Friday, March 31, 2006

Reining in the emergency clause

In Washington State, the Governor has what is known as a partial veto. The Governor can veto not only entire bills but also individual sections within bills, and individual appropriation items within sections. This is significant as regards the emergency clause because emergency clauses are always in their own sections. The Governor could veto an emergency clause without vetoing the rest of the bill, and has done so occasionally in the past.

The Governor’s partial veto is the key to checking the legislative use of the emergency clause. If the Governor chooses to make a stand on the issue, he or she could eliminate the use of the emergency clause for non-emergencies, or based on whatever standard he or she felt was appropriate or politically feasible. The following is my proposal for how an incumbent governor could reassert the constitutional right to referendum:

1. Campaign on it: The incumbent governor should include the emergency clause issue as a minor plank in his or her reelection platform. This will not lose the governor any votes, since there is not constituency or special interest that is in favor of the emergency clause. It will also gain the governor a small number of votes from direct democracy populists. The number of votes picked up will likely be insignificant, but if spun right, the platform will give the governor a more populist air. Therefore this strategy will be most beneficial for a governor who suffers from seeming like an Olympia insider or too cozy with the powers that be. The main benefit of including the platform in a campaign is that legislators have fair warning. If a sitting governor just began vetoing emergency clauses without signaling a policy shift, legislators would be angry, and justifiably so. They might even overturn the vetoes. Including the emergency clause stand as a campaign promise gives them warning and more importantly makes it clear that the governor isn’t going to back down. Doing so would be breaking a campaign promise; something that legislators can understand as out of the question.

2. Set standards: The Governor should not veto emergency clauses that seem to be constitutionally appropriate. If the bill needs to be enacted within 90 days (i.e. is an emergency) or is for the support of existing public institutions, the emergency clause is appropriate and the governor will lose credibility and political capital by vetoing it. The governor should make this clear in his or her platform.

The nightmare scenario here is that the governor vetoes a bill that is non-emergent, but has the capacity to avert a tragedy. If the governor vetoes a sex offender bill which isn’t emergent, and a child gets hurt within the 90 days the bill would have been in effect with the emergency clause, the governor would be in serious political trouble and might have to drop the whole program. Not only is vetoing those sorts of public safety bills dangerous, those bills are rarely going to be challenged by referendum. The governor should therefore make it clear that he or she will not veto emergency clauses on those types of public safety bills. This prevents the governor from appearing to cause a tragedy and fails to protect the referendum right solely in situations where it isn’t likely to be exercised. These two exceptions, actual emergencies and public safety bills, essentially focus the governor’s veto program on the real problem areas: non-controversial bills that the sponsor wants to speed up, and controversial bills that the sponsor wants to protect from referendum.

If the governor uses the issue in his or her reelection campaign, and applies the two exceptions outlined above, the legislature and public should be at least neutral and probably happy with the program. The governor will have single-handedly saved the referendum from demise, earning him or her the admiration and possibly the votes of independent populists. If the governor vetoes every inappropriate emergency clause consistently for four years, it is likely to become a tradition, and it may be a near-permanent fix. If the next governor does not continue the tradition, the cycle can be started again by the governor after. Once the idea is used successfully once, any governor who feels the emergency clause is being overused can step in to protect the people’s rights, with virtual impunity. In this way, the right to referendum can remain meaningful in Washington forever.


Orrin Johnson said...

What does the emergency clause do, except make it harder to repeal by referendum? And if that is it's only purpose, why would any governor lock themselves in (especially when her party so solidly controls both legislative houses)? And if the governor has any interest in checking the power of the legislature, they could/would veto such a clause anyway.

I think the better solution would be to abolish the emergency clause ability, which would have to be done by referrendum, since no politician would be willing to give up that power. Or better, leave it in place, but require a 2/3rd approval of both houses to pass one. If it's truly an emergency, that shouldn't be hard. Of course, if it's truly an emergency, I don't see a ton of people signing petitions against the measure, either.

Steve Gillespie said...

The emergency clause makes it impossible to refer a bill to the voters, notwithstanding a judicial invalidation of the clause. You can't abolish it by referendum or by legislation because it is a constitutional provision. If you want to get rid of it, you'll have to amend the initiative and referendum amendment, which isn't gonna be too easy.

As for a campaign strategy, I think that there wouldn't be more than a few thousand votes that would be influenced by a principled stand on emergency clauses. Granted, that would have been enough to swing the last gubernatorial election ten times over, but in the typical election we're talking about a pittance. There just aren't that many people in the state that really understand what emergency clauses (or even referenda) are. They only know that they voted against the stadium.

While we're on the topic of state politics, I have to say that I am baffled by Gregoire's low approval ratings. Every report from the legislators on both sides of the aisle in Olympia has been that she is doing a bang-up job. She builds coalitions and gets things done. This last session has been the most productive of any one I have ever seen, long or short. The biggest complaint the Republicans in the legislature have about her and the Dems so far is that they have passed a raft of "Republican" issues in addition to more traditional Democratic ones.

Is it that people are just cranky about the gubernatorial election? That fiasco was in no way her fault, and I thought that she carried herself with aplomb. Are people just not aware of what is really going on in Olympia? Is it that folks think that she's a cold fish? Why would that even matter?

Orrin Johnson said...

If you define "productive" by the quantity of laws passed, committees formed, studies commissioned, and taxes raised, then you are correct. There is a short term economic gain that I think has a lot more to do with Bush's "tax cuts for the rich" than with any local action. But I'm afraid it will not last, and I am willing to bet a fairly large amount of money that the huge gas tax increase (which was one of the abuses of the emergency clause) will (shockingly) NOT improve transportation problems. And I am similarly positive that Washington will not see sustained economic growth due to our poor small (and large) business climate.

Gov. Gregoire's staff and policies are not substantially different from Gov. Locke's, who by no stretch could be considered a successful governor. I think this explains the trepidation. It certainly explains mine.

The only variable that changed is the robust national economy, care of the tax cuts. That, and the fact that our major local industries send massive amounts of their corporate and support jobs to other states less willing to stifle job growth with excessive regulation, which has allowed them to survive, and even thrive.

I think Washingtonians are increasingly concerned by this. Because the gas tax became the symbol of the emergency clause abuse, it will become significant in future elections when (not if) there are none of the promised traffic infrastructure improvements.

I refuse to fall into the silly hippy trap of maintaining bitterness over a closely contested election (re-defeat Bush, anyone?), and any Republican that wastes any energy on "stollen election" rhetoric is a pure partisan more concerned with party victory than pushing policy. But I think saying she handled things with "aplomb" is giving her a little too much credit. The voting procedures here were at best incompetent and at worst corrupt. I'm still angry about all the military votes that were never counted because they were sent out too late, and the fact that stacks of uncounted ballots from Republican leaning counties kept "turning up." I don't blame the governor, nor do I think that means she's illigitimate, but one WOULD hope there would be more than lip service paid to procedural voting reform. Even Florida fixed themselves after the 2000 fiasco, as the state itself has a responsibility to do.

I was equally annoyed when the GOP whined similarly about Clinton's "stealing" of Republican agenda items. If a conservative agenda item is successful, who cares who passes it! Although it is interesting that in order to govern successfully and succeed politically, even in this very blue state, Democrats have to run right. It makes me optimistic...

Including an emergency clause is a slap in the face to the populace, because it says so clearly, "we don't trust you to do the right thing. Trust us, we're your betters. And if you don't trust us, tough tukas." Even if I agree with the policy outcomes, that level of arrogance from government is disturbing, especially from the party of the "little guy."

Cato said...


If I recall correctly, there were a couple of bills introduced this session to deal with the emergency clause issue, one of which did exactly what you suggested, requiring a 2/3 vote to pass one. Both died without receiving a committee hearing. The nice thing about my solution is that you only have to convince one person, and you don't have to amend the constitution. There's a reason why we have the emergency clause, and I think there are some situations in which it's appropriate, such as actual emergencies or budget bills for existing state institutions.

Orrin Johnson said...

Under what circumstances does it make sense? Even if the legislature originally had the better policy, the people are entitled to make dumb calls via the democratic process.

I would rather see a solution where we don't have to rely on the inviolability of a campaign promise. Didn't our current governor promise not to raise taxes?

Cato said...

California's budget is now so tied up by their initiative-imposed mandates that it is almost impossible to administer, from what I've heard. The emergency clause allows the legislature to put together a cogent budget without worrying that parts of it are going to be struck or changed. The budget is such a huge work of compromise, that changing parts of it around can be really problematic. That said, I'm not too attached to the emergency clause. If someone puts that constitutional amendment on the ballot, I'll vote for it. I just think my solution is more doable, not necessarily better policy-wise. I think my solution is a step in the right direction, and better than nothing.

The emergency clause can also be appropriate, to my mind, when vital legislation needs to be instituted within 90 days. Take for example a situation in which we expected Mt. Rainier to blow within a few weeks, and the legislature needed to pass a bill relating to the eruption. Since a non-emergency clause bill takes 90 days to take effect, the emergency clause is the only way to get the legislation through in time. If you accept that there is ever a situation where the legislature needs to act within 90 days, we need some sort of emergency clause, even if not in its current form.

Orrin Johnson said...

Well, I would argue that California's problems have much more to do with a one-party legislature with more special interests than one can shake a stick at, and that the referrendums are a convenient elitist scapegoat to blame instead of the incompetence and corruption of the state Democratic Party.

Can the emergency clause in the legislation specify that it is only an emergency for the purposes of speed, and not to block popular repeal? Again, it seems like a weak excuse. If Rainier is about to blow, are the state emergency management organizations going to wait 90 days before taking action? This isn't New Orleans, after all.

It's academic anyway. Short of popularly amending the Constitution, no governor with their party in the majority will give up the power, and no governor of the opposite party will fail to use their line-item veto liberally. I think the best solution is to ensure the state Democrats never achieve the dominance here that they have in California, bringing with them the same economic ruin.

Cato said...


In my scenario, the legislation is needed for the emergency management folks to do what needs doing legally. I agree, they'll do it. So there are two options: Either the legislature uses an emergency clause to allow them to take action legally, or they don't use the emergency clause, forcing them to take action illegally. Of those two evils I much prefer the first. Any governmental situation that encourages individuals to ignore the law is bad, and a well-bounded emergency clause by comparison is not particularly problematic.

How about an emergency clause that allows only for temporary legislation? If legislation is passed with an emergency clause, a referendum can be launched against it immediately, but the law is in effect until the referendum is passed at the next election. This would allow the legislature to act quickly in an emergency without sacrificing the right to referendum at all.

Orrin Johnson said...

Your knowledge of WA State Constitutional Law exceeds mine, so I'll grant that the legal option is better.

Your suggestion is more what I had in mind. I understand there are times when legislation must be immediately effective. But I don't like seeing it placed out of reach of the people to reconsider.

Steve Gillespie said...


Sorry about the late response--I haven't been paying attention to the blogs. School has a way of interrupting my leisure.

To clear a few things up: First, the gas tax was not an example of emergency clause abuse. It did not have an emergency clause attached--if it did, there could not have been a referendum. The gas tax was a prime example of Gregoire's ability to form a bipartisan coalition to break a longstanding logjam. Of course it won't improve the transportation problem if by improvement you mean a higher average speed for single-occupant vehicles in King County. But it will vastly improve the safety of those vehicles--think Viaduct in a major earthquake or the Evergreen Point floating bridge.

Second: I disagree that the federal tax cuts are driving Washington's economy. If you haven't noticed, our economy is somewhat independent of the national economy. We often do well while the rest of the nation struggles, but this last hit was pretty bad. There are plenty of reasons that our economy is booming quite apart from the tax cuts. The housing boom has been the product of Greenspan's low interest rates and an influx of immigrants from other states. Locke's massive Boeing package has guaranteed that the 787, the most successful new plane in Boeing history, will be built here. That's huge. There are plenty of others.

Third: The legislature this session made great strides on a number of fronts. It finally passed the gay civil rights bill (I would think that anyone with libertarian tendencies would applaud such a measure). Gregoire hammered out a coalition to pass some med mal reform, and even though the legislation isn't earth-shattering in itself, it is remarkable that she could do it so soon after the two sides spent an unprecedented amount of money attacking each others' ideas about that very issue. There are plenty of other examples.

Fourth: The fact that the voting procedures were "at best incompetent and at worst corrupt" says nothing about whether or not Gregoire carried herself with aplomb. She did a great job in a difficult situation that she did not cause.

It's funny that you call the bitterness after a close loss "hippy." It's true that hippies were mad when SCOTUS stole the election for W, but no more angry than WA republicans were when Ron Sims did the same for Gregoire. It's certainly not the exclusive province of hippies--it's the complaint of losers.

Anyway, as regards the whole emergency clause thing, it's not always that the legislature thinks that it is better than the voters. Sometimes its just that the legislature is in a much better position to decide a question than the voters are. Sometimes an important bill will not be effective if it has to wait around for a vote of the people. And sometimes the legislature really wants to keep the Mariners around.

I don't deny that there is abuse of the emergency clause power, but I would fear for the state if it weren't there. Anytime the legislature passed funding for the UW or the State Patrol that Tim Eyman thought excessive, he would refer it to the people. The government would be shut down. The referendum power is un-republican, and the emergency clause provides a check on the legislative power of the people.