Jim Walsh promotes his slate of initiatives
Washington State Republican Party Chair Jim Walsh promotes his and Brian Heywood's slate of destructive initiatives outside of the Secretary of State's Elections Annex on December 28th, 2023 (Photo: Andrew Villeneuve/NPI)

In a tac­it admis­sion that he’s very wor­ried about the elec­toral prospects for a slate of destruc­tive ini­tia­tives that he and mul­ti­mil­lion­aire fun­der Bri­an Hey­wood man­aged to pur­chase votes on last year, Wash­ing­ton State Repub­li­can Par­ty Chair Jim Walsh is suing to evade a 2022 law cham­pi­oned by the North­west Pro­gres­sive Insti­tute which requires that vot­ers be informed if an ini­tia­tive has a fis­cal impact on the bal­lot itself.

The require­ment — which our polling has found is wild­ly pop­u­lar, even with Repub­li­can vot­ers — has yet to be invoked for any statewide ini­tia­tive, because there weren’t any statewide mea­sures on the 2022 or 2023 statewide ballots. 

But three ini­tia­tives to the 2024 Wash­ing­ton State Leg­is­la­ture spon­sored by Walsh are now on the verge of becom­ing the first to be sub­ject­ed to the trans­paren­cy law: 

  • Ini­tia­tive 2109 (repeals the state’s cap­i­tal gains tax on the wealthy, there­by repeal­ing bil­lions in edu­ca­tion funding)
  • Ini­tia­tive 2117 (repeals the Cli­mate Com­mit­ment Act, there­by repeal­ing bil­lions in trans­porta­tion and clean ener­gy funding)
  • … and Ini­tia­tive 2124 (sab­o­tages the WA Cares Fund by per­mit­ting peo­ple to with­draw, there­by reduc­ing fund­ing for long-term care)

The Attor­ney Gen­er­al’s office has until July 23rd to pre­pare pub­lic invest­ment impact dis­clo­sures, or PIIDs, for any statewide mea­sures on this year’s bal­lot. The office has informed Walsh pal and for­mer pro­lif­ic ini­tia­tive spon­sor Tim Eyman that it has con­clud­ed that all three mea­sures would have a fis­cal impact and will be issu­ing PIIDs for each. That prompt­ed Eyman to begin semi-pub­licly lob­by­ing Walsh and Let’s Go Wash­ing­ton (Hey­wood’s com­mit­tee) to hire attor­ney Joel Ard to file a law­suit chal­leng­ing the law. 

On May 9th, Walsh did exact­ly that, team­ing up with Main­stream Repub­li­cans of Wash­ing­ton Chair Dean­na Mar­tinez to file one of the most pre­pos­ter­ous law­suits I’ve ever read. The suit, pre­pared by Ard, seeks a writs of pro­hi­bi­tion and man­date to pre­vent PIIDs from being added to the bal­lot titles for Ini­tia­tives 2109, 2117, and 2124. 

It’s a des­per­ate and bla­tant attempt to hide infor­ma­tion from vot­ers in an attempt to improve the elec­toral prospects for Wal­sh’s slate of destruc­tive initiatives.

Walsh is no dum­my: he’s seen the polling from Defend Wash­ing­ton (which is cor­rob­o­rat­ed by NPI’s own research) show­ing that all three mea­sures are on a fail­ing tra­jec­to­ry, espe­cial­ly once vot­ers are shown hypo­thet­i­cal pub­lic invest­ment impact disclosures. 

If Walsh believed his own blus­ter, he would­n’t have brought this law­suit, but he and Mar­tinez appear to have come to the con­clu­sion that they’re going to have tremen­dous dif­fi­cul­ty repli­cat­ing Eyman’s old for­mu­la for pass­ing ini­tia­tives if vot­ers know the truth about what their mea­sures would do. So they’re ask­ing a court to inter­fere and pre­vent vot­ers from being shown essen­tial infor­ma­tion that they’re legal­ly enti­tled to.

It’s a tru­ly pathet­ic and embar­rass­ing move that requires Walsh to make argu­ments in court that are com­plete­ly at odds with what he’s say­ing in the court of pub­lic opinion. 

In Thurston Coun­ty Supe­ri­or Court plead­ings, Walsh is now on record as argu­ing that the Cli­mate Com­mit­ment Act does not impose a tax, even though he and Hey­wood have been clam­or­ing to “stop the hid­den gas tax” for like a year now. 

Sim­i­lar­ly, he and his ally Mar­tinez are argu­ing that the law that cre­at­ed the WA Cares Fund does not impose a tax, even though they and Hey­wood have been con­tin­u­ous­ly claim­ing that I‑2124 will let Wash­ing­to­ni­ans opt out of pay­roll taxes.

As for I‑2109, they argue that mea­sure should­n’t have a PIID either — not because it would­n’t repeal a tax, but because a dif­fer­ent mea­sure Walsh spon­sored, I‑2111, has put the kibosh on the tax already. I‑2111 was the ini­tia­tive the Leg­is­la­ture adopt­ed that bans income tax­es. I‑2111 was legal­ly assessed as hav­ing no imme­di­ate prac­ti­cal effect; Walsh and Mar­tinez now want Judge Allyson Zipp to issue a rul­ing find­ing otherwise. 

Strik­ing­ly, even Tim Eyman — who is bad at writ­ing laws and bad at inter­pret­ing them — came to the con­clu­sion that I‑2109 would trig­ger the dis­clo­sure law. Eyman felt a case could be made that I‑2117 and I‑2124 should­n’t have pub­lic invest­ment impact dis­clo­sures, but he con­ced­ed in a series of emails to his list of ultra MAGA fol­low­ers that I‑2109 would repeal a tax and drain bil­lions in rev­enue from the state treasury.

Walsh and Mar­tinez don’t want to make that con­ces­sion. They want Judge Zipp to join them in pre­tend­ing that I‑2109 won’t have any fis­cal impact at all.

I don’t know the future, but I’m guess­ing this will be an extreme­ly tough sell.

The Attor­ney Gen­er­al’s office is urg­ing Zipp to throw the case out completely. 

The state’s response brief begins with this won­der­ful­ly suc­cinct sen­tence: “This law­suit is a mer­it­less attempt to deny vot­ers infor­ma­tion. The Court should reject it.”

It goes on to sum­ma­rize the rea­sons why the plain­tiffs are wrong that none of Wal­sh’s mea­sures should be sub­ject­ed to a pub­lic invest­ment impact disclosure.

As to I‑2109:

Plain­tiffs first claim that Ini­tia­tive 2109 (I‑2109), which would repeal the cap­i­tal gains tax, has no fis­cal impact because — on their bizarre view — the Leg­is­la­ture already silent­ly repealed the cap­i­tal gains tax (and many oth­er tax­es) when it passed Ini­tia­tive 2111 (I‑2111), a dif­fer­ent ini­tia­tive to the Leg­is­la­ture. Their argu­ment mis­reads I‑2111’s text, would ren­der I‑2111 uncon­sti­tu­tion­al, and is direct­ly con­trary to the Legislature’s stat­ed intent in pass­ing I‑2111. Indeed, while the Leg­is­la­ture was debat­ing I‑2111, Plain­tiff Walsh, the measure’s spon­sor, explic­it­ly reject­ed the read­ing of I‑2111 he now advances. Because the cap­i­tal gains tax has not been repealed, and because I‑2109 would repeal it and would cut bil­lions of dol­lars in edu­ca­tion fund­ing, that mea­sure must have a pub­lic invest­ment impact dis­clo­sure state­ment. For the same rea­sons, there is no basis to direct OFM to alter its fis­cal impact state­ment for I‑2109.

As to I‑2117:

Next, Plain­tiffs claim that Ini­tia­tive 2117 (I‑2117), which would repeal the Cli­mate Com­mit­ment Act (CCA), should not receive a pub­lic invest­ment impact dis­clo­sure state­ment because the CCA sup­pos­ed­ly impos­es no tax­es or fees. That is inac­cu­rate. Under the CCA, pol­luters must pay the state in advance based on the amount of car­bon they plan to emit, and in its first year alone, the CCA gen­er­at­ed near­ly $2 bil­lion in state rev­enue. Pay­ments to the State under the CCA are fees under Wash­ing­ton Supreme Court prece­dent, and when the Act passed, OFM clas­si­fied it as a mea­sure impos­ing “tax­es or fees” under a long­stand­ing state law, RCW 43.135.031, requir­ing cer­tain dis­clo­sures when a pend­ing bill would impose a tax or fee. More­over, Plain­tiff Walsh and his fel­low sup­port­ers of I‑2117 rou­tine­ly describe the CCA as impos­ing a tax or fee. Because the CCA impos­es a tax or fee and because I‑2117 would repeal it and cut bil­lions of dol­lars in fund­ing to com­bat cli­mate change, that mea­sure must have a pub­lic invest­ment impact dis­clo­sure statement.

It’s also worth not­ing that the state­ment of sub­ject for I‑2117 con­tains the word “tax” — and so does the con­cise descrip­tion. Vot­ers were told on the peti­tions cir­cu­lat­ed for I‑2117 that I‑2117 con­cerns “car­bon tax cred­it trad­ing.” But now spon­sor Jim Walsh wants a legal deter­mi­na­tion that I‑2117 would­n’t repeal a tax or fee. 

Haha­ha­ha­ha — nope!

As to I‑2124:

Plain­tiffs also claim that Ini­tia­tive 2124 (I‑2124), which would allow res­i­dents to opt out of the State’s long-term care insur­ance pro­gram (WA Cares), should not receive a pub­lic invest­ment impact dis­clo­sure state­ment because WA Cares sup­pos­ed­ly impos­es no tax­es or fees. That argu­ment ignores exten­sive his­to­ry and case law about WA Cares. When the WA Cares statute was enact­ed in 2019, OFM clas­si­fied it as a mea­sure impos­ing “tax­es or fees” under RCW 43.135.031, and the mea­sure was sub­ject to an advi­so­ry vote of the peo­ple because the Attor­ney General’s Office (AGO) and OFM con­clud­ed that it raised tax­es. The fed­er­al dis­trict court for the West­ern Dis­trict of Wash­ing­ton has held that WA Cares impos­es a tax, and the Wash­ing­ton Supreme Court has held that anal­o­gous pay­roll deduc­tions like unem­ploy­ment insur­ance pay­ments qual­i­fy as tax­es. State v. Law­ton, 25 Wn.2d 750, 756, 172 P.2d 465 (1946); Bates v. McLeod, 11 Wn.2d 648, 657, 120 P.2d 472 (1941). More­over, sup­port­ers of I‑2124 have rou­tine­ly char­ac­ter­ized WA Cares as impos­ing a tax. Because WA Cares impos­es a tax and because I‑2124 would sig­nif­i­cant­ly reduce fund­ing for WA Cares by mak­ing par­tic­i­pa­tion option­al, I‑2124 must have a pub­lic invest­ment impact dis­clo­sure statement.

Thank­ful­ly, “advi­so­ry votes” — which were real­ly Tim Eyman writ­ten push polls — were repealed last year by a law writ­ten by Sen­a­tor Pat­ty Kud­er­er and NPI. But the AGO is absolute­ly cor­rect that before they were abol­ished, the law that estab­lished WA Cares was sub­ject­ed to one of them. So was the law that cre­at­ed our cap­i­tal gains tax on the wealthy. Bri­an Hey­wood and leg­isla­tive Repub­li­cans have been cit­ing the “results” of Eyman’s push polls inces­sant­ly to argue that vot­ers are on their side. 

I imag­ine that when Ard con­ferred with Walsh and Mar­tinez about this case, he advised them that their prospects of get­ting a favor­able rul­ing from the Court weren’t good at all, and could even neg­a­tive­ly affect their cred­i­bil­i­ty in the elec­toral are­na. Nev­er­the­less, Ard filed the case for the duo and oral argu­ment is sched­uled for this Friday.

Yes­ter­day, The Chron­i­cle of Cen­tralia ran a piece on the law­suit, which con­tained the fol­low­ing quote from Walsh that our team thought was quite sil­ly:

“Our friends out­smart­ed them­selves,” Walsh said in a state­ment. “They were very spe­cif­ic when they passed the warn­ing-label law. But they were so spe­cif­ic that the law doesn’t apply to any of the ini­tia­tives that go before vot­ers this year. The case is so clear-cut I am sur­prised we have to take this to court.”

Wrong on all counts.

House Bill 1876, the leg­is­la­tion that pro­vides for fis­cal trans­paren­cy state­ments on the bal­lot, was draft­ed care­ful­ly and delib­er­ate­ly. In fact, so much thought was giv­en to its pro­vi­sions that it was amend­ed more than once. It was even sent to con­fer­ence so that it could get a final lay­er of pol­ish pri­or to being trans­mit­ted to Gov­er­nor Inslee for sig­na­ture. Our team remem­bers these events well — it’s some­thing NPI’s Kathy Saka­hara and I were pri­or­i­tiz­ing at the end of the 2022 leg­isla­tive session.

It is Walsh who’s try­ing to be too clever by half with this law­suit. If you read the law, you can see the cri­te­ria are sim­ple, but not as spe­cif­ic as Walsh is claiming: 

RCW 29A.72.027 — Pub­lic invest­ment impact disclosures.

(1) The attor­ney gen­er­al must pre­pare a pub­lic invest­ment impact dis­clo­sure for any bal­lot mea­sure that:

(a) Repeals, levies, or mod­i­fies any tax or fee, includ­ing chang­ing the scope or appli­ca­tion of an exist­ing tax or fee; and

(b) Has a fis­cal impact state­ment, as pro­vid­ed by RCW 29A.72.025, that shows that adop­tion of the mea­sure would cause a net change in state revenue.

I‑2117, I‑2109, and I‑2124 would each repeal, levy, or mod­i­fy either a tax or a fee. And all of them would also cause a net change in state rev­enue. There­fore, the cri­te­ria for a PIID has been sat­is­fied for each mea­sure. It’s irrel­e­vant what Jim Walsh and Dean­na Mar­tinez think — it is not their respon­si­bil­i­ty to deter­mine the mea­sures’ fis­cal impacts.

In the event that Judge Zipp were to give Walsh and Mar­tinez a favor­able rul­ing, the case would prob­a­bly be appealed by the AGO to the Wash­ing­ton State Supreme Court. But it’s dif­fi­cult to see a law­suit this pre­pos­ter­ous going any­where except the dustbin. 

The plain­tiffs are wast­ing the judi­cia­ry’s time and resources — and their own — try­ing to get a judge to order our statewide elect­ed offi­cials to con­ceal from vot­ers infor­ma­tion they’re legal­ly enti­tled to have. Again, this is an admis­sion that they know their slate of ini­tia­tives is in big, big, big trou­ble. A spon­sor con­fi­dent of vic­to­ry would not under­take a legal gam­bit like this at such a late hour — they’d be fundrais­ing and cam­paign­ing instead. 

Last­ly, I’ll note that while our team is accus­tomed to such behav­ior from Jim Walsh, it is tru­ly dis­ap­point­ing to see the chair of the Main­stream Repub­li­cans of Wash­ing­ton join­ing this legal attack on the pub­lic’s right to know about what they are vot­ing on. 

I have offered praise in this space before for the Main­stream Repub­li­cans for hav­ing the courage to break with oth­ers in their par­ty and stand against tax-slash­ing initiatives. 

Sad­ly, those days appear to be over. 

As Ard says in court plead­ings: “Togeth­er with spon­sor Walsh, Plain­tiff Dean­na Mar­tinez intends to pro­mote those Ini­tia­tives, as well as vote in favor of them herself.” 

The Main­stream Repub­li­cans might as well change their name to the Ultra MAGA Enablers of Wash­ing­ton State. They can’t claim to cred­i­bly rep­re­sent any “main­stream” of polit­i­cal thought when their lead­er­ship behaves like this. The old par­ty of Dan Evans evi­dent­ly breathed its last before this elec­tion cycle. There’s noth­ing left of it now. 

We’ll keep you post­ed on what hap­pens in this case, includ­ing at this Fri­day’s hearing. 

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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