The Legislature has taken a bipartisan dislike of initiatives, viewing them as troublesome, annoying and downright uppity. The initiatives either go too far, or not far enough. They complicate the professional politicians’ task of governing. Many just wish the initiatives would go away entirely, others want the process reformed — read “hamstrung” — while mouthing that they believe the people should have a voice.
Almost every legislative session, someone puts forward a bill to contain, restrict or encumber the initiative process. It shouldn’t be too surprising. After all, initiatives were designed as an alternative path to make law outside of Olympia. Since Washington adopted citizens initiatives in 1912 (approved, with 70 percent of the vote, along with the rights of referendum and recall), they have been a modest, competing power base rooted in direct democracy, and a challenge to Olympia’s ultimate authority.
They can be nettlesome.
Sen. Joe Fain, R-Auburn, who represents the 47th district in South King County and is Senate majority floor leader, launched this year’s major assault. First, earlier this month he and 38 of 49 colleagues in both parties, proposed a resolution for a state constitutional amendment (SJR 8201) that would limit initiatives that impact the state budget — he calls it the “Truth in Initiatives Amendment.”
The target is initiatives that mandate expenses but don’t provide the funding to do so, like November’s I-1351 requiring smaller K-12 class sizes. Such laws create legislative headaches because the public is setting a specific priority that the Legislature might not agree with and is reluctant to fund — or even determined not to fund. In this case, the state is already facing a massive funding problem due to the state Supreme Court’s McCleary decision requiring more education spending. So, the Legislature doesn’t want to have to come up with an additional $4-5 billion to pay for more teachers and staff to implement I-1351. This is not the first time voters have demanded that the Legislature shrink class sizes without devising a means to pay for it.
Fain and his Senate colleagues would like such initiatives to be prevented from going to the ballot, narrowing what citizens can propose. The proposed constitutional amendment would hold initiatives to a balanced budget standard: If passing the initiative would throw the budget out of whack without accounting for what is cut or what revenues are generated to pay for it, it would be denied a place on the ballot.
This would establish that budgeting would trump principle in deciding what qualifies for the ballot. Washington has passed many progressive laws and initiatives that have left the details of financing to the Legislature. Initiatives already go through a fiscal analysis, which you can find in the Voter’s Pamphlet or on the Secretary of State’s website. It is the Legislature that is required to make the law work, to pass a budget, to raise taxes or cut expenses, to make the tweaks and take the votes necessary to implement it — assuming the initiative is legal and constitutional.
The clear effect of Fain’s amendment as it’s now written (he and Democratic cosponsor Sen. Jamie Pedersen of Seattle have said it could be revised) would be to limit initiatives, to make their fiscal impact a primary factor in whether they can go forward, and to insist that citizens to work out all the details prior to a vote. It creates a new fiscal barrier.
There is also bipartisan skepticism about the proposal. The House’s chief budget writer, Rep. Ross Hunter, D-Medina, voiced concern to KIRO: “I’m generally not in favor of amending the Constitution to limit the rights of the people.” Tim Eyman, the activist who makes a living from running initiative campaigns, says in one of his recent missives that the whole thing is a power struggle: “The voters-are-stupid-when-they-don't-vote-the-way-I-do belief has really infected the thinking of a huge number of Republican and Democrat legislators this year.”
Fain’s other proposal is a bill (SB 5715) that wouldn’t be so draconian as denying initiatives a place on the ballot but would require that their fiscal impact be reflected in the ballot titles, if that impact is plus or minus $25 million to the state budget. In that case, the title language would have to state it outright if the initiative’s impact “means other state spending may need to be reduced or taxes increased to implement the proposal.” Again, this would potentially lift the fiscal argument over principle.
What would the potential impact have been on progressive initiatives with this requirement? Should the new gun background checks law be decided based on its budget impact? What about open government laws like public disclosure? What about the women’s right to vote? What about legalization of marijuana? Fiscal arguments are part of a larger discussion, they are outlined to voters in advance, and initiatives are by definition limited to single topics. Trying to suggest that each big idea should be on a pay-as-you-go plan puts a burden on initiatives that is undeserved, and in some cases beside the point. You get your rights (voting, marriage) only if we’re willing to pay for them?
Some initiatives are all about tax spending or tax cutting, whether it’s been $30 car tabs or the income tax (voters actually passed both individual and corporate income taxes by initiative in 1932, overturned later by the state Supreme Court). But for others, the fiscal impact is a side issue. I would argue that elevating the fiscal impact into the title of initiatives might suppress the potential vote on good ideas by raising doubt about costs when that might be the least of our concerns.
Progressives love to hate Eyman and thus initiatives, but they should be very wary of the proposed restrictions, even the gentler one in Fain’s Senate bill. The Northwest Progressive Institute has argued on its blog that there are better initiative reforms, such as determining their legality or constitutionality in advance, or barring corporate participation in elections. Initiative campaigns are often designed to be heavily funded campaigns by special interests — the trial lawyers, agri-business, insurance companies — not the people.
The Legislature is also seeking to crack down on who gather signatures for initiatives referendums and recall petitions. There has been some fraud when signature gatherers have turned in phony signatures, and no one argues that the state shouldn’t track them down or punish it when it occurs. The financial incentive to cheat for people who are paid by the signature is there.
A bill sponsored by Sen. Marko Liias, D-Mukilteo, and two other senators of both parties (SB5375) gets a hearing Thursday and seeks to crack down by requiring paid signature gatherers, and those who hire them, to register, undergo criminal background checks, provide government-issued photo identification and provide other unspecified information on demand to the state, and jump through other hoops. It all raises questions about the rights of individuals to petition the government without government interference. Eyman calls the proposed requirements “absurd.”
The Eyman-hating progressives should think twice about suppressing enthusiasm for initiatives, however flawed some might be. According to Initiative and Referendum Institute at the University of Southern California, which studies the phenomenon nationwide, “In election after election, no matter what election cycle is analyzed, voter turnout in states with an initiative on the ballot had been usually 3 percent to 8 percent higher than states without an initiative on the ballot.”
If tax-limiting initiatives are sometimes catnip for some voters, other initiatives can benefit progressives, who traditionally do better in elections with higher turnouts. They are a motivator for many voters and broaden the issues on the table at each election. Initiatives and referendums also tend to be straightforward, one of the few instances, according to the Initiative and Referendum Institute, where voters “get what they voted for.” The majority of initiatives do not pass, but nationally about 40 percent do. Some states are heavily reliant on them as part of the democratic process (Oregon especially). They make a significant public contribution, whether you agree with them or not.
Initiatives are not designed to completely replace the legislative process. They are meant to tackle issues the Legislature will not or cannot tackle; they are intended, often, to establish basic principles or make the voter’s desires known. The Legislature is certainly often willing to kick issues to the people either by referendum or dodging solutions that might anger powerful constituencies — gun control, for example. Fain insists that the initiative process is “sacred,” but to define the initiatives more narrowly or more prominently on the basis of their fiscal impact, or to restrict signature gatherers in ways meant to make petitioning the government more difficult, would be a subtle subversion of the broader good of the process.