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Proposed constitutional amendment to thwart unfunded mandates should be discarded

On Wednesday of this week, Republican State Senator Joe Fain introduced a new constitutional amendment intended to prevent the people of Washington from proposing and passing any more initiatives that the attorney general’s office deems to be an unfunded mandate. The amendment, which is officially known as Senate Joint Resolution (SJR) 8201, has an impressive list of over three dozen cosponsors. That’s more than two-thirds of the Washington State Senate, the threshold required to advance a constitutional amendment.

SJR 8201, which Fain is disingenuously calling the “Truth in Initiatives Amendment”, is a reaction to Initiative 1351, approved by voters last autumn. I-1351 was spearheaded by the Washington Education Association (WEA) and supported by NPI. It laudably mandates lower class sizes, but it does not contain a funding mechanism. Hence, it has been described as an unfunded mandate.

Though we were unhappy that the authors of I-1351 did not include a funding mechanism, we supported the initiative anyway, because Washington’s young people deserve the best public education we can provide, and overcrowded classrooms are not a recipe for fostering academic success. The Legislature, which is in contempt of court for failing to provide for the ample of education of our youth, needed to know that the people of Washington want smaller class sizes.

Senator Joe Fain and many of his colleagues were not pleased when I-1351 passed. In an attempt to dispense with having to deal with any more initiatives like I-1351 in the future, they’ve proposed SJR 8201.

The text of this amendment, which would alter Article II, Section 1 of the Washington State Constitution, is as follows:

The secretary of state shall not accept for filing an initiative measure if, on the advice of the attorney general, the secretary of state determines, within twenty days of the issuance of a final ballot title for the measure, that the measure will result in state expenditures that are not in compliance with any statutory state balanced budget requirement in effect on the date that the initiative is filed: PROVIDED, That this provision shall not preclude the filing of an initiative measure to repeal or amend an increase in a state tax if the measure is filed within one year following the enactment of the increase.

Tim Eyman has already made it known that he is fiercely opposed to SJR 8201. In an email to supporters and lawmakers earlier this week, he wrote:

Their bill [actually, a resolution] will mean the end of the initiative process because it will give the government [actually, the offices of the Secretary of State and the Attorney General] the power to shut down any initiative they see as a threat. Any initiative can easily be found to be “out of compliance” with this bill’s [constitutional amendment’s] requirement.

For over one hundred years, citizens have had the freedom and the guaranteed constitutional right to discuss, debate and decide on issues they care about. The government couldn’t stop First Amendment activity and the exercise of free speech.

Under their bill [again, actually, a resolution], for the first time, the government will have the power to block any initiative they want. And the people have no recourse. If the government says “no, we’ve determined that your initiative doesn’t balance”, then the people’s right to initiative is extinguished.

While we dislike Tim’s framing here (we, the people of this state are its government, and we should never forget that!), we concur that SJR 8201 is a bad idea, and should be discarded.

(Contrary to what Tim says above, SJR 8201 is not a bill. Tim ought to know this by now, but constitutional amendments and laws are different things. Laws begin as bills; the Constitution says bills require a majority vote to pass. Constitutional amendments begin as resolutions; they require a two-thirds vote to pass.)

After carefully assessing SJR 8201 over the past two days, we have identified several flaws with it, which we consider fatal. Here are three.

First: SJR 8201 creates a double standard. The amendment bars the Secretary of State from accepting an initiative that does not fiscally balance, thereby preventing the people of Washington from proposing initiatives like I-1351 in their capacity as citizen lawmakers. But elected lawmakers would still be able to propose and pass unfunded mandates themselves. This makes no sense.

Apparently, what’s good for the goose is not good for the gander.

Did Joe Fain miss the part of Article II that spells out what the initiative and referendum process is all about? From the very first line of Section 1:

The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.

We have always believed that instituting a process for reviewing initiatives for constitutionality and form (prior to proceeding to the signature gathering stage) would be a good idea. Alaska, which partly modeled its Constitution on Washington’s, has such a process, and it works rather well.

But implementing prior review is not what Joe Fain and his colleagues are proposing here. Rather, what they are trying to do with SJR 8201 is create a new set of rules for proposing laws that apply to citizen lawmakers, but not themselves. How can they criticize the people of Washington for adopting unfunded mandates when they have repeatedly done the very same thing?

Not so long ago, the Legislature saw fit to redefine the meaning of basic education. However, when it did so, it failed to raise the revenue necessary to give teachers and administrators the resources needed to make our schools strong and vibrant. That’s actually what the McCleary case is all about.

Then there was the time the Legislature adopted an Earned Income Tax Credit (EITC). The EITC was not enacted with a permanent funding mechanism, so it has not been in effect the last few years. Governor Inslee has proposed funding it in his budget, but the House and Senate have yet to agree to that.

Our view is that lawmakers should not be attempting to hold the people of Washington, in their capacities as citizen lawmakers, to a standard they are unwilling to hold themselves to. That’s not leadership.

Second: SJR 8201 doesn’t treat all “unbalanced” initiatives the same. We can see from reading the last clause of SJR 8201 that Joe Fain isn’t serious about barring initiatives that don’t fiscally balance, because he has inserted an exemption allowing corporations and right wing groups to continue using the initiative process to force statewide votes on any change to the tax code they don’t like:

PROVIDED, That this provision shall not preclude the filing of an initiative measure to repeal or amend an increase in a state tax if the measure is filed within one year following the enactment of the increase.

Why is this loophole in SJR 8201? It’s there so that in the event the Legislature adopts a budget that, say, increases taxes on bottled water, the soda industry can still spend sixteen million dollars on an initiative campaign to convince Washingtonians to reject the tax a few months later… as the American Beverage Association (Coca-Cola, Pepsi, Dr Pepper Snapple Group) did in 2010.

We can only conclude from reading SJR 8201 that Fain’s intent is to allow business groups (which often support his party’s candidates) the ability to continue using the initiative process to undermine any budgets or tax reform efforts they don’t like, while denying unions and public interest groups the ability to use the initiative process to propose expanding public services unless they provide for a funding mechanism. This clause of SJR 8201 reeks of hypocrisy.

If Fain and Company truly believe it important that every initiative fiscally balance (and that seems to be the whole point of this amendment) then there should be no exceptions. Initiatives that would decrease state revenues should be treated the same as initiatives that obligate the state to expend funds on a public service. However, this amendment does not do that.

Third: SJR 8201 imposes constitutional restrictions on initiatives which are unwisely tied to the existence of a state statute. Anyone who has ever taken a constitutional law class knows that our state and federal constitutions constitute our plan of government. The United States Constitution is the supreme law of the whole country; Washington’s Constitution is the supreme law of the Evergreen State. Because constitutions are also where minority rights are protected and society’s defaults are defined, they are typically difficult to change.

In addition to our Constitutions, we govern ourselves with a body of laws that are known as statutes. The Revised Code of Washington is the name we use to refer to the large collection of statutes we’ve created over the years.

Statutes can be changed by majority vote of the Legislature with the governor’s concurrence, by a two-thirds vote of each house without the governor’s concurrence, or by majority vote of the people. Presently, there is a statute on our books requiring the governor to propose a budget that balances. There is also a statute requiring the Legislature to adopt a budget that balances.

But there is no provision in the Constitution requiring balanced budgets. And SJR 8201 doesn’t add one. What it does instead is unwisely place a restriction on the initiative power that can be turned on or off. Since statutes can be created or repealed by majority vote, SJR 8201 could theoretically be made inoperative at any point in the future simply by gutting any balanced budget requirements in RCW.

If the just described scenario is possible, as we imagine it would be, then what is the point of amending the Constitution in the first place? Why bother?

We can certainly understand the sentiment that appears to be the driving force behind SJR 8201. Quite a few of the initiatives we’ve voted on over the years made it to the ballot in an unpolished state, and those favored by a majority of voters have been added to our body of laws with no further opportunity for improvement. Lawmakers then have to deal with the fallout.

The legislative process has its advantages. It’s very deliberative and there are many stages at which bills with serious defects can be improved.

However, as we’ve all seen, worthy bills can also be held up and killed in the legislative process by running out the clock.

That’s why it’s a good thing we have the initiative. It allows the people to bypass a gridlocked Legislature (when needed) to make change.

A few final words about SJR 8201 are in order. The premise of this amendment is that unfunded initiatives (well, some unfunded initiatives) are always bad and should be prohibited. We do not agree with that premise.

We think progressive ballot coalitions should strive to offer ballot measures that are thoughtfully drafted. A proposal to expand or protect public services can benefit from a funding mechanism; this helps voters understand that public services cost money. But while initiatives make good vehicles for proposing big ideas, sometimes details need to be worked out in the legislative process.

Joe Fain’s time would be better spent working to carry out the will of the voters, instead of trying to tear I-1351 apart and prevent any initiatives like I-1351 from making it to the ballot in the future. His amendment, in our estimation, harms the initiative process instead of strengthening it.

We therefore oppose it and urge its rejection.

There are many things we can do as a state to make our system of direct democracy work better. We can and should:

  • Protect the initiative and referendum process against ongoing abuses like ballot title shopping and signature fraud;
  • Implement a system of prior review for initiatives, so that proposed laws that are unconstitutional on their face don’t advance to the ballot;
  • Bar corporations from participating in elections, which would greatly facilitate the return of the initiative and referendum process to the people.

We remain committed to working with lawmakers and fellow activists to bring about the reforms we need to ensure we have a government of, by, and for the people.


One Trackback

  1. By Open Thrad 1/26 | HorsesAss.Org on January 26th, 2015 at 8:01 AM

    […] – If you’re not happy about unfunded mandates, you could fund the things the voters passed rather than have a crappy amendment to the state constitution. […]