Last week, within the span of twenty-four hours, Tim Eyman’s odious I‑1366 received its fiscal impact statement from the Office of Financial Management, was certified for the ballot by Secretary of State Kim Wyman, and then was subjected to a legal challenge by King County Elections Director Sherril Huff, Thurston County Auditor Mary Hall, and other distinguished plaintiffs who don’t think I‑1366 should be on the ballot because it exceeds the scope of the people’s initiative power.
These developments have predictably led to a fresh round of media coverage of I‑1366. The Seattle Times’ Jim Brunner, who attended the press conference announcing the lawsuit, wrote his second article in as many days about I‑1366. John Stang also went to the press conference and filed a report for Crosscut.
The next day, KING5 invited Tim Eyman on its morning newscast to “explain” I‑1366 (without, as far as we know, extending a similar invitation to anyone opposed to I‑1366), while the Seattle Times Company-owned Walla-Walla Union Bulletin published an editorial parroting Eyman’s arguments in opposition to the lawsuit, which Eyman will no doubt use as fodder for a fundraising email soon.
On Sunday, the Spokesman-Review’s Jim Camden discussed the initiative in a brief blog post titled “This seems familiar.” And this morning, The Columbian published a an editorial remarkably similar to that of the Union Bulletin’s, echoing and amplifying Eyman’s deceptive, misleading Let the voters decide rallying cry.
This body of reporting and commentary unfortunately shares a serious shortcoming: it’s lacking in depth. To put it another way, it doesn’t go beyond what I’ll call the sound bite level. The context that people need in order to understand what I‑1366 and the lawsuit against it are really about is missing.
As if that weren’t bad enough, what several media outlets have provided in the way of context contains misrepresentations.
I’m going to attempt to correct the record, as best I can, with this post. I previously authored a post last week which breaks down (in detail!) the legal challenge against I‑1366. I highly recommend reading that if you haven’t already.
While I will be touching on some of the same points again here, you’ll be better prepared to follow along if you’ve read that post.
Let me begin with some history. Washington has operated, since statehood, under a plan of government drawn up by seventy-five men. We know this plan of government as the Constitution of the State of Washington.
According to HistoryLink, the constitutional convention held one hundred and twenty-six summers ago included “21 lawyers, 13 farmers, 6 merchants, 6 doctors, 5 bankers, 4 cattlemen, 3 teachers, 2 real-estate agents, 2 editors, 2 hop farmers, 2 loggers, 2 lumbermen, 1 minister, 1 surveyor, 1 fisherman, and 1 mining engineer.” Most of these men were Republicans; a smaller number were Democrats.
These Framers used the U.S. and other state constitutions as a model for writing Washington’s. That’s how we ended up with a state government consisting of a bicameral Legislature (House and Senate), an executive department (headed by an independently elected governor) and a judiciary (vested principally in a Supreme Court, Superior Courts, and also justices of the peace).
While our state government is different in a number of ways from the federal government, its structure is the same. We have a legislative branch charged with making laws, an executive branch to enforce laws, and a judicial branch to interpret laws. This separation of powers is deliberate. The idea is that each branch will keep the others in line through a system of checks and balances.
When Washington came into being as a state, our country was going through a period that has since become known as the Gilded Age. Politics in the Gilded Age was dominated by powerful industrial interests, particularly the railroads, who used their money to influence legislative proceedings at the state and federal level.
Within a few years of statehood, Progressive reformers had formed a movement here to fight political corruption. Organizations like the Direct Legislation League campaigned for an amendment to Washington’s Constitution to allow the people to propose laws directly as well as to vote on laws passed by the Legislature. Legislation calling for such an amendment was introduced as early as 1895.
Then, as now, Washington’s Constitution was not easy to change. Article XXIII stipulates that amendments to Washington’s Constitution must originate in the Legislature and receive a two-thirds vote of each house before being placed on the ballot for ratification. Ratification requires only a majority vote of the people.
By 1911, the reformers had succeeded in amassing the votes required for two amendments to add the initiative, referendum, and recall to the Washington State Constitution. Importantly, their amendments left the power to propose future constitutional amendments solely in the hands of the Legislature.
At the 1912 presidential election (which pitted Theodore Roosevelt against William Howard Taft and Woodrow Wilson), the amendments (numbered 7 and 8) went before the people of Washington and was approved. Thus began Washington’s tradition of direct democracy, which continues today.
By the mid-1970s, Washington ranked behind only Oregon, North Dakota, and California in initiative activity (measured as the total number of initiatives appearing on the ballot), according to a 1974 analysis by the UW’s Hugh Bone.
In more recent times, Grover Norquist wannabe Tim Eyman has abused Washington’s initiative process to force near-annual votes on schemes purposely intended to shred our common wealth and wreck our government.
His latest is I‑1366, which would cut state sales tax revenue by $8 billion over six years (thereby taking Washington’s youth as hostages, for the sales tax funds our schools) unless the Legislature refers to the people an amendment to permanently require a two-thirds vote to raise or recover any state revenue.
Constitutional defects are a common characteristic of Eyman initiatives. Most of the schemes that Eyman has gotten past the voters have been challenged in post-election litigation as a consequence of having been poorly drafted.
Three have been struck down in their entirety by the state Supreme Court (I‑695, I‑722, I‑747), while four more have been partially invalidated (I‑776, I‑960, I‑1053, I‑1185). With the exception of I‑900 in 2005, all the other initiatives that Eyman has proposed have either failed to make the ballot or have been rejected by voters.
Although other states (such as Alaska) have an established process for subjecting proposed initiatives to a constitutional and legal review prior to allowing them to proceed to the signature gathering stage, Washington does not. This has left the initiative process open to abuse and mischief by the likes of Eyman.
Taking the view that a proposed initiative is not a law, just as a bill in the Legislature is not a law prior to receiving a vote in each house and the governor’s signature (or, alternatively, an override of the governor’s veto), Washington’s judiciary has twice declined in the past ten years to set aside an initiative prior to an election.
In Coppernoll v. Reed (2005), concerning a challenge to I‑330 which the Supreme Court dismissed, the Court noted, “It has been a longstanding rule of our jurisprudence that we refrain from inquiring into the validity of a proposed law, including an initiative or referendum, before it has been enacted.”
In Futurewise v. Reed (2007), concerning Tim Eyman’s I‑960, the Supreme Court added, “Such review, if engaged in, would involve the court in rendering advisory opinions, would violate ripeness requirements, would undermine the policy of avoiding unnecessary constitutional questions, and would constitute unwarranted judicial meddling with the legislative process.”
Tim Eyman, not surprisingly, has cited both of these rulings in predicting that the legal challenge to I‑1366 will be unsuccessful.
However, in both Coppernoll and Futurewise, the Court acknowledged that while it will not consider whether an initiative is constitutional prior to an election, it is willing to consider whether an initiative is beyond the scope of the people’s initiative power, as it did in Philadelphia II v. Gregoire (decided in 1996).
In Philadelphia II, the Supreme Court squashed an initiative that attempted to create an initiative process at the federal level because it was beyond the scope of the initiative power. From the Court’s decision:
Generally, courts are reluctant to rule on the validity of an initiative before its adoption by the people. This reluctance stems from our desire not to interfere in the electoral process or give advisory opinions. Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wash.2d 740, 746, 620 P.2d 82 (1980).
However, an established exception to this rule in Washington is that a court will review a proposed initiative to determine if it is beyond the scope of the initiative power.
The reasoning behind the exception was stated as follows:
A fundamental limit on the initiative power inheres in its nature as a legislative function reserved to the people… It is clear from the constitutional provision that the initiative process, as a means by which the people can exercise directly the legislative authority to enact bills and laws, is limited in scope to subject matter which is legislative in nature.
The Court goes on to say:
The idea that courts can review proposed initiatives to determine whether they are authorized by article II, section 1, of the state constitution is nearly as old as the amendment itself. See State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916) (enjoining printing and distribution of proposed initiative measure due to preamble being improper argument and not legislative in character).
Recognizing the importance of the initiative power, however, this court has allowed for pre-election review only in rare circumstances, consistently making the distinction that while a court may decide whether the initiative is authorized by article II, section 1, of the state constitution, it may not rule on the constitutional validity of a proposed initiative. Seattle Bldg. & Constr. Trades Council, 94 Wash.2d at 745–46, 620 P.2d 82. We adhere to that distinction and review the Philadelphia II initiative only to determine whether it is authorized by article II, section 1, of the state constitution.
Emphasis is mine.
If you read the complaint filed by the plaintiffs against I‑1366 in King County Superior Court, you’ll notice that it seeks to have I‑1366 removed from the ballot on the same grounds that Philadelphia II was blocked.
The power to invoke the constitutional amendment process is not part of the Article II legislative power.
Because the fundamental and overriding purpose of I‑1366 is to invoke the constitutional amendment process, it is not authorized by Article II, sec 1.
Under Article II, sec 1, only “bills and laws” may be proposed by the people, not constitutional amendments, which may only be proposed in either house of the legislature.
I‑1366 is beyond the scope of the legislative power reserved to the people and should not be placed on the ballot.
As before, emphasis is mine.
Sadly, the editorial boards of the Walla Walla Union-Bulletin and The Columbian don’t seem to understand that the plaintiffs in Huff v. Wyman aren’t asking the Supreme Court to conduct a review for constitutionality, but rather are asking for a scope review. The Court has already made it pretty clear it won’t oblige a request for the former, but it will hear out a request for the latter.
Consider these misleading opening paragraphs from the Bulletin’s editorial:
And these misleading closing paragraphs from The Columbian’s editorial:
I‑1366 might or might not violate the requirement that a measure be limited to one subject matter; that will be for the courts to decide if the initiative remains on the ballot and is approved by voters. But first, voters should be allowed to decide. “Ultimately, the politicians’ lawsuit that seeks to prevent the people from voting may have less to do with Initiative 1366 than it does the right of the people to discuss, debate, and vote on the issues contained in it,” Eyman said.
Let the donnybrook begin.
You’d think that before opining on this lawsuit, the people who wrote these editorials would at least take the trouble to read it and understand it.
I was also perplexed to read this passage from Jim Camden of the Spokesman-Review’s brief recap of the developments surrounding I‑1366:
Within 24 hours of the petition signatures being certified, opponents were asking a court to keep the initiative off the ballot. This is a common, but rarely successful, strategy because the Supreme Court usually declines to rule on the legality of an initiative unless voters pass it. Until that happens, it is what Joey Tribbiani of “Friends” used to call a “moo point”, that is, it’s like a cow’s opinion; it doesn’t matter.
It is actually not common for statewide initiatives to be challenged in court after being certified for the ballot. At the local level, we’ve seen initiatives challenged frequently in court at all stages, including on scope grounds.
But at the state level, there simply isn’t much case law pertaining to preelection review of initiatives. Challenges are rarely filed. The few noteworthy cases that have been litigated are cited above (Philadelphia II, Coppernoll, Futurewise).
Again, this lawsuit is not about whether I‑1366 has constitutional defects. That is indeed a question for another day. This lawsuit is about whether I‑1366 takes the form that an initiative should. The plaintiffs say I‑1366 goes beyond what an initiative is allowed to be — that it exceeds the scope of the initiative power.
We agree. Read the text of I‑1366, and the first thing you’ll see is that it contains a heading which declares it to be a constitutional amendment. It has also been advertised by Eyman as such. And its provisions are obviously meant to coerce the Legislature into exercising its prerogative to propose constitutional amendments by threatening a brutal consequence if the Legislature does not propose a particular amendment by a particular date. That’s why we call it a hostage-taking scheme.
The reason this scope challenge is being brought now is because it is justiciable now. The question of whether I‑1366 is beyond the scope of the initiative power is moot if it goes to voters. For that matter, the question of whether I‑1366 is constitutional or not is also moot if it is beyond the scope of the initiative power.
The courts should ignore these illogical editorials, take up this thoughtfully-prepared complaint, and consider it on the merits. Tim Eyman simply cannot be allowed to continue abusing Washington’s initiative process without being challenged.
Eyman also should not be allowed to go on misrepresenting the electoral history that precedes I‑1366, as he did in the interview recorded with KING5’s Mark Wright on Friday, and that has unfortunately found its way into the reporting of John Stang, Jim Brunner, and KOMO’s Carleen Johnson.
Eyman is fond of saying that voters have voted “five times” to require a two-thirds vote of the Legislature to raise or recover revenue, and he has repeated this so often and incessantly that the media now regrettably report it as fact.
The supermajority-for-taxes concept contained in I‑1366 has been endorsed by Washington voters in five previous initiative votes. But the state Supreme Court struck it down as unconstitutional in 2013.
In the past, Washington voters passed five straight initiatives supporting the two-thirds majority threshold, but did not address the state constitution. In 2013, the Washington Supreme Court found that the two-thirds majority threshold is unconstitutional, prompting Eyman to look for ways to amend the constitution.
Washington voters have FIVE times approved the super-majority for taxes measure, but the state Supreme Court struck it down as unconstitutional in 2013 saying an amendment was the only way to make that happen.
Here are several vital facts missing from the stories above:
- There have been four initiatives, not five, adopted by voters that subverted Article II, Section 22 of our Constitution by undemocratically requiring a two-thirds vote to raise revenue: I‑601 (1993), I‑960 (2007), I‑1053 (2010) and I‑1185 (2012). There was no fifth initiative.
- I‑601 (sponsored by Linda Smith) and I‑960 (first of Eyman’s I‑601 clones) passed with narrow margins in odd-numbered election years in which turnout was significantly lower than the preceding and succeeding years. (In the KING5 interview recorded Friday, Eyman referred to I‑601 as having passed “overwhelmingly”. This is false. A yes vote of 51.2% is not overwhelming.)
- I‑1053 and I‑1185 passed with large margins in even-numbered years, but, unlike I‑601 and I‑960, were not fought by effective NO campaigns.
- At the same time that I‑601 was narrowly adopted in 1993, a sister initiative that made I‑601 look less draconian (I‑602, requiring a three-fourths vote to raise revenue) was being overwhelmingly defeated by voters.
- At the same time that I‑960 was narrowly adopted in 2007, a constitutional amendment lowering the threshold for passage of school levies from three-fifths to a majority was also being narrowly adopted (HJR 4204).
- Eyman never talks about these votes because they contradict his false narrative about Washington voters having consistently voted to make it harder to raise taxes. In reality, the electoral history is mixed.
If there was no fifth initiative, where does the notion of five votes come from? I addressed this in a post nearly three years ago that I wrote in response to a similar error in a Seattle Times article written by Andrew Garber.
Be warned: this is a long excerpt.
Tim Eyman and his friends at the Washington Policy Center have long claimed that in addition to the aforementioned measures, there was another occasion (in 1998) where Washingtonians voted for a measure to impose the two-thirds requirement. Eyman and Company have done such a good job repeating this that lawmakers and reporters have actually started to believe that I‑1185 is the fifth initiative on this subject, instead of the fourth. But that’s not the case.
As we can see from looking at the index of ballot measures for 1998, there was no such measure. What we do see are statewide initiatives pertaining to the minimum wage, medical marijuana, abortion, and affirmative action… along with a statewide referendum on transportation funding.
It’s this referendum, R‑49, that Eyman and the Washington Policy Center claim is the fourth vote (excluding I‑1185).
They justify their claim by citing the following language, which is buried in the referendum’s text:
NEW SECTION. Sec. 14. A new section is added to chapter 43.135 RCW to read as follows:
(1) Initiative Measure No. 601 (chapter 43.135 RCW, as amended by chapter…, Laws of 1998 (this act) and the amendatory changes enacted by section 6, chapter 2, Laws of 1994) is hereby reenacted and reaffirmed. The legislature also adopts this act to continue the general fund revenue and expenditure limitations contained in this chapter 43.135 RCW after this one-time transfer of funds.
Here’s the thing, though: We have researched Referendum 49 fairly extensively, and we’ve found that the discussion and the debate over R‑49 concerned the measure’s subject: transportation funding. That makes sense, because R‑49 was a transportation plan that the Republican Legislature put before the voters for their consideration, not an initiative to make raising taxes more difficult, as the summary of Andrew Garber’s story erroneously says.
Let’s consider the evidence.
First, let’s look at the ballot title for R‑49 (which is what voters saw on their ballots). Notice it doesn’t say anything about reimposing the two-thirds vote requirement.
Shall motor vehicle excise taxes be reduced and state revenues reallocated; $1.9 billion in bonds for state and local highways approved; and spending limits modified?
There’s also the explanatory statement, basically a longer version of the ballot title.
The explanatory statement does explicitly refer to I‑601, but again, it doesn’t say anything about reimposing the two-thirds vote requirement. It only refers to the provision establishing a state expenditure limit. In fact, the words “two-thirds” do not appear in the explanatory statement at all.
What about the voter’s pamphlet statement? Same deal. The arguments for and against R‑49 don’t mention the two-thirds vote requirement, let alone I‑601. They are solely concerned with the wisdom (or lack thereof) of lowering vehicle fees and committing money to unspecified highway construction projects.
See for yourself. You’ll want to scroll down to page twelve of that document and start reading there. It’s a scanned copy of the 1998 pamphlet, but it’s readable.
What about news coverage of R‑49? I searched the Seattle Times‘ own archive for stories about the measure. I found several. In none of the stories did I find references to I‑601 or the supermajority vote requirement in I‑601.
Here are the stories I looked at:
- Referendum 49 — $2.4 Billion In Spending For Roads Approved
- Voters To Take Unknown Road On Referendum
- South King County Legislative Races Heat Up
- Democrats’ Win May Clear Path For Local Projects — Lawmakers To Look At Road Funds (post-election story)
I did find one op-ed urging a “Reject” vote on R‑49, penned by conservative Wynn Cannon that mentioned I‑601… but only in passing, and again, only in respect to the state expenditure limit provision.
But here is the most important point of all: Had Referendum 49 failed, it would not have repealed I‑601. In other words, the unconstitutional supermajority vote requirement created by I‑601 in 1993 was not up for a vote, or a revote. It was going to remain in place regardless of how the voters voted on R‑49.
It is therefore entirely inappropriate to place R‑49 in the same category as I‑601, I‑960, and I‑1053. R‑49 was a referendum on transportation funding, with a line buried deep in its text that symbolically “reaffirmed” I‑601, put there by Republican legislators. R‑49 was not a sequel to I‑601 like I‑960 and I‑1053.
Washingtonians need to know that the radical right wing’s repeated attempts to sabotage majority rule in Washington are directly in conflict with the values that our state and country were founded upon, and upset the carefully forged balance between majority rule and minority rights found in our Constitution.
The lawsuit filed against I‑1366 by elected leaders and activists seeks to prevent our cherished initiative power from being improperly abused to attack and subvert our Constitution. It should be supported by all Washingtonians who want to live in a democracy that operates according to the rule of law.