Only I‑1053, in 2010, passed by a large mar­gin. And that was in part because no resources were raised to fight the mea­sure until very late, and the poor econ­o­my made vot­ers more recep­tive to the idea of mess­ing with our plan of government.

And by the way, the Times itself has been incon­sis­tent on this matter.

In 1993, Blethen’s edi­to­r­i­al page urged vot­ers to reject both I‑601 and I‑602. In 2007, Blethen endorsed rat­i­fi­ca­tion of HJR 4204, then turned around a week lat­er and threw his paper’s sup­port to Tim Eyman’s I‑960. Since then, the Times has enthu­si­as­ti­cal­ly backed I‑1053 and now I‑1185, all the while bemoan­ing the Leg­is­la­ture’s inabil­i­ty to find more mon­ey for our col­leges and uni­ver­si­ties.

At The Stranger, David Gold­stein rou­tine­ly takes offense at the non­sense the Times prints on a week­ly basis, and he fre­quent­ly strikes back with a pro­fan­i­ty-laced rebut­tal… like he did today.

I sup­pose it’s a good thing that some­body still gets upset when the Times pub­lish­es a dumb edi­to­r­i­al. I’m so accus­tomed to read­ing inco­her­ent blath­er nowa­days that I just don’t get that reac­tion. They could pub­lish an edi­to­r­i­al tomor­row denounc­ing I‑1185, and I would­n’t be very sur­prised. I’d just attribute it to Frank Blethen’s Jekyll and Hyde per­son­al­i­ty. I nev­er know when I’m turn­ing to the edi­to­r­i­al page whether I’ll be see­ing the effects of Jekyl­l’s influ­ence… or Hyde’s (well, unless I’ve already seen that day’s edi­to­ri­als online).

To be frank (pun intend­ed), I’ve become more con­cerned with the qual­i­ty of the Times’ report­ing. I don’t want to see that go any fur­ther down­hill. But I believe it’s still worth occa­sion­al­ly tak­ing the trou­ble to show just how dis­com­bob­u­lat­ed the Times edi­to­r­i­al page has become, for the ben­e­fit of read­ers who aren’t in on the joke yet. And that’s why I wrote this post.

If the above has you thirst­ing for more exam­i­na­tions of cog­ni­tive dis­so­nance, you might want to check out these posts from the NPI Advo­cate’s archive:

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