“Liberty cannot be preserved without a general knowledge among the people, who have a right . . . and a desire to know.”
—John Adams, 1765
The week before last, we discussed the Legislature’s pointed failure to open for public testimony the six initiatives on this year’s ballot. Another week or so is dead and gone with only partial action. This week, we at CADF want to dig a little deeper and really set the stakes. Direct democracy has operated in one form or another since close to the dawn of Western Civilization on to the modern age. In 1978, a referendum on property taxes in California set off a national “taxpayer revolt” that forever changed American discourse on the subject. Rewind to 399 BC, when a direct democracy sentenced Socrates to death. In short, direct democracy’s track record has been far from universally positive. But in the American setting, it tends to work (for reasons that will quickly become clear). From the vast perspective of history, it is curious why Washington lawmakers have chosen 2024 as the year to buck this tradition.
Enter constitutions, which, if done right, place limits on governmental authority but also ensure that voting majorities operate without unduly burdening the physical, associative, or property rights of any one minority (be it cultural, economic, or ideological). In the constitutional context—with it anti-majoritarian protections—direct democracy is a process to celebrate and take full legal advantage of. While the Legislature Friday before last agreed to open some of this year’s ballot initiative to public hearings—mere hours after last week’s Courts & Committee’s post dropped (which my colleagues assure me is mere coincidence)—Olympia is yet to give all six their fair shake. Indeed, the Legislature—currently led by Democrats—still has not moved on half of the initiatives. And the end of the session is rapidly approaching. Specifically, the Legislature has overlooked the three initiatives that would threaten the Climate Commitment Act and provide much-needed reforms in favor of long-term care choice and parental rights to oversee their children’s educations (more on these below). Why these three? Well the risk, it appears, is far too great that Washington’s vox populi will vote in a manner that the legislative majority cannot abide. As Representative Andy Billig (D-Spokane) and House Speaker Laurie Jenkins (D-Tacoma) put it in a joint statement—perhaps saying the quiet part out loud:
The three initiatives we are not taking action on would have a dire effect on the day to day lives of every single Washingtonian . . . These initiatives would dramatically decrease quality of life and devastate progress on K-12 education, child care, clean air, clean water, climate action, and aging with dignity — matters that are important to people across the state.
The upshot of this rationale is unavoidable—some in Olympia believe that on certain matters, the public must be protected from its own judgment, two thousand years of experiments in direct democracy be damned. If these initiatives are as dangerous as Representatives Billig and Jenkins suggest, we are confident the people in their wisdom will reject them. Without venturing too far down the political-philosophical rabbit hole, however, it is worth considering the import of direct democracy within a constitutional order. It is this latter element—which tends to require popular or legislative supermajorities to overcome—that forms the parameters for civil discourse and the legal reforms that inevitably emerge from public conversations. Let us begin with Cain and Abel. Just kidding! But we are going some ways into the past (not nearly as far as Genesis, mind you).
After the Holocaust and the totalitarianism that helped precipitate it, the Austrian-Jewish sociologist Elias Canetti famously wrote in Masse und Macht (Crowds and Power, 1960), that in a parliamentary (that is, constitutional) versus violent “crowd”—the latter being one without preset rules or, as in Nazi Germany, susceptible to sudden change by fiat—“the member of an outvoted party accepts the majority decision, not because he has ceased to believe in his own case, but simply because he admits defeat.” In a parliamentary or constitutional system, “[i]t is easy for him to do so because nothing happens to him: he is not punished in any way for his previous opposition. He would react quite differently if his life [were] endangered.” So it is that even direct democracy must operate within constitutional parameters—which, if done right, permits all comers to render their honest opinions at the ballot box, without fear of the winning majority’s reprisal.
To any holdouts, we note that courts have time and again invalidated ballot measures that went beyond the constitutional pale. Unless you are facing something akin to an ancient Athenian crowd under the influence of a self-titled council of “tyrants,” then within a bona fide constitutional framework we assure our readers there is nothing to fear from a direct-democracy process (not a system) operating within such framework. Why, then, won’t our own lawmakers even glance at all six initiatives that—whether they like it or not—will appear on this autumn’s ballot?
Washington, for its part, has included direct democracy in its constitution since 1912. In view of dozens of court interventions and nary a single riot (to our knowledge), the process in the Evergreen has nearly always remained within Canetti’s nonviolent “parliamentary” boundaries. Even before 1912, the statutory initiative process made Washington the fifth state to approve women’s suffrage. After 1912, ours became the second state to greenlight assisted suicide (for better or worse), the first to fully legalize cannabis (again, for better or worse), and, in 2007, voters approved a measure that allows them to voice their opinion—through so-called “advisory votes”—on a host of statewide tax increases before they are passed. The purpose of Washington’s direct democracy is not to hijack the legislative process. To the contrary. Direct democracy—done right; that is, constitutionally—simply hands over decisionmaking on matters of special import to the wisdom of the voters, under a process that lets Washingtonians (first as petition signatories, then as voters) decide what is important enough to skip the legislative roster and go straight to the ballot. This is exactly counterintuitive to Billig and Jenkin’s argument that on at least some matters, the public cannot be trusted to govern their own lives.
While the rule requiring initiatives “take precedence” over all other legislative items is enshrined in our state constitution, the majority of the Legislature did not get the message this session. This November, Washingtonians will have the chance to vote on six initiatives—the most on a single ballot in the more than 110 years of Washington’s post-statehood history. All have cleared the high-bar requirement of securing enough signatures to match or beat 8% of the votes cast in the previous gubernatorial election—an especially challenging task in light of the Secretary of State’s tendency to nitpick John Hancocks (think Florida 2000 hanging chads . . . on steroids). The task this time was made harder still by more than a handful of signature-collector intimidation incidents, which included coordinated efforts. In the end, all six exceeded the legal threshold, with the lowest signature count at 424,896 and the highest at 469,011. With some obvious overlap, the six together accrued 2.6 million signatures—an unprecedented feat in Washington politics.
Despite the massive signature rollout, our public servants in Olympia see fit to ignore the initiatives—first entirely, and, since the week before last, in part. This is in contravention to the constitutional requirement that the Legislature prioritize such measures ahead of bills, constitutional amendments, and the host of other items on their plate in a given session—except appropriations bills. And before you ask, no: this has not been some bizarro session dominated by appropriations fights. Op-eds aplenty have implored the Legislature for weeks to take up this year’s initiatives, and a couple weeks back a large crowd gathered at the Capitol steps loudly but peacefully demanding the Legislature simply take a look.
First is I-2117, which would repeal the Climate Commitment Act, one of Governor Jay Inslee’s pet projects that has already cost Washingtonians dearly, with next to zero environmental wins to its name. Second is I-2109, which would roll back the recent capital gains tax that, as we speak, is driving wealthy taxpayers and their businesses east of Spokane or south of Vancouver. (Darn that pesky constitutional right to travel freely across state lines!) Then there is I-2111, a constitutional ban on the imposition of state or local income taxes (no more mere “advisory votes”). Washington and most of its locales since statehood have done fine without them. Next is I-2113, which commonsensically allows police once again to pursue suspected felons fleeing by car, a rule that Olympia recently replaced with a more exacting threshold—“probable cause”—than even the U.S. Constitution requires. Fifth is I-2081, which allows parents to review their own children’s full school records. I am not a parent, in the traditional sense; my wife and I have a “cat” that I am thoroughly convinced requires a full-on exorcism. But my guess is most parents of humans would want to know how their kids are doing—and sometimes kids, well, fib. Finally, there is I-2124, which would allow Washingtonians to opt out of the state’s CARES Act, giving individuals the choice of picking their own menu of long-term healthcare policies instead of having to rely upon the state’s prix fixe meal.
Again, without urging our readers to vote one way or the other, we believe the policies underlying these initiatives would all make Washington an even better place in which to live and raise a family (or demonic cat). All of them deserve their day in Olympia. While we cannot tell you how to vote come November, we can beseech our readers to call your state senators and representatives and urge them to open the Legislature to public discussion of each of this year’s six ballot initiatives—as Washington’s Constitution demands and the spirit of constitutional direct democracy implores.
Alki,
Sam Spiegelman