In both Snohomish and Whatcom Counties, referenda were used to try to overthrow the process laid down by the Growth Management Act and exacerbate the polarization of the political situation. This forces an ugly choice between challenging the referendum through the judicial process or proceeding with the referendum and making the ballot a tool of lawlessness.
The filing of referenda and initiatives that violate the state and federal constitutions, conflict with existing laws or circumvent public processes has been an insoluble problem for the political system. There is no legal or legislative mechanism to ensure that the proposed laws will pass judicial review. Local governments that are faced with these ballot issues have no safe course to turn to. If the proposed law is unconstitutional or in serious conflict with existing statutes, the elected representatives have a responsibility to avoid saddling the taxpayers with the legal and financial liabilities of lawless legislation.
When -- as occurred in Snohomish County -- elected officials challenge the referendum in court, the challenge is bound to be unpopular, since opponents of the elected government use the challenge to further polarize and inflame the situation. On the other hand, to proceed with the referendum -- as occured in Whatcom County -- places the officials in the position of acquiescing in a violation of the law. In both cases, criticism of the substance of the referendum is transmuted through the distorting lens of the Wise Use slogan, "They are taking our rights away from us!," into portraying responsible and concerned elected officials as tyrants and villains.
For any incumbent, such a situation can be disastrous no matter which path is chosen. For extremists who are determined to undermine the process of participatory democracy, it is a course without risk and certain to destabilize, disorganize and polarize the political situation, no matter what the outcome.
The two Washington Supreme Court rulings on the Snohomish and Whatcom referendums have cleared up part of the confusion: the county Home Rule charters grant the power of the initiative and the referendum, but these do not exempt the counties from compliance with state law.
As for the problem of lawless or unconstitutional initiatives at the state level, there appears to be no solution but resigning ourselves to a period of divisive squabbles over ill-thought out laws cooked up by stealth campaigns. At the state level, the power of the initiative and the referendum is reserved to the voters. In the past, great care was taken to craft initiatives and referenda that met the necessary legal requirements. Now that right-wing populists have made government itself their target and their enemy, the use of referenda and initiatives to obstruct or subvert the legislative process and simultaneously alienate citizens from their government poses a serious problem with no solution in sight.
The corruption of the electoral process by paying for signatures, forgery, and misrepresentation has placed severe stress on our political fabric. The first step must be to firmly deal with criminal tampering in elections, political finances and petition drives. Since the oversight by county prosecutors, the Attorney General and the Public Disclosure Commission appears to be failing, it will likely be necessary for public interest groups to bring both criminal and civil actions before the judiciary. If the present trend towards corruption of the political process continues, the public's faith in the honesty and fairness of elections will be seriously harmed.
The Washington State law (RCW 42.17) which created the Public Disclosure Commission was itself the product of an initiative and has been amended by initiative. The public disclosure law states quite forcefully
"that the public's right to know of the financing of political campaigns and lobbying and the financial affairs of elected officals and candidates far outweighs any right that these matters remain secret and private."
Public officials have been bemoaning the recent spate of corrupt legislation that has been thrust before the public through the initiative process. The answer is not to tamper with the process, but rather for the citizens to realize that they have a responsibilty to themselves and each other to see that the political process is not corrupted by fraud, forgery, or the power of concentrated wealth. Likewise, it is the people themselves who are responsible to address and correct the corruption, inattention, cowardice, and laziness of public officials.
The Progressive movement at the turn of the century created the powers of initiative, referendum and recall as a means for the people to directly redress the corruption and lawlessness that they themselves had allowed to grow to infamous proportions. There is nothing inherent in the powers of the initiative or the referendum that automatically lead people towards a greater good. These powers -- like all powers of government -- must be zealously and jealously guarded against becoming the means by which democracy itself is attacked.
The most basic truth of any democracy is that the people will have as good or as bad a government as they allow to exist. The responsibilty cannot be passed off to "the system" or "incumbents" for these are ultimately the product of the citizens themselves. If government is corrupt, careless and indifferent, it is nothing more than a reflection of the indifferent, careless slide into corruption that the people themselves have allowed.
After the rise of the Progressive movement, President Woodrow Wilson was able to say at his inaugural address in 1914:
"We have been refreshed by a new insight into our own life... We have come now to the sober second thought. The scales of heedlessness have fallen from our eyes. We have made up our minds to square every process of our national life again with the standards we so proudly set up at the beginning and have always carried at our hearts. Our work is a work of restoration."
This ultimate power of the citizens is embodied in the public disclosure law. The ability to restore democracy is always available, though it has been rarely applied. The drafters of the initiative that created the Washington Public Disclosure Commission recognized that over time, watchdogs -- particularly watchdogs who are dependent upon the legislature for their annual budget -- may grow lazy, timid or corrupt.
In the public disclosure law, the citizens' right to uphold the law is codified in RCW 42.17.400(4) as a citizen's action:
Any person who has notified the attorney general and the prosecuting attorney in the county in which the violation occurred in writing that there is reason to believe that some provision of this chapter is being or has been violated may himself bring in the name of the state any of the actions (hereinafter referred to as a citizen's action) authorized under this chapter. This citizen action may be brought only if the attorney general and the prosecuting attorney have failed to commence an action hereunder within forty-five days after such notice and such person has thereafter further notified the attorney general and prosecuting attorney that said person will commence a citizen's action within ten days upon their failure so to do, and the attorney general and the prosecuting attorney have in fact failed to bring such action within ten days of receipt of said second notice. If the person who brings the citizen's action prevails, the judgment awarded shall escheat to the state, but he shall be entitled to be reimbursed by the state of Washington for costs and attorney's fees he has incurred: PROVIDED, That in the case of a citizen's action which is dismissed and which the court also finds was brought without reasonable cause, the court may order the person commencing the action to pay all costs of trial and reasonable attorney's fees incurred by the defendant.
The Progressive spirit which gave birth to the initiative, the referendum and the recall was a spirit strongly motivated by intense self-criticism joined with a profound and conscious renunciation of self-interest as a principle of politics.
In The Age of Reform, Richard Hofstadter -- the pre-eminent political historian of this century -- pointed to the self-evaluation, acknowledgement of shame and a burning desire to set things right that motivated the turn-of-the-century Progressives. Hofstadter quoted, ad passim, from the introduction of The Shame of the Cities by Lincoln Steffans, the journalist who led the way in the realistic muckraking style of reporting which galvanized that age:
"The misgovernment of the American people," Steffans declared, "is misgovernment by the American people.... Isn't our corrupt government, after all, representative?... There is no essential difference between the pull that gets your wife into society or for your book a favorable review, and that which gets a [ward] heeler into office, a thief out of jail, and a rich man's son on the board of directors of a corporation.... The [political] boss is not a political, he is an American institution, the product of a freed people that have not the spirit to be free.... We are responsible, not our leaders, since we follow them.... The spirit of graft and of lawlessness is the American spirit.... The people are not innocent. That is the only 'news' in all the journalism of these articles.... My purpose was... to see if the shameful facts, spread out in all their shame, would not burn through our civic shamelessness and set fire to American pride."
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