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POLICYMAKING BY OTHER MEANS: KEY BATTLES EMERGE OUTSIDE OF THE LEGISLATIVE PROCESS
© Krantz News Service, September 7, 2015
Advocates for change in public policy are not letting legislative snags discourage them.
Instead, they are fighting policy battles on ground of their own choosing. And that often means in the courts, through initiatives, or at the local rather than state or federal level.
A case in point is the education battle in Washington state.
Late in the afternoon on the day before Labor Day weekend, the Washington State Supreme Court ruled that charter schools are unconstitutional. Washington voters had approved an initiative to create charter schools in 2012.
The ruling impacts nearly 1,000 charter school students, according to the Washington State Charter School Commission, which deplored the Court's "dreadful timing" at the beginning of the school year. The state's Charter School Act mandates that local school districts must include authorized charter schools "in levy planning, budgets, and funding distribution in the same manner as other public schools in the district."
Charter schools are necessary, the Act states in its Findings, because public education in the state is "failing" in many ways, and charter schools will "give parents more options." In addition, the Findings note, "Forty-one states have public charter schools with many ranked higher in student performance than Washington's schools."
The state's top court was unmoved by this language, stating that its "inquiry is not concerned with the merits or demerits of charter schools." Instead, the Court found that the Act erroneously treats charter schools as common schools in violation of the state constitution.
The Court's new pronouncement on education policy follows an earlier ruling ordering the legislature to appropriate more money to fund K-12 schools and raise teacher salaries.
In that order the Court assessed a penalty of "$100,000 per day until the legislature adopts a complete plan for complying with Article IX, section I by the 2018 school year."
Many lawmakers were shocked. Nineteen members of the state Senate's Majority Coalition Caucus signed a letter stating that the Court's 'myopic approach" had created a "constitutional crisis" in Washington state.
Initiatives, like the judicial process, have been another means to effect change outside of the legislative process. Now more than a century old in the U.S., the initiative is a modern version of direct democracy. Twenty-four states have a direct initiative process and eight others allow for indirect initiatives (where citizens may submit a proposed initiative to the legislature).
California lawmakers have sought to slow down the initiative bandwagon. On September 1 Gov. Jerry Brown signed into law a bill to raise the filing fee for initiatives from $200 to $2000. (The original bill would have raised the fee to $8,000, the estimated cost to the state of analyzing and preparing an initiative.)
Some Californians are unhappy. The Los Angeles Times editorialized that while the measure aims to "stifle frivolous ideas before they can be inflicted on the rest of us,...the only thing that will be stifled is the state's imperfect but still functioning system of direct democracy."
In Washington, voters have repeatedly passed initiatives mandating a two-thirds majority vote in the legislature for any tax increase, unless it is approved by the voters. In 2013 the state Supreme Court held that the supermajority requirement is unconstitutional.
A new initiative on the ballot this November would reduce the sales tax in Washington by one cent unless the legislature refers a constitutional amendment regarding the supermajority requirement to the voters for consideration in 2016. The state Supreme Court has allowed this initiative to proceed to the November ballot.
The initiative sets up a harsh rhetorical battle outside of the legislature on the parameters of a key aspect of state public policy -- taxation.
Initiative co-sponsor Tim Eyman charges that his opponents, "increasingly frustrated that the voters have consistently OK'd these tougher-to-raise-taxes policies at the ballot box," have "come up with a new strategy: end democracy."
But Northwest Progressive Institute founder Andrew Villeneuve, who opposes the initiative, calls it "an outrageous abuse of the people's initiative power." He points to a state fiscal analysis showing a potential $8 billion revenue loss "(i)f the Legislature does not refer a constitutional amendment to voters for consideration at the November 2016 general election."