Our View: Abusing the clause
Citizens’ ability to write or reverse state law is renowned in Washington and other Western states whose constitutions were adopted under the populist influence of the late 19th century. The initiative and referendum have been used by the left as well as the right to remind elected legislators who ultimately is the boss.
The Washington Legislature hasn’t taken the reminder lying down, though. Its members routinely protect measures they approve from the referendum process by including an emergency clause.
This pattern should trouble citizens, regardless of personal ideology. It neutralizes a constitutional protection that exists to keep elected representatives accountable to voters, even after the election.
Over the past decade, according to the Washington Policy Center, approximately one of every six laws passed by the Legislature has contained an emergency clause. Without such a provision, a bill does not become law until 90 days after it’s signed by the governor, giving citizens with strong objections time to gather signatures on a referendum and force the measure to a public vote. That doesn’t happen often, but it’s an important safeguard and shouldn’t be trifled with.
With an emergency clause, the measure becomes law immediately, eliminating any opportunity for a referendum. That makes sense in a true emergency, when the need for governmental action is urgent.
In recent years, the Legislature has become notorious for attaching the clause to bills with the feeblest of claims to emergency status. House Bill 1813, for example. It passed earlier this year and changes the name of a state agency.
Since 1997, the percentage of bills passed with an emergency clause has ranged from 10 percent in 2006 to 24 percent in 2001. The 11-year average was 17 percent. The state doesn’t face that many genuine emergencies.
The state Supreme Court has refused to second-guess lawmakers, saying in a 6-3 opinion handed down two years ago that it would be a “major assault on the historic balance of powers.”
It’s hard to argue with that line of thinking. Especially for conservative interests that argue against judicial activism as energetically as they do against abuse of the emergency clause. But that’s not to say there’s no recourse for those who want to restore the utility of the referendum.
As the Legislature prepares to convene in January, the Washington Policy Center is planning to push a constitutional amendment that would require a 60 percent vote in the Legislature on any bill with an emergency clause. That wouldn’t be an arduous test if conditions truly match the language of the emergency clause: “necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.”
Backers of the plan have an uphill fight, since they need the cooperation of the same Legislature that’s created the problem. If they prevail, though, the question would then go, fittingly, to the voters for the final say, making it a referendum, if you will, on popular rule.