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Is Legislature playing games with initiatives?

By Knute Berger
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Tim Eyman reacts to a state Supreme Court ruling in a case over one of his initiatives.

By Knute Berger

Should we be shocked, shocked! that politics is being played in Olympia? Not really, but sometimes, the political activity can raise an eyebrow — and an important issue.

This legislative session, the Republican-dominated state Senate passed SB 5715, a bill with bipartisan support that would require some citizen’s initiatives to have their fiscal impact included as part of the ballot title. It sounds simple enough: greater transparency, let people know up front how much a new law will cost, or save.

The problem is, ballot titles are, by law, supposed to be scrupulously neutral, and assessing the fiscal impact of an initiative can be largely guesswork, arbitrary or lack context. In this case, the targeted initiatives are those that impact the state’s biennial budget by $25 million or more, plus or minus. In other words, it’s a snapshot of fiscal impact.

Such projections can be wrong. For one thing, the impact of an initiative might be costly in the beginning, but with savings further out. Judging by one two-year period might not give a fair picture. An example is the state liquor privatization initiative that promised to be revenue neutral and reduce costs for consumers. In fact, in 2014, Washingtonians paid more for their liquor, yet state liquor revenues were less than anticipated. Fiscal impacts, in other words, can be highly speculative. Are they, in fact, neutral facts?

A fiscal note in a ballot title could amount to editorializing — those who don’t like the idea call it a “warning label.”

That editorializing is what concerns the ACLU of Washington. Shankar Narayan, the organization’s legislative director, lays out his organization take on SB5715: “We are opposed to the interjection of government sponsored speech on one side or the other of a political debate. Here, the primary purpose of placing this ‘information’ — with numbers determined by a state agency — on the ballot is to sway voters into voting against the initiative. This goes beyond mere provision of information, and is designed to sway voters. The state should not use its power to tilt the electoral playing field.

It’s also unnecessary. Fiscal analyses of initiatives are already included in the state Voters Pamphlet where the rationale for coming up with the numbers is also explained. And they are common fodder in pro-and-con campaign debates and massively expensive ad campaigns.

So why is there bipartisan support for the idea?

The frequently cited reason is I-1351, which passed in November by a narrow 51 percent to 49 percent. The so-called Class Size Initiative demanded that the state pay for smaller class sizes. It has been estimated that full implementation of the initiative could cost the state $4.7 billion through 2019, but no provision was made for covering those projected costs.

The Legislature is already in the throes of the dilemma of how to fund compliance with the McCleary Supreme Court decision, and many legislators feel they have enough on their plates without adding the formula for reduced K-12 class sizes to the problem. The law has fed resentment about pain-in-the-butt ballot initiatives. Some would like to require that all initiatives pay for themselves, but the proposal that’s gained momentum this session is the fiscal note in the ballot title idea.

Many legislators don’t like initiatives much anyway. Democrats can’t stand anti-tax activist Tim Eyman — Eyman says lots of legislators suffer from EDS, aka “Eyman Derangement Syndrome.” Anything that hobbles the initiative process, and Eyman, has liberal appeal. But this bipartisan Senate bill’s momentum has come largely from the GOP side (which controls the body), with sponsors such as Joe Fain, R-Auburn, and Jan Angel, R-Port Orchard. One reason is that the nettlesome I-1351 was engineered by the Washington Education Association, the public school teacher’s union. But a fiscal note that slaps high costs on a progressive initiative could scare enough voters to get it to fail, even when the concept — like reducing class size — is a popular one.

On March 18 the House State Government Committee, chaired by Olympia Democrat Sam Hunt, held a hearing on SB 5715. Eyman, who strongly opposes the bill, said that he had indications that partisan politics is motivating the bill’s backers. He cited emails that he had received. One from an Eyman supporter claimed that bill sponsor Sen. Jan Angel had said at the annual conservative state political Roanoke Conference that the bill would help knock off initiatives sponsored by the likes of the WEA or the Service Employees International Union.

Angel denies she said such a thing at the conference. However, Eyman has also cited an email in which Angel replied to a constituent concerned about the legislature’s efforts to limit initiatives, “There are things coming down that we must get in front of and that is why you see so many Republicans signed on to this resolution. Please stay tuned.” Angel said this email was not concerning the Senate bill that passed, which she described as doing “nothing to change the initiative process of the people. The bill passed in a strong bipartisan fashion off the Senate floor 41-8.”

But for Eyman, these comments reveal a political intent of the same kind that worries him about what could happen with fiscal impacts on ballot titles. Another close observer told me that he thought the bill was more about “politics than policy.”

Eyman told the House committee, “I think it’s very disturbing that you have legislators saying well, there are certain initiatives coming and we need to stop them from going forward.” He added, “You shouldn’t have government in the position to put their thumb on the scale.” For Angel, that’s not what’s going to happen: “This bill provides transparency for a voter to have the fiscal information available, as they are making their voting decision.”

House Government Committee chair Hunt seems somewhat skeptical about the Senate bill, telling the Everett Herald, “I don't want to cripple the initiative process to where everyone looks at an initiative and says, this has a cost, we're not going to do it.” He wondered if a previous initiative he worked on, to repeal Washington’s sales tax on food, would have been successful under the proposed law. One reason the battle over titles is so consequential is the belief that many voters vote yes or no on the title alone.

Part of the problem is institutional. The initiative process was part of the Progressive era government reforms at the turn of the 20th century that attempted to temper the powers of Olympia and the big business interests that were and are so influential (back then it was the railroad robber barons). The initiative process came in with women’s suffrage, direct election of senators and the right of referendum and recall. It’s imperfect, but there are checks and balances.

The Legislature, for example, can overturn an initiative with a two-thirds vote in the first two years after passage, and by a simple majority thereafter. It can also sit on an unfunded initiative by not funding it. Initiatives also can be taken to court to challenge their legality or constitutionality. Still, many would like to see the process reformed. The elimination of paid signature gatherers, for example, is often cited. Hunt has proposed a non-partisan Citizen’s Initiative Review Board that would independently evaluate the pros and cons of selected ballot measures.

Still, there is an inherent power struggle between the Legislature and initiative backers — initiatives are wildcards that often act as a critique on electeds. This year’s attempt to tinker with initiative titles also seems to have specific political motivations, perhaps in the hope that fewer initiatives will pass at all. At least, that would be the case if both parties are right about what they seem to see as the effects.

For the Democrats, it’s certainly a chance to check Tim Eyman. Some progressives think Eyman’s objections to the bill are self-serving (they’re his business) and that the fiscal notes on ballot titles are likely to damage his tax-cutting or -limiting proposals. For Republicans, the new law might hamper upcoming progressive initiatives such as Nick Hanauer’s proposed $16 minimum wage initiative ($16 in ’16) that he promises to file if the Legislature doesn’t act on the state minimum wage, or maybe an initiative proposing a new carbon tax.

The real question seems to come down to a power struggle. How much latitude will the people have to propose their own laws without interference or restraint from the Legislature? The ACLU’s Narayan has this take for his organization: “Proponents, opponents, and the media already do an active job of informing voters about costs; there is no need for the State to provide an ‘official’ version of that in a prominent place on the ballot, where no other statements for or against are allowed.”

In other words, the politicians should back off — at least until the voters have had their say.

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Is Legislature playing games with initiatives?

About the Authors & Contributors

Knute Berger

Knute “Mossback” Berger is Crosscut's Editor-at-Large as well as a regular columnist covering history, politics and culture in the Pacific Northwest.