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Bob Williams and Lynn Harsh


t is the most natural thing to sacrifice for people we love. It is something else entirely to sacrifice for our country. Yet patriotism requires it. Patriotic sacrifice is difficult because it can be abstract, and it is almost always future-oriented. It requires trading our own immediate gratification for benefits to people we may never see or meet—people who may not appreciate our sacrifice one whit. Most people won’t make this trade-off. It’s far easier to dive into elections—right up to our necks and beyond. Elections are “events,” and it’s a lot simpler to give time and money to an event than to commit to a lifetime of advancing deeply-held principles. We are not minimizing the importance of elections; voting is the indispensable tool given to us by our Founders to protect our rights and express our preferences as sovereigns of this country. We must preserve its integrity and use the tool wisely. Many, however, are feeling utter exhaustion and discouragement after this last election—sentiments that have been building for much of the past two decades. Bear with us for a moment and think about this sensitive question. Would our country have headed a significantly different direction if the majority of incumbents with an “R” after their names been re-elected? Would we be on our way toward reducing the size and scope of government? Would restoring individual liberty be on the minds of our elected officials? Would egregious regulatory barriers restricting the free market be dismantled? It’s highly unlikely. The truth as we see it is this: elections will continue to be frustrating events until we commit more time and treasure toward building a principlebased movement from which we select our leaders and from which they govern. A movement is about big ideas. Public policy and electoral politics mirror those ideas. If we assume the politics of today reflect the policies and ideas of the majority, what are we to do if we don’t like the outcome? Why would we expect different election outcomes in the future if the principles and ideas of the majority are still bent toward a planned economy and paternalistic government? We must change the hearts and minds of our countrymen, and, as our Founders aptly demonstrated, majorities are not required to begin successful, life-changing movements. The movement of which we write embraces the bedrock principles of personal and economic liberty, which will in turn serve as a catalyst for renewed civility.

As long as the majority of people who vote do not understand the fundamental governing and economic pillars on which this country rests, a happy election outcome may be little more than an accident. So, what are those pillars? Individual freedom, limited government and the free market: each given its existence and protection by the rule of law.

“The truth as we see it is this: elections will continue to be frustrating events until we commit more time and treasure toward building a principle-based movement from which we select our leaders and from which they govern.” This is unlike most governments this world has ever known. American government and the patriotism it generates are based on principle, reason and law. Here citizens are the sovereigns, and each person is supposed to be guaranteed the right to life, liberty and the pursuit of happiness (property rights). Continued on page 2





Perspective contined from page 1 . . . Consider the genesis of patriotism in other countries whose people are oppressed or where terrorism is bred. “Patriotism” in these arenas is familial, tribal or based on fidelity to a god that demands unthinking loyalty. Death by human hand awaits the “infidel” who dares to question or make a different choice. Not so in America. We have been born into privilege, and this privilege stems from the freedom hard-bought by those who lived before us. Innkeepers, farmers, lawyers, clergymen, shipbuilders, teachers and ordinary people from every walk of life demonstrated their patriotism with their lives and treasure. They were thinking way beyond their own time to freedom bestowed on generations yet unborn. We are called to do the same. Our proposition here at EFF is simple: Change the principles to which most people claim alle-

giance and a change in politics will follow. Changing those principles requires education, debate and persuasion. That’s our challenge here at the Evergreen Freedom Foundation, and we are focusing increasing amounts of talent and time on outreach to help build and broaden the movement toward freedom we so sorely need. In the new year, we will challenge our fellow citizens in unique ways to think about freedom deeply and differently. Many opportunities will exist during these next years for ordinary people to join forces and accomplish extraordinary things. Somebody’s principles will win the day. Why not those that reward hardworking men and women who practice self-governance, protect freedom for themselves and others, and who believe in the opportunity-generating power of the free market? It’s a big job, but together, we’re up to it!

“Quote” “Mistakes are a great educator when one is honest enough to admit them and willing to learn from them.” – author unknown


This Issue 3


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VOLUME 16, Issue 12 EFF’s mission is to advance individual liberty, free enterprise and limited, accountable government.

Publisher: Booker Stallworth Editors: Lynn Harsh Victor Joecks Layout: Joel Sorrell

Evergreen Freedom Foundation PO Box 552 Olympia, WA 98507 (360) 956-3482 Fax (360) 352-1874 •


EFF Chief Executive Officer Lynn Harsh and several other State Policy Network executives recently appeared in a series of New York Times articles on the growth of the conservative think tank movement.


LetterLETTER from Lynn FROM LY NN by Lynn Harsh

Why not free to choose?


he most intelligent comment I can make about what’s under the hood of my car is, “Golly! Everything’s dirty in there.” And the best thing I can say to my hairdresser is, “I’ll see you again real soon.” I can’t fix my car or cut my hair properly. But other people in my community are experts in such matters, so I hire them. I pay them using money I earned doing those things that are my specialties. How much I pay my hairdresser and mechanic depends mostly on the amount of money their other customers are willing to pay for their services. We invisibly negotiate with each other in jockeying for the time of the experts we have chosen. Imagine how ludicrous it would be for Speaker Pelosi or Governor Gregoire or President Bush to try to determine the value of the services my hairdresser and mechanic provide for me. (Actually, to some degree, they do.) Furthermore, think about how counterproductive it would be if those same people decided I might not be competent to select the right experts; therefore, they would do it for me. (They do this somewhat, too.) To pour salt in the wound, what if those elected officials passed laws to remove money from my paycheck to send to those “approved” hairdressers and mechanics, whether I used them or not. In addition to insulting me, such behavior would cost me more, for less. I would have to pay for the government-chosen experts whether I used them or not; whether they were satisfactory or not. This is a lousy way to run an economy, but it’s what happens when people besides the buyers and sellers of goods and services try to fix “fair” prices. In a free market economy, equilibrium pricing is negotiated between the people who want to buy things and the people who make or provide them. In a planned economy, government experts set or negotiate prices for many goods and services. Decades worth of failed planned economies litter the historical landscape, in direct contrast to decades worth of successful free market economies.

So why, when it comes to something really important like educating our children, do we let elected officials plan and operate the whole system? After all, a bad haircut might cause me to have an emotional recession for a few days, but my hairdresser cannot force me to pay her the same amount of money the next time or use her services again. I am in charge of quality control, and where I and others like me decide to spend our money has a direct affect on her decisions about her own qualifications and career path. Not so in education. Excellence is in the eye of the institution that designs, produces and delivers the product. Whether it meets customers/students needs can be irrelevant for decades at a time. Customers who do not like the quality can leave, but they still have to pay much of the full cost, while at the same time paying for another product that better meets their needs. Most children in our public school system receive a mediocre education because that’s what a highly controlled and bureaucratic system rewards. On average, more than $10,000 per student per year will be sent to public school institutions whether they do a good job or not. Necessary innovation and change threatens the already established turfs that surround and support these institutions. The main reason we have any extraordinary teachers in public education is that teaching children is a huge reward. It’s addictive to those who have been called to the field. That some grown-ups make enormous personal and professional sacrifices to become and remain excellent teachers is a near miracle in a system that rewards them so poorly. Many top performers just can’t stay; but for the mediocre, it’s a safe haven. Why do we allow this? It’s because we feel competent to pick experts who can cut our hair or fix our car, but we feel unqualified to choose experts to educate our children. Many years ago, education experts convinced us that they were more qualified than parents or employers to determine and

evaluate quality outcomes. Furthermore, we believed that poor children would lack education opportunity if the government didn’t provide it. We forgot that, while we might delegate the job of educating our children to someone else, we are still responsible for overseeing the outcomes and making changes where necessary. I do not need to understand the growth patterns of my hair to know if I got a good haircut. I do not need to know a carburetor from a radiator to know if my mechanic is competent. Non-education experts do not need to understand the science and art of education to know if the finished product is what they need and should expect. Besides, the government should not have the authority to tell us that we are not free to choose what we want to buy with our own money. We have traded large amounts of our time for a medium of exchange we can use to purchase goods and services we need. Education is a service we need. We should not believe that an enlightened expert cares more about us reaping the rewards of good decisions than we do. It is not possible for experts to have enough relevant information about our welfare or our family’s well-being to make better decisions than we can. And what happens if we make a mistake? We generally learn from it and change our behavior. What happens when government-run schools make mistakes? They generally bury their mistakes with more money. Few, if any, behavior changes result. Is the lost opportunity even calculable? We need to remedy this situation and soon. Eventual victory will belong to those who insist on education choice. It is the only intellectually and morally honest thing to do. So let’s get it done!

A Tribute to Dr. Milton Friedman by Lynn Harsh


e influenced entire generations and countries. He wrote about freedom in an era of seemingly entrenched socialism and despotism. He talked about freedom in simple, compelling terms. He persuaded his enemies to reconsider their notions about the role of the state. He cajoled his friends to powerfully defend liberty from its opponents. He had the good sense to marry Rose, another brilliant economist and a great life partner. And at 94, Nobel Laureate and premiere economist Dr. Milton Friedman passed away in his San Francisco home of heart failure. In 1955, Dr. Friedman proposed the idea that vouchers should be given to parents to purchase education services for their children. For the next 40 years, that idea was dismissed by most educators and elected officials as being

Milton & Rose D. Friedman Foundation One American Square, Suite 2420 Box 82078 Indianapolis, Indiana 46282

unnecessary, or even dangerous. He persisted, as did many of his colleagues. As the failure of the government-run education system became obvious, particularly for the poor, Friedman’s ideas were dusted off. For the past ten years, Dr. Friedman spent most of his efforts advancing school choice policies. He is rightly considered the father of the modern school choice movement. He and his wife Rose founded the Milton and Rose D. Friedman Foundation in 1996, specifically to promote school choice. A picture of Milton and Rose Friedman hangs in the foyer of our office. Their Foundation has generously supported our work financially, as well as through intellectual and strategic counsel. He has inspired us to practice our craft in ways that will influence others. The most important legacies Dr. Friedman and his wife Rose will leave are their son David and daughter Janet, four grandchildren and three great grandchildren. Rather than flowers, the family has asked for contributions to the Foundation. Perhaps you will join me in making a contribution in his honor to the Milton and Rose D. Friedman Foundation. I don’t know about you, but I already miss him terribly.


For unions, a Supreme test of fairness by Bob Williams

This article was originally published in the Christian Science Monitor on November 6, 2006.


t’s the homestretch of election season, and Americans take it for granted that the airwaves buzz with political ads, campaign consultants dash around districts, and union dollars flow generously into the pockets of liberal politicians. This year, however, unions don’t take it for granted. They have their eye on two Supreme Court cases that could affect how they spend mandatory dues. Unions wield enormous, though often unseen, political clout. In the 2004 presidential election cycle, organized labor raised a reported $199.5 million for their own political organizations. The AFL-CIO said it spent $44 million on voter mobilization; the Service Employees International Union (SEIU) spent $65 million. The National Education Association spent nearly $25 million on political activities and lobbying in 2005. This year is no different. An analysis of federal campaign-finance reports by USA Today shows that major unions have raised more money than they did for the last midterm elections in 2002. The SEIU’s primary political action committee (PAC) and three local PACs raised $15 million, a 62 percent increase from 2002. The American Federation of State, County and Municipal Employees’ PAC raised $9.1 million, a 39 percent increase from 2002. Additionally, the AFL-

CIO is spending $40 million for what its president, John Sweeney, calls the most important congressional elections in history. Unfortunately, a lot of union spending does not line up with the political preferences of members, even though union dues are mandatory as a condition of employment in many states. As a result, millions of union workers nationwide are involuntarily—and unfairly—funding political activity they don’t support. That’s why two cases now before the high court are so important. Both cases, brought against the Washington Education Association (WEA), a state affiliate of the National Education Association, would represent a huge step forward for teachers’ rights against unions. At the heart of Washington v. WEA and Davenport v. WEA is a simple question: Is a Washington state law that requires public employee unions to get permission before spending workers’ mandatory dues on political causes too much of an “administrative burden” on the union’s free speech rights? But there’s a twist, too: What if employees are not members of a union? They, too, can be required to pay union dues as a condition of employment. In such a situation, US Supreme Court case law lays out First Amendment protections to ensure that employees are not forced to support political activity against their will. Washington’s law established

the additional requirement that nonmembers must “affirmatively authorize” any use of their dues for union political activity. However, on March 16, the Washington State Supreme Court turned the Constitution on its head and ruled that the WEA can use nonmember teachers’ dues for political activity without getting permission from the individual teachers. Incredibly, the unions have argued they have no “fiduciary duty” to the teachers they represent. In other words, once the union bosses take dues from their teachers, they think that their hard-earned money can be used for whatever the union pleases. The U.S. Supreme Court should reinstate the “fiduciary duty” that unions have blatantly neglected. The justices are scheduled to hear oral arguments Jan. 10, and their decision is expected by June. If they uphold the Washington decision, unions will be free to spend workers’ dues without accountability. But if they overturn the decision and side with the teachers, educators—and other union workers—will have their free speech rights restored. Unions will then know, once and for all, that their ability to raise money does not trump the constitutional rights of individual citizens.

“Unfortunately, a lot of union spending does not line up with the political preferences of members, even though union dues are mandatory as a condition of employment in many states. As a result, millions of union workers nationwide are involuntarily—and unfairly—funding political activity they don’t support.”

Union election wrap up by Ryan Bedford


abor leaders claim their efforts to reach union voters and their households were decisive factors in the Democratic takeover last month. Considering that unions have unfettered access to the 17 million employees they represent across the nation, the claim could very well be true. Unions are an increasingly powerful force in national, state and local politics. Their secure source of funding from dues and forced fees allows them to pursue an aggressive political agenda without accountability. The sophistication of their operations rivals, and possibly exceeds, even those of formal political parties. Further, the breadth of their political operation is often veiled because union expenditures are not fully disclosed to members or the appropriate authorities. Rarely do workers voluntarily fund their union’s political efforts. In states where consent is required for political deductions, workers generally refuse to grant consent. This very issue is at stake in a consolidated case before the U.S. Supreme Court, Washington v. Washington Education Association and Davenport v. Washington Education Association and will be heard in January. In the 2006 mid-term elections, organized labor spent more than $100 million on behalf of favored issues and candidates. The AFL-CIO alone spent over $40 million on its efforts. In the last four days of the campaign, it dispatched more than 187,000 union employees and members to reach union and Democratic-leaning voters. Union canvassers succeeded in knocking on more than 3 million doors. A survey by the AFL-CIO indicated that 93 percent of members saw election information from their union, and 74 percent of union household voters voted the way the union wanted them to.

The National Education Association also engaged in a massive election effort. In addition to its local UniServ staff, the National Education Association deployed 67 staffers to 26 states, sent 188 different direct mail pieces which reached 3.6 million people, and, as of May, 2006, had spent nearly $600,000 on ballot measures in support of tax increases. Up until four years ago, union campaign spending was primarily in the form of cash and in-kind contributions to Democratic candidates through their Political Action Committees (PACs). In 2002, union PAC spending peaked at $96,639,777. Since the Campaign Finance Reform Act of 2002 (McCain-Feingold), however, PAC spending has been cut in half ($49,379,218) because unions have begun to emphasize giving to “non-partisan” 527 organizations such as ACORN, ACT,, etc., and increasing GOTV efforts among their own members. Unions have made these changes because they do not need to report this spending to the Federal Election Commission and thus can keep it a secret. The AFL-CIO and its activist front groups such as Working America and ACORN targeted 12 states in which Republicans were vulnerable. They played key roles in putting minimum wage issues on the ballot in six states and focused on engaging members, Democratic voters, “drop off” voters—voters who vote only on presidential elections—and “699,735 low and moderateincome, minority, young and single working women voters.” Nationwide, union-backed ACORN signed up more than 540,000 people to vote in 2006. In the week before the election, another 100,000 union and ACORN activists contacted an estimated 2.6 million union voters.

In Missouri, the Labor/ACORN partnership spent over $2 million on the “ground game” and hoped to affect 1 out of every 4 votes cast. The coalition focused on St. Louis and Kansas City and recruited union staff, rank-and-file members, ACORN activists and other volunteers to gather signatures, staff phone banks, and knock on doors. Every labor affiliate provided ten volunteers to staff get-out-the-vote efforts leading up to Election Day. The front group, Give Missourians a Raise, paid more than $470,000 to canvassers for knocking on doors on behalf of the initiative. Approximately 400 paid doorknockers were at work each day during the final week of the campaign. On Election Day alone, 680 canvassers were at work. The canvassers focused on the densely populated Democratic precincts in the cities. The partnership worked in the six minimum-wage states to recruit canvassers, man phone banks, persuade small business owners and religious organizations to sign on and hold Election Day parties. Union activism in the 2006 election cycle was unprecedented for a mid-term (non-presidential) election and is evidence of the increasing emphasis unions place on politicking. The slight decrease in union spending between the 2004 campaign and the 2006 campaign is because the presidency was not at stake. The following is a comparison of union electioneering in the 2004 election cycle and the 2006 election cycle. Continued on next page


Opening briefs filed in Supreme Court cases by Michael Reitz


pening briefs have been filed with the United States Supreme Court in the consolidated cases of Washington vs. Washington Education Association and Davenport vs. Washington Education Association. Oral arguments are scheduled for January 10, 2007. At issue is a state statute requiring labor organizations to get permission from nonmember workers before using mandatory dues for political purposes. Nonmembers have resigned from the union but are forced to pay collective bargaining fees as a condition of employment. These cases originate from a complaint filed by the Evergreen Freedom Foundation against the Washington Education Association (WEA), alleging that the union failed to obtain the requisite permission. Amazingly, the state supreme court said this requirement was “unduly burdensome” on unions’ political speech. Washington Attorney General Rob McKenna will present oral arguments before the Supreme Court. The State’s brief argues that the Washington Supreme Court incorrectly applied past Supreme Court precedent. Statutes that authorize union security provisions compelling union membership or payment of agency shop fees burden the First Amendment rights of nonmembers. They are permissible only because of the government’s interest in labor peace and in ensuring that all represented employees pay their fair share for the collective bargainingrelated activities of the union. By the same token, the First Amendment rights of objecting nonmembers are violated if their agency shop fees are used for ideological activities unrelated to collective bargaining. To protect nonmembers from this infringement, at a minimum, the First Amendment requires the union to afford nonmembers the opportunity to object to the use of the nonmembers’ agency fees for purposes not germane to collective bargaining. The majority below mistakenly converted this minimum protection of nonmembers, required by the First Amendment, into a First Amendment right of the union to use nonmembers’ fees for ideological purposes, unless the nonmember

objects. Similarly, the majority below mistakenly treated this minimum First Amendment protection of nonmembers as the maximum protection that a state may provide to nonmembers. The Davenport brief (written by National Right to Work attorney Milton Chappell and Steven O’Ban of Seattle) on behalf of nonmember teachers provided similar arguments, pointing out that unions do not have a First Amendment right to use nonmember dues for politics. Although the power to persuade is protected by the First Amendment, the power to compel conformity (and financial support) is not. Thus, it is the nonmembers, not unions and their members, who have constitutional rights at stake when it comes to the use of compelled fees to further the unions’ political agendas. Section 760’s opt-in requirement is applicable only to nonmembers and places no burden on a union or its members. The Davenport brief shows that far more restrictive laws have withstood constitutional scrutiny. For example, federal campaign finance law prohibits unions from making political contributions with general dues. Additionally, many states have passed right to work laws, which make payment of dues completely voluntary. Granting unions a “right” to compel payment, as the Washington ruling did, could jeopardize these other regulations. In addition to the merit briefs, over 30 organizations and individuals submitted 13 amicus curiae (“friend of the court”) briefs in support of our cases. Among the groups filing briefs: the United States Solicitor General on behalf of the Department of Labor and the Federal Elections Commission, six state attorneys general, the American Legislative Exchange Council, the Association of American Educators, the Cato Institute, the Mackinac Center for Public Policy, the Institute for Justice, and several other public policy organizations and public interest law firms.

The U.S. Solicitor General’s brief states that it has a “substantial interest” in the validity of laws such as Washington’s affirmative authorization requirement. Summarizing the argument, the SG writes: Far from abridging unions’ freedom of speech, Washington’s opt-in requirement leaves unions free to speak on any topic of their choosing, at any time or place, and in any manner. Nor does it restrict the amount of money unions can raise or spend on speech. The requirement certainly does not abridge union members’ freedom of association, because union members remain free to associate and pool their (own) funds, to determine the content of their shared message and the means of communicating it, and to organize their internal affairs as they see fit. It simply requires a union to obtain nonmembers’ affirmative consent before using their coercively collected fees for political purposes. The Washington State Supreme Court actually claimed in its majority decision that to require unions to get permission from nonmembers would violate the union’s free speech, and the Court implied this would even burden the nonmembers’ association rights. A brief by the Association of American Educators, a nonunion professional educators’ association, attacks this misleading notion. The AAE brief points out the absurdity of granting unions a right to associate with nonmember teachers when these teachers have by definition disassociated themselves from the union. As Justice Douglas once wrote, “the right of association is an important incident of First Amendment rights. The right to belong – or not to belong – is deep in the American tradition.” Continued on page 11





• Organized Labor spent more than $165 million to mobilize members, workers and voters. • The AFL-CIO spent $44 million to mobilize union households (13 million members). • AFSCME spent $48 million (1.5 million members). • SEIU spent $65 million (1.6 million members). • LIUNA spent $8 million to mobilize members (800,000 members). • Organized labor gave $148.35 million to 527 groups. • Labor targeted 16 states in 2004.

• Organized Labor spent more than $100 million to mobilize members, workers and voters. • The AFL-CIO spent $40 million to mobilize union households and Democratic-leaning voters (9 million members). • AFSCME gave $1,849,721 from its PAC, 98% to Democratic candidates. • The AFT gave $2,018,048 from its PAC, 99% to Democrats.* • LIUNA gave $2,095,750 from its PAC, 86% to Democrats, 13% to mostly liberal Republicans.* • As of October 8, 2006, the SEIU’s PAC had nearly $20 million ready to spend. • The AFL-CIO targeted 12 states in 2006

Union and Volunteer Activism • AFL-CIO: o 5,000 full-time staff and more than 200,000 volunteers o operated 257 phone banks with 2322 lines in 16 states, o passed out more than 32 million leaflets at workplaces. • SEIU o 4,767 full-time employees and members. o 100,000 members volunteered throughout the campaign and for GOTV efforts making  19 million phone calls  10 million house calls, distributed 6 million fliers at members’ work sites  registered 4.5 million voters.

Union and Volunteer Activism

The National Education Association contributed: The National Education Association • $1.8 million directly to Democratic congressional can- contributed: didates, • $1.8 million from its PAC. 86% to Democrats • $88,475 to the DLCC, and 13% to mostly liberal Republicans. • $7.8 million to state initiative campaigns. • $575,000 to ballot campaigns in support of • $134,559 for liberal Republicans tax increases** The NEA spent more than $1 million on 67 mailings for Kerry-Edwards or against Bush.

The NEA sent 188 different direct mail pieces reaching 3.6 million people.

NEA divided the 30 employees into red and blue teams. In addition to its local UniServ staff, the National • The red team was tasked to take on public communi- Education Association deployed 67 staffers to cations and paid for by the NEA’s PAC. 26 states for campaign and GOTV efforts. • The blue team was given the responsibility to discuss issues only with NEA members, which could be supported by the general fund.

* As of October 8, 2006 federal campaign finance reports. ** As of May, 2006

• AFL-CIO: o 187,000 union volunteers o knocked on more than 3 million doors in the final four days. o Reached 93 percent of union members with election information. • SEIU o Has not reported accomplishments for 2006.


Education funding decisions shouldn’t be made without facts by Marsha Michaelis


t’s easy to have an opinion. It takes a little more work to have an informed opinion. A recent survey of 400 registered voters in Washington shows that almost everyone has opinions about whether the state is spending enough on its K–12 public schools, but almost nobody knows how much is actually being spent. Sixty percent of those asked felt public schools were underfunded . . . until they found out how much is being spent. Our state spends an average of more than $10,000 per pupil annually, but only 12 percent of respondents came within $2,000 of knowing that number. When asked if $10,000 per pupil each year seemed too high, too low, or just about right, 61 percent said it seemed either too high or just about right. Responsible citizenship, especially on matters relating to the education of our children, requires more than simply having opinions and going to the polls on voting day. But even the most responsible citizens will have trouble finding the facts about K–12 public education spending in our state. This is because the average person gets information about schools from a newspaper, and our state’s large newspapers aren’t reporting specifics when it comes to total education spending. A recent analysis by the Evergreen Freedom Foundation discovered that out of a total of 489 education-related articles published in one year in three

large regional newspapers (216 in the Seattle Times, 119 in the Columbian and 154 in the Spokesman-Review), not one mentioned the state’s average total per-pupil spending (or total spending, period) for K–12 schools. Only twelve articles mentioned specific portions of school funding. Meanwhile, calls for more money from officials and staff within the state’s K–12 public school system are perpetual and loud. Members of the Washington Learns initiative (chaired by the Governor) have recommended an education spending increase. The Washington Education Association (state teachers’ union) is threatening to sue if the Committee doesn’t recommend a big enough increase. Are they right? Do our schools need more money? Here are some basic facts and questions to help you decide. First, Washington spent an average of $10,121 per student in 2004-05 (the most recent year for which data is available). That includes money from federal, state and local funds. It represents the total cost to taxpayers for our K–12 public schools (from instructing students to building classrooms). Second, average per-pupil spending increased an inflation-adjusted 20 percent over the past ten years (1995-2005, based on IPD). Thus, the state is spending 20 percent more per pupil today than it spent ten years ago. Third, answering the question of whether $10,121 is enough requires knowing the answers to other important questions, such as: Do we know the results we want from our public schools? Are dollars being spent in the most efficient and effective way possible to achieve those results? In 2002, when former Governor Gary Locke asked state agencies to prioritize their spending and identify clear outcomes, State Superintendent of Public Instruction

Is it possible we can do better? We think so. Imagine what we could achieve if we thought of public education as a goal (an educated public) rather than a particular kind of delivery system (stateoperated schools). Imagine what $10,121 could buy if parents were allowed to spend it on the diverse educational options that best met the needs of each of their children. These ideas are worth discussing, but first citizens must have access to comprehensive and unbiased facts. Only then will our discussion have substance. Only then will we begin to solve problems and expand opportunities.

“I can’t specifically say, but …They always say they need more money.”

“I don’t think we could ever spend enough on public education.” Do you think we’re spending enough on our state’s public schools?

Terry Bergeson refused to participate. In the most recent budget, Bergeson has just one “expected result” for annual expenditures that total $8.5 billion: “Develop and implement an improved K–12 education funding model, in partnership with the Legislature, school districts, and other education partners.” That might be an acceptable priority if our public schools existed to spend money, but most people would say they exist to educate students. Right now, the majority of students in every grade tested fail at least one core subject. One out of three students fails to graduate from high school on time. More than half of those who do earn a diploma and go on to community college must take remedial courses in the basics. Many of our best teachers and administrators are deeply frustrated and discouraged.

Do you know how much we’re currently spending?

The fact is Washington spends $10,000 per student per year. $10,000? Whoo, wow, that’s quite a bit... I didn’t know.

Public education needs to become truly public by Marsha Michaelis


f asked to describe “public education,” most people today would tell you about their local public schools. But public education is much bigger than public schools. Public education is a mission: a well-educated public. Public schools are just one way, among many, to achieve that mission. In the past few months, I’ve met with families in our state whose children are thriving in diverse K-12 learning environments: Anna and Emily Lund attend school online through the Washington Virtual Academy. David, Jeff, Kate, John and Anna Drohman attend private schools in Olympia, along with their friends Josh and ShaeLee Haglund. Harrison and Libby Scott are home schooled, and their older sister Katherine is looking into

Running Start through her public high school. Hannah and Abigail Lake attend classes at a public home school resource center. Thomas Uppiano takes online classes through Brigham Young University. Heather Brooks is completing a graphic design program at the New Market Skills Center in Tumwater. By today’s conventional and narrow definition, none of these students is experiencing a traditional “public education.” Yet each of them is receiving the educational opportunities their parents believe best meet their individual needs, and each of them is on the way to becoming a well-educated and independent adult. It is precisely because our definition of “public education” is so narrow that the latest efforts to bring system-

wide reforms to our state’s public schools—through the work of the Washington Learns Commission—are likely doomed to failure. Most of us can agree on the factors crucial to a student’s academic success: highly qualified teachers, clear and rigorous academic standards, strong educational leaders, real accountability and meaningful parental involvement. Unfortunately, the recommendations of the Washington Learns Commission aren’t likely to ensure that students benefit from these factors, for three reasons: Continued on page 8 . . .








Washington class sizes are among the largest in the nation.

Rankings are interesting, but they’re meaningless without baselines. Ranking “high” or “low” doesn’t answer the real question: What is Washington’s average class size? The WEA’s own national affiliate (the National Education Association) admits that “no state-by-state actual class size information exists.” What we do know is that our state legislature allocates money to pay for a student/teacher ratio of 18.8 to one. According to our state Superintendent of Public Instruction, the state employs 55.7 teachers for every 1,000 students in K-12 schools, which means we have a student/teacher ratio of 18 to one. Many teachers will tell you their classes are larger than 18 or 19 students. If the WEA’s objective is to reduce the load on teachers, one would think the union would be interested in getting to the bottom of this disparity.


We would need 11,659 more classroom teachers to match the national pupil-to-teacher average.

The national student/teacher average is one teacher for every 14.8 students. As we see above, student/teacher ratio doesn’t necessarily equate to class size. Assuming it did, do we really think the class size throughout Washington should be fifteen students? Will this result in higher student achievement? At what cost? The goal should not be to blindly “match the national average,” but to adopt the policies that best ensure student success. The two are very different.


Reducing class sizes in early grades improves learning in all subject areas, especially for children living in poverty.

While popular with the public, indiscriminate and comprehensive class size reduction has proven to be one of the most expensive and least effective education reform options. Two of the most commonly cited studies used to support sweeping class size reduction (Tennessee STAR and Wisconsin SAGE) do not offer the evidence claimed. In a 1998 study that evaluated national and international class sizes and summarized nearly 300 evaluations of class size, noted education researcher Eric Hanushek concluded: “Over the period that student achievement data are available (the past quarter century) there are no discernible improvements in performance even though there have been large and steady declines in pupil-teacher ratios.” Hanushek states that the most “expansive conclusion that can be reached” from class size research is that kindergarten or first grade students in classes of fifteen or fewer children may see one-time academic gains. Although first-year gains remained with students who participated in the Tennessee study, no increase in subsequent years occurred. This was true even if students remained in small classes.


Reducing class sizes can improve classroom behavior and give students more individualized attention. Needing less time for discipline, teachers can spend more time on instruction.

This begs the question: Reducing class sizes to what number? Class size is important, but it is only meaningful in context with the factors that matter most to student learning: the quality and experience of the teacher, subject matter, school leadership, classroom discipline and parental involvement. Some teachers can handle larger classes with less difficulty; some subjects require more intensive interaction than others; some students learn with more ease than others. These factors make the case for determining class size at the local level.


Studies show that small classes improve teacherstudent interaction and teacher morale, along with providing enriched learning experiences.

These are all important goals, but, again, class size reduction may or may not be the best way to achieve them. The fact that some improvement may be gained is not by itself a good reason to pursue a policy. How much improvement? And what are the trade-offs and alternatives? Research shows there are more efficient and effective ways to improve learning than indiscriminate class size reduction.




Alabama and Arkansas spend more per student than we do in Washington.

Higher spending in those states (by a barely significant $73 per student in Alabama) clearly has not translated into higher achievement, since both rank near the bottom among states in terms of performance on the National Assessment of Educational Progress (NAEP).


New Jersey, the top state for education spending per student, spends $3,923 more per student than we do here in Washington. Washington spends $6,985 while New Jersey spends $10,908 per pupil.

First, the $6,985 figure is misleading, because it does not include the cost of building schools or paying debt service on bonds. When total costs are included, Washington spends an average of $10,121 per child in K-12 education, according to our Superintendent of Public Instruction. Second, if higher spending was directly tied to higher student achievement (which it isn’t), you’d expect New Jersey students to be doing much better academically than Washington students. But they aren’t. The percentages of students who scored proficient on last year’s NAEP are as follows: 4th Grade Math – NJ (46%), WA (42%). 8th Grade Math – NJ (36%), WA (36%). 4th Grade Reading – NJ (38%), WA (35%). 8th Grade Reading – NJ (37%), WA (34%).

If Washington spent $2,300 more for each student we would break into the top 10 states for per-pupil spending.

Again, our goal should not be to blindly compete with other states to spend the most per student, but to make sure students in our state are receiving the best education possible, as efficiently and effectively as possible. Higher spending doesn’t correlate with higher student achievement. It costs money to provide a quality education, of course, but how you spend that money is just as important as how much you spend.



The national average for per-pupil spending is $8,041 – $1,056 more than Washington.

Interesting, but it would be more meaningful to know how much we need to spend in Washington to provide students with the opportunity to earn a quality K-12 education. The WEA’s answer to that question is always “more.” Yet, despite a significant increase in per-student spending over the last couple of decades (total per-pupil spending increased an inflation-adjusted 34 percent between 1987 and 2003), student achievement has remained flat.




Twenty-five years ago, Washington spent just over half – 50.4 percent – of the state operating budget on K12 public education. Now we spend just 42.1 percent.

This is just plain disingenuous, for two reasons: First, the WEA picked the one budget cycle (1981-83) among a dozen in which state K-12 spending was more than 50 percent of the budget (barely). In the budget prior and in all budgets after, state K-12 spending has ranged from a high of 48.2% to a low of 42.1%. “More than half” has never been the norm. Second, the state is spending a smaller percentage of a much, much larger pie, which translates into much, much higher spending. In the 1981-83 budget highlighted by the WEA, the state spent $3.9 billion on K-12 public schools (50.4% of the operating budget). In the current budget cycle, the state will spend $10.9 billion (42.1% of the operating budget). Even when adjusted for inflation, we’re spending significantly more today (See point 4b).


These “fair share” dollars could be used to reduce class sizes, to attract and retain quality teachers and to provide updated textbooks and technology.

Since when is 50% of spending a “fair share?” And again, the real question is not “What percentage of our budget should we spend on education?” but rather “How much does it cost to provide students with the opportunity to earn a quality K-12 education?” Answering this question honestly requires comprehensive and independent performance audits of public schools and districts, which the WEA opposes.


Given that Washington has the strongest constitutional language in the country in terms of education funding – naming it the state’s “paramount duty” – it’s appalling that it spends less of our state budget on education than it did 25 years ago.

That’s a ridiculous and melodramatic statement, for the reasons cited above.




Inflation has risen each year along with the demands for increased student achievement. Yet, today’s schools are asked to do more with less. That’s unacceptable.

The WEA’s claim that we have $548 less per student is based on calculations that use the Seattle Consumer Price Index, not the statewide Implicit Price Deflator. According to the state’s Office of Financial Management: “The IPD is used for determining inflation for state budgeting purposes because it is considered more representative of the general mix of goods and services purchased by the state than other indicators available. The other primary inflation index, the Consumer Price Index (CPI), may not adequately allow for the effects of technology and quality changes.” Calculating education spending based on the IPD shows that per-pupil spending has increased an inflation-adjusted 34% over the last couple of decades.


With funding eroding, schools have less to invest in technology, textbooks and other instructional materials needed for our children to develop the skills necessary to compete for good jobs in the global, high-tech economy.

Funding is not eroding. Schools do not have less money; they have more. According to the Superintendent of Public Instruction’s data, less than half of all education spending is used for what the state defines as “basic instruction.” Perhaps it’s time for schools to reevaluate their spending practices and ensure they have a focused academic mission. Independent performance audits would be an invaluable tool in this process.


Schools lack the resources to restore or expand enrichment programs, like music or art, or to help students meet the state’s high standards and graduation requirements.

Meeting the state’s academic standards and graduation requirements should be the core mission of schools, and dollars should first be directed toward the academic and enrichment programs necessary to achieve this mission. If there is money left over once this primary purpose has been met, then enrichment programs may be expanded. This, of course, should be done at the local level, and parents and students should be empowered to make choices based on their unique temperaments, goals, skills and knowledge.

Prepared by Marsha Michaelis, Director, Education Reform Center Evergreen Freedom Foundation


Truly Public Continued from page 6 . . . 1. Tired Leadership. Washington Learns is only the latest in a long, long line of education commissions, committees, councils and task forces. Many of the individuals appointed to this latest effort have been making decisions about education policy in our state for years, if not decades. We could say their experience makes them the most qualified to address our education issues, or we could look a little deeper and see that student achievement trends in our state prove their ideas have failed over the past two decades. 2. Obsolete Structure. Our public school system was designed in the 19 th and 20 th Centuries. It assumes that one basic structure and schedule will meet the diverse needs of one million unique students. It assumes bureaucrats at the state level can decide better than local parents, teachers and administrators how best to meet the educational needs of each of those children. 3. Lack of Accountability. Though much lip service has been paid to the idea of accountability by the Washington Learns Commission, a quick read through the final draft report shows there is no meaningful accountability in the new recommendations. It’s easy to criticize, of course, but what works? How can we improve public education for the million students in our state who are relying on it for their future success?

We can begin with some revolutionary but commonsense changes that are already working around the nation and world: 1. Allow parents the freedom to choose the educational options that best meet the needs of each of their children. Allow public education dollars to follow students into those diverse educational venues. 2. Set clear and rigorous academic standards to which students and schools receiving public dollars will be held accountable. Measure student performance with scientifically valid and reliable assessments. Remove funding from schools that fail to meet state-defined benchmarks. 3. Streamline teacher qualification requirements. Allow qualified individuals—those who can prove mastery of subject matter and ability to teach, and who have no disqualifying criminal record—to teach in Washington’s classrooms. 4. Give school leaders the authority and flexibility to manage their school budgets and staff. Reduce regulations to basic health, safety and civil rights standards so excellence and creativity can flourish and be emulated.


We need to make public education truly public, which means policy decisions must be driven by the goal of giving each unique student in our state the best opportunity possible to earn an excellent education, rather than by the goal of preserving a particular system and structure of schools. Only then will students and our state as a whole be well-served. For more information visit

Everybody can be last in public education by Ryan Bedford


ith the release of the Washington Learns report last month, citizens have been inundated with myriads of facts and opinions regarding every aspect of the 60-page report. Predictably, the study gives good news (to avoid stepping on some toes) and bad news (to avoid stepping on others’ toes). Among its findings, the study points out that Washington state ranks in the top ten compared to other states in several aspects of education. When discussing, “How Washington Measures Up,” the Washington Learns report says Washington state is 7th in the nation in K–12 expenditures and K–12 studentteacher ratio. It also says Washington state is 6th in the nation in its funding per student of research schools and bachelor degrees per 1,000 in population. Finally, the report pointed out that Washington state is ranked second in the nation by the New Economy Index. But these numbers seem to conflict with the opinion of the state’s teachers union, the Washington Education Association (WEA). The WEA’s ranks Washington state as 42nd in the nation in education spending, 46th in the nation in class size and last among the five West Coast states in teacher pay. Whom should you believe? Before deciding, consider this: According to the National Education Association (NEA), everyone can have a last-place education. From Florida to Washington state and anywhere between, the nation’s teachers union says every state’s school system is last-place. The NEA study, “Rankings of the States 2004 and Estimates of School Statistics 2005,” ranks all 50 states and the District of Columbia from one to fifty-one on so many different aspects of their education systems, citizenry, and governments, that every single state is listed among the bottom ten in at least one critical category. This bag of tricks is a handy resource for union officials, such as WEA bosses, engaged in campaigns to increase school funding. The numerous categories allow union officials to use rankings that support their agenda while ignoring others that do not. The scope and

complexity of the study renders union officials’ claims practically impervious to critique and insulates them from accountability. The innumerable categories contained in the 129 page report are also difficult to differentiate, even for union officials. In 2004 and 2005, unions and interest groups in at least 10 states—Arizona, Colorado, Florida, Idaho, Illinois, Louisiana, Nevada, Pennsylvania, Tennessee, and Utah—used this and other studies to claim that each of their states ranked 49th in education funding. While some of the statements may have been true, based on nuanced and narrow data fields, some were simply lies. Washington policymakers who compare this report to the WEA’s statements should remember that, for every last-place comparison union officials give, there is always a first-place comparison. When union officials claim a school system is among lowest in one category, policymakers need only look a little further to find it is among the top in another.

“The vicious cycle puts the interests and job security of union officials first, teachers second, and students last.” At the close of the Florida Legislature’s 2006 session, the Florida Education Association (FEA) demanded more education funding, claiming, “Florida ranks 40 of 50 states on per pupil expenditures for K–12 education.” According to the NEA’s rankings study, this is only part of the picture. The study ranks Florida as fourth in the number of instructional staff and teachers employed, and third in full-time equivalent employees. It also puts Florida 21st in per capita state and local government capital spending for K–12 schools, above the U.S. median. While the “40 of 50” comparison was widely publicized by the union, Florida’s top-ten finishes never saw the light of day because they did not support union officials’ agenda—more education funding.

While some rankings touted by the union to increase funding are disingenuous, some are simply wrong. The Colorado Education Association is in the midst of an education funding campaign in which it claims that Colorado is 49th in the nation in school spending. While NEA rankings originally put Colorado at 49th in the nation, they were updated, re-listing Colorado at 45th. Instead of moving their tune up the scale four notes, union officials continue to use the outdated ranking. Further discrediting their campaign, at least three alternate sources rank Colorado between 25th and 31st in that same category, current expenditures per pupil. The Washington Education Association’s response to the Washington Learns report seems to come from the same playbook. In the midst of a multi-year education funding campaign, the union’s slogan, “Washington ranks 42nd in the nation in education spending” is disingenuous because it is only part of the picture. The NEA’s study ranks Washington state ninth in state funding (as opposed to local funding) of schools, and twelfth in per capita state and local capital spending. Simply put, WEA officials left out the good news that did not support their agenda. For good reason, union officials maneuver to dominate the education funding debate. When Washington state increases education funding to raise teacher salaries or hire more teachers, the WEA gets a cut by forcing those teachers to pay dues. The WEA then invests that money back into campaigns portraying states as failing to get more school funding which will pay for more raises and hire more teachers. The vicious cycle puts the interests and job security of union officials first, teachers second, and students last. Rankings may be interesting, but they are not a sound basis for good policy decisions. Even if every state increased its funding per pupil by a million dollars, some would still be spending less than others. The real question we should ask of the Washington Learns commission is not, “How do we rank?” but “How much does it cost to get the job done?” So when it comes to honesty in statistics, the NEA and its state affiliate, the WEA, get an F.


Election 2006: Did we dodge a bullet? by Jonathan Bechtle


he General Election of 2006 is finally over, and, with a few notable exceptions, Washington’s election system seemed to hold up under the strain. Of course, the strain put on it this year was low compared to the Rossi/Gregoire fiasco of 2004. Still, as the first major federal election since that meltdown, it was a good test of all the changes that have been made. In evaluating the success of the election, one should look first at the problems that did occur. What were they, and why did they happen? First, prior to the election, an alert Skagit County citizen, Josef Kunzler, noticed that his ballot didn’t have descriptions for the initiatives, just the titles. He quickly sent an inquiry to the county auditor and EFF. We asked the Secretary of State’s office about it, and discovered that all of Skagit County’s ballots were missing the required descriptions. It was too late to print new ballots, so the county sent explanatory letters to all voters and asked the local media to run announcements. Turns out the error was caused by a hiccup in the software used by the printing contractor. Second, King County continued to be a source of accuracy problems, exemplified by the 15,000 absentee ballots found in overstuffed bags with broken seals. At least this time, unlike 2004, the elections staff was transparent about the problem and promised that the bags had been securely guarded the entire time. The canvassing board was dismayed to learn that this problem was routine, and unanimously passed a resolution requiring new procedures and training to eliminate the problem. A King County poll inspector reported that eight people had to vote with provisional ballots because they never received their absentees. This number represents over 2% of the 332 voting absentee registrants in that polling precinct, much too high a percentage of lost ballots for a county talking about switching to all voteby-mail. King County also had the auspicious honor of being one of the slowest ballot-counting jurisdictions in the entire country. Director Jim Buck chalked this up to the flood problems and the desire for accuracy. Maybe so, but it raises questions about what will happen if the county goes to all-mail voting, adding 30 percent more mail ballots. Candidates better be ready for Election Month, rather than Election Day. Snohomish County’s recent switch to vote-by-mail is continuing to reveal problems with its voter registration database (and, in turn, the state database). • A dead Snohomish voter received a ballot for the primary election. When notified, the county auditor promised to rectify the situation. What happened? The voter received another ballot for the general election. • An Iranian immigrant became a naturalized citizen on September 11 and quickly registered to vote. His first voting experience? He was mailed two ballots for the general election. • A couple moved from King to Snohomish County, changed their registration days after the primary, and was kindly sent mail ballots from both counties for the general election. The second evaluation question to ask is why the outcome of this election differed from 2004. Was there the same opportunity for problems? If so, did they not occur because of fixes to the system? During the days after November 7, auditors likely held their breath hoping that the high-profile races would have a healthy margin of victory. It’s quite conceivable that the control of the U.S. House could have come down to the Eighth District race between Darcy Burner and Dave Reichert. But it didn’t, and Burner conceded. That means much less national and in-state scrutiny, and thus less chance to determine if problems occurred. Fixes to the system, however, did play a part in reducing the number of problems. New laws requiring better accountability for poll and mail ballots have made the process more transparent,

allowing errors to be caught more quickly and fixed before they turn into a something big. Great strides were made in polling place procedures, particularly in King County. Overall, poll ballots are much more likely to be properly accounted for than they were in 2004. For example, it’s now virtually impossible for provisional ballots to be illegally counted without verification. The state’s new voter registration database has made big strides in removing duplicate, dead, and felon voters from the rolls. This cuts down on the opportunity for illegal ballots to be cast accidentally or intentionally. An administrative complaint from EFF motivated the Secretary of State to file emergency rules setting standards for determining voter intent. This means that ballots in the 2006 general election were treated equally across the state, rather than in the standardless, haphazard process used in the past. Observers have reported that these standards made a real difference in how canvassing boards treated voter intent questions. If there had been a close election, what would have happened? That’s hard to say, but it’s highly unlikely we would have made it through without several major breakdowns in the system. Why? Because Washington’s leaders still have not enacted all the reforms necessary to address the breakdown of the 2004 election. • First, major loopholes still exist in our state registration system that allow non-citizens and federal felons to slip through. This fall, Snohomish County sent a

mail ballot to a registered voter who has been in a Colorado federal prison for six years. He could’ve voted with the ballot and no one would have caught it. • Second, our vote-by-mail systems are still critically unsecured. The primary security measure, signature verification, is an error-prone system run by temporary workers. Many examples exist of non-matching signatures slipping through. • Third, the legislature hasn’t even touched our archaic election contest laws. The laws require the losing party to prove that the winner received more illegal votes than the margin of victory, yet ballot secrecy laws keep anyone from looking at the ballots. Other states have much more workable laws, and Washington needs to learn from them. • Fourth, our local and federal law enforcement officers continue to make election crimes a low priority. New laws are pointless if not enforced. The 2006 election is past, and it’s now time to look toward 2008. It’s doubtful anyone in Washington wants to experience another election fiasco, and if our state’s election officials and legislators will finish the job of reforming the system, we won’t have to. EFF will be working to push reforms in these four areas and others during the next two years.

EFF releases comprehensive report on election security by Jonathan Bechtle


n the October 2006 issue of Living Liberty, we promised the release of a report on Washington Association of Churches v. Secretary of State Sam Reed, a federal lawsuit targeting a Washington state election law. This lawsuit is a direct attack on the security of our state’s voter registration rolls, as it seeks to prevent the state from verifying the identity of new registrants. At issue is a new law that requires the Secretary of State to compare information on registration forms with other databases (Social Security’s database, for example). The purpose is to verify the person’s identity, making sure that only eligible voters are placed on the state voting rolls. Because of our concern over the implication of this lawsuit, we enlisted the help of researcher Troy Beardslee, a Washington resident and EFF member. Over a period of months he dug through mountains of material, examining the plaintiffs’ arguments and the possible impact the case could have in-state and nationally. The finished report, entitled “Election Security Under Fire,” is now available in both hard copy and via the web at Among our findings: • The two leading players in the case are the Brennan Center for Justice and ACORN. The Brennan Center is a legal advocacy group that is based out of

Visit to view the full publication.

the New York University School of Law and funded by taxpayer dollars and liberal philanthropists like George Soros. ACORN is a liberal grassroots organization that organizes protests and voter drives. Although ACORN claims it has registered over one million voters since 2003, the combined rate of error and fraud for some of its operations has been as high as 62 percent. • This lawsuit has national implications, because Washington’s law is based on the federal Help America Vote Act mandate. The court ruling in this case will set a precedent for the rest of the country. It is likely that the plaintiffs chose Washington, not out of a concern for voters, but because the liberal Ninth Circuit has jurisdiction over appeals from Washington state. • Despite the plaintiffs’ claims of mass disenfranchisement from the law, they have been unable to find even one voter who has been kept from voting by this law. EFF opposes efforts like this to cripple election security, and we will closely monitor this case as it develops. Case updates will be posted on the web at



Judges ruling would reduce government transparency by Jonathan Bechtle


n April 2005, EFF discovered that the legislature had used a “shell game” to artificially inflate, by hundreds of millions of dollars, the spending cap imposed under Initiative 601. In response to this travesty, EFF joined the “Save 601” coalition, made up of the Washington Farm Bureau and several other concerned organizations and citizens. This coalition filed suit against the state to protect the spending and tax limits of I-601. Snohomish County Superior Court Judge James Allendoerfer ruled in favor of the plaintiffs, but unfortunately, also decided to add a new exception to the Public Records Act: an executive and legislative privilege. The issue arose because the plaintiffs had requested copies of correspondence between the governor’s staff and legislative staff regarding the “shell game” stratagem. Unsurprisingly the records were refused, as the contents likely would have been harmful to the state’s case. Judge Allendoerfer ruled that the documents were protected by an executive and legislative privilege that he

made up on the spot, drawing from vague references in other laws. For example, he partially based his creation of a legislative privilege upon Article II, Section 17 of the Washington state constitution, which states: “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.” This section, however, refers only to communication that’s already open (the public has the right to watch legislative debates), not to secret emails. The primary reason the judge gave for creating new privileges is his desire to honor the separation between the different branches of government. Regarding the legislative privilege, he said, “I’ve concluded that legislators are not answerable to the judicial branch of government about their deliberative processes.” Scholars could debate that conclusion, but the real error here is Judge Allendoerfer’s decision to ignore the fourth branch of government: the people of Washington state. The second sentence of the state constitution reads, “All political power is inherent in the people, and governments derive their just powers from the consent

of the governed….” Maybe the legislative branch isn’t answerable to the judiciary, but it certainly is answerable to the people. One of the most useful tools the people of Washington have for holding their government accountable is the Public Records Act. It allows any citizen to act as a check on government actions. Judge Allendoefer’s decision could greatly weaken our ability to use the Public Records Act to hold legislators and the governor accountable. As the I-601 case continues, EFF and the other coalition partners have appealed for a reversal of this harmful decision. The importance of this issue is demonstrated by the parties who have addressed the executive and legislative privileges in amicus briefs. In our camp (asking for the privileges to be denied) is the Washington Coalition for Open Government, the American Legislative Exchange Council, and the Association of Washington Businesses. Arrayed against us are the National Conference of State Legislators and the National Governors Association.

Taxpayers deserve accountability for economic development efforts by Amber Gunn


ach year, local governments and businesses throughout Washington receive millions in tax dollars for “economic development” in hopes of creating jobs. The money is funneled through the Department of Community, Trade and Economic Development (CTED), which has combined operating and capital budgets totaling just over $1.5 billion. With this kind of money at stake, it is not unreasonable that taxpayers should have some recourse in assuring those funds achieve their stated “public purpose” of job creation. Unfortunately, state government has evolved into a cash cow for many local governments and businesses. From seeking a $50,000 grant for the promotion of aquaculture to soliciting a $10 million grant to build a city center, CTED is the “go to” place for fast cash with few strings attached. Multiple botched economic development deals have shown that businesses do not always achieve the expected level of job creation and there are few, if any, consequences when they fail. If a state has to offer tax breaks and other incentives in order to attract businesses, it is most likely plagued by bad tax policy and a burdensome regulatory climate. When it comes to the economy, the government’s role is not to “create” jobs, but to get out of the way of the market. The more a system is encumbered with politically-motivated preferences, the less likely businesses will respond to market forces and succeed or fail on their own merits. Rather than choosing private sector winners and losers, a more effective approach is to improve the business climate for the long term by levying low, flat rates on the broadest possible bases. Failing that, if state government insists on being involved in economic development it should do so solely on the basis of strict performance contracts, with real penalties for failing to deliver the promised economic impact. Texas recently enacted a policy which requires the governor to write a contract containing specific performance targets for businesses receiving government assistance. This is already generating the desired accountability. In a recent deal, outdoor retailer giant Cabela’s promised to employ 400 people in exchange for a $400,000 economic development grant. Cabela’s fell short of their goal by more than 200 jobs and Texas is holding them accountable, demanding that Cabela’s refund $28,000 and also forfeit the remaining $200,000 of the grant.

Washington should follow Texas’ example, while expanding on last year’s authorization of performance audits for discriminatory tax breaks. While preferential tax treatment is now reviewed, other types of development assistance, such as grants and loans, are not. Lobbying by the timber industry, various food producers, aerospace, and a host of other businesses encourages government to distinguish between employers based on the power of their lobbyists to secure preferential treatment. As long as this is happening, there should be protections for taxpayers, based on delivered performance. The Government Accountability Office (GAO) highlighted the need for changes on a federal level as well, recommending the use of performance accountability mechanisms in grant design, and suggesting some specific strategies to facilitate their successful implementation. These strategies include ensuring that the rewards and penalties are adequate to motivate desired behaviors and provide a meaningful return to the grantor and grantee, and evaluating performance at regularly scheduled intervals to learn from each cycle and improve performance. Using the GAO recommendations and the Texas model as a guide, Washington could implement similar performance contracts that would use a combined carrot-

stick method to make sure taxpayers are getting the promised return for their investments. Currently, the details on economic development spending are buried in multiple departments and grant programs overseen by CTED. The result is a fractured and confusing, not to mention very expensive, system that does not lend itself well to transparency. If an average citizen were to call CTED and ask how many economic development programs they are involved in, or how much they spent in business assistance last year, no one would have the answer. The citizen would have to call various departments, since no one is quite sure what anyone else is doing. An online database that catalogues development assistance, including the recipient, the amount, and the number of jobs created, would offer meaningful information to businesses and taxpayers alike. It would also provide simple and accurate feedback to lawmakers on how well funds are being utilized. Ultimately, it is not the government’s role to create jobs or to ensure success. The state should provide a uniformly low tax and regulatory burden for private businesses, and let them succeed on their own merits.

If government is involved in economic development, creating a contractual agreement that details specific obligations for both the grantor and grantee is crucial to ensure that grants achieve their long-term performance goals. Texas has already demonstrated success in this area and the federal government is also trending toward more stringent accountability measures. Washington should follow Texas and demand that businesses replenish tax dollars when their end of the bargain is not upheld.




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Opening Briefs Continued from page 5 . . . AAE also explained why affirmative authorization requirements protect teachers, by detailing the threats, harassment, ostracism, and ridicule teachers must endure when resigning from the union. If a teacher in Washington wants to exercise his or her right not to associate with WEA for political purposes, the teacher is required to resign from membership in the union. This action brings with it significant consequences. The agency fee payer can no longer vote on his or her employment contract; he or she cannot vote for union officials and negotiators; the objector loses the right to sit on some school policymaking committees; the objector often loses the union’s representation in filing a grievance regarding an adverse job action under the collective bargaining agreement; and the objector loses the professional liability insurance protection provided by the union.

In addition to forfeiting workplace rights, political objectors often are subject to verbal and physical harassment. Cindy Omlin, who is now Executive Director of NWPE, AAE’s Washington affiliate, testified before the Washington Legislature that “[n]umerous teachers who object to the [WEA’s] political activity have shared with me that they would rather forfeit their Constitutional rights than face the blackballing, harassment, intimidation, and potential property damage they fear from some union members. This fear is legitimate–both myself and one other teacher in my building have been retaliated against with offensive letters and ostracism after challenging the union’s political views.” The American Legislative Exchange Council is the nation’s largest individual membership association of state legislators, with more than 2,400 members. The

group filed a brief explaining that should the Supreme Court uphold the Washington ruling, states legislatures will be severely hampered in attempting to balance labor relations and the rights of workers. “It might be cheaper for [the union] to take nonmembers’ money and spend it for electioneering unless the nonmembers expressly opt out of this practice, and more expensive to ask the nonmembers first to opt in. But that’s a cost savings that the First Amendment does not guarantee.”

Many other excellent briefs were filed in the case. Copies are available at



Important Information About Your Money, Your Decisions and the Taxman!


President Bush recently signed the Pension Protection Act of 2006 (HR4). One of its provisions permits taxpayers to contribute funds from Individual Retirement Accounts directly to 501(c)(3) organizations, without paying taxes. Under the old law, funds removed from an IRA had to be reported as taxable income. Tax deductions taken as charitable contributions were limited to 50 percent of your adjusted gross income. The new law permits gifts from IRA’s if • you are 70 ½ years old at the date of transfer, • the funds come from a traditional IRA or Roth IRA (not from a 401(k), 403(b), Keogh, or employersponsored SEP account), • you transfer $100,000 or less each year, • the transfer is completed before January 1, 2008, and • your transfer is an outright gift. Additionally, • the transfer must be made directly from the plan administrator to the charitable organization, and • the gift cannot be made to a donor advised fund; it cannot be used to establish retained life income. For a detailed explanation of HR4, contact your tax professional or look up The Evergreen Freedom Foundation is a qualified charity under this law. If this type of gift meets your capabilities, and if we meet with your approval, please consider using this instrument to make an investment in our work.


Do you hear the swoooosh of new evacuees leaving our state now that voters allowed the death tax to become permanent? Perhaps you are one of them. This is one of the most short-sighted, job-killing taxes ever created: hence, nearly every other state in the union has killed it. The only jobs created by the death tax are for attorneys, accountants and tax advisors.

Numerous EFF members took their money and jobs out of our state several years ago when our Department of Revenue decided to reimpose the death tax. A front-page article in the business section of the Scottsdale Tribune recently profiled one of them. The $2.5 billion-a-year Services Group of America used to be headquartered in Seattle and is now putting down roots in Scottsdale, Arizona. A quote from one of the company executives reads: “A new Washington state inheritance tax sent Services Group of America founder and president Thomas Stewart looking for a new home for his business.” After this last election, we have heard from more than a dozen new evacuees. Many of these individuals run companies that employ hundreds, and sometimes thousands, of people. Their money and the jobs they have created are leaving with them. The average Washingtonian bought off on the specious argument that killing the death tax would only help the wealthiest individuals while irreversibly wounding public education. Neither is true. Furthermore, all the money in question has already been taxed multiple times. But don’t leave yet. We are pulling together a handful of experts who will meet with as many of you as possible early next year to discuss ways to potentially mitigate the damage. Alternatives exist. Unfortunately, you will have to employ an attorney and/or tax advisor to pursue the options. Please contact Juliana McMahan at our office if you are interested in attending such a meeting. (email: or phone: 360-956-3482). Many of our members have found considerable tax and personal advantages in estate planning after attending one of the seminars we have sponsored. Those of you who have come to one of the seminars know that it is information specific. We do not sell products or services, nor do we ever press anyone to donate to EFF. We view it as a service we can offer in a complex and unfriendly tax environment, and we encourage you to bring the professional advisors you may have hired to help you.

If you have not already hired help, the information you will receive will enable you to choose wisely.


We will sponsor at least two more seminars next year covering these topics (at a minimum): • The elements of a will, • Details on living trusts, • How and why to donate stock and property, • Designating beneficiaries on insurance policies and qualified retirement plans, • Setting up trust funds, Charitable Gift Annuities, and/or Charitable Remainder Trusts. Please contact Juliana McMahan if you would like information on the seminar. (email: jmcmahan@effwa. org or phone: 360-956-3482)


Remember, all contributions to EFF must be transferred or mailed to us by December 31, 2006, in order to count as a 2006 deduction.


A hearty thank you to all of you who so graciously and generously support our work. Many, many thanks!

Correcting state’s Medicaid audit as simple as 1-2-3 by Jason Mercier


hen the State Auditor’s Office (SAO) issued its 2005 audit of Washington’s Medicaid program earlier this year, identifying 28 violations of law totaling nearly $1 billion dollars, the last thing we expected was that this problem could get worse. Unfortunately, it did. Rather than agree to correct all 28 audit findings (eighteen of which are repeat findings), the Office of Financial Management (OFM) informed EFF that the auditor was in error on over $800 million in findings and the true problem was only $80 million. In fact, some opinion columns appeared in newspapers claiming the State Auditor had his audit “rebuked” by the federal government. SAO, however, stands unequivocally behind its findings. Wanting to get to the bottom of this troubling development, EFF spent the past few months investigating the disagreement between OFM and SAO. The problem, we discovered, is easily fixable if the Governor and legislative leaders are willing to team up publicly with the State Auditor to correct it. By state law (RCW 43.88.160 (6)), OFM is required to cause corrective action to be taken on all audit findings within six months. For six of the 28 2005 Medicaid audit findings, totaling more than $800 million, however, the Department of Social and Health Services (DSHS) is not planning corrective action. This is because the

regional federal Medicaid office charged with providing guidance to the state has informed OFM and DSHS that what is being done is proper. This policy advice, however, conflicts with oral directives the federal inspector general (IG) has provided to SAO. The IG has told SAO that it is to audit to compliance with federal law and not the policy advice of the regional federal Medicaid office. The IG, however, has not put this directive in writing for SAO; thus the conflict and the problem. Until SAO, OFM and DSHS are all operating under the same federal guidance, the state will continue to face multiple Medicaid audit findings totaling hundreds of millions of dollars and the perception that OFM and DSHS are flouting state law by attacking SAO instead of causing corrective action, as required. This is a nowin situation for all involved. This disagreement notwithstanding, RCW 43.88.160 (6) does not give OFM the discretion to choose which audit findings will be subject to corrective action. All audit findings must be corrected by state law! Fortunately, this problem can be resolved in three easy steps. First, the Governor, legislative leaders, OFM, DSHS, and the State Auditor should jointly and publicly call on the federal Inspector General to put into writing which

standards the Auditor is to use for the state’s Medicaid audit: policy directives or federal law. Second, once this written advice is provided, all involved should adjust their positions accordingly. If the answer is policy directives, SAO should align its audit protocol with the advice of the regional federal Medicaid office. If federal law is to be followed, OFM and DSHS should immediately acknowledge the audit findings and bring about the necessary corrective action. Third, for future state audits on all issues (not just Medicaid), if a disagreement exists, immediate joint action to resolve it must occur! It should not take years of repeat findings for high level involvement to resolve disagreement. Had the legislature involved itself in the state’s Medicaid findings with public hearings over the past few years, this problem could have been resolved long ago. Now that the course of action to bring clarity to the situation has been charted, it is up to the Governor and legislative leaders to demand clarity from the federal government. If they should fail to do so, the only recourse remaining for taxpayers may be legal action.

Living Liberty December 2006  

PAID A SUPREME TEST OF FAIRNESS 4 As long as the majority of people who vote do not understand the fundamental gov- erning and economic pill...

Living Liberty December 2006  

PAID A SUPREME TEST OF FAIRNESS 4 As long as the majority of people who vote do not understand the fundamental gov- erning and economic pill...