Is Tim Eyman's I-960 unconstitutional?

Editor's note: Responses from the author to several reader comments are appended at the end of this article. Washington's initiative king, Tim Eyman, claims that his Initiative 960 -- the only initiative on the Washington ballot this fall -- would restore some accountability to state government. Opponents, who think I-960 would tie state government up in procedural knots, argue that the measure is unconstitutional. Both may be right. Opponents are trying to get I-960 declared unconstitutional before the November election. The state Supreme Court will hear the case September 6. Eyman says he's confident that the Supreme Court will let the people vote. He cites the 2005 Coppernoll decision in which the court refused to keep an initiative off the ballot, saying "[w]e do not substantively review the legislature's bills before enactment and will not do so with the people's right of direct legislation." Initiative 960 would require a long list of hurdles for raising taxes. First would be a requirement for a two-thirds vote by each house of the state Legislature to pass any tax increase in taxes. Next would be legislative votes on fees now imposed by administrative agencies. Then there's a vote of the people on any tax increase that exceeded the state expenditure limit. The state would have to prepare a ten-year cost estimate for any revenue increase and email the information to the media and interested citizens. If the Legislature used an emergency clause to shield a revenue bill from referendum, the people would get an advisory vote. The voters' pamphlet would devote two pages to each advisory issue, listing all the legislators who voted for the original bill. Eyman notes that requiring a two-thirds vote for taxes isn't new; his initiative would simply extend the scope of a two-thirds voting requirement established back in 1993 by Initiative 601 and reenacted twice by the Legislature itself. The Legislature has found ways around the requirement, he says, and passing I-960 would let "elected officials know that they're not going to be able to fly under the radar." Eyman explains that his initiative would force legislators to take responsibility for government actions, force them to obey the law, and "shine more of a spotlight on" what they actually do. Opponents of his "government by initiative" argue that if you don't like what government does, all you have to do is vote the rascals out. "How do you do that," he asks, "if you don't know who the good guys are and who the bad guys are?" I-960 would let people know. Not even Eyman can give a concise description of all that I-960 tries to do. "You asked for a short description of 960," he says apologetically, but "I just can't give it to you." He argues, though, that it's basically simple, and wouldn't create the burden on state government that critics fear. Some experts on state law and government disagree. They say that teasing out all the initiative's potential ramifications takes many readings and a lot of thought. Futurewise and SEIU Healthcare Local 775NW, which represents home-care and nursing-home workers, are the groups trying to keep 960 off the ballot. They've lost in Superior Court and appealed directly to the Supreme Court. They argue that I-960 would use the initiative process to amend the state Constitution, which the Constitution itself clearly forbids. They reason that the public votes required for some tax measures and the advisory votes required for tax laws with emergency clauses are all really referenda, that 960 would short-circuit the Constitution's referendum process, and that therefore, it would be an amendment. They also reason that the Constitution requires a simple majority vote to pass legislation, so that requiring a two-thirds vote also constitutes an amendment. The last point raises an obvious question: If the two-thirds vote required by I-960 would be unconstitutional, then the two-thirds vote required by I-601 was unconstitutional, too. Futurewise and Local 775 suggest that issue is now moot, since the Legislature itself has reaffirmed the requirement. Other people think it's not moot at all, and that the current statute is also unconstitutional. Even if the state Supreme Court allows I-960 to go to the voters this fall, should the initiative win at the polls, it will clearly face more constitutional challenges. This would hardly be the first time an Eyman initiative had been found unconstitutional. Eyman became a major public figure in 1999, when he sponsored Initiative 695 to cut everyone's automobile license tab fee to $30. Eyman's initiative passed overwhelmingly. Opponents sued. King County Superior Court Judge Robert Alsdorf ruled that the initiative -- which not only cut license tab fees but also required a vote of the people on every tax increase -- violated the long-established constitutional requirement that a single piece of legislation could address only a single subject. He ruled that it also unconstitutionally required referenda without going through the normal referendum procedure of gathering signatures. Eyman lost in court, but he and his supporters had the last laugh. Fearing the political forces Eyman had set loose, elected officials scurried to legislate the fee reduction that the people had unconstitutionally approved. A year after I-695 passed, Eyman's second tax-cut initiative, I-722, also won handily. Once again it was ruled unconstitutional because it dealt with more than one subject. The year after that, his I-747 limited property tax increases to one percent, and this one is still undergoing judicial scrutiny. I-776 subsequently did away with licensing fees collected in four counties, an excise tax to finance mass transportation projects collected in three, and fees on light trucks, all of which had driven annual license payments above $30. Two years ago, he tried a change of pace. His I-900 allowed Washington's state auditor to do performance audits of state and local government. Even mainstream media endorsed the initiative, and it passed handily. Eyman says that I-960 "is not a kamikaze initiative, like we've done in the past." He hopes people will view this year's effort as they viewed I 900, rather than just reacting in the usual way to its sponsor. You don't have to be a Tim Eyman fan to agree that the legislature's use of "emergency" clauses to shield its laws from referendum has gotten way out of hand. The constitution shields legislation from the referendum that is "necessary for the immediate preservation of the public peace, health or safety" or "support of the state government and its existing public institutions." Courts have decided that "support of the state government" means you can't have a referendum on tax laws. Courts have also decided that "necessary for the immediate preservation of the public peace, health or safety" means basically whatever the legislature wants it to mean. That has been the case ever since 1995, when an emergency clause notoriously helped the Seattle Mariners get public funding for Safeco Field. By mid-1995, the Mariners had enjoyed only two winning seasons -- ever. Not surprisingly, fans did not flock to Seattle's ugly concrete Kingdome to watch baseball played indoors on artificial turf by a losing team. That summer, with the baseball season in full swing, the people of King County were asked to pay for a new stadium. They voted, narrowly, against it. But just about the time the people were saying no, the Mariners took off. Starting 13 games behind the division-leading California Angels, they finished the season tied for first. They won a one-game playoff against the Angels, then faced the New York Yankees. Improbably, the Mariners won again. Much of the Seattle area had been captivated by the team's late-season heroics. And yet, Mariners president John Ellis said that unless the public committed itself to a new stadium the team would go up for sale. State and local political leaders scrambled to come up with Plan B. "No less magical than the way the Mariners are performing on the field is the epiphany that has seized Washington's elected officials since the [stadium ballot measure's] apparent light loss at the polls," the Seattle Times editorialized in late September. "Predictions that voters are in no mood for tax increases proved accurate. But voters are in the mood for winning baseball." Clearly, they were, but the paper reported in October that a majority of voters polled still "said they oppose using state money to build a new baseball stadium." Legislators didn't want to be responsible for "losing" the Mariners, though, and they didn't want their decision second-guessed by the people. They passed a stadium financing bill with an emergency clause that shielded it from referendum. Opponents sued. The state Supreme Court upheld the emergency clause. Basically the justices decided that if the Legislature said the prospect of losing the Mariners constituted an emergency, that was good enough for them. That opened the floodgates. Earlier this year, the Times observed editorially that "[l]egislators are once again putting 'emergency clauses' on bills in order to short-circuit the public's right of referendum. In this session, these include bills to allow unions to spend nonmembers' dues, a bill to require signature gatherers to disclose their home addresses, a bill to subsidize a Sonics stadium and a bill to subsidize a NASCAR track. ... Years ago, when citizens challenged emergency clauses, the Washington Supreme Court used to toss out the bogus ones. Since the Mariner case a decade ago ... our highest court has accepted every emergency presented to it, no matter how farfetched. Our highest court should overrule the Mariner decision and once again subject legislative emergencies to rational thought. Until it does, legislators should restrain themselves from this form of constitutional abuse." So Eyman's vision isn't that far out of the mainstream. One needn't endorse I-960 to view it as a genuine throwback to the kind of sentiment that created the initiative and referendum process in the first place. The Washington residents who advocated direct democracy in the early twentieth century did not trust legislators. The initiative and referendum institutionalized that popular mistrust -- not of government per se, but of the venal individuals who actually made the laws. Direct Democracy, published by the League of Women Voters of Washington Education Fund in 2002, explains:"Many Western voters believed that their legislators were only representing railroad, bank, and timber interests." By the end of the last century, people who styled themselves populists believed instead that their legislators had bought into the values and viewpoints of big government. Corrupt government was no longer the perceived foe; government itself had become the issue. Two hundred years earlier, the Founders designed a system of representative government that would insulate political decision-making from the mob. The authors of the Federalist papers worried that the masses would make a mess of things if they got their hands directly on the machinery of government. Roughly a century later, populists and progressives designed the initiative and referendum process to give the mob a direct role in decision-making. Another century has almost passed since that process reached Washington state. We're still not sure where it will lead. Comments and clarifications related to reader replies, below: To Tim Eyman: The secretary of state's ballot description says: "This measure would require either a two-thirds vote in each house of the legislature or voter approval for all tax increases. New or increased fees would require prior legislative approval. An advisory vote would be required on any new or increased taxes enacted by the legislature without voter approval. The office of financial management would be required to publish cost information and information regarding legislators' voting records on bills imposing or increasing taxes or fees." Even if one assumes, as Eyman maintains, that 960 simply closes loopholes that have enabled legislators to evade the existing law, the effect would be to require a two-thirds vote for more legislation. Neither fund shifting nor the Colorado experience is even mentioned in the article. To Sandeep Kaushik: That's absolutely right, of course. I-747 hasn't yet been definitively tossed out but hasn't yet survived judicial scrutiny. I don't know how I wound up saying the opposite. The superior court decided five years after the fact that the voters hadn't known what they were voting for. (Even some writers who considered 747 a lousy law considered that a lousy decision.) We'll see what the Supreme Court says. To David Sucher: I agree. I didn't mean to imply that direct democracy inevitably produces conservative law. In addition to Sucher's list, it has produced public disclosure, public utility districts, and even a state income tax, passed by the people but thrown out by the state supreme court.