Sue Lani Madsen: Emergency powers need transparency, humility

Leaders who lead with humility and transparency are never more valuable than during an emergency, when hard decisions must be made quickly and maintaining trust is critical. Both were conspicuously missing from the recently ended 975-day state of emergency, where it wasn’t about leaders (plural) but a one-man show that dragged out way too long. It’s why emergency powers reform is essential in this legislative session.

Senate Bill 5063 is lead sponsored by Sen. Lynda Wilson, R-Vancouver, and Sen. Mark Mullet, D-Issaquah, as a bipartisan bill to require legislative consent to continue a state of emergency after the first 30 days. The bill has 10 co-sponsors including Sen. Shelly Short, R-Addy, and Sen. Jeff Holy, R-Cheney.

It’s not revolutionary. It does not change the breadth of the governor’s authority or duty to act in an emergency, although there are voices in the conservative movement who believe the current grant of authority goes too far. We can’t foresee every future event. In a dire emergency when time is of the essence, broad authority by a single person may be necessary to deal with novel situations.

But novelty wears off and one day it is no longer an emergency. Urgent, perhaps, but not a hair-on-fire-call-911 emergency. The problem is the only person who can end the state of emergency is the same one who called it – the governor. It’s an invitation to petty tyranny in a constitutional system that in every other governance situation provides for legislative checks on executive power.

Eighteen months into his declared state of emergency, Gov. Jay Inslee said this on the Sept. 29, 2021, TVW program “The Impact”: “There is only one person in the state of Washington who has the capability to save those lives right now, and it happens to be the governor of the state of Washington.”

A governor who speaks of himself in the third person with godlike powers is not someone acting with humility.

Lacking humility, transparency is even more vital to building public trust. Who is the governor listening to? Given that everyone was on a COVID learning curve, what were the trade-offs being made? Regularly consulting with legislative leadership would have made a difference in building public trust. It didn’t happen.

Legislative involvement is a way to insert real-time oversight into the executive decision-making process. SB 5063 at least provides a means for the legislative leadership to declare an end to a state of emergency after 90 days, unless the governor provides convincing justification. But it doesn’t go far enough to require legislative involvement during the emergency.

Lacking anyone in the room when decisions are made on their behalf, the public is left to pick over the internal documents now dribbling out through the media to see what happened. Emails are shedding light on how information was weighed, discarded or used to rationalize preferred courses of action. Those inclined to rant to the defense of Democrats of course characterize the document autopsy as a search for conspiracy. Apparently, they would prefer nobody looks, nobody questions.

That’s not happening. Decisions made out of sight create curiosity.

One of those questionable decisions from the governor was the August 2021 mandate for state employees to receive the original COVID vaccine, despite an increasing pattern of breakthrough cases (putting public benefits at doubt) as well as a growing understanding of individual risks and the impacts on state agency staffing.

Transparency via public records disclosure requests is not only delayed but frustratingly slow. The first batch I received was of more recent documents, like this email from July 1, on the effect the emergency mandate was having on state operations. In it, Lisa Benevidez, human resources director for the Gambling Commission, pleaded with the governor’s office, saying, “I feel it is important for you to see the impacts to small agencies.” She describes how the vacancy rate for her agency is at 26%, driven in part by the vaccine requirement under the emergency. “We currently have recruitment difficulties when trying to fill our law enforcement positions. The vaccine mandate has made it even more difficult than ‘normal’ … we cannot continue to lose employees.” She feared staff burnout would lead to more staffing losses.

This is a trade-off decision that would have benefited from legislative input. In a constitutional republic with a tradition of checks and balances, a wise governor would bring the Legislature into the circle to consult on courses of action requiring trade-offs. Not only would the governor benefit from diversity of input, it would help build trust with the people to know their elected representatives were monitoring the process on their behalf in real time.

Since there’s no guarantee of the wisdom of future governors, we need emergency powers reform to restore the balance between the executive and the legislative branches. SB 5063 does not require a future governor to consult with legislative leaders on anything other than whether the state of emergency still exists, but that would at least be something worth adopting.

Contact Sue Lani Madsen @rulingpen@gmail.com