April 2012 Bar Bulletin
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April 2012 Bar Bulletin

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The Greatest April Fool Joke of All

By Joe Bringman


Washington's Initiative and Referendum System

"I confess I enjoy democracy immensely. It is incomparably idiotic, and hence incomparably amusing.
—H.L. Mencken

Even though this issue does not follow an April Fool's theme, as in some years, it seemed an appropriate time to look at something humorous. I first considered reviewing some of Washington's more peculiar laws. That idea was thwarted when I found that most of the oddest Washington laws featured on the internet — like state laws that ban lollipops and make it illegal for a man to urinate more than twice on Sundays, a Seattle ordinance that prohibits concealed weapons more than six feet long and, my personal favorite, the Town of Wilbur's prohibition on riding ugly horses (an idea that Wilbur must have gotten from Mr. Ed, that ever-so-dapper palomino)1 — are absent from the Washington Code and applicable municipal codes. So either these "laws" no longer exist or never were more than myth and legend.

Fortunately, this column can be saved because few things are funnier than the initiative and referendum provisions of our state constitution, which allow "we, the people" to push our representative form of government to the side so that "we" can make and unmake laws directly. Even more fortunate, KCBA's new Public Policy Committee recently voted to study and assess potential reforms to the initiative and referendum system. Down the road, it may make recommendations to KCBA's Board of Trustees for possible adoption.

Populist, Grassroots Democracy?

The initiative and referendum system is a product of the progressive and populist movements of the late 19th and early 20th centuries.2 But would progressives and populists of that era have envisioned a day when these instruments of direct, grassroots democracy would become tools of corporate interests, wealthy individuals and professional filers? Just consider some of the initiatives that reached the ballot last year.

I-1183. Costco championed the initiative to privatize the state's liquor system, providing more than $22.5 million in cash and in-kind contributions. This was 99.03 percent of all contributions to the pro-initiative effort. By contrast, individual donors contributed $866.3

I-1163. Financial support for the initiative to expand training and background checks for long-term care workers was even more concentrated in a single source, although the dollar amounts were lower. The Service Employees International Union's cash and in-kind contributions of nearly $1.62 million accounted for 99.76 percent of I-1163's support.4

I-1125. The initiative related to tolling on the SR-520 bridge (and potential prohibition of rail transit from the I-90 bridge) in large part was financed by a limited liability company controlled by Bellevue developer Kemper Freeman. It contributed almost $1.1 million, about 76.5 percent of the initiative's total financial support.5

If it's not big corporations, big unions or others with big wallets who promote initiatives, as likely as not it's professional initiative filers. Tim Eyman springs to mind. He has sponsored 19 initiatives and one referendum since 1998 (although not all have reached the ballot).6 Anyone that desirous of making laws ought to run for public office.

Not everyone with a stake in Washington initiatives is even from this state, although they usually try to sound like they have local roots. The formal opposition to I-1183, for example, called itself "Protect Our Communities," but was dominated by out-of-state interests, most affiliated with beer and wine distributors or wholesalers. Of 121 cash contributions received by this group, 78 — totaling nearly $10.85 million, or 89.1 percent — came from outside Washington. Not exactly homegrown, grassroots democracy!

Is This Any Way to Run a Railroad?

Undoing decisions of elected officials without due study and analysis

Think of the effort that elected officials expend before they approve new laws or government projects, often over long periods of time and after much debate and compromise to meet the concerns of competing interests. Think of all the testimony and the studies and analyses that go into any piece of major legislation, including assessments of how enacting one law may impact existing laws. Then consider how easy it is to undo all this work through initiatives and referenda voted on by persons who have nowhere near the information that their elected representatives have available to them.

Consider, for example, how many years, and how much discussion, negotiation and compromise it took before the Legislature, the governor and other interested parties could satisfy local concerns and hammer out funding mechanisms to enable replacement of the SR-520 floating bridge. If I-1125 had passed and made it harder to sell bonds needed to pay for a new bridge, as the initiative's opponents claimed,7 everything likely would have had to go back to the drawing board.

Consider how many years, and how much discussion, negotiation and compromise it took before the Legislature, the governor and other interested parties could put into place an acceptable plan to bring light rail to the eastside. If I-1125 had become law, it would have precluded use of I-90 for rail traffic, perhaps ending the prospect of connecting Seattle and the eastside by rail — or at least postponing it for decades (and at much higher cost) until a rail link could be built either around or under Lake Washington.

Consider as well how many years, and how much discussion, negotiation and compromise it took before the Legislature, the governor, the Seattle City Council, Seattle's former mayor and other interested parties could obtain public approval and develop a financing plan for replacement of the Alaskan Way Viaduct with a deep-bore tunnel. Yet, if voters had rejected 2011's Referendum 1, much of that effort conceivably would have come to naught.

After all the time and energy that went into figuring out how to get a new SR-520 bridge built and light rail to the eastside, all it took was 8 percent of the voters in the previous gubernatorial election to put I-1125 on the ballot.8 Similarly, after all the time and energy that went into gaining approval for construction of the Seattle tunnel, all it took was 8 percent of the voters in the previous Seattle mayoral contest to place on the ballot a referendum whose defeat potentially would have delayed or even scuttled that project.9

Mandating action without direction

Then there are initiatives that sound good in a TV or radio sound bite, but that's largely because their commercials don't tell the whole story — like how an initiative may leave very foreseeable problems in its wake, but gives no direction to elected officials for how to resolve them. Various recent initiatives, for example, required tax reductions or limited the amount by which taxes can rise, but didn't identify the government services and programs that should be cut back or eliminated due to reduced revenue. Others directed the government to provide new services, but didn't say how to pay for them.

The only thing elected officials can do to comply with popular directives like these is to reduce spending on services and programs that they consider more essential than those approved by the voters.10 That's happening this year, where I-1163 dictated expanded training for long-term care workers but identified no funding mechanism. Already faced with a budget shortfall, and aware that this was the second time voters had approved this type of initiative, Governor Gregoire found herself proposing to fund this voter mandate by shortening the school year, releasing prisoners early and eliminating some social service programs.11

Referenda masquerading as initiatives

The referendum is the device specifically designed to overturn laws that elected officials enact. Perhaps in recognition that these officials are entitled to some deference when fulfilling their legislative function, referenda are subject to strict limitations of time and subject matter:

  • A referendum must be filed within 90 days after adjournment of the legislative session during which the law at issue was adopted.12
  • A referendum may not repeal a law that is "necessary for the immediate preservation of the public peace, health, or safety ...."13
  • A referendum may not repeal a law enacted in "support of state government and its existing public institutions."14 Under this exemption, appropriation and taxation measures are not subject to repeal by referendum.15

Yet, it's easy to evade these limitations — just use an initiative instead of a referendum because initiatives are not subject to them.16 I-1125, which would have impliedly repealed legislation that supported replacement of the SR-520 bridge and expansion of the regional light rail system, is a perfect example of an initiative that dodges the constitutional limitations on the referendum process.

Is Reform on the Way?

Happily, the shortcomings of the initiative and referendum system are beginning to receive attention — not only by our Public Policy Committee, but in Olympia as well. Both legislative chambers entertained modest proposals this year, in the form of proposed constitutional amendments, to deal with some of the budgetary turmoil inherent in the initiative system. Although different, both proposals would require proponents to identify a funding source (such as a tax increase) for initiatives that would increase government costs.17

These proposed constitutional amendments, when and if they gain traction — that didn't happen this year, as neither proposal made it out of committee18 — would be a good start, but only a start. By themselves, they would not return us to the progressive-era ideal of initiatives and referenda as instruments of grassroots populism, rather than tools for well-heeled interests to bring to the ballot (supported by ample advertising dollars) matters on which our elected representatives did not give them what they wanted.

One potential way to return to this ideal would be to require a greater showing of popular support for an initiative or referendum before it can get on the ballot. This is not an outlandish idea. In contrast to Washington's 8 percent signature requirement for initiatives, Wyoming has a 15 percent requirement and five other states (Alaska, Arizona, Maine, Nevada and Utah) a 10 percent requirement.19 Within Washington, some cities that employ an initiative system require signatures from 15 (Everett, Spokane), 20 (Bellingham, Bremerton, Richland, Yakima), even 25 (Aberdeen) percent of voters in the last pertinent election to qualify an initiative for the ballot.20

While raising the signature requirement may reduce somewhat the influence of corporations, unions, the super-wealthy and professional filers on ballot measures, even that would not fully remedy the problems of the current system. At the very least, the state constitution must be amended to impose on the initiative process the same restrictions that apply to the referendum process — specifically, exemptions for laws that affect the state's police power and the Legislature's power of the purse. Until that happens, we will never be able to claim that these supposed instruments of grassroots democracy are complementary rather than antagonistic to our system of representative democracy.

The Public Policy Committee may consider changes to the initiative and referendum process along the lines suggested here. It will doubtless consider other options and viewpoints as well. Although the Committee will not complete its study and analysis until well after my term concludes, I look forward to hearing its recommendations for fixing this joke of a system.

KCBA President Joe Bringman is of counsel to Perkins Coie LLP, where he practices in the Commercial Litigation Group. You can contact Bringman at jbringman@perkinscoie.com.

1 See, e.g., Stupid Laws (Washington), http://stupid-laws.net/Stupid-Laws-USA-States-and-Countries/Stupid-Laws-in-Washington.htm; Dumb Laws in Washington, http://www.dumblaws.com/laws/united-states/washington.

2 Editor's Note: See "Theodore Roosevelt and the Progressive Movement," KCBA Bar Bulletin, March 2012, at 4–5.

3 See Washington Public Disclosure Commission, http://www.pdc.wa.gov/MvcQuerySystem/CommitteeData/contributions?param=WUVTMTE4MzEwOQ====&year=2011&type=initiative.

4 See Washington Public Disclosure Commission, http://www.pdc.wa.gov/MvcQuerySystem/CommitteeData/contributions?param=UEVPUFFFIDEwOQ%3D%3D%3D%3D&year=2011&type=initiative.

5 See Washington Public Disclosure Commission, http://www.pdc.wa.gov/MvcQuerySystem/CommitteeData/contributions?param=Vk9URVdNIDIwNw====&year=2011&type=initiative.

6 See http://en.wikipedia.org/wiki/Tim_Eyman.

7 Statement Against I-1125, 2011 General Election Online Voters' Guide, Washington Secretary of State, http://wei.secstate.wa.gov/osos/en/PreviousElections/2011/general/Pages/OVG_20111108.aspx?electionid=42&sorttype=Measures#ososTop.

8 Wash. Const. art II,  1(a).

9 Seattle City Charter art. IV,  1(H). Had this been a statewide referendum, only 4 percent of voters in the previous gubernatorial election would have had to sign a petition to get it on the ballot. Wash. Const. art II,  1(b).

10 Raising taxes is not a realistic option in light of past initiatives that tie legislators' hands by requiring a two-thirds vote in each house of the Legislature to increase taxes. E.g., I-1053 (2010).

11 See Mike Baker, "Group of Lawmakers Pushes Overhaul of Initiative System," The Seattle Times, Dec. 16, 2011, at B3.

12 Wash. Const. art II,  1(d).

13 Id.  1(b).

14 Id.

15 See, e.g., State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 267, 148 P.2d 28 (1915) (appropriations); State ex rel. Reiter v. Hinkle, 161 Wash. 652, 657–58, 297 P. 1071 (1931) (tax measures). This exemption includes appropriations and taxes designed for new projects that fall within the scope of existing state activities. For example, because the state highway department is in the business of building roads and bridges, the exemption would preclude a referendum directed to funding the new SR-520 floating bridge. See State ex rel. Hoppe v. Meyers, 58 Wn.2d 320, 326-27, 363 P.2d 121 (1961).

16 See Wash. Const. art. II,.  1(a), (d); CLEAN v. State, 130 Wn.2d 782, 813 n.13, 928 P.2d 1054 (1996) (use of initiative where police power exemption precludes use of referendum); Yelle v. Kramer, 83 Wn.2d 464, 467, 520 P.2d 927 (1974) (use of initiative where "support of state government" exemption precludes use of referendum).

17 H.R.J. Res. 4224, 62d Leg., Reg. Sess. (2012); S.J. Res. 8218, 62d Leg., Reg. Sess. (2012).

18 Not surprisingly, a vocal critic of the proposed amendments was Tim Eyman, whose initiatives more frequently create the opposite problem: reducing tax revenues while leaving to the Legislature and the Executive Branch the thankless task of determining who must suffer when it becomes necessary to cut or eliminate programs and services. See Brad Shannon, "Initiative 'Cost' Bill Gets Hearing, Catches Flak," The Politics Blog (Jan. 23, 2012, 6:23 PM), http://www.theolympian.com/politicsblog/.

19 Signature Requirements for Initiative Proposals, National Conference of State Legislatures (Aug. 2008), http://www.ncsl.org/print/legismgt/2008_Sig_Reqs.pdf.

20 Municipal Research and Services Center, Initiative and Referendum Guide to Washington City and Charter Counties, App'x M (Jan. 2006), available at http://www.mrsc.org/publications/irg06.pdf.


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