NPI Executive Director Andrew Villeneuve testified yesterday in support of HB 1087 before the House Committee on State Government and Tribal Affairs. His prepared testimony, with added commentary on the state of direct democracy, is as follows.
Chairman Hunt, Members of the Committee:
My name is Andrew Villeneuve. I am the Executive Director of the Northwest Progressive Institute, a regional think tank headquartered in Redmond.
I am pleased to be here today to voice, in person, our organization's support for HB 1087, which would prohibit the compensation of paid petitioners on a per signature basis, and to thank Representative Appleton for sponsoring this bill.
In recent years, many in the state Legislature, not to mention a great number of citizens, have become rightly concerned about the use of the initiative and referendum to undermine the legislative process and representative democracy.
Both the initiative and the referendum, along with the recall, were established in the progressive era of the early twentieth century to circumvent political bosses, though the American tradition of direct democracy is more deeply rooted in the town meetings of New England dating from several centuries prior.
Citizen lawmaking originally spread across this country because state legislatures were unresponsive in creating laws that the people needed to protect themselves from special interests, laissez-faire economics, and the era's robber barons.
But in today’s day and age, the tables have been turned. Direct democracy has been corrupted and co-opted by the same special interests which have for decades been attempting to influence lawmakers and the legislative process.
Today’s special interests have gotten exceptionally clever at mounting P.R. campaigns to convince the general public they are grassroots and the ballot measures they are proposing are beneficial to the common good.
This faux populism, which is known as astroturfing, is practiced not only by long established interest groups but also a number of individuals masquerading as heroes for working families.
Several U.S. states, including this one, are home to one or several manipulative right wing ideologues who try to dominate politics and use the initiative and or referendum to change public policy, especially fiscal policy. They never run for office (instead they harshly criticize those who are elected), they are never satisfied and ready to call it a day, and they are unaccountable.
They are typically handsomely compensated by a wealthy backer and do not need to worry about earning a living. Thanks to their sugar daddies, they can afford to make a career out of attacking representative democracy.
It’s their full time job - they are paid politicians.
Occasionally, they show up and participate in the legislative process, usually to whine and pretend they’re a victim who is being attacked when lawmakers talk about reforming direct democracy.
In this state and others, initiative and referendum campaigns are rarely mounted any more out of genuine concern for the common good, the well being of society, or the health of our democracy. Nor are they launched by a true grassroots force or volunteer army of concerned citizens.
It’s been said you can qualify any proposal for the ballot – no matter your ideology, no matter your idea, no matter your proposition’s constitutionality – if you have enough money. Say just upwards of half a million dollars. And it’s true.
When a special interest has access to enough funds and they fail to qualify something they’ve put money into it’s almost always because of incompetence or laziness – not because people wouldn’t sign a petition.
Without any opposition present at the scene, a petitioner can easily persuade plenty of citizens, whether registered voters or not, to put their name and signature on whatever they’re hawking.
Direct democracy has become a big business and signatures have become a commodity. The process is no longer being used as its founders wanted and envisioned it to be. Instead of remaining an asset to our republic, it has become a tool for subversion. That’s why it’s in need of reform.
Opponents of this bill are here today making the argument that, if enacted, it would seriously harm, impede, or even destroy the people’s right to initiative. Such claims could not be more absurd or ridiculous. This bill is a commendable attempt to strengthen the integrity of the process.
Opponents are misconstruing it as an attack on free speech and an attempt to fix a nonexistent problem. Their assertions simply do not make sense.
The simple truth is this: if paid petitioners are compensated on a per-signature basis, there is an incentive for fraud – because the more signatures you collect, the more money you make. Just because there isn’t a mountain of evidence in the Evergreen State doesn’t mean that fraudulent activity isn’t occurring. We don’t have obvious corroboration in Washington because we haven’t bothered to look.
But next door, just south of the Columbia, in Oregon, suspicious watchdog groups and government agencies did investigate, and they found fraudulent activity. The Oregon Department of Justice earlier this decade pursued two high profile cases against petitioners which resulted in convictions.
The first was the prosecution of Paul Frankel, who allegedly used a classic “bait and switch” technique. At Portland’s Lloyd Center, a shopping mall,. he used a fake petition which purportedly supported a measure that would lower gas taxes. He kept this petition at the top of his clipboard.
After convincing passerby to sign it, he would then tell them they were required to “verify” their signature by signing all the pages he had underneath – which were in fact real petitions for real ballot measures.
It was also discovered that Frankel had forged the signature of a Department of Justice investigator on petitions that were later found in the office of Bill Sizemore, executive director of Oregon Taxpayers United.
Sizemore is a perfect example of a right wing ideologue who set up shop to dominate state politics as an anti-tax crusader. Frankel was convicted of forgery in December 2001.
James Gurga, who worked with Frankel, was convicted of forgery the following year, in May of 2002. Gurga’s unethical practices included the outright forgery of signatures on petitions, the circulation of petitions with false signatures on them, the requisition of signatures from identified non-voters, the solicitation of duplicate signatures, the placing of false information on petitions, and obstructing signers’ access to legally required information.
Numerous other petitioners in Oregon have been suspected or accused of similar practices. Upon further investigation some were found to have criminal records or backgrounds – a definite indication that these individuals probably did not think fraud was beneath them.
It is time to discourage the incentive for fraud by making it illegal for petitioners to be compensated by the signature, and to provide for appropriate punishment if the law is violated, as Oregon has done.
Oregon’s law, in fact, was enacted by the people of that state through their initiative process. Measure 26 was approved by a three to one ratio. Opponents will make the argument that this legislation is unconstitutional. In 1994 a U.S. District court judge did invalidate a previous Washington State ban on those grounds.
But more recently, just last year, the 9th Circuit Court of Appeals, which is a higher federal court, upheld Oregon’s ban in the case of Prete v. Bradbury
. The court found Oregon’s law to be a “lesser burden” on free speech, not a “severe burden”.
In its decision, the court referenced an earlier case heard by the Eighth Circuit Court of Appeals in 2000 where North Dakota's ban on paying petitioners "on a basis related to the number of signatures obtained" was challenged.
The court observed that this case, Initiative & Referendum Inst. v. Jaeger
, presented a better framework for analyzing Prete v. Bradbury
than other cases involving money and free speech. An excerpt from the 9th Circuit’s opinion:
“In Jaeger, the court noted that the state had an "important interest in preventing signature fraud" in the initiative process, and that the state had supported that interest with evidence that paying petition circulators per signature encouraged such fraud. Further, the plaintiffs had ‘produced no evidence that payment by the hour, rather than on commission, would in any way burden their ability to collect signatures. The [plaintiffs] have only offered bare assertions on this point.’”
Indeed, opponents will claim HB 1087 would drive up the cost of qualifying an initiative or referendum for the ballot. That they are so concerned about the financial impact it might have on their campaign coffers is a clear signal that they are not representatives of some populist manifestation or grassroots cause.
A proposal that truly has popular support should be able to get enough signatures through a drive conducted mostly or completely by volunteers.
Volunteer drives are rare these days because most groups wanting to qualify an initiative or referendum find it much easier to raise money to pay for a signature drive than do the hard work to organize and mobilize volunteers - especially if they have access to a large back account and especially if their proposal is self serving.
These astroturfers want this cottage industry to remain unregulated. The free speech argument is a convenient cover they use to prop up or bolster their contentions. The cost of a signature drive is not a determinant which should factor into the Legislature’s deliberation over initiative process reform.
Consider that there are other elements which impact the cost of a signature drive, including political participation. Every four years, we elect a Governor, and the participation in that election is used as a basis to determine how many signatures will be required to qualify a measure for the ballot. For initiatives, it’s eight percent, for referenda, four percent of the number of votes cast.
Consequently, if turnout increases in a gubernatorial election, the cost of a signature drive does too because more signatures will be needed to qualify a ballot measure. Are moneyed interests going to campaign against increased political participation because it would make it more difficult for them to qualify future proposals for the ballot? Probably not.
In summary, because the great State of Washington has an interest in preventing fraud and protecting the people’s rights, its Legislature should enact House Bill 1087 as a safeguard over the objections of critics. Free speech, while one of America’s most important liberties, is not unlimited. If reckless or malicious speech is permissible our democracy suffers a result.
The Northwest Progressive Institute strongly urges this Committee, the entire Legislature, and the Governor to do everything they can to ensure the initiative process is used appropriately, ethically, and constitutionally. We emphatically support House Bill 1087 and recommend its passage.