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THE VIEW FROM ABOVE 3

EFF LAUNCHES CONSTITUTIONAL LAW CENTER 8

ANAVIGATING PUBLICATION OF THE FREEDOM FOUNDATION THEEVERGREEN LEGISLATIVE SESSION 10

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LIVING LIBERTY JANUARY 2009 | WWW.EFFWA.ORG

A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION

WEA to pay

nearly $1 Million for rights violations by Michael Reitz

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he Washington Education Association (WEA) will pay nearly $1 million for violating the free speech rights of teachers. On December 3, the Office of the Attorney General announced it had reached a settlement with the WEA to finalize litigation over the union’s improper political spending. This is one of the largest campaign finance settlements in state history. Eight years ago the Evergreen Freedom Foundation filed a complaint with the attorney general against the WEA for using non-member teacher dues for politics. Teachers are required to pay dues regardless of whether they join the union, but state law required unions to get permission first before using their dues for politics. The case went all the way to the U.S. Supreme Court, but it was a long road. After EFF filed its complaint in August 2000, the union admitted to “multiple violations.” Then-Attorney General Christine Gregoire filed a lawsuit, and a trial court judge imposed a $590,375 penalty on the union. Subsequently, a group of teachers, represented by EFF and National Right to Work, filed the Davenport class-action lawsuit to recover their improperly-spent dues (named for lead plaintiff Gary Davenport). Both cases ended up before the Washington state Supreme Court. In 2006, the Supreme Court issued a shocking ruling saying that requiring unions to ask permission before spending nonmember dues was “too heavy an administrative burden,” and violated the union’s free speech rights. Attorney General Rob McKenna and the Davenport teachers appealed to the U.S. Supreme Court who handed down a unanimous ruling declaring Washington’s law constitutional. The Supreme Court specifically addressed and affirmed EFF’s centerpiece argument: unions have no constitutional entitlement to the paychecks of workers. The case was sent back down to state court to be finalized, which resulted in the December 3rd settlement. Under its terms, WEA will pay the state $735,000 to resolve the litigation. Additionally, WEA will return up to $240,000 to eligible teachers for the 2003 – 2007 school year. Rebate amounts to those eligible teachers who cannot be located will be paid

to the Department of Revenue’s Unclaimed Property Fund. The settlement skirted any admission of wrongdoing by the WEA, but a unanimous Supreme Court ruling and a million-dollar settlement say a lot about who was at fault.

EFF is pleased the settlement is complete, but we have concerns about some of the details. For example, enforcement of the rebate process is weak—the state is essentially taking the union’s word for the amount of the refunds and the list of eligible teachers. Since this ruling Continued on next page

IS THE STATE BUDGET DEFICIT

INEVITABLE? by Amber Gunn

ashington’s current spending trajectory has put the state on a fast course toward financial disaster. But for now, the coming budget deficit is real on paper only. The governor and legislature have a chance to change course right now if they slow the rate of increased spending to match actual revenue growth—which is up 5 percent. The state will have $30.1 billion to spend for the 2009-11 budget, according to the latest revenue forecast. This is $1.5 billion—or 5 percent—more than current revenue. Why is there a deficit concern despite the fact that revenues will be up for the next budget? First, legislators are spending $1.2 billion more than the state is receiving. One-time available funds are

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being used to balance the current budget and pay for recurring programs. If you think this is a bit nutty, you’re not alone. The governor has ordered $590 million in immediate cuts in order to carry over greater reserves to the next budget. Better late than never, though she won’t be getting an “fiscal genius” award this year. Continued on page 5

NON-PROFIT ORG. U.S. POSTAGE

PAID

OLYMPIA, WA PERMIT #462


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LIVING LIBERTY

A POLITICAL BAILOUT

“WHILE WAITING FOR A SUPREME COURT RULING, THE LEGISLATURE RUSHED TO PROVIDE BY WEAKENING THE LAW DURING THE 2007 SESSION IN ANTICIPATION OF A RULING AGAINST THE WEA.” WEA Settlement Continued from page 1 . . . follows on the heels of previous legal actions against the union for similar wrongdoing, EFF is concerned that the attorney general’s office has yielded safeguarding teacher paychecks to the WEA. And while the union will be held accountable for past violations, teachers will receive little protection from the state moving forward. The Washington Legislature is to thank for this. While waiting for a Supreme Court ruling, the legislature rushed to provide a political bailout by weakening the law during the 2007 session in anticipation of a ruling against the WEA.

Now that the case is settled, the legislature could consider safeguards to ensure that no teacher has to pay for union politics without his or her permission. The state’s settlement with the WEA does not affect EFF’s teacher class-action lawsuit (Davenport) against the union. That lawsuit seeks a recovery of improperlyspent dues for additional school years, and is pending before the state Court of Appeals. Taking stock eight years later In the months following the U.S. Supreme Court victory, EFF has evaluated the impact of the case, and more importantly, discussed organizational goals.

“Quote”

EFF’s objective is to ensure that employees have a choice about union membership and political spending. Every union dollar spent on politics should come from a voluntary donor. And employees deserve information about how unions spend their money. Government must not mandate union representation for workers. When unions are left to attract and retain satisfied customers non-coercively, the market will determine whether they provide a needed service. Michael Reitz is general counsel of the Evergreen Freedom Foundation.

JANUARY 2008

This Issue

“No one could make a greater mistake than he who did nothing because he could do only a little.” – Edmund Burke

VOLUME 19, Issue 1 EFF’s mission is to advance individual liberty, free enterprise and limited, accountable government.

Publisher: Lynn Harsh Editor: Scott St. Clair Layout: Joel Sorrell

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LETTER FROM LYNN THE VIEW FROM ABOVE

BAILOUT THIS, DETROIT READING THE FEDERALIST PART XII PROTECTING RIGHTS AND THE CONCLUSION

EFF LAUNCHES CONSTITUTIONAL LAW CENTER STATE AGENCY CONSIDERS LOBBYING REGULATIONS FOR WEBSITES AND BLOGS NAVIGATING THE LEGISLATIVE SESSION HIGH-LEVEL VOLUNTEER JOB OPENINGS WHO DO YOU WANT RUNNING KING COUNTY’S ELECTIONS DEPARTMENT? WHAT DOES THE 2009 SESSION HAVE IN STORE FOR PUBLIC SECTOR UNIONS? THE DEVELOPMENT CORNER EFF ACHIEVES 4 -STAR RATING FOR FISCAL RESPONSIBILITY EFF MEMBER SURVEY MAILED

Evergreen Freedom Foundation PO Box 552 Olympia, WA 98507 (360) 956-3482 Fax (360) 352-1874 info@effwa.org • www.effwa.org

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DIARY OF A FREEDOM LOVING MOM DESPERATE MEASURES FOR DEALING WITH THE DEFICIT GMAP, PERFORMANCE AUDITS POTENTIALLY ON THE CHOPPING BLOCK

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RADIO FREE WASHINGTON OFF TO A RUNNING START 2009 YOUNG LEADERS INTERNSHIP PROGRAM

Save

THE DATE!

Little Pink House: A behind-the-scenes look at the landmark property rights case of Kelo v. City of New London

Come join us for lunch on February 12 to hear nationally-renowned investigative journalist Jeff Benedict talk about his new book, Little Pink House, which tells the inside story of how New London abused its eminent domain power to seize private homes to benefit a private developer. Susette Kelo, the owner of the little pink house taken by the city will also be at the event to tell her part of the story. Hosted in

connection with the Institute for Justice, the nationally-renowned public interest law firm that represented Susette Kelo in her historic court battle, the event will start at noon on February 12 at the Doubletree Guest Suites at Southcenter (16500 Southcenter Parkway in Seattle). RSVP to (360) 956-3482 or info@effwa.org.


A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION

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LetterLETTER from Lynn FROM LY NN by Lynn Harsh

The View from Above he air quietly swooshed past my weightless body as I surveyed the turquoise sea below. At 800 feet, the water looked serene and the horizon seemed limitless. I gave the signal to go higher, barely aware of the humans I’d left in the speedboat below. It was quiet…so quiet. The adrenalin that propelled me from the boat had quickly receded into the cornflower blue sky. Splayed invisibly behind was the parasail that kept my body high above the cares of life, at least for a few minutes. Hotels and shops anchored the beach for miles, with hundreds of people milling around them like ants. Particular faces and conversations were unattainable to my senses. For that space of time, I could only take in the big picture. And it was beautiful. A grumpy teenage son awaited my return to terra firma, along with a wallet thin on cash. But I had seen the bigger picture. My spirits were renewed. I woke up with this memory a few days ago, along with a strong desire to get back up in the air. So I did. Not literally, but in the sense of pulling myself above the treacherous terrain long enough to get a broader view. It’s difficult to gain perspective when surrounded every day by bad news and uncertainty. But good decisions are impossible to make without perspective. Once perspective is gained, solutions suggest themselves. Strategies for traversing the tough terrain can be formed in a mind that has absorbed the big picture. Then courage and persistence are required to execute the strategies. Courage is our bulletproof vest. Author and theologian Chuck Swindoll writes about courage this way: “It has several names…and a few nicknames…But whatever the name, it’s never met its match. The heights of the Himalayas only encourage it. The depths of the Caribbean merely excite it. The sounds of war stimulate it. The difficulty of a job motivates it. The demands of competition inspire it. Criticism challenges it…adventure arouses it…danger incites it… threats quicken it.” “COURAGE. That’s another word for inner strength, presence of mind against the odds, determination to hang in there, to venture, persevere, withstand hardship. It’s got keeping power.” Most Americans alive today have never had to screw up persevering courage. They haven’t faced a severe threat to their comfortable way of life; have never

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“STR ATEGIES

lost opportunity to pursue their dreams in their own lifetimes. Most Americans have no idea that human freedom is essential to opportunity, and that government can either enhance or hobble freedom…or sometimes kill it altogether. Those of us who understand this indispensible connection are tempted to become angry at the emptyheaded policies that erode freedom and threaten to sink our beloved country. Some of this bad stewardship stems from genuine ignorance. But all of it is formed from perceived self-interest. If we want to change the terrain from treacherous to safe, we need to change the incentives. History informs us that we should do this as quickly as possible. For example, what political decisions do you think the average 25-year-old would make today if he or she really understood that their future paychecks are being used to secure today’s government debt; that their dreams will be dashed to pay for promises politicians are making to me. I do not want the next generation to decide that euthanasia is the only way to free their paychecks. Better that we stop borrowing against our children’s future. Accomplishing this requires that we change the incentives for certain behavior. Politicians must not be rewarded for making ignorant, short-sighted, selfcentered decisions. To do this, voters must understand the trade-offs—what’s at stake in terms of their own futures. Elected officials who make wise choices must be rewarded. Soon! Elected officials who refuse must face voters with a badge of shame. Soon! But who among your friends and their children really understands the connection between freedom and opportunity; between freedom and failure; between freedom and success? We have to make this crystal clear, in impossible-to-ignore ways. Ten years ago, the idea that we have to reach millions of people with this compelling message in relatively short period of time, would seem impossible. But not with today’s technology! Your financial support enabled us to build a simple media studio equipped with high quality video and audio equipment. We have been training our selves to use this equipment well as we size up and seize the opportunities in front of us. EFF’s policy analysts know that conducting intellectually rigorous research and careful analysis is

FOR TR AVERSING THE TOUGH TERR AIN CAN BE FORMED IN A MIND THAT HAS ABSORBED THE BIG PICTURE.”

only the beginning of their obligation. They are learning to turn that information into well-crafted words, images and dreams for people who will never pick up our policy briefs—especially young people. Our communications team is helping us refine our audiences and messages. Our leadership team is scoping out the terrain, crafting plans for neutralizing opposition and seizing the high ground. Continued on next page

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ecently I listened to a seminar where non-profit leaders discussed ways they were going to reduce expenses to get through this recession. The options presented made me aware that I should tell you what we don’t do during good times, as well as what we have actually done to date.

“Our members do not pay for a “wardrobe allowance” for me or haircuts for Bob.” We do not have board retreats at off-shore destination locations. Our leadership team does not have a large “entertainment” allowance to cut. (Breakfast at McDonalds anyone?) We do not have substandard employees who we kept around during good times, but who will now get pink slips. Our members do not pay for a “wardrobe allowance” for me or haircuts for Bob. We do not have fancy furniture or entertainment centers to sell. But we have portioned off medium-sized offices to make smaller offices. Sadly, we have let seven employees go this year. We cut out the monthly staff lunch that used to accompany our monthly all-staff meeting. Travel is curtailed unless it’s really important toward accomplishing our mission. All contracts have been reviewed and renegotiated if possible or necessary. Raises are small or non-existent. Everyone is doing extra work. Some projects have been delayed or dropped. But the essentials move on, thanks to our investors and our fine staff. Bob and I realize that staff burnout can be high during these times, so we’re trying to balance the need for more productivity from fewer people with the need for personal and family time. It’s a tough balancing act, but they are worth it and so are you. Thank you for helping us stand in the gap during these difficult days.


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LIVING LIBERTY

Letter from Lynn Continued from page 3 . . . This will take time, but we realize time is shorter than we’d like, so we’re on it. A nation cannot survive multiple generations of bad leadership and poorly educated citizens, so we must act as swiftly as possible. To achieve any measure of success, audiences must be targeted. Have you ever tried to carry on an important discussion with a fool? On the other hand, some people are eager for information, and perhaps a good debate. An old Persian proverb provides instruction for sorting them out.

He who knows not, and knows not that he knows not, is a fool; shun him. He who knows not, and knows that he knows not, is a child; teach him. He who knows, and knows not that he knows, is asleep; wake him. He who knows, and knows that he knows, is wise; follow him. I encourage you to lift your eyes, mind and heart away from the serious cares confronting you today. Remove your nose from the grindstone—just for time, until you

can survey the broad terrain, not just the pock-marked ground directly in front of your feet. This is difficult, as I know full well. But in this act, you will see new vistas for the first time; new possibilities. Then you can build a strategy and grab the courage necessary to execute it. Alexander Solzhenitsyn said, “Must one point out that from ancient times a decline in courage has been considered the first symptom of the end?” None of us can muster this alone, but it’s impossible to contain what we can do together.

With Big Three sales for November 2008 off anywhere from 30.6 to 47.1 percent, American consumers are fleeing from showrooms with hands affixed securely on wallets. Not only are the great unwashed not buying their cars, we’re not buying their bunk. A recent CNN/Opinion Research Poll revealed that 61 percent of Americans oppose a Big Three bailout, with 70 percent believing it’s unfair to taxpayers. Locally, a Survey USA poll sponsored by King-TV matches those numbers with 60 percent of SeattleTacoma respondents believing the federal government should allow the auto makers to fail. What makes the numbers fascinating is that they cut across ideological lines—a landslide-proportion 56 percent of liberal respondents are thumbs down on the deal. Additionally, the poll shows that 49 percent of all respondents believe a bailout effort will fail, while 10 percent aren’t sure. Yet a bailout, now featuring a federal Car Czar with veto power over major Big Three financial decisions, appears likely. Like your nasty brother-in-law who borrows money from you, the Big Three and their sidekick-in-crime, the UAW, promise to reform. New technology, fuel-efficient cars, an end to featherbedding at full-pay-but no-workunion-run job training centers, selling the corporate jet, and more – genuine repentance, or sorry they got caught? The bailout is sold as necessary to America’s survival, which is stuck-record since they’ve all been sold that way. Chrysler Vice-Chairmen, Jim Press, predicted skyis-falling calamity unless the dons from Detroit get a massive federal meal ticket. But wouldn’t that be like giving the keys to your brand new car together with your VISA card to that brother-

in-law? After he totaled his car and maxed out his credit cards? America has had a multi-generational love affair with Detroit—remember ’57 Chevy and ’67 Mustang? - but it’s time for tough love. The Big Three failed to keep pace with life and changes in the world, so time for the Big Three to fail. Let them go Chapter 11 bankruptcy reorganization where loser product lines could be jettisoned, antiquated facilities closed, back-breaking labor contracts voided, and empty suits put out to pasture. Let new blood and new ideas flow into the companies—let real and necessary change happen on its own as directed by the marketplace, not some Car Czar. As for the American automotive industry? Think Subaru in Lafayette, Ind. where nearly 2,800 American auto workers manufacture an excellent product. Or Toyota in Huntsville, Ala., where almost 900 Americans build engines that go into Toyota cars and light trucks. They haven’t asked for a bailout. Quite the contrary— these workers will pay to bailout their inefficient, incompetent, and now irrelevant competitors. Where’s the fairness in that? Which is a good question generally: where’s the fairness in any bailout? Is this the optimum American business model: build unreliable junk nobody wants, pay union workers a kajillion bucks to build it badly, ignore market pressures to improve, then when it blows up in your face, cruise to Washington, D.C. to slop at the federal relief-trough? Bailouts are like seriously polluting oil spills: they spread everywhere, fouling whatever they touch—think Exxon Valdez on steroids. The bailout-driven nationalization of much of the American economy must have Karl, a fifth Marx brother, howling with glee from way down below. Scott St. Clair is EFF’s resident journalist.

Bailout this, Detroit by Scott St. Clair

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ailout: a word used so frequently and electronically searched on so much that it became Miriam-Webster’s word of the year for 2008. Defined as, “A rescue from financial distress,” every other TV or newspaper story is about a bailout, all funded with tax dollars— dollars ponied up by Joe and Jane Taxpayer. The public treasury has become a freebie fix-all for every failed investment scheme, bad financial idea, and lousy product under the sun. And the total amount of bailouts grows daily such that any number used here will be rendered moot moments after this is written. Please tell me this isn’t the change we’ve been hoping for? Who doesn’t have a hand out for bailout-gimme money? Like free food, it attracts everyone. To paraphrase Henny Youngman, “Take Detroit’s Big Three auto makers—Please!” For weeks, the CEOs of Ford (homegrown Alan Mulally, late of Boeing), General Motors (Rick Waggoner), and Chrysler (Robert Nardelli) together with the president of the United Auto Workers (Ron Gettelfinger), a perfect Zeppo to their Groucho, Chico, and Harpo, have wandered the halls of Congress, figurative tin cups in hand, begging for a bailout to save them from the logical, foreseeable consequences of their own actions. With a price tag pegged anywhere from $15 billion to as high as an eventual $125 billion (Don’t like the numbers? Substitute your own—probably just as good), taxpayers are close to having their money sunk into companies whose products they don’t buy. And it’s been done in a ham-handed, clumsy way. First, like jet-setters they flew into Washington, D.C. in fuel-guzzling private aircraft, massive entourages in tow. Not exactly a travel modality that engenders sympathy from a mother of two in Jamestown, N.C. who was forced to park her car because she couldn’t afford repairs required for new license tabs. Next, they went overboard the other way by motoring to the nation’s capitol in their company’s version of green hybrid cars, routinely exceeding the speed limit along the way. GM’s Waggoner was even reported to have done some of the driving. Zip through a Mickey D’s for an Egg McMuffin while en route, Rick? That they valet-parked their tuna-cans-on-wheels at $399-per-night Washington luxury hotels isn’t significant—unless, that is, one ponders the irony of why corporate panhandlers in thousand-dollar suits shouldn’t have to bunk at a homeless shelter with down-and-outers who got there in much the same way: making a series of exceedingly bad choices over a lengthy, sometimes decades-long period of time. No word on who lettered their cardboard signs that pleaded for a few bucks, or whether they approached individual legislators asking, “Spare billions, Man— spare billions?”


A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION

Budget Deficit Continued from page 1 . . .

General Fund Balance Sheet 2007-09 Revenue: $28.6 billion Spending: $29.8 billion Difference: ($1.2 billion) Source: ERFC

Second, because of new spending approved in the last two sessions, such as the Family Leave Act and the unsuitably-named Working Families Tax Credit (which gives tax refunds to people who don’t pay taxes) the gap between what the state expects to take in and what bureaucrats and lobbyists want to spend would widen significantly. Rather than reducing spending earlier this year, the governor and legislature actually increased it by $215 million, despite signs of a weakening economy. The next budget has not been written yet. The only reason a future deficit is a concern is that lawmakers are attempting to “iceberg budget”—i.e. increase spending by at least the number of caseload increases plus inflation—rather than doing a zero-based budget

evaluation to determine whether current spending is actually delivering the results taxpayers expect. But who wants to review the budget from the ground up when we can just cut things like performance audits and government accountability programs? That makes sense, right? I’m sure you’d rather take out a second mortgage or starve your kids than get rid of your 200 channel HD cable subscription and your monthly allotment for iTunes. The “essentials” aren’t negotiable. The difference between expected revenue and what the governor and legislature would like to spend is what is being called a “budget deficit.” As a result, many lawmakers are claiming they will have to make deep cuts in order to balance the budget. In fact, they will have $300 million more to spend than the current budget—or $890 million more when the governor’s cuts are included. The legislature and governor are following the predictable political pattern of treating any needed spending restraint as a crisis. Revenue has been steadily increasing for the last ten years. Lawmakers do taxpayers a disservice by claiming, “There’s just not enough money.” Tax collection is not the problem—spending is. State spending plans exceed what Washington taxpayers can afford The real problem with the budget is not a lack of revenue, but the rate of spending by state government. General Fund spending has increased by nearly 200

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percent since 1977—far outpacing population and per capita income growth. Over the last four years alone, the state general fund budget has grown by 34 percent. Rather than planning for the worst, legislators counted on the best when they passed the last two budgets. When the economy was rolling and revenues were high, lawmakers spent as though the good times would never end. They refused to recognize the reality that economies run in cycles, and that good times do not always lead to better times. Not only did legislators spend their way through huge revenue increases, they also spent at twice the rate that they took in money. Even when the current budget passed in 2007, state spending knowingly exceeded forecasted revenue by $1.3 billion (Near General Fund). The next time you read or hear about the $5.1 billion “deficit” in the news or on the radio, remember that number is the difference between what bureaucrats, lobbyists and certain legislators want to spend and how much the state is expected to actually take in. Revenue growth has slowed from the historically high increases of recent years, but the legislature will have $300 million more to spend for the next budget—or $890 million more when the governor’s savings are included. It is not a crisis; it is not a cut. It is simply less growth than planned. Amber Gunn is the director of EFF’s Economic Policy Center .

* *All figures are adjusted for inflation (IPD) | **General fund budgets are biennial, this graph tracks actual annual expenditures. | Population Figures: www.ofm.wa.gov/pop/cociseries/default.asp State General Fund Expenditure Data: Provided by OFM | GDP Figures: www.bea.gov/regional/gsp | Per Capita Income: www.bea.gov/regional/spi/drill.cfm


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LIVING LIBERTY

Reading Part XII: The Federalist

PROTECTING RIGHTS

AND THE

CONCLUSION

by Trent England

Reading The Federalist in 2008 The Federalist Papers explain both the reasons for and the workings of the Constitution of the United States. It is “the most powerful body of political thought ever produced in America,” according to historian Rober t Middlekauff. For Americans who believe in the enduring value of the Constitution, The Federalist is an essential resource and a guide. This is the final essay of a twelve-par t series to help readers understand and appreciate the lasting relevance of this American classic. Living Liber ty presents these monthly essays and encourages you to read The Federalist with us.

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lexander Hamilton’s original plan was audacious: assemble a small team to write quickly and anonymously two-dozen well-reasoned essays that would become the definitive case for the Constitution. His first essay promised to “endeavor to give a satisfactory answer to all the objections” raised against the proposed plan of government. Yet the final product, 85 essays explaining the need for and meaning of the Constitution, must have exceeded even Hamilton’s high hopes. Hamilton penned 51 of the essays, James Madison 26, John Jay only 5 due to ill health. Hamilton and Madison produced 3 together, as best we can tell. Only four hand-written drafts have survived, all by Jay. The 85 essays that became The Federalist Papers—or simply, The Federalist—were all signed “Publius,” for Publius Valerius Publicola, a founder and one of the first executives of the Roman Republic. George Washington, who presided at the Constitutional Convention and supported the Constitution, celebrated the spirited ratification contests. These debates had “thrown new light upon the science of Government…given the rights of man a full and fair discussion, and explained them in so clear and forcible a manner, as

cannot fail to make a lasting impression upon those who read the best publications on the subject, and particularly the pieces under the signature of Publius.” Federalist No. 84: Certain General and Miscellaneous Objections to the Constitutions Considered and Answered (Hamilton) The Bill of Rights is the best known part of the Constitution. For many Americans, it marks the beginning and end of their constitutional knowledge. Yet the Bill of Rights is found in the amendments; it was not part of the original plan. Why did the Constitutional Convention leave out a bill of rights? The Anti-Federalists asked this question and answered it with arguments against the Constitution or in favor of ratifying it only on condition that a bill of rights be included. Fearing that the plan might actually be defeated, the Federalists would eventually agree to support adding what became known as the Bill of Rights. Yet that change appears largely to have been a political calculation and a commitment honestly kept, so the question remains: why did so many of the Founders oppose a bill of rights? Publius takes up this “most considerable … remaining objection” in his pen-

ultimate essay. Looking first to America’s own experience, he points out that several states—including New York—had no bills of rights. New York Anti-Federalists recognized this weakness in their argument; Publius summarizes their two rebuttals. First, they claim their constitution “contains, in the body of it, various provisions in favor of particular privileges and rights which, in substance, amount to [a bill of rights].” Second, they point out that their constitution continues to incorporate British law, “by which many other rights … are equally secured.” The first rebuttal, writes Publius, fails to distinguish the state constitutions from the proposed national Constitution. The very structure of government established by the Constitution will protect the rights of the people. As for specific protections, Publius points out seven in the Constitution. 1. Officials are subject to impeachment and can be removed, prosecuted, and punished. 2. Habeas corpus, the right of a prisoner to a hearing, can only be suspended “in cases of rebellion or invasion.” 3. “No bill of attainder or ex post facto law shall be passed.” That is, legislature cannot pass a law that convicts a person of a crime or criminalize prior acts. 4. “No title of nobility shall be granted by the United States.” 5. Trial for federal crimes shall be by jury and in the state where the crime was committed. 6. Treason is defined as only “levying war against [the United States]” or “adhering to their enemies, giving them aid and comfort.” Additionally, conviction for treason requires either a confession or the testimony of two witnesses. 7. Punishment for treason may not extend to a person’s heirs (no “corruption of blood”). Publius emphasized the importance of habeas corpus and the restriction against ex post facto laws. Reminding readers

that abuses of criminal law “have been, in all ages, the favorite and most formidable instruments of tyranny,” Publius argues that the Constitution will prohibit just such abuses. He cites the English jurist Blackstone for the importance and efficacy of these checks on government power. Publius also reiterates the importance of the ban on titles of nobility— essentially a prohibition against hereditary aristocracy—as “truly…the cornerstone of republican government.” The second argument, that the New York State Constitution’s adoption of the protections in British law constitutes something like a bill of rights, fails also. Publius points out that the state constitution makes incorporated British laws subject to the state legislature. That is, the protections of rights imported from Britain have only the force of statutes. They are not constitutional protections, not a bill of rights. From these rejoinders, Publius moves on to consider what, exactly, is a bill of rights. [B]ills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such “primitive” reservations of rights from a monarch, he writes, “have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants.” He quotes from the preamble of the Constitution, which explains its purpose is “to secure the blessings of liberty to ourselves and our posterity.” This, says Publius, “is a better recognition of popular rights” than the lists of rights found in some of the states’ constitutions. Even if a bill of rights was necessary for certain republican governments, the Constitution “is merely intended to regulate the general political interests of the


A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION

nation….” In such a regime, a bill of rights would be “dangerous” because it might actually increase government power. The bills of rights proposed would proscribe things that government is not empowered to do. Thus a bill of rights might suggest that government powers are broader than they appear—it might draw attention away from the limited grants of power and toward the bill of rights prohibitions on specific uses of government power. Publius takes up a particular Anti-Federalists complaint: lack of protection of the press, which meant essentially freedom of political speech. He points out that the New York State Constitution is here again also silent. And even in constitutions that explicitly protect “freedom of the press,” what does that mean? Someone must still interpret and enforce the provisions of a bill of rights, and in the end, they will “depend on public opinion, and on the general spirit of the people and of the government.” This, as Publius has suggested before, is in practice “the only solid basis for all our rights.”

“A ND SO EACH A MERICAN MUST CONSIDER THE CONSTITUTION ‘ACCORDING TO THE BEST OF HIS CONSCIENCE AND UNDERSTANDING, AND TO ACT AGREEABLY TO THE GENUINE AND SOBER DICTATES OF HIS JUDGMENT.’”

Publius closes his defense of the Constitution’s lack of a formal bill of rights with an argument about how rights are really protected. He asserts that the AntiFederalists are simply defining “bills of rights” too narrowly. The proposed Constitution protects “the political privileges of the citizens,” “defines certain immunities,” and sets up “modes of proceeding.” It will, in operation, protect the rights of citizens within its limited scope. And so, writes Publius, “The Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” The balance of No. 84 rebuts three final arguments against the Constitution.

The first is that wherever the national capital is located, it will be too far from many of the states and citizens. Publius points out that this is not an argument against the Constitution so much as against any union at all. He notes that all states and citizens will be represented, wherever the capital is, by their members of Congress. Furthermore, even within a single state, outside of the immediate surroundings of the seat of government all citizens must rely on second-hand accounts. Those citizens who live near the capital will have the same interests in “general liberty and prosperity” as those farther away and will thus be representatives of their countrymen to the extent necessary. The second contention is that the Constitution is simply a ruse to change regime and thus cancel debts owed to the government under the Articles of Confederation. Publius dismisses this with the “established doctrine of political law” which says that such a change in government has no effect on such contracts. Finally, Publius responds to the AntiFederalist charge that government under the Constitution will be prohibitively expensive. If the form of government is necessary, he writes, the expense must be borne. Publius predicts that the new government will not add too great a cost since Congress will initially be the same size as under the Articles, and will not need to meet as frequently because many of the day-to-day duties will be taken up by the new Executive Branch. The cost of the new executive offices will mostly replace executive positions within Congress under the Articles. Federal judges, Publius acknowledges, will be an added expense. Other federal offices will replace state offices—those related to interstate or international trade, for example—simply shifting the cost from the state governments to the national government. Federalist No. 85: Concluding Remarks (Hamilton) In his first essay, Publius identified six topics that he would address. The first four—the importance of the union, the inability of the Articles to preserve it, the necessity of energetic government, and the republicanism of the Constitution— formed the plan of the series. In his concluding essay, Publius notes that the last two—the comparison of the proposed Constitution to the state constitutions and the additional security it will provide to liberty and property—have been “exhausted” amidst the other discussions, leaving Publius free to bring The Federalist to a close. Nevertheless, Publius does reiterate for his New York audience the similarities between that state’s constitution and the proposed plan for national government. Neither constitution places term limits on the executive, creates an executive council, or contains a bill of rights. He next proceeds to summarize how the Constitution will protect liberty and property. By preserving the union, the Constitution will decrease risks from “local

factions and insurrections,” “powerful individuals,” “foreign intrigue,” and the “extensive military establishments” that disunion would render inevitable. The Constitution also guarantees each state a republican form of government, prevents titles of nobility, and protects the right of contract. Here Publius pauses to remind readers that he has addressed their “judgments” and has avoided the kind of unfair or obnoxious political attacks “which are too apt to disgrace political disputants of all parties….” He contrasts this with the provocative accusation by some AntiFederalists that the Constitution is the work of a “conspiracy against the liberties of the people….” Such charges, he admits, may have driven him to occasional “intemperances of expression,” but he has struggled throughout to maintain his “moderation.” And so each American must consider the Constitution “according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment.” This is an absolute duty arising from the very “bands of society.” Publius acknowledges that he feels “an entire confidence” that the Constitution should be ratified. “I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced.” There are imperfections in the Constitution, Publius concedes. “I never expect to see a perfect work from imperfect man,” he writes. To maintain “thirteen distinct States in a common bond of amity and union” necessitated compromise. To those who believe changes or additions to the Constitution are necessary, Publius answers that it will be easier to achieve such modifications through the Constitution’s amendment process than in some new attempt to draft a plan of government.

7

Publius quotes from Scottish historian and philosopher David Hume in his closing paragraph. “To balance a large state or society … on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work: EXPERIENCE must guide their labour; TIME must bring it to perfection; And the FEELING of inconveniences must correct the mistakes which they inevitably fall into, in their first trials and experiments.” There will never be a perfect government among imperfect men. Time and experience must be allowed to work out the inevitable imperfections of the Constitution. Yet setting it aside would leave the union to disintegrate, risking “anarchy, civil war…and perhaps the military despotism of a victorious demagogue.” A

without a NATIONAL is, in my view, an awful spectacle. The establishment of a constitution, in time of profound peace, by the voluntary consent of a whole people, is a PRODIGY, to the completion of which I look forward with trembling anxiety. NATION

GOVERNMENT

We are pleased to announce that the Reading THE FEDERALIST essays will be available in book form later this year.

During 2008, Living Liberty will present monthly essays and encourages you to read The Federalist with us.

“THE

MOST POWERFUL BODY OF POLITICAL

THOUGHT EVER PRODUCED IN

AMERICA.”

– ROBERT MIDDLEKAUFF

February March

| Federalist No. 1: Introduction

| Federalist Nos. 2–8: Importance of a union of all the states

April

| Federalist Nos. 9–14: The size of the union and its economic conditions

May

| Federalist Nos. 15–22: Defects of the Articles of Confederation government

June

| Federalist Nos. 23–36: Necessity of “energetic” government

July

| Federalist Nos. 37–40: The Constitutional Convention and its detractors

August

| Federalist Nos. 41–51: Controlling government power

September October |

| Federalist Nos. 52–61: The House of Representatives

Federalist Nos. 62–66: The Senate

November

| Federalist Nos. 67–77: The Executive

December |

Federalist Nos. 78–83: The Judiciary

January 2009 |

Federalist Nos. 84–85: The lack of a bill of rights and the conclusion


8

LIVING LIBERTY

EFF LAUNCHES

CONSTITUTIONAL

LAW CENTER E

vergreen Freedom Foundation is pleased to announce the launching of the Constitutional Law Center, a project designed to protect individual rights and hold government and government officials accountable. Government is often a citizen’s greatest adversary. Bureaucratic officials muzzle political and religious free speech for many citizens. They prevent most parents from deciding how their children will be educated; take away private property; prevent access to pubic records; rig the system intended to provide equal economic opportunity; and undermine free and fair elections. EFF has discussed and realizes the need for freedom-oriented groups to engage in legal action. It’s not enough to recommend good policies; sometimes they have to be defended in court. Freedom requires vigilance on many fronts. CLC will address this need. For more than a decade, the Evergreen Freedom Foundation has conducted strategic litigation. The legal arena must be entered with deliberate purpose to ensure that these efforts have lasting impact, hence the establishment of the Consti-

• LEFT: AUTHORS JONATHAN BECHTLE AND MICHAEL REITZ DISCUSS THEIR NEW BOOK, TO PROTECT AND MAINTAIN INDIVIDUAL RIGHTS: A CITIZEN’S GUIDE TO THE WASHINGTON STATE CONSTITUTION • RIGHT: EFF SUCCESSFULLY DEFENDS THE RIGHTS OF TEACHER SUSAN WIGGS

by Michael Reitz

tutional Law Center, a public interest litigation center within EFF. The Constitutional Law Center will represent Washington citizens in carefully selected cases that have potential for broad impact. Staff attorneys will also assist EFF in its constant function as a government watchdog. Much of this year was spent establishing the groundwork, and the effects of targeted legal action are already being seen; • EFF successfully defended a teacher’s right to send her union dues to a charity that fights sex-trafficking—a charity the union opposed! • EFF is pursuing a complaint against the Secretary of State for failing to prevent improper voter registrations. • EFF “friend-of-the-court” briefs have offered legal and policy considerations in critical cases before state and federal courts. • Recently, a state agency considered lobbying rules for Internet activities. EFF and others warned that such rules would suppress legitimate public debate. As a result, the agency tabled the proposal

EFF and CLC can offer clients free representation because of your support. Donations toward the litigation department are tax deductible, and EFF is pleased to announce that a generous donor is willing to do a 2 for 1 match for all investments made in this project. This will multiply your donation by 150%!

EFF aims to restore the critical balance between government’s important, but limited, role and an individual’s ability to control his or her destiny as a free and responsible member of society. Accomplishing this objective requires strategic victories in the courts of law and the court of public opinion. We hope you will join us! Michael Reitz is general counsel of the Evergreen Freedom Foundation.


A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION

9

State agency considers lobbying regulations for websites and blogs by Michael Reitz

D

o you maintain a personal blog or website? Beware: the government man may come knocking at your door. The Internet has become the preferred venue for people to voice opinions about every conceivable subject, with few receiving as much online attention as politics and legislation. Forget K Street—blogs reet—blogs are greatly influential in public policy debates. tes. Washington State is now eying Internet communications as a potential field for regulation. egulation. The Public Disclosure Commission (PDC), C), the state campaign ampaign finance agency, is discussingg potential gu guidelines uidelines for Internet lobbying. Lobbying consist bying can co onsist of someone who is paid to infl uence legislation fluence legislattion and interacts with legislators on basis. n a regular ba asis. But the PDC also regulates “grassroots rassroots lobbying”— lobbyying”— when a person or group urges ges the general generaal public to contact their legislators. The PDC recently announced proposal unced a prop posal to clarify that lobbying regulations ations apply to t Internet activity. In order to stimulate discussion, mulate discuss sion, the PDC distributed several questions estions for input: inpput: • Are Web sites established ed to providee lobbying information and to encourage oth others hers to lobby for or against a particular rticular bill or rule r engaged in a reportable activity? • Are expenditures related grass-roots d to grass-root ts lobbying directed to the he public viaa e-mail reportable? • Are lobbying postings and nd responses p on blogs reportable? • Are funds provided to “tip p jars” (donation links) on lobbying yingg blogs reportable? portable? The PDC’s mission is to follow ollow w the money. The agency reports “who gives, who gets, ts, aand nd how much.” State law mandates detailed regulations ons for lobbyists. Any violation of these rules—even clerical lerical mistakes—can result in financial penalties. But as vital as the PDC’s mission is, the proposed guidelines raised serious questions for Evergreen Freedom Foundation. Many individuals use the Internet to exercise their democratic rights. They voice their opinions and contact their legislators. Many bloggers serve a “citizen journalist” function, reporting stories before the mainstream media. The PDC December 4 meeting heard EFF concerns. While EFF supports the PDC efforts to keep the political process transparent, concern remains that the proposal could have the unintended consequence of stifling legitimate citizen speech. Private individuals should not have to review agency regulations and guidelines to reassure themselves that they can speak out about a public policy issue.

“Private individuals should not have to review agency regulations and guidelines to reassure themselves that they can speak out about a public policy issu issue.” After discussion, the PDC tabled the proposal. Two commissioners (Ken Schellberg and Dave Seabrook) favored adopting the guidelines, while two (Jim Clements and Jane Noland) felt there was no problem, and wanted more time to consider the issue. The fifth commissioner wasn’t present, so the issue stalled. The Public Disclosure Commission would benefit from citizen input on this issue, EFF members are encouraged to contact the commission with their thoughts. Whatever course the PDC takes, regulation of the Internet should leave intact the individual’s right to free speech. Michael Reitz is general counsel of the Evergreen Freedom Foundation.

Furthermore, it is possible even under these guidelines that individual online speech could be classifi ed classified as grassroots lobbying. Imagine a Seattle sports blogger who comments on a proposal for a publicly-financed stadium. Or a food critic who opposes a bill to ban foie gras. Regulation of Internet speech could easily become a tool for entrapping outspoken individuals. The PDC could offer all the clarification needed by simply stating: “activities that are reportable as lobbying do not enjoy an Internet loophole.” EFF joined a letter submitted by the Institute for Justice, a Seattle-based, libertarian public interest law firm, which urged the commission to use free speech as a starting place for analyzing whether the Internet should be regulated. Everyone should be free to speak on all issues unless there is a compelling government interest in regulating the speech. Other groups also signed the letter: Washington Coalition for Open Government, Washington Policy Center, and the Sound Politics blog.

Public Disclosure C Commission 711 Capital Way #2 #206 PO Box 40908 Olympia, WA 98504-0908 877-601-2828 360-753-1111 360-753-1112 (fax) Email: Lori Anderson at landerson@pdc.wa.gov


10

LIVING LIBERTY

As the 2009–2010 legislative session begins, citizens and legislators alike anticipate the many bills that legislators may introduce. Some will pass; others will peter out but produce important discussions that pave the way for future changes. EFF’s atch should Citizenship & Governance Center is tracking eleven ideas Olympia watchers expect to see considered—or at least suggested—by legislators.

NAVIGATING NG T H E

L E G I S L A T I V E

S E S S I O N

by Trent England & Diana Cieslak

VOTE-BY-MAIL In 2008, thirty-seven of Washington’s thirty-nine counties voted entirely by mail—King and Pierce Counties retained the option of poll voting. While many citizens appreciate the convenience of mail voting, the new system has brought new vulnerabilities and amplified existing threats to election integrity. Instead of denying citizens the opportunity to cast their ballots at the polls (a more secure method), legislators could improve election security by returning to the long-standing precedent of only offering absentee voting to those who are legitimately unable to make it to the polls. Washingtonians have conducted the vote-by-mail experiment—it has failed to yield any dramatic increases in voter participation and created grave concerns about accuracy and security. While this legislature is unlikely to reconsider vote-by-mail, this is too important a conversation to take off the table.

BALLOT POSTMARKING Washington has the latest date of any state for accepting ballots (Nov. 25). Currently, ballots need only be postmarked by Election Day, leaving the outcome in doubt as ballots trickle in. The new reliance on voting by mail has made these delays more pronounced leading many to call for an earlier deadline. The Secretary of State and many counties want the law changed to require ballots to arrive on Election Day. Others are reluctant to give the Post Office that much control over the validity of ballots. Another solution would be to make ballots valid if they either arrive by Election Day or are postmarked by a specified date, for example two or three days before the election. Legislation to change ballot deadlines will almost certainly pass this session.

BALLOT FORWARDING Under current law, county auditors have the choice of whether to allow the Post Office to forward ballots in the event of an address change, and many do. This practice prolongs the time that ballots float through the mail and reduces the ability of election officials to know whether a voter has moved out of the jurisdiction. Forwarding ballots makes it more difficult to keep accurate voter

rolls and increases the likelihood that illegal votes will be cast. The Postal Service’s automatic mail forwarding provides no guarantee of where a ballot will end up and whose hands it will pass through on the way. On its own, this issue is unlikely to progress through the legislature, but if combined with other election reform measures, it might pass.

FELON VOTING The State of Washington allows restoration of voting rights to a felon after his sentence has been completed and all financial restitution has been made. Some people would like voting rights automatically restored to them as soon as they leave prison. That might be better for felons, but it would be worse for the integrity of elections, the corrections system, and crime victims. Of benefit to all would be reforms to clarify and improve the procedures for restoration of rights. Felons should know how to regain their voting rights, and the corrective system should know who has and has not had their rights restored. Those who have not must be immediately removed from the voter rolls. Finally, the Secretary of State’s office—which is charged with the responsibility of maintaining accurate voter rolls—should use existing data and their research capabilities to actively search for and remove ineligible felons from the rolls. The legislature is likely to see bills from all sides of the issue; the outlook is uncertain.

UNDERAGE VOTING Over the last eight years, more than 16,000 voter registrations have been accepted by election officials from underage teens, and dozens have received ballots and cast votes. The law allows seventeen year olds to register to vote if they will be eighteen by the next election. In some counties, instead of rejecting registrations from voters who are too young to meet this legal requirement, officials simply put the forms in a drawer until the teen is eligible. This sloppy practice is illegal and has compromised our elections. The voting age and registration

procedures can either be clarified by the legislature or appropriately enforced by the Secretary of State. In spite of EFF’s pending lawsuit against the Secretary of State, they continue to deny their legal obligation to address under-age voter registrations. Elections Director Nixon Handy has at least agreed to develop written policies on the subject in early 2009. The Secretary of State may, however, simply codify the existing unsatisfactory process, leaving the issue to the legislature or the courts. Legislative action will likely depend on what the Secretary of State does this month.

PROOF OF CITIZENSHIP WHEN REGISTERING TO VOTE Currently the Washington Voter Registration Form asks applicants to confirm their U.S. citizenship by checking a box, giving the state no way to verify a voter’s citizenship. As in previous years, legislators concerned about election security will probably once again push to require voter registration applicants to provide proof of American citizenship. This would strengthen the system and protect legal voters from being disenfranchised by illegal ballots. The legislature could also require election officials to use court records of those who have declined jury summonses citing non-citizenship to check against the voter rolls. It is unlikely that the current legislature will do anything to protect the rights of American citizenship in this session.

ID TO VOTE Requiring photo identification at the polls has been a hot topic for the last couple years–especially in states like Georgia and Indiana where the laws requiring it were challenged and ultimately upheld. For several years, similar bills have been introduced in Washington. Requiring photo ID at the polls—and offering clear instructions on what forms are acceptable and how to procure them—would be a big step toward stronger election security (especially if accompanied by a return to polling place voting). There cannot be a serious conversation on voter ID requirements without a return to the polls.


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A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION

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THE COMPASS: LEGISLATIVE PROCEDURE 1. A legislator introduces a bill.

SPECIAL ELECTIONS

2. The bill goes to committee for review and pos-

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NATIONAL POPULAR VOTE A group known as the National Popular Vote is actively trying to abolish the Electoral College, arguing that it doesn’t represent the will of the people. Their proposal

3. The committee reports on the bill, and the bill goes to the Rules Committee. 4. The Rules Committee schedules a second reading or takes no action. 5. The bill is subject to debate and amendment during the second reading, and the third reading is scheduled. 6. A bill passed by one house goes to the second

7. If the second house amends the bill, the first

EMERGENCY CLAUSE REFORM Article 2, Section 1, of Washington’s Constitution, says the legislature may pass a bill with an emergency clause when it is “necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” This allows the legislature and governor to enact a bill without the otherwise constitutionally required ninety-day waiting period and denies citizens their right to challenge the bill with a referendum. By establishing the right of referendum, the Constitution provides a check on the legislature --the emergency clause provides for situations when the legislature must make fast decisions related to the urgent protection of the citizens and state. In the last four legislative sessions, over two hundred bills containing emergency clauses were passed by the legislature and submitted for the governor’s signature–many were controversial bills that might have resulted in referenda and had no relevance at all to the “immediate preservation” of the state. Abuse of the emergency clause disrespects the people and our State Constitution. Emergency clauses are meant for real emergencies. One solution proposed last session in HB 4218 by Rep. Barbra Bailey would require a super-majority in order to pass legislation containing an emergency clause. The catch 22 on this issue is that as public pressure has mounted for the legislature to stop abusing the emergency clause, the rate of abuse has gone down—and so have calls for formal reform of the process.

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Forcing taxpayers to foot the bill for political campaigns will certainly be a matter of concern during the upcoming legislative session. Many officials and legislators, including Gov. Gregoire, contend that public financing will level the playing field for candidates and increase competition by allowing more individuals to run for office. They are using an incremental approach, last year winning a public financing option for local governments and now pushing a measure for judicial races. Many of those behind these efforts support taxpayer funding for all campaigns. Results have been inconclusive in states with public financing, and the shift in responsibility from the people to the government has serious ramifications for political freedom. The price tag of taxpayer funded elections makes it unlikely to advance amidst the current budget strife.

sible public hearings.

house for the same procedure.

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would require a state to give all its Electoral votes to the national popular vote winner even if that candidate lost within that state. Contrary to their arguments, the Electoral College represents the will of the people while also providing a safeguard against polarization and extremism and protecting small states. The proper way to modify the Electoral College would be to amend the Federal Constitution, yet the National Popular Vote is working in each state to chip away at this constitutional institution. This may be the stealth issue of this session (here and in other states as well) if legislative leaders push for this fundamental change.

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Washington State law allows four special elections each year–in addition to the August primary and November general elections. That’s up to six total election cycles every year. This strains county officials, increases costs, and interferes with keeping voter registrations updated between elections. As in past legislative sessions, an attempt to drop one or two of the special election dates is expected. The Washington Education Association will probably again claim that schools won’t get funding without these special elections because their levies will have more competition from other tax increases. Reducing the number of special elections would improve election administration, creating an opportunity to improve election integrity. And, as opponents claim, it may even place tax-increasing bureaucracies in competition with each other. We predict that legislation to reduce the number of special elections has about an even chance of passing this year.

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house must approve it. 8. A bill accepted in both houses is signed by the house leaders and sent to the governor. 9. The governor signs the bill, vetoes all or part of it, or does nothing thereby making it law.

(http://www.leg.wa.gov/WorkingwithLeg/ bill2law.htm)

KEY DATES: Jan. 12: Legislative Session begins

March 18: Cutoff for considering bills in house of origin (A piece of legislation is dead if it is not passed out of its house of origin by this date.)

April 17: Cutoff for considering opposite house bills

April 26: Last day allowed for regular session under state constitution

11


12

LIVING LIBERTY

High-Level

Volunteer Job Openings

Advancing EFF’s mission depends a great deal on the volunteers who give high-value time to us. Bob Edelman is an example of this, and we need several more like him as soon as possible. Do you see yourself in one of these frames?

Bob Edelman

Needed:

Needed:

election watchdog

School Reform Analyst

Performance Audit Analyst

Our Voter Integrity Project would be far less effective without the services of Bob Edelman. Election reform became his unswerving goal after retiring from a long engineering career at Boeing. After helping on the inside of some political campaigns, Bob became concerned about the political influence wielded by labor unions. Using his high-level data research skills, Bob reviewed the unions’ political spending habits and filed complaints about the legal violations he found. When the gubernatorial race of 2004 revealed the skeletons in our election closet, Bob scoured election databases and dug through boxes of absentee envelopes to find the source of the problems. He hasn’t stopped since. He regularly reviews voter rolls and election results, finding thousands of illegal voters, multiple types of database errors and many improper election procedures—all by using his home computer and public records. The Secretary of State even established his own “data integrity project” to duplicate Bob’s reviews. With his tenacity and experience, Bob has greatly multiplied our election integrity efforts and has served the citizens of this state.

Job description: Are Washington’s public schools underfunded? How much does it cost to educate a child? We need your help to find out. EFF’s Education Reform Center is looking for a committed volunteer researcher to help us explore the correlation between funding and performance in n rk Washington’s public schools. You will work with Diana Cieslak, policy analyst and Lynn Harsh, CEO.

Job description: EFF is looking for a highlevel volunteer for our performance audit project. This volunteer would become our “go-to” performance audit researcher and would work closely with EFF President Bob Williams and Director of Economic Policy Amber Gunn.

Qualifications • Strong interest in education reform • Solid research skills • Keen draft-writing ability • Computer literate and proficient with MS Office products – requires use of your own computer Time Commitment • About 10 hours per week for a period not less than six months, preferably longer. Proximity to Olympia is not required, but you would likely need to come to our offices for training or to discuss the research plan.

• Qualifications: Experience specific to performance audits not necessary, as training will be provided. • Excellent analytical skills • Comfortable with numbers analysis • Can do large amounts of reading (of the audits) • Adequate writing capabilities. • Computer literate and proficient with MS Office products – requires use of your own computer If you are qualified and so desire, this project provides opportunity for public testimony and writing for publication.

Responsibilities • Research, analyze, and draft reports on school spending, prior litigation regarding school funding (in Washington and elsewhere), and school funding related legislation.

Time commitment Fluctuates between 0 and 20 hours per week when an audit is released. Applicants should be prepared to commit at least 6 months to the project. Most work can be done from home (online reading, analysis, email, writing). Applicants must be able to attend some hearings in Olympia.

Contact Diane at dcieslak@effwa.org for more information.

Contact Amber at agunn@effwa.org for more information.

Who do you want running King County’s elections department? by Jonathan Bechtle

E

ven before the dust had settled on King County’s part of the fiasco of the 2004 gubernatorial race recounts, it became clear there was a crisis of leadership in the county elections department. Then-Director Dean Logan was undoubtedly a good election technician, but he wasn’t a good leader. He failed to create a competent management team, he made bone-headed decisions like revamping the entire election software system just a few months before a presidential election, and he jumped into full cover-up mode as soon as problems arose in the ballot count. County Executive Ron Sims refused to fire Logan until long after the election. And once he did leave to take over Los Angeles elections (where he’s in hot water again), Sims elevated Logan crony, Sherril Huff, to the post. While there have been a few other personnel changes, in essence the elections department is still run by the same managers who bungled the 2004 election. But there will be an opportunity for a leadership change on February 3, 2009, only this time King County voters will choose the Elections Director, not Ron Sims. This opportunity is the result of the incredible efforts of a small group of citizens who cared about having accurate and secure elections. Calling themselves the Citizens for Accountable Elections, the small band gave their time and resources to shepherd an initiative through not one, but two general elections, winning handily both times. The initiative amended the county charter

to create a new stand-alone elections division headed by a nonpartisan elected director. Not only does this disentangle the vital task of running elections from dog-catching and granting marriage licenses, as was the case previously, but it provides a tremendous opportunity for change in the leadership culture of the elections department. EFF has long called for better leadership in the county elections office, and our sister organization, the Evergreen Freedom Action League, was a part of the initiative committee and helped fund the effort. While having an elected director will not automatically fix the lingering problems in the elections department, the right person could do a lot to restore election integrity. While some good changes have been made since 2004, the lack of a meltdown this November had more to do with the absence of a razor-thin result in any of the major races. Many candidates have filed for the new post, and with such a short campaign season it’s imperative that King County voters educate themselves on the candidates and what philosophies they will bring to running elections. These voters should expect to see a voter’s guide in their mailbox soon, check the EFF blog (www.libertylive.org) for updates on the race, and vote on February 3. Jonathan Bechtle is legal counsel for EFF.

Reforming King County Elections • November 2004: Three ballot counts conducted in gubernatorial race, Rossi wins first two, Gregoire wins final hand count • April 2005: EFF calls on Ron Sims to clean house by firing Dean Logan • July 2006: Dean Logan finally quits to take a plum elections job in Los Angeles • July 2006 through April 2007: Sims conducts “nationwide search” for new elections director, but finds no serious prospects • March 2007: Citizens for Accountable Elections file Initiative 25 and begin gathering signatures • April 2007: Sims promotes Sherril Huff, a manager in the elections department, to director • August 2007: Initiative 25 qualifies for the ballot • November 2007: Voters approve Initiative 25 by 57% to 43% • November 2007: Sensing the inevitable, King County Council splits the elections department from Records and Animal Licensing • November 2008: Voters approve Charter Amendment 1 by 56% to 44% • February 3, 2009: Voters will choose the first Elections Director – Make sure you vote!


A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION

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14

LIVING LIBERTY

What does the 2009 legislative session have in store for public-sector unions? by Scott Dilley

T

he biggest priority—and potentially biggest problem—for public-sector unions during the 2009 legislative session is the state’s projected $5.1 billion budget deficit. With public funds running dry, unions will find it tough just to get what they negotiated for. In the fall of 2008, most unions, including the Washington Federation of State Employees and the Washington Public Employees Association, successfully bargained 2 percent annual pay increases. The Teamsters did not accept an offer of 2 percent, held out for more, and missed the key October 1st deadline for submitting a ratified contract. The Service Employees International Union, Local 775, which represents 25,000 home care workers with public-sector collective bargaining rights, took their negotiations to arbitration, where they won 2.4 and 2 percent raises for each of next two years, respectively. SEIU Local 925, representing 12,000 child care workers, won 3.6 percent raises over two years. The Washington State Residential Care Council, representing 2,500 adult family home providers, bargained for 2 percent increases. Most of the ferry worker unions relied on arbitration and were awarded increased benefits and/or wage increases ranging from 2 percent to 21.4 percent, depending on job classification and bargaining unit. At the same time, Gov. Christine Gregoire has also signaled that layoffs will be coming. “Businesses are laying people off. State government is no different…It will be a last resort, but candidly I don’t see any other way to make the kind of cuts that we do to meet that kind of deficit,” she said in an interview with the press in November. One of her spokesmen added, “It’s difficult to imagine that we’d be able to balance the budget without there being some reduction in the size of the work force.” Retirements and attrition will not be enough. Even Sen. Margarita Prentice, chair of the Senate Ways and Means Committee, believes layoffs are “very likely.” Of course, Tim Welch, the Federation’s spokesman, is in denial. Not only is the Federation opposing layoffs,

Development t

money away. In hard economic times, keeping money in the private sector does more good than redistributing it through government. Moreover, one of the risks a person takes when becoming a public-sector employee is that of not receiving pay raises when no funds are available. If the governor intents to fund the negotiated pay increases, she will need to include the increased labor costs in her proposed budget in December. At that time the public will know more about whether the state workforce will also shrink in size. This session may be the first time in years that legislators take a hard look at whether to fund the labor contracts negotiated by Gov. Gregoire. If they are approved, business will move on as normal. If not, the governor’s office and unions will go back to the bargaining table. Existing contracts would be extended for up to one year under that scenario. To offset the prospect of bleak pay increases, unions may push policies without fiscal impact or show solidarity with trade unions as they attempt to stifle employer free speech when employees seek to organize. The latter will require working around the U.S. Supreme Court’s 2008 decision in Chamber of Commerce v. Brown, where

Corner by Juliana McMahan

SOUND FISCAL

MANAGEMENT POLICIES HAVE EARNED US THE COVETED

4-STAR

R ATING FROM

CHARITY NAVIGATOR!”

ful we are with es, we are always telling you how care regularly talk your investment in our organization. We bility…and believe about fiscal responsibility and accounta ent. “Practice what that it applies to us as well as governm tos. you preach” is one of our internal mot our sound fiscal And now I am happy to announce that the coveted 4-star management policies have earned us are pleased that rating from Charity Navigator! We our finances and be our diligence to efficiently manage to this recognition. accountable to our investors has lead ier charity evaluator Charity Navigator is America’s prem information needed and provides donors with essential charitable choices to give them greater confidence in the more charities they make. They evaluate ten times currently than their nearest competitor, and site (www. attract more visitors to their web r charity CharityNavigator.org) than all othe rating groups combined. use of your EFF will continue to make the best years ahead. investment possible in the months and er. Our commitment to you will never wav

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the court struck down a similar provision in California on the basis that federal labor law on prevails over state law. Unions will push either for a delay on implementing the paid family leave program or for a decision on long-term funding. Benefits of $250 per week for qualified parents are scheduled by law to begin in October 2009. Without general fund money to fund the program and no long-term funding source yet determined, there

“THIS SESSION MAY BE THE FIRST TIME IN YEARS THAT LEGISLATORS TAKE A HARD LOOK AT WHETHER TO FUND THE LABOR CONTRACTS NEGOTIATED BY GOV. GREGOIRE.”

EFF Achieves 4-star Rating for Fiscal Responsibility

The

“...OUR

but they actually believe the government can afford 2 percent pay increases for everyone. Welch believes that government’s role in an economic downturn is to guarantee public employment for as many people as possible. “The problem with state government is everyone doesn’t look at it as comparable to Microsoft or Boeing. They look at is as something that can be cut.” Welch skews the difference between private-sector businesses and public-sector bureaucracy. The private sector creates wealth, while the public sector siphons

will have to be changes. Unions will want to see the program sustained, but outright repeal of the program would be the best, and wisest, solution. Public-sector unions will also stand in the way of increased privatization and outsourcing of government jobs. The Personnel System Reform Act of 2002, the current collective bargaining model for state workers, was supposed to allow easier privatization of certain government jobs. A flaw in the law, however, allows most of those provisions to be subject to collective bargaining. So unions still have say-so over the issue. Existing law will need to be changed in order to close this loophole. Expect unions to stand in the way. Finally, look for unions to expand the number of jobs covered by collective bargaining, including child care centers, adult caregivers, and some foster parents. To avoid the problem of having a short-term fiscal impact that would reduce a bill’s chances of passage, the bargaining rights could become effective in the future —much as legislators did when they passed the paid family leave program in 2007 and the working families tax credit in 2008. Scott Dilley is a policy analyst for the Labor Policy Center.

EFF Member Sur vey Mailed

A

s part of our efforts to meet the needs of our members and mak e better use of the funds entrusted to us by our suppor ters, w e sent out a EFF Member Surv ey to all of our supp or ters. The purpose of this surv ey was to find out how we are doing, what we co uld do better, and w ha t sorts of communications ou r members want fr om us. If you have not ye t filled out your su rvey, we would really apprec iate it if you would take time to return it to us, even if you only ha ve time to answer one or two of the questions. Yo u can also fill out the survey online by going to ht tp://w w w. effwa.org/members ur vey. And I want to gi ve a special word of thanks to the many of yo u who have alread y filled out and returned your survey. We apprec iate your understanding if it takes us a while to respond to your comments (due to high volu mes). We pledge to continue working to advanc e individual liber ty, free enterp rise and limited, ac countable government!


A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION

15

diary

of a Freedom om Loving Mom… BY JUDY PARKINS

Look Mom. No hands. I almost missed it. Pride in her voice. I called my daughter Lauren at college last week to see how she was bearing up under the stress of senior year and LSAT prep. In addition to class work, she sings in two vocal groups, works as a server at the Olive Garden and plays bassoon in the orchestra. I worry about her – a lot. Our conversation quickly went into auto pilot. I tell her she is overcommitted and heading towards burn out. She comes back with she can do anything for a short period of time and she loves it all! Then, she threw a sucker punch. “My only real problem,” she said casually, “is that I don’t have money for food.” “What?” I was horrified. On any hierarchy of needs, food and shelter is basic to well being, not to mention my own piece of mind. “Yeah, I’ve had to get really creative,” she continued in that horrifying, calm voice. “I have a couple of friends that still have points on their dining hall card. They’re not going to use them up before Christmas and they don’t carry over. Sometimes they invite me to eat with them. Sometimes I can bring home enough leftovers

from work to last a couple of meals if I stretch it out. Sometimes I run into the Quickie Mart by our house and grab a few crackers.”

From the minute the doctor handed me my baby girl, she made sure feeding her was always on my mind. That first year she trained me to respond immediately to her crying with milk, and then later with Cheerios in a snack sack. In grade school scraped knees were healed by Otter Pops. In middle school broken hearts were mended with Chunky Monkey ice cream. It’s primal, this drive to nurture our children with food. Now it manifests itself in my relationship with

my young adult children by making sure they each own a Costco card! (I am also a steady supply of Starbucks gifts cards, which some might argue isn’t a staple of life. I respectfully disagree.) My gut level reaction to Lauren’s comments was to hop in my car, drive four hours, take her to Fred Meyer and stock her kitchen. Then it dawned on me. I was hearing pride in her voice. She was creatively, resourcefully living her life in her own personal “Survivor” in the concrete jungles of Salem, Oregon. She didn’t need or want to be rescued. She wanted me to cheer! Why are some young people able to face a crisis or endure a hardship with creative resourcefulness while others look to be rescued? As parents, how can we instill in our children the desire to be “survivors” and the belief in themselves that they are? Economic hardship is here. To varying degrees everyone feels pain and fears uncertainty. Our children cannot survive on crackers from the Quickie Mart! While they need cheerleaders just as much as when they shouted to your terror-stricken face, “Look, Mom— no hands,” in the face of uncertainty, young adults need parents who will let them survive on their own. Judy Parkins is EFF’s Invest in Liberty Capital Campaign Manager and resident Mom

Desperate measures for dealing with the deficit: GMAP, performance audits potentially on the chopping block by Brett Davis

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he state of Washington is suffering from a severe case of penny wise-pound foolish syndrome. How else to explain that government accountability and performance audits are among the items on the state’s Do Not Buy list, released every two years as part of the Priorities of Government (POG) process? In the context of a looming budget deficit of at least $5.1 billion—Governor Christine Gregoire has said the budget shortfall could reach $6 billion—Washington state needs government accountability and performance audits now more than ever. Thankfully, the information on the list serves only to advise the governor as she develops the 2009-11 state budget, and does not mandate getting rid of government accountability and performance audits. Still, it’s disturbing that these two accountability measures made the Do Not Buy list during an economically-difficult time that is most certainly going to call for some belt-tightening by the state. Launched in 2005, the Government Management Accountability and Performance Program, or GMAP, helps state agencies measure and improve their performance by tracking results. GMAP has, for example, helped reduce highway fatalities, and call centers have decreased the average wait time for a customer by more than 10 percent in a year. In many ways, GMAP has been good for the governor and the state of Washington. GMAP helped earn Gregoire a spot on the cover of Governing Magazine, which declared her its public official of the year in 2007. In October, the Council of State Government recognized GMAP with its first-ever Governance Transformation Award. In fact, prior to submitting her budget requests to the Legislature last month, Gregoire said she was using

GMAP (as well as POG) to write a budget. This puts Gregoire in the curious position of having taken advantage of a program to help her write a budget that could— if the recommendations on the Do Not Buy list are ultimately accepted—include the elimination of the very program she used in writing said budget! Even more mindboggling is the fact that the $26.8 million allotted for performance audits—approved by voters in November 2005 with the passage of Initiative 900—was the biggest single item to turn up on the state’s

mendations has been mixed at best. In a July review, the state auditor’s office found that state and local agencies had heeded roughly 60 percent of those recommendations, meaning there’s still a lot of cost-cutting that can be done. Even the record of the Legislature is inconsistent, with the Joint Legislative Audit and Review Committee reporting that lawmakers have acted on just 11 of the 27 policy recommendations issued in the performance audits. “AMAZINGLY, PERFORMANCE AUDITS HAVE Amazingly, performance audits have recommended $11 in savings for every $1 spent. WASHINGTON STATE Washington state can hardly CAN HARDLY AFFORD—LITERALLY, IN THE CONTEXT OF THE afford—literally, in the conCURRENT ECONOMIC SITUATION—TO AXE A PROGRAM THAT text of the current economic situation—to axe a program PAYS FOR ITSELF 11 TIMES OVER.” that pays for itself 11 times over. Do Not Buy list. Performance audits were ranked 201st It remains to be seen whether the state is serious about out of 248 state programs in the government efficiency getting rid of bang-for-the-buck reviews of government category. With a massive deficit hanging over the state efficiencies. Shedding government accountability and like a pall, getting rid of performance audits would be performance audits is not a good idea in general, but counterproductive to building the leaner state govern- with a mammoth budget deficit confronting the state, ment the budget shortfall will require. Why recommend it’s tantamount to fiscal suicide. Evergreen Freedom eliminating a tool that can help you identify waste and Foundation hopes the governor and the Legislature are inefficiency in tight budget times? not buying the inclusion of GMAP and performance A better approach, it seems, would be to ensure that audits on the Do Not Buy list. state agencies are applying the audits’ many cost-saving Brett Davis is a policy analyst for the Economic Policy recommendations. To date, the performance audits have Center. made 574 recommendations identifying $4 billion in potential savings. Unfortunately, action on these recom-

RECOMMENDED $11 IN SAVINGS FOR EVERY $1 SPENT.


16

LIVING LIBERTY

Radio Free Washington off to running start EFF takes to the radio airways with the premier airing of its new program, Radio Free Washington, which can be heard every Saturday at 8:30 a.m. on the following Eastern Washington stations:

KTRW-AM 630 (Spokane)

KSPO-FM 106.5 (Spokane)

KTAC-FM 93.9 (Moses Lake) KGON-FM 101.3 (Tri-Cities, Walla Walla, NE Oregon) KTBI-AM 810 (Wenatchee/Moses Lake)

KYAK-AM 930 (Yakima)

For listeners in other parts of the state, EFF will post the radio show as a podcast on the Monday after the show is broadcast at www.EFFWA.org with the first program available beginning Monday, December 8. Hosted by Steve Maggi, EFF Vice President of Communications, the initial RFW offering features a wide-ranging and stimulating conversation with EFF CEO, Lynn Harsh, and Seattle’s popular talk radio host, Kirby Wilbur, of KVI 570-AM. EFF hopes its members and friends enjoy listening to Radio Free Washington! Please send questions, comments or suggestions about the show to radiofree@effwa.org or call 360-956-3482. If you would like RFW to air on a radio station in your part of the state, call the station and tell them – then let EFF know about that effort. The more stations the merrier.

2009

“Interning at the Evergreen Freedom

Young Leaders Internship Program

Foundation is about the

To identify student leaders and cultivate within them

best thing you could do

a love of free market principles, the power of limited

with your summer.”

government, and personal responsibility. The Evergreen Freedom Foundation is now accepting applications for our summer internship program. Internships are available in our policy centers and our communications department. Applications are due March 13, 2009. Preference

The cost of EFF’s summer internship program

is given to students entering their sophomore or

(administration, faculty costs and student wages) is

junior year of college. Applicants must demonstrate

$5,000 per student. If you would like to help sponsor

strong research, writing, computer and oral

a student, please contact Gail Kramer at gkramer@

communications skills as well as strong character

effwa.org, (360) 956-3482 or PO Box 552, Olympia,

and a history of leadership.

WA 98507. You can also donate online at our

“Our interns don’t get coffee.

website: www.effwa.org.

They get laws passed.”

For more information,

please visit our website at www.effwa.org/youngleader or contact Diana Cieslak at dcieslak@effwa.org.


Living Liberty January 2009