Before addressing the policy specifics of the bill, it is important to remember it is very hard to get an initiative measure qualified for the ballot. In fact, last year no initiative proposals made the ballot. What exactly is our right as citizens for initiatives?
According to Article 1, Section 1 of the state constitution:
“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”
It is because of this clear authority of power of the people over their government that before any legislative powers are granted, the people reserve for themselves co-equal lawmaking authority. This power is explained in Article 2, Section 1:
“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. (a) Initiative: The first power reserved by the people is the initiative.”
This is why any proposed changes to the co-equal lawmaking power of the people needs serious scrutiny. According to the bill report for SB 5386, here are the changes proposed:
- Extends the time period in which initiative measures may be filed.
- Increases the filing fee for initiative measures to $500.
- Requires a 45-day review by the Code Reviser of proposed initiative language prior to submission to the Secretary of State.
- Requires a 28-day public notice and comment period on proposed initiative language prior to submission to the Secretary of State.
- Provides a process for challenging the constitutionality of proposed initiative measures before voter approval.
Let’s take a look at each of these provisions. First the bill would change the current filing deadline for measures proposed to the people from 10 months before an election to 18 months. It will also increase the time for measures proposed to the legislature from 10 months before a session to 15 months. This extra time would provide more opportunity for volunteer signature gathering.
Next the bill would increase the filing fee. While a case can be made for increasing the $5 filing fee, requiring $500 would run counter to the stated intent of the bill “to reduce the burdens for ordinary citizens seeking to file initiatives.”
Now we start to get into the more controversial parts of the bill. Currently the code reviser has seven days to work with a ballot measure sponsor before it is submitted to the Secretary of State. SB 5386 would change that to allow up to 45 days for the Attorney General to do a legal review of the proposal to see if it is “drafted in a manner that complies with the Washington state and United States Constitutions.”
The sponsor of the ballot measure would not bound by the legal findings of the Attorney General. This would add a different requirement on proposed laws drafted by the people versus the legislature, however, since bills are not required to receive a legal review before lawmakers can act on them. It is also worth noting the Attorney General’s office testified against this requirement last year saying it could create a conflict of interest for them since the office is required to defend laws passed by the legislature and the people.
Though the proposed 28-day period for public review should be significantly shortened, the concept does have merit. Bills proposed by lawmakers are subject to public hearings before they are acted on to help perfect the proposals and address unforeseen problems. Initiatives, however, do not get this type of review before being finalized. Having some type of public comment period would be akin to holding a public hearing to vet any problems. Like with legislative bills, the sponsor of an initiative would not be required to make any changes to the proposal but would have the opportunity to do so.
Perhaps the most controversial aspect of the bill is the provision allowing “any person may seek a declaratory judgment that a proposed initiative measure is unconstitutional on its face within thirty days after a measure is submitted to the secretary of state for assignment of a serial number.”
As noted by the bill report:
“Washington courts have declined to consider the constitutionality of ballot measure language prior to voter approval of the measure at the polls.”
Not only would this new authority for anyone to file pre-election lawsuits add delay, it would also expose bill sponsors to undue legal costs before the voters even act. It is important to note that bills proposed by lawmakers are not subject to pre-passage constitutional challenge – neither should ballot proposals sponsored directly by the people.
If a ballot measure is found to have flaws after adoption by the people, the legislature has two options: Cure the problem and implement the intent of the sovereigns or do nothing.
One way to potentially cut down on the number of initiatives filed in the first place would be to reform the legislature’s abuse of the emergency clause which infringes on the second power reserved by the people in the constitution, the right of referendum. Sometimes ballot measures are filed immediately after session because lawmakers have pre-empted the right of referendum on controversial bills with an emergency clause.
There are elements of SB 5386 that warrant further discussion but if the goal is truly “to reduce the burdens for ordinary citizens seeking to file initiatives” this proposal falls short. A $500 filing fee, time delays for constitutional analysis and authorizing pre-election legal challenges would create undue burdens on the people’s co-equal lawmaking power that the legislature would not be subject to.
Jason Mercier is the Director of the Center for Government Reform at Washington Policy Center and is based in the Tri-Cities. He serves on the boards of the Washington Coalition for Open Government and Candidate Verification, and was an advisor to the 2002 Washington State Tax Structure Committee. Jason is an ex-officio for the Tri-City Regional Chamber of Commerce.