The scene opens on Rosella Mosby, a woman in a drab olive jacket and jeans, her long, auburn hair pulled back in a pony tail. Behind her an expanse of leafy greens fills the middle distance and a barn, slightly out of focus, looms in the background.
“Join farm families across Washington in voting no on 1631,” Mosby says, closing out the ad. A cutaway box appears over her shoulder on stage right, listing the farming organizations that have taken a stand against the initiative that would place a fee on carbon emissions.
The TV spots ran fast and thick in the runup to the Nov. 6 election, backed with more than $20 million donated in large part by oil and gas interests that have a lot to lose should the $15-per-metric-ton of carbon fee go into effect. If you missed Mosby, you likely caught images of an older woman on a fixed income fretting about the possibility of grocery taxes that have never been proposed, paid for by the soda and beverage industry attempting to stave off a Seattle-esque sugary beverage tax.
Polls were still open when this paper went to bed and the final disposition of these two measures was unknown. But the fact that they were on the ballot at all means that proponents believed that either lawmakers in Olympia couldn’t muster the political will to pass needed reform or that the bill wasn’t a good one to begin with.
It is both the promise and threat of the initiative system: an implement of democracy meant to excise politicians in the grip of special interests from the legislative process in order to effect change, but which in modern times has been wielded by the very powers it was designed to thwart.
An implement of democracy meant to excise politicians in the grip of special interests from the legislative process in order to effect change, but which in modern times has been wielded by the very powers it was designed to thwart.
Many citizen-led initiatives never gather the requisite number of signatures to appear on the ballot. Others are so poorly written that, even if they passed, the courts would likely invalidate them as unconstitutional.
Despite its flaws, the initiative and its cousin the referendum have taken hold in 24 states, according to the Initiative & Referendum Institute of the University of Southern California. So, where did this system come from, why has it taken hold and is this really the best we can do?
The initiative and referendum were tools born out of necessity. As the 19th century came to a close and the 20th dawned, the Pacific Northwest was dominated by railroad and booze interests that held a grip on politicians and political power. Farmers, workers and other progressives felt stymied, at least until William Simon U’Ren picked up a book entitled “Direct Legislation by the Citizenship through the Initiative and Referendum.”
U’Ren became the father of the “Oregon System,” which inspired a similar bout of populism in its neighbor to the north, wrote Claudius O. Johnson in a 1944 paper, “The Adoption of the Initiative and Referendum in Washington.”
“During the progressive decades preceding the first World War, their proponents urged their adoption and use with all of the fervor and zeal that usually characterizes reformers who rejoice in the stout belief that they have found a solution for a problem,” Johnson wrote.
The initiative was the “spur in the flanks” of the Legislature, forcing it into action, Johnson wrote, while the referendum, the ability for the people to repeal laws when Olympia oversteps, was the “bit in the mouth.”
Opponents called it a return to barbarism but, in 1912, the Grange — a farming group — and workers banded together to pressure lawmakers into pushing it through. It wasn’t, Johnson noted, an end in itself — the legislation was part of a general package of reforms.
Ironically, the tools that aimed to put power back in the hands of the common person (Washington embraced women’s suffrage in 1910) were themselves not in popular demand.
“Less than half of the electors troubled themselves to vote on the question when it was presented to them,” Johnson wrote.
Now, more than a century later, initiatives make a regular appearance on the ballot in even and odd election years, introducing the state to the legalization of recreational marijuana and revenue-busting property tax caps. It is an electoral cottage industry, spawning television ads, mailers, online advertising and an army of paid signature gatherers.
The number of signatures that an initiative needs changes every four years and is based on the number of votes cast in the most recent gubernatorial election. Between 2017 and 2020, that tally had to hit 259,622.
This is where that messaging campaign comes in handy — people don’t need to know much to put their name to an initiative as long as the sales pitch is somewhat convincing. That turns the process of getting an initiative onto the ballot into a numbers game, said Mark Smith, a political science professor at the University of Washington.
Ask enough people and you’ll get the signatures.
“It’s now the case that you can ‘buy’ your way onto the ballot,” Smith said. “A lot of people will sign the initiative petition if it sounds even half way plausible.”
“It’s now the case that you can ‘buy’ your way onto the ballot.”
Groups started pushing that direction in the 1970s and 1980s, Smith said, but a series of court decisions in recent years have opened the floodgates to corporate spending in elections as courts recognized political spending as political speech, making it easier to put boots on the ground to get the signatures and ads in front of voters’ eyeballs.
This year, committees raised more than $77 million for initiatives, according to the Public Disclosure Commission, the highest amount of any year in the past decade.
Spending doesn’t equal success, Smith said.
“You can’t buy a yes vote,” Smith said. “Scholars who have studied this, one of the things they have shown for a whole bunch of initiatives is that big monied interests are good at playing defense rather than offense.
“They are good at shooting down other people’s initiatives. Not as good at passing their own,” Smith said.
One possible exception: 1634, the prohibition on soda taxes masquerading as a populist crusade to protect unsuspecting taxpayers from the snatching claws of avaricious government.
“That one is kind of tricky because on the surface it looks like a consumer-directed initiative, but it’s really soda companies trying to avoid a sugar tax,” Smith said. “You can hide the true interests at play.”
Case in point, the employee hours tax passed by the Seattle City Council in May 2018 and repealed a month later. Amazon and other large employers were staunchly against the tax that would fall primarily on their shoulders — as designed, only the top 3 percent of businesses would have paid it.
However, the campaign to repeal the tax through the referendum process relied on campaigners’ ability to convince people that the cost would somehow fall on small businesses and that even some large businesses with low profit margins such as grocery stores would be unduly burdened.
While proponents of the tax believed the idea that the head tax would hurt Uwajimaya, a local grocery chain, was a bit far-fetched, it turned into potent messaging — this wasn’t just a tax on Amazon, it could be an implicit tax on groceries too.
“There are a lot of little rules that need to be followed and if not, people signing them might not know what they’re signing,” said Paul Sullivan, a legal consultant with the Municipal Research Services Center, a nonprofit that provides legal and policy guidance to local governments.
Initiatives can be rife with unintended consequences due to their drafting or our inability to predict long-term effects.
Initiatives can be rife with unintended consequences due to their drafting or our inability to predict long-term effects.
Initiatives aren’t always drafted by people with formal knowledge or training in how to write good legislation and unlike other states, namely California, there’s no review process to get initiatives into shape to clear even basic bars, like passing constitutional muster.
“As a lawyer, I don’t like them,” said Hugh Spitzer, a law professor at UW.
Real Change held a pro-con style panel discussion about initiatives 1631 and 1634 at the end of October. At one point, a fifth-generation farmer paid by the oil and gas lobby to oppose the carbon tax, told the audience to pick up a copy of the initiative.
It was a whopping 38-pages long, he argued, and no one could understand it. The display hearkened back to President Donald Trump slashing a ribbon in front of a leaning tower of paper, symbolically removing regulations.
Brevity is no friend to detailed, careful legislation, Spitzer said.
“If you want carefully crafted tax legislation, it has to be long, detailed and benefits from an excellent drafter,” Spitzer said.
If not, a couple of things can happen. The measure is far more likely to step on constitutional principles and be jettisoned that way or it can have knock-on effects down the road.
Take the 2001 measure capping property taxes at 1 percent growth, a measure pushed by infamous initiative proponent Tim Eyman.
A look at the history of initiatives shows a proclivity to either reducing taxation or imposing socially conservative — and often bigoted — values on the state. Eyman’s portfolio falls squarely into the first category and has succeeded in starving municipalities and the state of tax dollars that it desperately needs and can’t get in the absence of an income or capital gains tax.
The state Supreme Court overturned that measure in 2007, but in what feels like a rare moment of bipartisanship, the state Legislature popped it right back into place during a special session. The effect — as property prices boom, King County still has to scrimp to balance its budget and other areas have to hope they have the votes to lift the cap for necessary public services.
Eyman also took aim at car tabs, cutting the bill down to $30 with an initiative in 2000. Sullivan of MRSC remembers that well — the initiative almost legislated him and other MRSC employees out of a job.
MRSC used to get most of its funding from the motor vehicle excise tax. When the initiative passed, they had to scramble to find a way to keep the doors open. They were ultimately saved by another initiative, Sullivan said.
“We have lived and died by the sword and died and lived by it,” Sullivan said.
Despite its drawbacks, however, experts in the field are largely for the initiative system. If the lawyer in Spitzer doesn’t appreciate the messy drafting, the political observer in him is an initiative convert.
As demographics change and more liberal people concentrate in the nation’s cities and the rural areas become a deeper shade of red, the Legislature in Olympia has become less representative of the population as a whole, Spitzer argues.
The initiative system is one way to correct the rightward list of electoral politics.
“Bottom line, it’s a much more ‘small d’ democratic system,” Spitzer said.
Involving the public in legislative decisions also seems to cause a bump in civic engagement. Smith’s research shows that in states that see high use of the initiative and/or referendum option, more people are knowledgeable about politics in general and show up in non-presidential elections.
And while the courts have decided that states can’t get money out of their elections, there are still reforms that could help around the margins. Submitting initiatives to the professional code reviewers who help legislators in Olympia would be a good step, Spitzer said, while Smith advocated for a Citizen Initiative Review, a process that gives a statistically representative group of voters access to the best possible information and arguments for or against an initiative and includes their findings in the voter pamphlet.
The initiative system will never be perfect, Smith said, but it’s the best we’ve got.
“It’s a chance to hear the public voice on particular issues. When it was first designed, like a lot of things, it sounded great,” Smith said. “As you implement it, you see this has some warts. No matter what you do it has warts.
“The debate isn’t is the initiative process pure. What’s the alternative? That alternative is the Legislature,” Smith said. “You can’t compare one ideal system to another actual system, you have to compare one flawed system to another flawed system.”
Ashley Archibald is a Staff Reporter covering local government, policy and equity. Have a story idea? She can be can reached at ashleya (at) realchangenews (dot) org. Follow Ashley on Twitter @AshleyA_RC
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