February 2016 Bar Bulletin
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February 2016 Bar Bulletin

Taking the Initiative

 

“In honor of William Simon U’Ren, author of Oregon’s constitutional provisions for initiative, referendum, and recall, giving the people control of law making and lawmakers and known in his lifetime as father of Oregon’s enlightened system of government.” 1

In Oregon, where I grew up, a stone monument with the above inscription sits in front of the Clackamas County Courthouse. U’Ren is credited with establishing the “Oregon System,” which refers to the infusion of the initiative, referendum and recall processes as a means to allow for more direct representation and participation in the lawmaking process.

In 1902, U’Ren successfully led an effort to amend the Oregon constitution to allow for the initiative process. He then oversaw a number of initiatives to combat political corruption and give voters more direct representation: elimination of free railroad passes; direct election of U.S. senators in 1904; presidential primary in 1910; and women’s suffrage in 1912. My secondary school education bears truth to this observation of U’Ren: “His belief that the average person can move a society toward perfectibility has become deeply ingrained in the Oregon psyche.”2

Washington is equally proud of its referendum and initiative process. Article II of the state’s constitution refers to the initiative process as the “the first power reserved to the people.” While I am not aware of a stone monument dedicated to Washington’s leaders of the referendum and initiative process, we wear our populist and progressive pride on our sleeves. KCBA has supported a number of referendums and initiatives: same-sex marriage (Referendum 74); medical marijuana (I-502); and the requirement of background checks for gun sales and transfers (I-594).

History demonstrates that progressive governmental reform can be achieved through the initiative process. Yet, recent election cycles have raised concerns that the referendum and initiative process is susceptible to an ill it was created to cure: special interests and, particularly, special interests outside of Washington supplanting their opinions over local voices.

KCBA’s Referendum and Initiative Project (“RIP”) Subcommittee3 of the Public Policy Committee underwent an exhaustive, deep dive into the current state of the referendum and initiative process in Washington, and after three years of study, the RIP Subcommittee prepared a 39-page report. In describing the current problems with the referendum and initiative process, RIP noted, “For Initiative I-594 (background checks for gun sales and transfers), over 66% of the major contributions opposing this initiative came from the National Rifle Association in Washington DC. Just over 21% of the major contributions in support of I-594 were from a New York organization: Every Town for Gun Safety.”4

Opponents of the GMO labeling initiative (I-522) spent more than $22 million, with just $550 [this is not a typo] coming from Washington residents.5 The unpredictability of when the Supreme Court may rule on the legality of measures has also worried some ardent supporters of this tool of a direct democracy. For example, last September, the Supreme Court issued a decision declaring the charter schools’ initiative (I-1240) unconstitutional — less than a week before the start of the school year.6

At the November and December Board of Trustee meetings, the KCBA trustees discussed and analyzed the subcommittee’s work. In the upcoming months, the subcommittee will continue to vet, prioritize and further study the proposals. According to subcommittee Chair Beth Bloom, “It is RIP’s goal to identify the best policy proposals to reduce the cost and waste caused by poorly drafted ballot measures, minimize voter confusion regarding the policy impact and the budget impact of initiatives, and to minimize the perception that initiatives are a tool of out-of-state special interests.”

KCBA — through the RIP Subcommittee — has identified the following opportunities for improvement of the referendum and initiative process and we would like to hear from you.

Pre-Certification Process

1. Expansion of timelines to allow more time to gather signatures. Under the current system, the total lifecycle is 10 months, which leaves only six months to gather signatures.

2. Implement a formalized public review with expanded time for public hearing and comment. The expansion could also include additional time for review by the Code Revisor to mitigate poorly drafted initiatives.

3. Expedite judicial review of an initiative, which could occur after the measure receives a title, but before signature gathering begins. The judicial review could be limited to facial challenges.

4. Require that an initiative demonstrate revenue neutrality, so that if an initiative creates new programs, it must include a means to fund the new program (e.g., taxes). If the initiative calls for tax cuts, then the initiative must also identify corresponding program cuts. Here, the KCBA has previously voted in favor of a revenue neutrality provision.

Citizens’ Initiative Review

Improve the availability of accurate and reliable information for voters by adopting a Citizens’ Initiative Review process. The CIR would be comprised of a cross-section of Washington residents who could evaluate a statewide ballot measure by listening to advocates on both sides of a measure, as well as policy experts. The CIR would then issue a statement of findings to be submitted in the voters’ pamphlet.

This proposal focuses on input from Washington residents to address concerns that the information about initiatives and referendums can be more political than informational.

Online and Electronic Signatures

Currently the cost of gathering signatures is cost prohibitive, and is subject to voter manipulation and potential fraud. One solution is to allow for electronic or online signatures, which could include mechanisms for signature verification and withdrawal, if appropriate.

I encourage you to contact me or members of the RIP Subcommittee and/or the Public Policy Committee if you have ideas, comments or questions about what proposals KCBA should adopt, study or reject.

And ask yourself a question posed by William Simon U’Ren, in comparing his career as a blacksmith, where he made tools to alleviate pain points, to his career as a lawyer: “There were lawyers enough: many of our ablest ... are lawyers. Why didn’t some of them invent legislative implements to help the people govern themselves? Why had we no tool makers for democracy?”

1 Photograph credit Gary Halvorson, Oregon State Archives.

2 http://www.oregonlive.com/century/1900_index.html

3 Thank you to Beth Bloom, RIP chair, and RIP Subcommittee members: Eric Christensen, Johanna Coolbaugh, John Cary, Rory O’Sullivan, Joe Skocilich, Ed Sterner and Dawn Sydney for their hard work to provide a balanced and thoughtful examination of these issues.

4 See page 3, “Final Report of King County Bar Association Referendum & Initiatives Project to KCBA Public Policy Committee,” dated November 9, 2015, Beth Bloom, Eric Christensen and Johanna Coolbaugh, editors (citing Responsible Choices; Seattle, WA. (2014), available at http://www.responsiblechoiceswa.org/wpcontent/uploads/2014/09/Initiative-Contributions-and-Spending-for-Washington-State-2014-
General-Election.pdf
). A copy of the report is available at www.kcba.org/publicpolicy and will be excerpted in upcoming issues of the Bar Bulletin, beginning in March.

5 Brian Rosenthal, “Washington ballot issues draw money from near, afar,” The Seattle Times (November 3, 2013) available at http://www.seattletimes.com/seattle-news/washington-ballot-issues-draw-money-from-near-afar/.

6 See League of Women Voters v. State, Wash. Sup. Ct. Docket No. 89714-0 (issued Sept. 4, 2015).

 

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