Friday, February 8, 2008

The First Power of the People is the Initiative

Apparently, our Constitutional Right to Initiative and Referendum interferes with the Legislature's perceived sense of balance regarding competing interests. In other words, state legislators feel that they need to enact legislation to protect themselves from the very citizens that elected them to office.

Never mind that the First Amendment and the Washington State Constitution guarantee citizens the right to petition government through the Initiative and Referendum process. Supporters of HB 2601 claim that this measure is necessary to protect citizens from fraud and bad actors, but a public disclosure request revealed that the Secretary of State did not find any evidence of fraud between 1999 and 2006.

It's frightening to watch HB 2601 move through the House like greased lightning - apparently, the Legislature can't wait to put pesky citizen initiatives and referendums on a shelf for future generations to study as a example of the people's misguided attempts at direct democracy.

In the 1990's Washington State had a law on the books that prevented the use of paid signature gatherers. The Court opined that because no instances of fraud had ever occurred in Washington State, the measure was invalid. Hence, Initiative proponents could hire paid signature gatherers to collect signatures for initiatives and referendum.

HB 2601 requires any individual "paid" (the notion of paid reimbursement appears to potentially include "dinner out" with a initiative proponent) to gather signatures to provide his or her full name and assumed name, if any, residential street address; a signature; a list of the state or local initiative, referendum, or recall petitions on which the registrant will gather signatures; and a signed statement attesting that in the past five years, the registrant has not been convicted of an election related offense, has not been found in violation of election law (This includes Tim Eyman and other individuals who have allegedly violated PDC laws or other alleged election offense) and he or she is not a convicted sex offender.

Isn't it disingenuous for legislators to pass a law that prevents violators of PDC and other election laws from gathering petition signatures when a quick perusal of PDC enforcement actions tell us many legislators have also been found in violation of PDC laws? Why would the legislature hold petition signature gatherers to a higher standard than they hold for themselves?

The Washington State Constitution states that the first power of the people is the Initiative...

Washington State Constitution, Article I

SECTION 1 LEGISLATIVE POWERS, WHERE VESTED. The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature...

REFERENDUM: The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted...

SECTION 34 SAME. The legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay: Provided, That the authority hereby conferred upon the legislature shall not be construed to grant to the legislature any exclusive power of lawmaking nor in any way limit the initiative and referendum powers reserved by the people.

Opponents of HB 2601 tell us that Election laws should facilitate the constitutional rights of the citizens; however, this law does not promote the facilitation of the Initiative or referendum process. In fact, it disenfranchises innocent citizens who signed petitions circulated by unregistered signature gatherers.

Supporters of HB 2601 claim that the initiative signature gathering process provides opportunities for identity theft, fraud and even the potential exploitation of petition signers by sex offenders. But they do not provide any examples of alleged violations to support claims of exploitation. Supporters also claim that the notion of being paid to collect signatures somehow "corrupts' the signature gathering process and encourages forgery and other bad behavior. Again, public disclosure requests did not reveal any instances of fraud on petitions. The only documented instances of fraud are with voter ballots.

Never mind that legislators are "paid generously" to write and promote legislation - or that legislators routinely receive large sums of money from lobbyists that represent special interests with legislative agendas that are not always in the best interest of the people legislators represent.

In a July 3, 2004 Seattle P.I. article written by Neil Modie; Modie tells readers, "Todd Donovan, a Western Washington University political scientist and an expert on initiatives and referendums, said Eyman seems to have evolved from being "the poster child of ... the grassroots (to being) the poster child for the interests that all the critics have been saying is wrong with the (legislative) process." Isn't that the way the system is supposed to work? Individuals or groups who oppose a bill or law come together to draft a petition (initiative/referendum to modify or repeal the law?

Granted, I understand that many citizens and legislators are opposed to Tim Eyman's tax initiatives, but his grassroots popularity indicates that a large number of citizens are dissatisfied with the legislature's tax and spend policies - and those citizens are using the petition process to introduce, modify or repeal laws that they feel are out of step with the values of society.

In a Initiatives and Referendum Institute paper (see below) titled Expanding Direct Democracy in the US: How Far is Too Far? Donovan cites a 2000 poll that found 78% of the voters in Washington State thought that initiatives were a "good thing." Which raises the question - why is the legislature actively seeking to limit the people's ability to exercise their Constitutional right to introduce or reject bills or laws on the ballot?

Some supporters claim that too many initiatives are "unconstitutional" and can not be legally implemented into statute. Which raises a second question, how many "unconstitutional" laws have been enacted by the Legislature? (A persual of Washington State Supreme Court decisions will help answer this question). Not even the legislature is perfect - but the citizens are not at liberty to ignore laws enacted by the legislature - even if they are unconstitutional. But the legislature has refused more than once to implement laws ratified by the people through the initiative and referendum process.

If the Legislature is sincere about helping to return a fundamental power to the citizens, they should consider deregulation, not over regulation of the initiative process.

Sam Reed, Secretary of State, has a signature verification process that allows the state to verify voter signatures on ballots and petitions. If the legislature has constitutional concerns about a petition, they can challenge the petition in Court.

Finally, the right of Referendum is guaranteed on any bill passed by the legislature except those bills that contain an emergency clause. The purpose of an emergency clause is to allow state government to respond in TRUE public emergencies, like a large scale natural disaster. Nevertheless, over the years the legislature has routinely attached emergency clauses to bills in order to prevent citizens from filing a referendum to repeal legislation. In 2007, Governor Gregoire vetoed the emergency clause off of ten bills before signing them.

Personally, I think its sad that legislators are so far out of step with the people they represent that they feel compelled to pass laws to protect themselves from the very citizens who put them in office.

Full text of HB 2601, bill report and fiscal analysis can be found at:

Additional Information on this topic:

Expanding Direct Democracy in the U.S.: How Far is too Far? Todd Donovan

LWV Direct Democracy Study:

Seattle P.I. article by Niel Modie on Tim Eyman's evolution:

Initiative and Referendum Institute Report on paid signature gatherers:

Initiative and Referendum Institute:

National Conference of State Legislators Powerpoint presentations on the Intitiative process:

Washington Policy Center article by Jason Mercier on restoring our right to referendum:

Washington Policy Center article on ending abuse of the legislative emergency clause:

Evergreen Freedom Foundation home page for Initiatives and Referendum:

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