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, January 23rd, 2015

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.

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One Ping

  1. […] – 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. […]

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