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    Courage, Northwest style

    Our region has a special sauce for this most important of all values in a democracy.
    How would you define courage?

    How would you define courage? jakobsdiary/Flickr

    Editor's Note: This essay is the first in a series on courage that will run in advance of Crosscut's first annual "Courage Awards" ceremony on October 31st.

    “The fact is that running a democracy takes a certain amount of civic courage,” Justice Antonin Scalia chided James Bopp, the appropriately named attorney who was arguing for keeping secret the names of those who signed a Washington state anti-gay initiative. “The First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.”

    Scalia was invoking one of the deepest traditions in Western democracy, classically phrased by Pericles in his famous funeral oration: “The secret of happiness is freedom, and the secret of freedom is courage.” Courage, that is, tempered by the other three cardinal virtues of wisdom and prudence and justice, lest the courage become recklessness or pride. But above all, courage “because,” as Winston Churchill said, “it is the quality that guarantees all others.”

    Seattle is a good city on the courage scale. We owe this to our openness, our ever-renewing population of stubborn individualists, and our DNA of risk-taking — what was called from the start “the Seattle Spirit.”

    It may be that we are currently tilted too far in the direction of entrepreneurial risk-taking, at the expense of civic courage, and that our big local companies think more of global scale than local betterment. But the bright river of courage finds many channels, braiding through our region.

    Primer on courage

    In writing about civic courage in our town and our history, and dipping my own toe in that bright river a few times, I’ve learned a few lessons I’d like to propose.

    One lesson is that we journalists have a hard time discerning civic courage at the time, for it is often shy or invisible until later. Former Gov. John Spellman, for instance, whom I regularly and mistakenly lampooned as a weak leader in the 1980s, was actually extremely courageous. He stood up to industrial interests, pushed for open housing way before other politicians, and paid the price of losing office by going along with needed tax increases. Spellman knew that letting others take credit and muting your own ego were often keys to effective civic courage.

    Another courageous leader I failed to spot at the time was former Mayor Norm Rice, who understood that Seattle’s school desegregation plan wasn’t working and that only a black mayor could undo it. He used the artful device of a citywide summit to author a better plan. Rice also dared to make the first comprehensive case for more density in Seattle, calling it “urban villages.”

    A second lesson is that, to quote Napoleon, “courage is like love; it must have hope to nourish it.” It takes two to do this civic dance. Hope arises most when ambition and courage are likely to pay off by winning office or toppling a tired status-quo. Courageous politicians like John Miller, who jumped into city politics in the early 1970s, knew that boldness was coming in vogue, a way to stand out against “a musty, crusty city council.” Miller advocated tearing down the Alaska Way Viaduct, and might have even found federal money for a replacement if U.S. Congressman Norm Dicks hadn’t grabbed the dollars ahead of him and used them for the downtown Tacoma spur.

    Miller and others were encouraged by the inspiring, noisy advocacy of U.W. architecture professor Victor Steinbrueck, who spotted earlier than others the trend toward historic preservation and had the galvanizing example of saving the Pike Place Market. Jim Ellis, an early warrior against sprawl and weak governments, also set an example of vanguard leadership. Both were stubborn and amazingly persistent, which it takes to overcome Seattle’s smothering penchant for endless process and passive-aggressive resistance.

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    Posted Wed, Jun 26, 9:36 a.m. Inappropriate

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    Jim Ellis wasn’t a “warrior against sprawl and weak governments”. The fact of the matter is that he and his partners just were acting as self-interested agents of the muni-bond industry. Everything else about the guy and what he’s done is window dressing. Moreover, the municipalities he and his partners designed certainly were “weak” – they failed to comply with federal constitutional limits on states’ powers.

    Ellis and his colleagues brought toxic elements into the law and civic affairs of this state. The municipalities and taxing practices they fostered have operated as a malignant force around here. We have the most regressive state and local taxing regime in the country, one that pushes the middle class down for no good reason. Over the past several decades the government heads here have been acting like sociopaths, imposing increasingly heavy regressive taxes without any concern for whether or not the interests of the vast majority of the individuals and families targeted by those confiscations receive value from the taxing entities. Also, the judiciary now acts corruptly to ensure those aberrant municipal financing practices remain in place despite the law. Everyone gets that aspect of our civic institutions around here, right? The justices reward the government heads (along with Ellis and other lawyers representing taxing districts) for acting stupid about what laws require and how municipalities can be financed without massive levels of regressive taxing:


    The legacy of Ellis is very real, and those are the salient features of it.


    Posted Wed, Jun 26, 9:37 a.m. Inappropriate

    2 of 6

    As David Brewster knows full well, Ellis and his partners ginned up the old-Metro enabling statutes in the late 1950’s. They did that to enrich themselves; they acted as bond counsel and outside counsel for that municipality for decades. That municipality imposed heavy regressive taxes, and those attorneys made big money off those revenues. One of the things old-Metro did was facilitate sprawl by providing cheap long bus commute service to far-flung subdivisions. Worse, it was such an efficient tax-harvesting mechanism all the government heads embraced it and used it to enhance their careers. It corrupted the perspectives of those with their hands on the reins of government power.

    Old-Metro existed here for 23 years, until it was struck down as unconstitutional in 1990. Cunningham v. Municipality of Metropolitan Seattle_, 751 F.Supp. 899 W.D.Wash. 1990. From the beginning that municipality had been violating our rights as Americans to vote for and against its councilmembers. This was not a surprise; old-Metro’s unlawful structure was a poorly-kept secret.

    So what did Ellis and his colleagues do? They used old-Metro’s basic premise – an unaccountable municipality with heavy regressive taxing powers – and created Sound Transit. That municipality also exists in violation of the 14th Amendment’s limits on states that exist to protect Americans by allowing us to control municipalities.

    The US Constitution limits how all local governments in this country must be structured. For starters, Americans must have the right to vote both for and against the individuals who are able to establish legal policies for municipalities. That’s one of the fundamental rights the constitution affords us; it is why Seattle’s legislature (for example) could not be an appointive board. This limit on the power of states is the primary means by which people in this country are supposed to be ensured of the sovereignty we retained, the ability to exert control over the policies of the local governments to which we are subject.

    Sound Transit’s structure runs afoul of that fundamental requirement. That municipality was structured so that its board always would be controlled by political appointees. RCW 81.112.040(1). That statute operates so that a supermajority of the board’s seats will be appointive. That is a flaw of constitutional magnitude because Sound Transit’s board has broad powers to set a huge range of legal policies.


    Posted Wed, Jun 26, 9:37 a.m. Inappropriate

    3 of 6

    What the government heads now play stupid about is how Sound Transit is unconstitutional. They learned how to do that with old-Metro, and they continue to play that game. That’s one aspect of public life around here that truly is unique – playing stupid about the law is mandatory.

    There is an analytic approach courts use to ascertain whether or not a state’s legislature delegated excessive governmental powers and functions to a municipality’s appointive board. The US Supreme Court describes it in the 1967 _Sailors v. Kent Bd. of Education_ opinion. You can read that opinion here:


    That 14th Amendment legal standard involves comparing the powers delegated to the subject local entity to those powers Michigan had delegated to its county school boards by the mid-1960’s. We know from _Sailors v. Kent Bd. of Education_ that Michigan’s legislature stayed within the limits the 14th Amendment imposes on all state legislatures. The court’s analysis of the key issue proceeds from the following premise:

    We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means, rather than by an election.

    The court went on to hold that there was no 14th Amendment violation in that case because Michigan’s legislature only had delegated the powers to those county school boards to effectuate certain legal policies that had been established at the state level by a directly-elected body. The narrow, closely circumscribed powers delegated to those appointive county school boards are specified in that opinion. In the terminology used by the US Supreme Court, those powers the state legislature delegated to the local entity only allowed it to perform "essentially administrative functions" so it did not need to have a directly-elected board.


    Posted Wed, Jun 26, 9:38 a.m. Inappropriate

    4 of 6

    The administrative function powers delegated to Michigan’s county school boards are described in footnote 7 of the _Sailors v. Kent Bd. of Education_ opinion. They provide the benchmark against which Sound Transit’s powers must be measured. Using that legal standard shows why Sound Transit has an unconstitutional structure.

    It’s impossible to list all the governmental powers delegated to the appointive board of the regional transit authority, but examining some of them shows how they are significantly greater than any powers courts have deemed “administrative”.

    Those Michigan county school boards and Sound Transit each were delegated certain taxing and spending budgeting powers. However, Sound Transit’s board possesses FAR more discretionary authority in those areas. The appointive RTA board can select among a slew of revenue options, including several general taxes. It can adopt resolutions that include bond sale contract security provisions obligating the public to pay regressive taxes at the maximum rates for decades, without any regard to needs for that revenue. It can tax as much as it decides it wants to tax, and use as much tax revenue for capital and operations costs as it wants. Moreover, its budgeting powers likewise are unlimited by any policies set by the state legislature. That’s nothing like the administrative role Michigan’s county school boards play in the annual financing process that state’s legislature established to get money to local, directly-elected school districts.

    There’s a long list of discretionary legislative powers Sound Transit’s board was delegated that Michigan’s county school boards don’t possess. Unlike the Michigan entities, the political appointees comprising Sound Transit’s board also possess broad powers to set municipal policies with respect to major infrastructure siting, financing plan designing, debt-securities issuing, private property condemnation, local land-use regulation trumping infrastructure siting and use, designing/building/financing/operating bus and train systems, establishing/deploying a police force, establishing fares, defining infractions of its regulations, establishing that municipality’s boundaries, setting the amounts of and imposing fines on people that courts will enforce, fixing unlimited spending budgets on dozens of capital projects (including megaprojects with multi-billion dollar costs), and forming statutory “local improvement districts” to assess property owners (and selling bonds backed by those LID assessments).

    None of those powers Sound Transit’s board possesses can be characterized as administrative, as the state legislature has set no polices prescribing how Sound Transit’s board is to wield them.


    Posted Wed, Jun 26, 9:39 a.m. Inappropriate

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    Nobody living in the Puget Sound region ever will have the right to exert power over Sound Transit via any political means. People can not use their votes at any election to get a smarter, more frugal, and less corrupt board. We can not vote for people who share our views and values to set or amend any of that municipality’s policies. People also have no right to use votes at any election to protect their interests from any of the resolutions the boardmembers enact that effect the public generally. For example, people have no right of either initiative or referendum to set or change that municipalities legal policies.

    Here’s just one example of how Sound Transit is used by civic leaders to abuse individuals and families here financially. In 2008 that municipality put one of its ordinances up for a vote. That “ST2” measure specified that the board would make all the determinations later about the amount and duration of any taxing it would do.

    One legislative power Sound Transit’s board was delegated by the state relating to its taxation powers is that the board can secure that municipality’s long-term bonds by pledging to collect general taxes at or near the maximum rates while any of those debt securities are outstanding. That is a power to tax completely independent of any need for tax revenue, let along any budgeted needs or state-imposed limits; the board’s related policy-setting powers relating to its capital and operations budgets likewise are entirely discretionary.

    How this all plays out is an abject lesson in abuse by those who wield power on the board of that municipality. In 2009 the boardmembers secured a $300 million 30-year bond with a pledge to collect sales taxes at or near the .9% rate for the whole term. Assuming a 5% growth rate (which Sound Transit had been using) that would result in nearly $22 billion of tax revenue being confiscated JUST as security for that one $300 million bond. No creditor needs anything like that level of security. That is nothing but a plan to confiscate grossly excessive amounts of tax revenue without any regard to legitimate needs of that municipality. None of the peers do anything like that in their bus and train financing practices.

    That’s the natural attitude of unaccountable political appointees with legislative taxing powers: shaft the public to benefit political cronies.


    Posted Wed, Jun 26, 9:40 a.m. Inappropriate

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    The _Cunningham_ opinion that struck the Ellis creation old-Metro down as unconstitutional cites part of an argument Daniel Webster made before the US Supreme Court in the late 1840’s:

    “[T]he right to choose a representative in every man’s portion of sovereign power.”

    THAT is the power the state legislature denied us when it adopted the draft Sound Transit enabling statutes that Ellis and his partners sent them to rubberstamp in 1992. Why did the state legislature flout the 14th Amendment again, right after the _Cunningham_ opinion came out? Two reasons. If people had the power to elect representatives to structure a financing plan it would not look like what Sound Transit’s lawyers wanted: grossly excessive regressive taxing and mountains of long-term debt they would get bond counsel fees off of. Moreover, the key individuals likely knew even then the state supreme court was a chronically corrupt bench.

    Sound Transit certainly is strong in one sense: it is impervious to any attempts by the people here to control what it does by political means. And yes, that is exactly the kind of strength Ellis wanted (he and his colleagues get richer that way). Problem is, enabling Sound Transit’s excesses requires government heads to play along, and in doing so a culture of aberrant financing practices and dishonest judges is flourishing. That is the new normal. It is now conditioned behavior. It’s Pavlovian at this point – just look at the behavior of Constantine and Nickels, and of the justices when any aspect of these appointive-board entities are challenged. The defining characteristic of the careers of government heads in this state now is acting to pump up regressive taxes in the name of transit municipalities while simultaneously playing stupid about how individuals and families in the peer regions are not targeted that way for bus and train service.

    What Ellis did was not courageous. It both encouraged and rewarded fundamentally-dishonest and financially-abusive behavior throughout the ranks of government in this neck of the woods.


    Posted Wed, Jun 26, 11:08 a.m. Inappropriate

    I think "Spirit of Seattle" is your invention, David, (Spirit of St. Louis, yes) but very good article. It's sometimes hard to see the courage amidst what looks like a lot of pandering but you're right, it's important and it's here. I'm not sure we see a lot of it on Crosscut... maybe courageously middle-of-the-Seattle-road.

    cross rip, you are a polemicist without peer but you should shorten it up. I sometimes agree with you but I can't bring myself to read all the above.


    Posted Wed, Jun 26, 4:39 p.m. Inappropriate

    "Seattle is a good city on the courage scale. We owe this to our openness, our ever-renewing population of stubborn individualists, and our DNA of risk-taking — what was called from the start “the Seattle Spirit.”.............you're kidding, right? I have never seen a city so in lockstep with only one way of thinking about anything. To even suggest there is another way to look at a situation gets looks of disdain. Case in point: the Seattle City Council, the Metropolitan King County Council, the mayoral contenders not to mention most of the media. We are so in need of a fresh voice around here but if one dared to show its' face it would be vilified.


    Posted Wed, Jun 26, 10:51 p.m. Inappropriate

    I've read both the story above and then also the story Mr Shaw wrote about the nomination process. I think this idea of having a Courage Award is quite good.

    However, there are plenty of examples of people who in my opinion have been very courageous who don't fit the criteria Mr Shaw outlines. For example, I can think of many who fought against the third runway who in hindsight were very right about how the justification and data used to sell the project was a bunch of baloney. They displayed a huge amount of courage, especially when the Port of Seattle did its best to run over the clean water act by claiming oil (the kind you put in your car) was a naturally occurring pollutant, or that arsenic and other toxics placed in fill draining into our drinking water aquifer would not be a problem at levels above the levels that trigger cleanups elsewhere.

    These people don't fit the criteria outlined by Mr Shaw, so I would like to suggest either broadening the criteria or creating some separate award to honor civic activists who have persevered in an effort to make a real difference, even when that effort runs counter to whatever group has enough money to sponsor these types of awards.


    Posted Thu, Jun 27, 5:54 p.m. Inappropriate

    I am not sure how he is holding up but Sen. Rodney Tom sure deserves a nomination.


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