Initiative proponent/Dark Lord of the Sith Tim Eyman appears in front of the Washington Secretary of State’s Office

This past January, for the second time in two years, a bill has been filed with the Washington State legislature to amend the State Constitution, removing the provisions allowing for citizen initiatives and referendums.  If passed by the state legislature, the measure would be sent to the voters for their approval at the next general election.  Citizen initiatives are the process by which citizens and nongovernmental organizations can directly propose legislation. If the proposed legislature receives a certain number of signatures (a number equal to 8% of the voters in the previous gubernatorial election), the proposal is then voted on by the people of the state, completely bypassing the legislature. Referenda require fewer signatures, but the proposed legislation must still be voted on by the legislature.

The bill, proposed by state Senator Ken Jacobsen, would remove the entirety of Article II, Section 1 of the Washington Constitution, as well as other sections that acknowledge the initiative and referendum process.   The initiative process is constantly being challenged by lawmakers, and this bill is just the latest debate in a long battle in a number of states, mostly in the West, where the use of initiatives is common.  Proponents of citizen initiatives argue that they are vitally important to ensuring the people have a say in their own government, while opponents argue that they interfere with the functioning of the legislature and government.

The initiative process has often been seen as the purest form of direct democracy, giving the most voice to individual citizens. Tim Eyman, intuitive guru and anti-tax crusader, had harsh words for Jacobsen and his initiative, as well the sponsors of other bills that would regulate the signature-gathering and initiative-filing process. Eyman calls the bill a “legislative jihad”, and claims that Ken Jacobson “is the most honest elected official on this issue. He’s openly pushing to take our rights away from us. The sponsors of the other anti-initiative bills…hide their opposition and seek to impose unneeded, costly requirements on citizens so as to effectively repeal the initiative process with a stealth “regulate to death” strategy.”

Yet, whether the initiative process truly represents the will of the people has been questioned.  Senator Jacobsen argued in support of his bill that “Initiative and referendum restricts the system during a crisis. The process used to involve individuals donating their time to collect signatures, where now it has become a professional venture.”  The initiative process has become increasing professionalized and dominated by money.  Signature-gathers are often paid, and the Washington law banning the practice was overturned by the courts as a violation of the First Amendment. Those most involved in the process could easily be considered professionals. Eyman, according to some accounts, was the highest paid politician in Washington in 2001. In the process of diverting this money from his campaign, he violated multiple state campaign finance rules and is banned for life from handling political committee financial accounts.  Eyman is notoriously eccentric, having once held a press conference about his anti-gay rights initiative in full Darth Vader costume (see above picture).  Ironically, Eyman himself has been the subject of several initiatives, including one to have him officially declared a “horse’s ass”.

As Jacobsen noted, many have argued that initiative measures, especially when related to taxes or the creation of government programs, can be overly restrictive and limit the ability of the government to function.  Many, including the chief justice of the California Supreme Court, have blamed the initiative process in that state for the state’s many budget problems in recent years. Rules that make it difficult for the legislature to change initiatives that create programs or cut taxes have wrecked havoc on the state’s budgeting ability, as has an initiative which created a rule that requires a 2/3 vote to raise taxes.  In Washington, the legislature must wait two years before modifying or overturning an initiative.  The Eyman-sponsored I-960, passed in 2007, made a similar 2/3 supermajority requirement for raising taxes and Eyman has already filed a 2/3 supermajority rule initiative in anticipation of the legislature overturning the last initiative.

Of course, there is always the concern underlying anti-initiative processes that they, to paraphrase James Madison in Federalist 10, help a majority faction limit the rights of minority factions. The most famous example of this is Proposition 8 in California, but there have been many other initiatives within the last twenty years that make broad or unconstitutional attacks on citizen’s rights like Colorado’s Amendment 2.

Though it is unlikely that Senator Jacobsen will succeed this time around, his actions have continued a debate over the legitimacy of the initiative process that is not going to be settled anytime soon.

Seth Doherty is a student at William & Mary School of Law.

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