school levy elections 5
A PUBLICATION OF THE EVERGREEN FOUNDATION Court unsympathetic to union’s arguments 10 A movie no one FREEDOM should miss 16
LIVING LIBERTY FEBRUARY 2007
A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION
A DAY AT THE
U.S. SUPREME COURT
Teachers take free speech case to the U.S. Supreme Court by Kristen Mercier
hrough the help of generous EFF donors and members, we were able to send 35 teachers to the U.S. Supreme Court hearing of our two cases against the WEA. We were honored and excited that these teachers—most from Washington state, but others from California, Colorado, New York, Oregon, Pennsylvania, and Virginia—took time out of their busy schedules to travel across the country to be a part of the case. We felt it was important to send teachers to the court to give the media and the public the understanding that this case affects real people. The teachers were available to give quotes to the media and took part in our press conference, holding signs declaring, “Free speech for all workers!” and “Protect my paycheck from union politics!” Several of the teachers have been struggling against union oppression for several years. It was particularly satisfying for those teachers to see this case at our nation’s highest court.
a special education teacher at Tenino High School, said, “Thank you so much for presenting this opportunity to teachers, including me. At the risk of sounding melodramatic, I can truly say that this was a life changing experience. I will not look at union membership, freedom of speech, or our system of law (just to name three) in the same way.”
100 percent, and I’m praying continually for a positive outcome.”
Teacher was encouraged about the outcome of our case after hearing the arguments. “The hearing was fantastic; it is an experience that I will always remember with pride as an American. I believe that our case is above board and flawless, thus paving the way for future action.”
“I can truly say that this was a life
changing experience. I will not look at union membership,
freedom of speech, or our system of law in the same way.”
— Gordon Kenny
, a teacher in Seabeck, WA, also was pleased by the arguments, saying, “I was impressed at how well prepared all the justices were. They asked astute questions that cut straight to the heart of our concerns. I almost cheered when Justice Ginsberg asked if using non-member dues isn’t against the law! Being there to see and listen firsthand restores my confidence in our judicial system. I feel so honored to have witnessed this court in action.” Our staff continues to receive encouraging and appreciative e-mails and letters from teachers, but the real thanks go to the EFF members and donors who supported our efforts to bring teachers to the court. Thank you.
, a Wenatchee teacher, sent me a note to say, “Kristen, I thank you and everyone at EFF for making it possible for me to be whisked away to our nation’s capitol. I was impressed with the way we were briefed on Tuesday evening; everyone at the EFF is very professional and knowledgeable. “I am inspired to be persistent in sharing what I know about this major issue. I want my voice to be heard…I have also read many of the amicus briefs posted on your website. I want to continue to learn more and share what I’ve learned with my colleagues. I support the mission of EFF
NON-PROFIT ORG. U.S. POSTAGE
OLYMPIA, WA PERMIT #462
A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION
“The State of Washington’s position is that non-members should not be required to say no twice.” – A.G. Rob McKenna
“Quote” “I want to urge devotion to the fundamental of human liberty— to the principles of voluntarism. No lasting gain has ever come from compulsion.” – Samuel Gompers, Founder of the American Federation of Labor
VOLUME 17, Issue 2 EFF’s mission is to advance individual liberty, free enterprise and limited, accountable government.
Publisher: Booker Stallworth Editors: Marsha Michaelis Amber Gunn Victor Joecks Layout: Joel Sorrell
Evergreen Freedom Foundation PO Box 552 Olympia, WA 98507 (360) 956-3482 Fax (360) 352-1874 email@example.com • www.effwa.org
This Issue 4 5 6 7
4 Letter from lynn IF I STAND ALONE 5 A FIRST AMENDMENT RIGHT TO CONVENIENCE? COURT SAYS “NO.” SCHOOL LEVY ELECTIONS NEED TO BE HELD IN NOVEMBER 6 LAWSUIT FOR MORE SCHOOL FUNDING WON’T SOLVE PROBLEMS DEAR MR. HASSE 7 15 YEARS AND COUNTING EFF FIGHTS FOR TEACHERS’ FIRST AMMENDMENT RIGHTS 8 TIMELINE TO THE U.S. SUPREME COURT 10 SUPREME COURT UNSYMPATHETIC TO UNION’S ARGUMENTS
8 10 11 12 13 14 15 16
11 AVOID PAYING TAXES BY CONTRIBUTING DIRECTLY FROM YOUR IRA 12 GET YOUR TELEPHONE EXCISE TAX REFUND PAYCHECK PROTECTION LOBBYING REFORM GOES TO CONGRESS 13 TIME TO PERMANENTLY CHANGE BUDGET DEBATE TAXPAYERS WOULD BENEFIT WITH PRIORITIES OF GOVERNMENT
14 INITIATIVE AND REFERENDUM RIGHTS UNDER ATTACK AGAIN PUBLIC FINANCING FAILS TO DELIVER ON PROMISES 15 2007 YOUNG LEADERS INTERNSHIP PROGRAM 16 A MOVIE NO ONE SHOULD MISS
Pg. 8 TIMELINE
THE EVENTS LEADING UP TO EFF'S DAY AT THE U.S. SUPREME COURT
LetterLETTER from Lynn FROM LY NN by Lynn Harsh
If I stand alone
y late father-in-law was a courageous man who lived what he believed, as evidenced by his actions when his principles collided with his preferences. He was a pastor and a well-respected leader in our community, but in less than five years, I watched him take two extremely controversial and initially unpopular positions. Both times he risked his comfortable standing among his peers. During the 1970s, some members of Congress debated whether or not they should define “religion.” The Unification Church was growing by leaps and bounds in America, especially among youth. Pictures of mass pre-arranged marriages horrified religious people, and they demanded that political leaders “do something.” My father-in-law disagreed profoundly with the doctrines of the Unification Church. But he disagreed more profoundly with the notion that Congress should define religion. A big man with a big voice, he earnestly pleaded with fellow ministers to forsake the short-sighted notion of allowing government to define and approve various religious beliefs. He argued that these were matters that should be left to the church and people’s own consciences and that allowing government to take the job was downright dangerous! Certain Congressmen argued that tax exemption was the issue. Why should government grant tax-exempt status to an organization they considered a cult? My father-in-law touched the church’s financial Holy Grail when he said that it would be better for all religious organizations to lose tax-exempt status than for an individual to lose the freedom to worship as he or she saw fit. Or not worship at all. Some people in his large congregation met privately to try to persuade him to modify his position so he’d be less controversial. But he stood firm, and before the year was out, his colleagues made him the leader of the local ministerial association. He had challenged and strengthened all of us. Around that same time, a pastor in Nebraska was jailed for refusing to get a government license for the school sponsored by the congregation he pastored. The school was founded to address what many of the families in his church believed were the public schools’ lack of academic rigor and deliberate attempts to undermine their religious values. It wasn’t long before the state education department said the pastor was violating the law, because his school was not state-approved. They gave him an ultimatum: shut down the school or all the children would be declared truant and he and other parents would go to jail. That otherwise law-abiding family man went to jail. After thoroughly investigating the situation, my father-in-law determined that the issue came down to a couple of answers to key questions. Who has the right to determine how a child should be educated, the parents or the state? If parents think their religious beliefs are being undermined, is it the state’s role to determine otherwise and prevail? He sided with the parents and their pastor, knowing he might stand alone. It was an unpopular decision, because few families homeschooled in the 70’s, and most private schools used much of the same curriculum as the public schools. These newly emerging church-sponsored schools, though not new in American tradition, were relatively new to the 20th Century. Media portrayed them as dangerous, something akin to religious concentration camps. Principles and time proved my father-in-law right, but it would be several years before I could appreciate what
a lonely journey it must have been for him at times. He was a leader, and for him that was a sacred trust, not to be bargained away for personal comfort. Less than a decade later, I joined several thousand people from our community as we bade him farewell. A twisting, wet mountain road had claimed his life. But this giant of a man had introduced me to First Principles and what it meant to be a leader. He was just one man, but what a man of influence he was. And is. His legacy lives on in the lives of people, like me, who sat under his teaching. It lives in his grandsons. He didn’t stand alone then, and he doesn’t today. And then there was William Wilberforce. Wilberforce was born in 1759, nearly two centuries before my father-in-law, and though their physiques, temperaments and monetary status were quite different, both stood unflinchingly for the principles in which they believed. Wilberforce was born into a wealthy merchant family. He was extremely well-educated and found politics, rather than trade, to be his interest. In 1780, at the age of 21, Wilberforce was elected to Parliament as an independent Tory. In 1783, his good friend William Pitt became Prime Minister. This friendship and a series of political changes propelled Wilberforce into a position of power at a very young age. After what he described as a spiritual conversion experience in 1785, Wilberforce sought counsel about the best way to use his life. To remain in politics seemed the best way to make a difference, and this proved to be true. In 1787, Wilberforce decided two great objects must be his life’s work: “…suppression of the Slave Trade and the Reformation of Manners.”
ten years, Parliament voted down every proposal. During that time, Clarkson continued to write and build coalitions, and Wilberforce continued to speak and write legislative proposals. Their combined work gradually shifted public perception. But it wasn’t until March 25, 1807, that the House of Lords and the House of Commons voted to mitigate the impact of slavery. It took until July 23, 1833, to pass a bill completely abolishing slavery. It received its final reading in the Commons—just three days before Wilberforce’s death. One month later, Parliament gave all slaves in the vast British Empire their freedom. Wilberforce was a remarkable leader who did not confuse principle and convenience. He was the spark plug behind a few causes that were worth living and dying for. But it took a lifetime of speaking the truth about issues people were not ready to hear, of building coalitions between unlikely partners, and of staying at the task when people (including friends and family) were tired of hearing the same speeches. Like my fatherin-law, he too decided to speak and stand on principle, even if he was alone. We will soon have an opportunity to meet Wilberforce and his brave colleagues face to face, as it were, and be motivated by his courage. On February 23, the movie Amazing Grace debuts. It chronicles the life of Wilberforce and his closest allies and opponents in the abolition war. This is history with goosebumps. I hope you will make plans to see it.
“Wilberforce was a remarkable leader who did not confuse principle and convenience.” He met Thomas Clarkson, a gentleman who opened his eyes to the true horrors of slavery. Wilberforce became resolute that he must do something to end it. Since slavery was considered essential to the British way of life, both in terms of commerce and naval strength, abolishing it would be a monumental task. Most considered it undoable. Undeterred, on May 12, 1789, Wilberforce gave his first major speech on the issue. He appealed to the members of Parliament— first to their sense of justice and morality, then to their hearts by describing in great detail (thanks to Clarkson) the appallingly inhuman conditions to which slaves were subject. Finally, again using Clarkson’s work, he advanced twelve propositions for abolition. The ubiquitous committee was formed to consider Wilberforce’s recommendations, and over the next
Wilberforce is a remarkable inspiration to all of us, particularly at this time when it sometimes seems all but impossible to reclaim certain territory. When it’s a matter of principle though, we should never give up. Even when we feel isolated, history shows us we do not stand alone.
A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION
A First Amendment right to convenience? Court says “No.”
by Ryan Bedford
he Washington Education Association (WEA) is on a streak—a losing streak. In December, Washington State’s Division 1 Court of Appeals ruled—once again—that it is illegal to use public school facilities for political campaigning. In 2004, the Washington Education Association campaigned to put public charter schools on the ballot as a referendum (Referendum 55). The union unleashed its network of teachers and supporters to collect the necessary signatures to put the measure on the ballot, but in doing so, some union activists crossed the line. The Revised Code of Washington (RCW) 42.17.130 specifically bans public employees from using public facilities to carry out political activities. The statute provides:
email system to tell the teachers to put completed forms in his mailbox so he could turn them in. When the Evergreen Freedom Foundation learned of these activities, it documented the emails and eyewitness reports and filed complaints with the Public Disclosure Commission (PDC). The PDC investigated the actions and, at a hearing on January 24, 2005, found the four union activists guilty of using public facilities to conduct political activities. The PDC fined the union activists $500 each, but, as usual, suspended $450 of the fine pending future violations. A $50 fine is simply the cost of doing business for the union.
“The use of public facilities to communicate political messages violates the neutrality of the public facilities, leaving the impression that the government is siding with one political faction over another.”
“No...person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition.” During the campaign at least four union activists used public school facilities to help get R-55 on the ballot and to campaign for the defeat of charter schools. In the Seattle School District, one of them placed blank signature petitions in teachers’ school mailboxes so they could collect signatures. He then used the school
Convictions such as these are not new to the WEA. The Evergreen Freedom Foundation has filed similar complaints with the PDC almost on a yearly basis, most resulting in convictions and fines. Tiring of the annual parade, PDC Chair Earl Tilly said the WEA has a duty to know the law given its extensive campaign activities. “They should know!” he exclaimed. “This issue comes up annually.” The January 24, 2005, convictions had no effect on the union as it insisted on maintaining what could be called its “First Amendment right of convenience.” Shortly afterward, the union provided a “guide” to
members outlining what it considered acceptable practices: “[Teachers can use] school mailboxes or e-mail to distribute information regarding levy, bond or initiative campaigns only if school mailboxes and/or e-mail may be used for other personal communications.” It was as if the union believed its actions were above the law and it had a Constitutional right to anything that made its job easier. The union appealed one of the January 24th convictions to King County Superior Court alleging that the First Amendment Free Speech rights of its members were being violated. The union lost, but appealed again to Division 1 Court of Appeals. In December, the union lost again. The presiding judges concluded that union activists could not use school district facilities or paid time to conduct their political activities. They explained that the purpose of school mail and computer systems is to facilitate communication between teachers to ensure efficient sharing of information. These systems are not public forums, so the government can limit the content of communications across them. As such, prohibiting political content does not violate teachers’ First Amendment rights. The Court’s conclusion is correct. The use of public facilities to communicate political messages violates the neutrality of the public facilities, leaving the impression that the government is siding with one political faction over another. The Court concluded, “[The teacher] could have used nonwork hours to set up receptacles for petitions in break rooms or lunchrooms used only by staff. ... Simply because e-mail was the fastest way to disseminate a message to the [school] staff does not mean that restricting [the teacher’s] use of it is unreasonable.” In short, the Constitution does not grant the WEA a First Amendment right of convenience.
School levy elections need to be held in November by Steven Maggi
t’s baaaack!!!! Only this time, it may be here to stay. For over a decade, the Washington State Legislature has discussed changing the state constitution to allow school levies and bonds to be approved by a simple majority of votes (over 50 percent). The existing law requires a supermajority (60 percent approval), along with a 40 percent turn-out of votes based on the previous general election. Changing the law requires that 2/3 of both houses of the State Legislature approve it, followed by a majority vote of the people. Discussions are underway to pass a bill through the legislature to achieve this. Senate Majority Leader Lisa Brown, D-Spokane, said she “is committed to bringing forward a bill that would allow school districts to pass operating levies by a simple majority.” Thanks to the last election, which brought into office more supporters of simple majority, this time it appears it will make its way through the legislature. The education community sees this as the time to finally make this happen. The super-majority requirement was adopted in 1944 to protect property owners because school levies are funded by property tax. This protection is still valid today, unless levy elections are part of the general election in November, when the majority of voters are engaged in election politics. Eliminating special levy elections will protect taxpayers by making sure the elections get the real pulse of the people by reaching the greatest number of voters. Special elections are easy to influence when only a simple majority is required. Voter turnouts of less than 30 percent make special election levies easy to pass. School districts have the funds and people available
to politicize levies, making it difficult for the entire electorate to become appropriately aware of the stakes. It is only fair to hold elections in November, when participation is more than double that of special elections. As State Senator Jim Hargove (D-Hoqiam) says, “I think when the schools and the public are making a spending decision like that; it needs to be for as many voters as possible.” The cost of a special election is high. So high, in fact, it is one of the reasons county auditors are recommending cutting in half the available dates to hold these elections. Special elections need to be special. They should only be held in extraordinary situations. If a school budget is out of balance, the problem should be corrected at its core, not by a mere trip to the public piggy bank. School leadership should be held responsible. Levy votes are one way school districts can be held accountable for both performance and fiscal responsibility. Making it easier for school districts to pass a levy by holding an election when fewer voters are participating only makes it easier for school districts to raise taxes without corresponding accountability for performance. School districts should not be afraid to send their requests to the greatest number of people. The argument for a simple majority vote is that members of Congress and the legislature are elected that way, so why not a school levy? But the same people who make this argument should then agree to move these elections to November as part of the general election —the same time members of Congress and the State House are elected.
School district officials will tell you that they cannot support levy elections in November because it does not fit with a school district’s hiring and budget practices. They say there are three state laws and a constitutional amendment that would need to be changed before it would be practical to hold November elections. That’s all right. It makes sense to change any laws we need to so districts can do their budgeting responsibly. Levies were never intended to help school districts balance their annual budgets year in and year out. Making it easier to continue the practice merely skirts the bigger issue of how we should fund schools. The discussion all goes back to one thing: accountability. Before spending more money on our K12 public schools, hard questions need to be answered. Why is there a need for more money? What will the extra money accomplish? Will the extra money be used to change the status quo, which put the district in the difficult situation it is in? These questions must be answered and analyzed before more public monies are spent. As it is the people’s money, they should get the opportunity to decide if school districts have answered questions to their satisfaction. And it should not unnecessarily drain their pocketbook by holding a costly special election. Putting school levy proposals on the ballot for the general election is both cost efficient and would allow the largest number of people to vote.
Lawsuit for more school funding won’t solve problems
by Steven Maggi
ne of the great myths about education today is that public schools are in crisis because they are grossly under-funded. The fact is that per pupil spending, nationwide, has grown steadily for 50 years. In the early 1950s, public schools spent a total of about $2,000 per student in inflation-adjusted 2007 dollars. By 1972, spending had more than doubled, reaching $4,479, and it doubled again to almost $9,000 by 2002. Today, average per-pupil spending is over $10,000 in the state of Washington. With that bold commitment of funding, it would be logical to expect that student learning would also improve. The facts, though, tell a different story. The federal government uses a standardized test for math and reading called the National Assessment of Educational Progress (NAEP) to measure student outcomes. For high school seniors, NAEP scores have remained flat over the past 30 years. And the high school graduation rate hasn’t changed in that same time period. Those facts do nothing, however, to stop members of the education community from answering every criticism with “We need more money!” Here in Washington, a group called the Network for Excellence in Washington Schools (NEWS) has brought a lawsuit against the state. The complaint seeks an increase in funding, although it does not seek a specific amount. Instead, it asks the Legislature to go back and determine what the appropriate amount should be, under constitutional guidelines. This group includes the League of Women Voters of Washington, the state PTA, Urban League of Metropolitan Seattle, 12 school districts and the Washington Education Association. NEWS contends that the legislature has failed to live up to its “paramount duty to make ample provision for the education of all children in our State.” In supporting this group’s effort, a recent Seattle Post-Intelligencer
editorial said that “stingy funding” is getting in the way of rapid funding. Stingy funding? Governor Gregoire’s proposed budget calls for $12,307,224,000 for K-12 education, or 41% of the budget, making it by far the top funded issue in the state. No matter what kind of math you use, 12 billion dollars is hardly stingy. What is the definition of “ample”? Fifty percent of the budget? Seventy-five percent? According to renowned Stanford University Economist Eric Hanushek, proponents of greater school spending throughout the nation have adopted words such as “ample” and “adequate” as great marketing tools. “Surely we all want both equitable and adequate spending,” says Hanushek. The crucial ingredient to this argument is the presumption that spending correlates to school quality. Unfortunately, says Hanushek—who reviewed 163 research papers on the topic—“a massive amount of evidence indicates that spending on schools is not closely related to school quality or student learning.” NEWS points to Washington’s ranking of funding among the 50 states (and D.C.) as proof that Washington isn’t funding basic education. Washington ranks 42nd in state education spending per student according to the 2006 Education Week “Quality Counts at 10” report. Yet when analyzing state spending with academic results, more money doesn’t correlate with student achievement. Washington schools, in proficiency percentage in mathematics and reading (2005 NAEP, 4th and 8th grades), rank in the top 20 in all categories. California, with almost identical per pupil spending, finished in the bottom 10. More proof? The biggest spender per pupil, the District of Columbia, finished dead last in all categories. Meanwhile, New Hampshire, ranked 24th in spending, finished in the top five. The important point to remember is what these rankings show. Even the highest ranked state, Massachusetts, is
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performing poorly. Their proficiency percentages are only in the mid-forties. Washington’s percentages are in the mid-thirties. Something is wrong with the entire public school system. The other argument NEWS points to is that there is not a “consistent, equitable and long-term education funding solution.” The organization adds that the current system features community inequities, instability, and a lack of basic resources. While it is true the current system is, at best, inefficient, throwing more money at it certainly is not the way to repair it. The system is unwieldy. But we need to consider first what we want to achieve before we determine how to fund. Education funding has only gone up, up, and up. There have been some districts that have lost buying power when adjusted for inflation, but these are the exception and not the rule. There are too few incentives that reward quantitative results and too few penalties for failed efforts. Instead, schools continue with the same bloated bureaucracy and failed system. To add additional funds without major changes does not in any way ensure that those dollars will be spent in ways that improve student learning. We need to have a funding plan that includes rewards for success as measured by student learning. Incentives combined with a system of parental choice of schools would encourage competition and accountability. We all agree that education is a vital issue in the 21st Century. We owe it to our children to provide them with, in the words of Governor Gregoire, “a world-class education system.” Yet it is unreasonable to believe that adding significantly more resources, without first analyzing the existing system and then developing a plan to achieve identified, measurable successes, will bring us any closer to this goal.
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A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION
15 years and Counting:
EFF Fights for Te acher s’ Fir st Amendment Rights
by Ryan Bedford
hen a small group of people met in 1991 to draft Initiative 134, few realized they were sparking a chain of events that would dramatically change the face of labor law nationwide and tip the scales of justice in the favor of workers. I-134, a campaign finance initiative that championed accountability and transparency, successfully headed off a public campaign financing scheme and passed with 72 percent of the votes. The initiative also included the nation’s first paycheck protection law. Union officials loathed the paycheck protection section of the law and fought viciously to circumvent it and retain what they claim is their right to unfettered access to employee paychecks to fund their political agenda. They collected the mandatory annual political contributions they charged each teacher a year early (before the law went into effect), tried to influence the interpretation of the law to exclude teachers unions, and even formed a “Community Outreach Program” (COP) that deducted money from every teacher’s paycheck to be spent on politics illegally. Many teachers were relieved when I-134 passed, believing that their paychecks and political voice would now be protected. But in 1996, expensive political fliers and campaign ads against charter schools began appearing in their school mailboxes paid for by COP. Concerned teaches approached the Evergreen Freedom Foundation with evidence of the union’s illegal activity. Appalled by the violations, EFF filed a series of complaints against the WEA both directly and through the state’s campaign finance watchdog, the Public Disclosure Commission (PDC). One of EFF’s complaints to the PDC uncovered what have been called “the most serious campaign finance violations in state history.” The PDC recommended that Attorney General Christine Gregoire prosecute the case, which she did, sending the union reeling. In early 1998, however, she secretly negotiated a settlement with the union. The final version of the settlement was strikingly similar to a draft the union had initially proposed. The WEA simply
had to pay a $100,000 fine, refrain from collecting $5 from each member the following year, and abide by “guidelines” giving the union permission to transfer dues from its general fund to its PAC without having to ask teachers. Around the same time, teachers, supported by EFF, brought a related suit against the WEA charging that the union had hidden more than $700,000 in illegal election-related expenditures—expenses that had been paid with funds removed from teachers’ paychecks. The union did not deny the charge, but argued that it had “no fiduciary responsibility to its members.” The next year, 2000, EFF filed another complaint with the PDC providing, in part, evidence that the WEA
was spending non-member dues on politics without permission. During the PDC’s investigation, the WEA admitted to “multiple violations” of the law and again, the PDC recommended that the Attorney General prosecute the union. On October 9, 2000, Attorney General Christine Gregoire filed Washington v. Washington Education Association, the case that was just heard by the U.S. Supreme Court. The Thurston County Superior Court ruled that the WEA “intentionally” ignored the law and imposed a $590,375 penalty on the union.
In the meantime, several teachers, represented by the Evergreen Freedom Foundation and the National Right to Work Legal Defense Foundation, filed a class action lawsuit against the WEA to recover the misspent dues (Davenport v. Washington Education Association). The WEA took the two cases to Washington’s Court of Appeals where they were consolidated. The union challenged the constitutionality of I-134’s paycheck protection provision on First Amendment grounds and, in a 2-1 ruling on June 24, 2003, the appeals court agreed. The court said that the First Amendment free speech rights of union officials superseded the First Amendment free speech rights of teachers. The PDC and teachers appealed to the Washington State Supreme Court, which heard the case in May 2004. Nearly two years later, the court upheld the appeals court ruling in a 6-3 decision. The PDC and teachers again agreed that the case needed to be appealed, so, on June 14, 2006, the attorney general and the teachers’ attorneys filed an appeal to the highest court in the land. On September 26, 2006, the U.S. Supreme Court granted review to 9 of the 1,900 cases appealed during its summer recess. Washington v. Washington Education Association and Davenport v. Washington Education Association were on the list of cases granted a hearing. In November, the AG and teachers filed their briefs, supported by 13 amicus briefs signed by more than 30 organizations including the U.S. Solicitor General, six attorneys general from other states, the Institute for Justice, the Pacific Legal Foundation, and more than a dozen state policy organizations. The WEA’s responding brief was supported by a lone amicus brief from the AFL-CIO. On January 10, 2007, the U.S. Supreme Court heard oral arguments on the consolidated cases. The oral arguments were attended by nearly 40 teachers from across the country and two of the original authors of the law. The Court must issue an opinion before it leaves for its summer recess, so we expect a decision by early July. The U.S. Supreme Court’s decision in Washington v. Washington Education Association and Davenport v. Washington Education Association, will become national precedent and will be the latest in the long line of cases balancing the rights of workers, in this case teachers, versus their union.
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May 27, 2004 – Washington State Supreme Court hears oral arguments in Washington v. Washington Education Association and Davenport v. Washington Education Association. March 16, 2006 – Almost two years later, the Washington State Supreme Court rules 6-3 that the First Amendment rights of unions trump the First Amendment rights of individuals. June 14, 2006 – EFF members petition the Public Disclosure Commission and Washington Attorney General Rob McKenna to appeal the state Supreme Court ruling. The PDC votes 5-0 to appeal and Attorney General McKenna and the Davenport class file writ of certiorari petitions with U.S. Supreme Court. June 30, 2006 – EFF launches Teachers-vs-Union.org as the go-to source on the case. It is a library full of information on the case including background, news articles, a timeline, and legal briefs. June 30 – July 5, 2006 – EFF goes to the annual National Education Association convention and rents a large billboard truck to circle the convention center and promote the website. August 18, 2006 – EFF releases “The Greatest Scam on Earth,” a parody web game that highlights how difficult it is to opt out of a union. August 25, 2006 – EFF releases “NEA: Heroes or Zeroes?” This humorous flash video shows the difference between how union officials and teachers view the NEA. September 20, 2006 – To help humanize the case, EFF releases a teachers’ profile section on Teachers-vs-Union.org. September 26, 2006 – U.S. Supreme Court grants review of cases. September 26, 2006 – EFF issues a response to the WEA’s press release about the case using court documents to refute the WEA’s claims. The WEA’s release is choked full of lies, but by acting so quickly, most news stories do not include the WEA’s typical distortions.
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September 26, 2006 – EFF starts a blog about the case to share recent articles, pictures, videos, and other pertinent items with those interested in developments in the case. A blog is like a journal that anyone with internet access can read. September 27, 2006 – The New York Times says our case is the “most promminent” among several cases the Court will hear. September 27, 2006 – An AP article on the court accepting our case and mentioning EFF’s role runs in over 275 papers. September 28, 2006 – The Vancouver Columbian and Seattle Times editorialize in support of our side. October 20, 2006 – EFF staff conduct one of the over 70 radio interviews (over 1,200 minutes) on the case. November 6, 2006 – EFF President Bob Williams writes an opinion editorial on the case that is published by the Christian Science Monitor. This is one of many national op-eds that EFF staff gets published. November 17, 2006 – EFF staff brief George Will on the case in preparation for a column he is writing.
December 7, 2006 – Wall Street Journal columnist Stephen Moore editorializes in our favor and says our case “could be the most important First Amendment decision in years.” This is the second of three columns the WSJ will run in support of our case. December 17, 2006 – EFF runs ads in the Seattle Times, Vancouver Comubian, and Spokesman Review telling teachers about the case.
A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION
by Victor Joecks
January 4, 2007 – EFF distributes six Public Service Announcements about the case to state and national radio stations.
January 10, 2007 – 1 PM EFF staff and teachers head to the Heritage Foundation for lunch, a debriefing, and a chance to warm up.
January 8, 2007 – The Wall Street Journal runs a detailed article on the case and EFF’s role in it. January 9, 2007 – EFF staff brief teachers who have come to hear oral arguments on the details of the following day. January 10, 2007 – EFF’s Teachers-vs-Union “Day of Site” goes live. It provides updates about oral arguments (although CSPAN fails to carry live audio), a video recap of the day, and links to the transcripts of oral arguments and news stories. January 10, 2007 – 5:30 AM (All times are Eastern) The first round of teachers and EFF staff leave our hotel to stand in line to ensure they have a spot in Supreme Court’s first come, first seated line.
January 10, 2007 – 6:30 PM Fox News’ Special Report with Brit Hume features the case, including many shots of teachers and our press conference. January 11, 2007 – Articles about the case include lines like “No means no,” “Teachers vs. union,” “Free speech for all workers,” or variations on themes we developed and promoted through our website, blog, press releases, op-eds and other media efforts. January 13, 2007 – Michael Barone of U.S. News and World Report links to Teachers-vs-Union website as the “plaintiffs’ website.” January 17, 2007 – Months of hard work pay off, as the media and public turned to the Teachersvs-Union.org website for information about oral arguments during the crucial month of January.
January 10, 2007 – 8:30 AM A second group of teachers leave our hotel to stand in line. In the end, most teachers and EFF staff are able to listen to oral arguments.
June, 2007 – U.S. Supreme Court is scheduled to issue its decision.
January 10, 2007 – 11:00 AM The Supreme Court hears oral arguments in our case January 10, 2007 – 12:40 PM EFF’s rally at the foot of the Supreme Court steps begins. Speakers, including Washington State Attorney General Rob McKenna and named plaintiff Gary Davenport, are surrounded by teachers who support free speech for all workers.
Supreme Court unsympathetic to union’s arguments
by Michael Reitz
f oral arguments in Washington vs. Washington Education Association and Davenport vs. WEA are any indication, the U.S. Supreme Court could be poised for a major reshaping of Supreme Court decisions on labor policy. Not only were several Justices openly skeptical of the union’s arguments, several indicated a willingness to expand First Amendment protections for workers. Over the past several months, lawyers for both parties have submitted extensive legal briefs. Oral argument is the final opportunity for Justices to ask questions about the issues at stake. Each side is given thirty minutes to present its case. The issue before the Court was the constitutionality of Washington Revised Code § 42.17.760 (“Sec. 760”), which states that labor organizations must get “affirmative authorization” from nonmember workers before using their union dues for political activity. Our state Supreme Court said this requirement was an “undue administrative burden” on the union’s free speech rights. Arguing in favor of the law and the individual rights of teachers were Washington Attorney General Rob McKenna and Paul Clement, Solicitor General of the United States.
Election integrity and voluntary contributions Attorney General McKenna opened by discussing the intent behind Washington’s Section 760. The ruling by the Washington State Supreme Court said the law was only intended to protect the public, not individual employees. Justice Scalia asked whether the law was intended to spare individuals from supporting causes against their wishes and suggested there was a First Amendment interest at stake. Kennedy asked whether the Court would be bound by the lower court’s interpretation of the law’s purpose. General McKenna responded that Sec. 760 advances both purposes: the state’s interest in election integrity is served by ensuring that elections are funded by voluntary contributions. Election integrity and individual freedom, as he said, are “two sides of the same coin.” Justice Breyer questioned whether Sec. 760 was truly intended to protect First Amendment rights as it regulated only labor organizations and not the “local swimming team…or the bar association or the corporation….” General McKenna pointed to a long line of cases handed down by the Court that recognize the unique rights implicated when individuals are required by law to pay dues to a union—a situation far different than shareholders in a corporation or the voluntary members of an association. The landmark case Chicago Teachers Union v. Hudson stated that nonmembers are to be given an opportunity to object to any expenditures that are not “germane” to the union’s collective bargaining (such as political contributions, lobbying, public relations, litigation, etc.). Objecting workers are able to recover a refund of nongermane dues from the union. Furthermore, under the Court’s past decisions states can even prohibit unions from collecting non-member agency fees altogether. If this is constitutional, argued McKenna, it is “reasonable” for the state to impose a condition on collection, which falls far short of actually prohibiting the collection of agency fees. States should have broad discretion Solicitor General Paul Clement, speaking on behalf of amicus United States, argued that Washington’s law is an appropriate regulation of union political activity. “The statute does not limit the union’s ability to spend
its own money on political causes and every avenue that is available to any other organization in the State to solicit contributions from non-members remains available to the union.” General Clement suggested the state Supreme Court imposed too much rigidity where states and the federal government have enjoyed “substantial discretion,” and recommended the Supreme Court reverse the lower court ruling to allow for “play in the joints” in this area of labor law. Whose money is it? Attorney John M. West argued for the Washington Education Association, and he continually emphasized the union’s First Amendment right to use its own money. Justice Kennedy interrupted his opening statement to ask, “Are the First Amendment rights of…the workers who are non-union members relevant? [Y]ou begin by talking about the First Amendment but you…proceed as if there are no First Amendment rights of…workers involved at all.” At least four Justices asked how the Washington law could be unconstitutional when past Court decisions have allowed even broader regulation of unions. When Mr. West replied that nonmembers’ First Amendment rights are “fully protected” by the existing refund process, Justice Souter asked “why can’t the State protect it more?” Justice Ginsburg pointed out that under Federal law unions are prohibited from contributing money to candidates. All election activity must be conducted through a separate political action committee. Compared to Washington’s law, she said, “that’s much harder on the union, I would think, isn’t it?” Noting that Sec. 760’s “affirmative authorization” requirement applies only to union political activity, Justice Stevens asked if the statute could be broader and prohibit the union from collecting any nongermane fees without affirmative consent. Justices Kennedy and Alito raised similar questions. Mr. West admitted this would be “perfectly constitutional.” The “extraordinary power” of unions Mr. West also argued that Sec. 760 is flawed because it only regulates labor organizations, while not dealing with corporations, trade associations or other organizations. If the law were truly intended for election integrity, he argued, it must regulate the speech of all these groups. The Justices seemed to reject this claim out of hand. The union doesn’t own the agency fees, pointed out Justice Ginsburg. “[I]f the non-member wants it back, the non-member would be entitled,” she said. “So it’s not like money in the corporate till.” Justice Antonin Scalia was even more forceful. Unions are given “extraordinary power to exact funds from people,” he said, “but only for certain purposes. If this was money that [nonmembers] had contributed themselves, you’d have a different argument, but the State compels them to give you that money and the State says however, you will not use this money for this purpose without their consent.” Justice Alito agreed. “It’s not exactly the same situation,” he said. “These are teachers who have chosen not to join the Washington Education Association; isn’t that right? Isn’t it overwhelmingly likely that they, if you spoke to them and you said ‘would you like to give money to the union to spend on elections,’ they would say ‘no’?” “I absolutely disagree with you, Justice Alito,” said Mr. West. Justice Alito looked as surprised as many members of the audience. “Explain to me the thinking of somebody who chooses not to join, the five percent who choose not to join, and yet they would like to make this contribution. Now maybe there’s some, but what would be the thinking of such a person?”
“Is this all hypothetical, Mr. West, or is there any empirical evidence about what the people who are nonunion members, if they had their druthers, would they say not a penny more goes into the union till than we are forced to put there?” – Justice Ruth Bader Ginsburg
“[I]t seems to me that Washington acted quite properly… to protect our workers’ First Amendment constitutional rights.” – Justice Anthony Kennedy
“Explain to me the thinking of somebody who chooses not to join, the five percent who choose not to join, and yet they would like to make this contribution. Now maybe there’s some, but what would be the thinking of such a person?” – Justice Samuel Alito
When West said the union is using the money “for purposes…in the interest of the vast majority of teachers” Chief Justice Roberts broke in. “Well surely, they get to make that decision, don’t they?” “I still don’t understand the thinking of these hypothetical people,” said Justice Alito. “If I’m a union member, I get various benefits. If I choose not to be a union member, I don’t get those benefits. Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?” Ginsburg tried to extract West from his bizarre declaration. “Is this all hypothetical, Mr. West, or is there any empirical evidence about what the people who are non-union members, if they had their druthers, would they say not a penny more goes into the union till than we are forced to put there?” Although West replied “no,” ample evidence exists that even union members, much less non-members, refuse to support union politics when given a choice. This was discussed in the Evergreen Freedom Foundation’s amicus brief. No means no On rebuttal, Attorney General McKenna summarized the issue brilliantly. These individuals have already resigned from the union, yet the union believes it has a right to use their money for political activity. “The State of Washington’s position is that non-members should not be required to say no twice,” said General McKenna. At the conclusion of oral arguments, several Court observers and legal experts predicted a ruling in favor of the teachers. As one teacher who attended the hearing said, “If ‘equal justice under the law’ is what the Court is all about, then we win!” A ruling is expected by July.
A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION
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You can contribute to EFF directly from your IRA and avoid paying income taxes!
f you are 70 ½ years old or older and have an IRA account, you may be able to avoid paying higher income taxes by giving tax-free gifts to non-profit 501(c)(3) organizations like the Evergreen Freedom Foundation. Before President Bush signed the Pension Protection Act of 2006 (HR4) last year, any funds withdrawn from your IRA increased your Adjusted Gross Income (AGI) and raised your income taxes. Tax deductions taken as charitable contributions were limited to 50 percent of your adjusted gross income. Because IRA laws require you to withdraw some money from your IRA each year, in the past these income taxes were, essentially, unavoidable. Under the new law, taxpayers can contribute funds from Individual Retirement Accounts (IRAs) directly to 501(c)(3) organizations, without paying taxes. These Continued on page 15
The Key Rules: • You must be at least 70 ½ years old at the date of transfer. • The funds need to come from a traditional IRA or Roth IRA (not from a 401(k), 403(b), Keogh, or employer-sponsored SEP account). • The transfer must be made directly from the plan administrator to the charitable organization. (You must contact your IRA administrator and authorize them to send a check directly to the charity or charities.) • The transfer must be an outright gift. The gift cannot be made to a donor advised fund and cannot be used to establish retained life income. • You are limited to $100,000 or less each year. • The transfer must be completed before January 1, 2008.
Get your Telephone Excise Tax Refund Back in 1898 Congress passed a telephone tax to fund the Spanish-American War. Over 100 years EFF Note:
after the war ended, Congress finally repealed it (and only after the Treasury Department lost five court appeals defending the tax). Taxpayers who have paid for long distance calls since March 1, 2003 are eligible for a refund. The following information is from http://www.irs.gov/newsroom/article/0,,id=164032,00.html. Please take advantage of a chance to get back some of your own money!
he Telephone Excise Tax Refund is a one-time payment available on your 2006 federal income tax return. It is designed to refund long distance telephone taxes. Individuals, businesses and tax-exempt organizations are eligible to request it. This refund will be the most wide-reaching in IRS history—more than 160 million filers may request it. Individuals Taxpayers have a choice: they can take a standard refund amount between $30 and $60, based on the total number of exemptions claimed on their 2006 tax return (to eliminate the need to locate old phone bills), or they can locate those bills and use the actual amount. • Choosing the standard refund amount? You’ll find an extra line on your tax returns for the refund.
• Finding those old phone bills? You can figure the refund using the actual amount of tax paid. Fill out Form 8913, Credit for Federal Telephone Excise Tax Paid, and attach it to your return.
phone bills for the past 41 months to base their telephone tax refund on the actual amount of tax paid. Or they can review their bills for 2 months and use a special formula to figure the refund.
• Don't need to file a return? You can still request the refund. Use the new Form 1040EZ-T, Request for Refund of Federal Telephone Excise Tax, to choose the standard amount. Attach Form 8913 to Form 1040EZ-T if you use the actual amount. Also, some companies offer free e-filing of Form 1040EZ-T.
• Businesses must fill out Form 8913, Credit for Federal Telephone Excise Tax Paid, and attach it to the income tax return they normally file: Form 1120, Form 1120S, Form 1065 or Form 1041.
• Filing Schedule C, E or F? You may be eligible to use the special formula for businesses if you have more than $25,000 in gross receipts. Businesses and Tax-Exempt Organizations Businesses and tax-exempts can dig through their old
• Likewise, tax-exempts, including churches and charities, must fill out Form 8913 and attach it to Form 990-T. Additional information is available at http://www.irs. gov/newsroom/article/0,,id=164032,00.html or ask your tax preparer.
Paycheck protection lobbying reform goes to congress by Ryan Bedford
eaders in the new Democratic majority wanted to distance themselves from the culture of corruption that had pulled the Republicans from power. A key component of their plan was to pass a lobbying and ethics reform bill. Accordingly, on January 4, 2007, Senate Majority Leader Harry Reid [D-NV] introduced S1 titled the “Legislative Transparence and Accountability Act.” According to Americans for Tax Reform, the bill “censors grassroots activism, barely addresses the real culture of corruption (government spending) and treats opponents of the new liberal majority far more harshly than that new majority’s friends.” Hoping to add some good policies to the bill, Senator Jim DeMint [R-SC] introduced four amendments, one of which would protect individuals from
“[A]s long as unions force workers to pay dues as a condition of employment, they should get consent from their members before they use those dues to lobby Congress.”
having their money involuntarily collected and used for lobbying by a labor organization (Amendment 14, co-sponsored by Sen. John Cornyn [R-TX]). When introducing the amendments, Sen. DeMint commented: “My fourth amendment would prevent labor unions from using a member’s dues to lobby Congress without the prior separate and written consent of that member. Union dues, like taxes, are compulsory for union members. We all believe Congress must be transparent and accountable in the way it spends tax dollars, and we should all support making unions transparent and accountable in the way they spend members’ dues. Federal tax dollars cannot be used for lobbying but com-
pulsory union dues can be used for lobbying. This is a real problem because it forces union workers to pay for lobbying with which they may not agree. If someone is a member of a trade association and they disagree with the actions of that group, they can always stop paying their dues. This freedom is not afforded to union workers.” [A]s long as unions force workers to pay dues as a condition of employment, they should get consent from their members before they use those dues to lobby Congress. My amendment would ensure that voluntary contributions will be the only contributions that can go toward lobbying Congress. The amendment was withdrawn from the bill before the Senate passed it 96-2 on January 18, 2007. Although Senate leaders say that “Congress must be transparent and accountable in the way it spends tax dollars,” they do not believe that unions, who collect mandatory dues from paychecks just like taxes are collected, should be “transparent and accountable in the way they spend members’ dues.” Yet Congressional leaders must keep in mind that, before they can succeed in reforming the corrupt ways money is spent in Washington D.C., they must reform the way corrupt money is collected. They can ensure voluntary contributions, in part, by banning unions from spending member dues on lobbying without permission.
A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION
Time to permanently change budget debate by Jason Mercier
nly a month into the 2007 Legislative Session and already taxpayers are facing conflicting budget information. On the one hand, we hear from Governor Gregoire that Olympia is sitting on a nearly $2 billion surplus and years of pent-up spending priorities. On the other hand, fiscal conservatives and the governor’s own budget office project that, if adopted, Gregoire’s budget would throw the state back into deficits as soon as the next biennium. Who is right? The answer depends on your point of view. These conflicting points of views, however, could easily be harmonized if lawmakers would commit to getting the state off the current boom-and-bust budget rollercoaster. They could do this by putting into practice what they say they’re already doing—using Priorities of Government (POG) budgeting. As a refresher, POG requires budgeters to prioritize all potential spending while determining which purchase strategies have the biggest impact on delivering expected performance outcomes. This process creates a government “buy-list” for state purchases. Once this buy-list is created, determining what to purchase is easy: Simply look at the state’s revenue forecast and
purchase the prioritized activities up to that amount. If the revenue forecast increases or decreases, the buy-line is adjusted accordingly. This is basically how a family grocery list is built. Individuals in the family have the opportunity to add their priorities to the list. It is then prioritized, and those things that money exists for and are most important are purchased. The problem with the governor’s budget and why it results in future deficit projections is that Gregoire’s buy-line is higher than the state’s revenue forecast. The state’s current revenue forecast is $29.5 billion while the proposed spending is $29.9 billion—a $400 million difference! To “balance” the budget, the governor plans to utilize one-time available funds. It’s because of this the budget is unsustainable, creating a “bow wave” of deficit spending. A bow wave occurs when expenses of programs purchased in excess of the revenue forecast are carried forward to future years, putting the state in a fiscal hole even before a new budget is considered. The legislature, however, is in a good position to come to the rescue. If lawmakers have been implementing Priorities of Government budgeting as they say, they
too should have a prioritized buylist available to use in developing their budget proposal. All lawmakers have to do to correct the governor’s over-spending problem is align expenditures with the revenue forecast. Does this mean that, if sustainable, everyone will agree with the budget? No, and nor should they. Ultimately we shouldn’t be debating what the budget framework should look like. Instead the budget debate should focus on what priorities are purchased within the revenue forecast. Both the governor and legislature claim they are using Priorities of Government budgeting. If they are, then the words “deficit” and “sustainability” will not apply when describing their budget proposals. To ensure this happens, state officials need to permanently change the budget debate by committing to use POG while budgeting within the state’s revenue forecast. By doing this, the budget conversation can focus on what the priorities should be—not whether or not we should spend more than we’re taking in.
Taxpayers would benefit with priorities of government by Amber Gunn
re you confused about which projects the state considers to be a “priority”? Do you wonder how appropriating $2,000,000 to something called the “Wing Luke Asian museum” or $1,000,000 to the “Soap Lake spa and wellness center” promotes the general welfare? Do you often lie awake at night asking yourself what life would be like if state government stuck to core functions in lieu of making sure animal massage practitioners are “certified” and taking time to designate the Pacific chorus frog as the state amphibian? Ok, so maybe I’m the only one experiencing insomnia, but if you answered yes to any of the above, then your state needs Priorities of Government (POG). The POG
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approach helps guide budget decisions by producing a results-based prioritization of state activities. According to the Office of Financial Management (OFM) website, the POG framework helps to determine which activities will achieve the best results for citizens and assists in focusing on statewide strategies. Despite all this grandiose talk of prioritizing and statefocused results, our state government has had difficulty employing the POG budgeting process. Governor Gregoire’s proposed 2005-2007 Capital Budget is loaded with yummy pork and plenty of press release opportunities. For example, $525,000 is appropriated for “Toutle river ranch” in Longview; $146,000 for the
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Election Security Under Fire is a website showcasing a comprehensive report written about the case of Washington Association of Churches et. al. vs. Secretary of State Sam Reed. This case is
currently before the Federal District Court in Seattle. The website contains the complete report, a case timeline with the major case documents, a look at the major players, and up-to-date news on the case.
“Filipino community of Seattle”; and $2,000,000 for “Asian counseling and referral services.” It’s the kind of list you just can’t make up. No doubt some of these projects have merit. This is not intended to be a criticism of the projects themselves, but of the source of their funding. The role of state government is not to fund local, special interest projects. A 2005 audit of the capital budget process by the Joint Legislative Audit and Review Committee (JLARC) revealed that OFM was failing to provide oversight of large capital projects in “the manner required by statute and [OFM’s] own process as outlined in the Capital Budget Instructions.” The JLARC audit noted that “rising capital investment in local government and community-based projects” resulted in “less time available to work on advancing state facility projects.” In other words, proper prioritization is not taking place at the state level because OFM is overburdened by local pet projects. Two years later, the same problem is surfacing in a different audit. On January 4, 2007, JLARC released its “Life Cycle Cost Model Update” which reviews the state’s process for estimating long-term costs of leasing vs. ownership of state facilities. The audit found that “the state lacks specific policies and standards for conducting life cycle cost analysis in general. Without clear policies and standards…the state is at risk for selecting projects that are not the most cost-effective for the state’s taxpayers and may lead to the exclusion or deferral of other alternatives.” Without using POG, OFM has been unable to evaluate higher priority projects against those of lesser value. Without criteria for accomplishment, OFM can’t determine what a successful project is. JLARC’s audits clearly illustrate the problem with the current capital budget process. Pork projects not only waste taxpayer money, but they divert oversight from state to local projects, which decreases OFM’s ability to limit program costs and affect outcomes. The state capital budget should be for state government infrastructure, regardless of how “worthy” local member projects may be. OFM is working to fix its own flawed review process, but the legislature must use Priorities of Government to end pork-based budgeting.
Initiative and referendum rights under attack again by Jonathan Bechtle
rticle 1, Section 1 of the Washington Constitution states, “All political power is inherent in the people.” That’s not just an idle statement. A few pages later, Article 2, Section 1 grants the people the power of initiative and referendum, a tangible method by which the people can exercise political power. If several legislators have their way, however, that power will become much less effective in the near future. Four bills filed in the 2007 Legislature strike directly at our ability as citizens to run initiatives and referenda. Similar bills were filed last year, several of which gained a hearing but did not pass. Senator Ken Jacobsen (DSeattle) sponsored one of the 2007 bills and, if nothing else, should be commended for his transparency in a raw power grab. His bill, Senate Joint Resolution 8205, would amend the state constitution to completely strike the initiative and referendum powers. The good news is that such a frontal attack is unlikely to succeed. Conversely, the attacks in the other three bills are far more dangerous because they are disguised as anti-fraud measures.
“As in a candidate campaign, it’s the initiative that matters, not the staffer who promotes it.”
In reality, however, necessary fraud protections already exist; these bills are actually designed to make it exceedingly difficult to qualify initiatives and referenda. They would: • Outlaw payment of signature gatherers on a per-signature basis (HB 1087, Rep. Sherry Appleton, DKitsap); • Require signature gatherers to wear tags identifying them as paid or volunteer and, if paid, who is paying them (SB 5181, Sen. Jim Kastama, D-Pierce); and • Require signature gatherers to sign an oath at the bottom of each petition form. If a form wasn’t signed, all the signatures on the form would be rejected (SB 5182, Sen. Kastama). The intro section of HB 1087 spells out Rep. Appleton’s justification for outlawing per-signature payments, stating, “The legislature finds that paying workers based on the number of signatures obtained on an initiative or referendum petition increases the possibility of fraud in the signature gathering process.” In fact, Assistant Secretary of State Steve Excell says that there is no data linking fraud to per-signature payments, and initiative experts say that paying workers per signature actually improves the accuracy of the process.
For example, in a recent federal case the president of a consulting firm that runs initiative campaigns testified “that his firm had difficulty hiring the more experienced and trustworthy circulators to work in the State of Oregon after it prohibited per-signature payments, and he…also stated his opinion that circulators paid per-signature ‘are much more careful and diligent about collecting signatures [than circulators paid by time worked] in part because circulators are ‘selling’ each signature . . . and [political consulting firms] will not ‘buy’ a signature it deems questionable.’” (Citizens for Tax Reform v. Deters) In other words, a per-signature prohibition actually makes the process less accurate. The bill requiring ID tags is simply an absurd attempt to make initiative campaigns more difficult. As in a candidate campaign, it’s the initiative that matters, not the staffer who promotes it. Would these same legislators support a measure to require their campaign workers to wear “volunteer” or “paid” tags? The oath signature requirement is also troublesome, as it would mean that a forgetful volunteer petition gatherer could negate dozens of signatures, each representing the expressed decision of a voter. Signatures on initiative and referendum petitions already go through a vetting process by the Secretary of State, and at the end of the day, petition signatures don’t change laws or elect candidates. They merely allow measures to be placed on the ballot which can be voted up or down by the citizens of Washington. Accuracy is an important goal, but it’s just as important to ensure that initiative and referendum rights are not burdened by legislators who don’t like the people second-guessing them.
Public financing fails to deliver on promises by Jonathan Bechtle
ocal jurisdictions in Washington have dabbled in the past with public financing for campaigns, but now Governor Gregoire is proposing to implement such a program on a statewide scale, in supreme and appellate court races. She’s set aside $4.4 million in her 2007 budget for a pilot program of public financing, citing concerns over negative public perception of the judiciary’s integrity. Several bills have already been introduced in the legislature to implement her plan. Public financing, however, puts the government in the role of running campaigns—deciding who is a viable candidate and what campaign speech is acceptable. In a free-market economy, the role of government should be to safeguard the liberties of its citizens, not restrict them. Governments that have stepped outside their proper role to run public campaign financing programs have had very mixed results. Promised benefits of better voter perception and more competition have been limited or non-existent and costs have been a problem. Does public financing improve voter perception? Campaign finance experts have conducted studies on how various reforms impact voter perception, and found that public financing programs have a slightly negative effect on voter perception, while broad disclosure requirements have a slightly positive effect. Stories of “more citizen involvement” and “voters excited for the first time” abound from public financing advocates in Arizona, North Carolina and Maine (which have public financing programs) but they’re only anecdotes, and must be balanced against negative stories coming out of places like Portland, Oregon. Portland’s taxpayer-funded campaign program was marred in 2006 by two candidates who are charged with misleading donors, forgery, and using the public funds improperly. One candidate even paid her 16-year-
old daughter $12,500 out of the public grant. While similar corruption can be found in traditional (citizenfunded) campaigns, negative perception is centered on the specific candidate (who can be voted out), whereas corruption in public financing schemes breeds suspicion of the whole program. Does public financing increase competition? It depends on how you define competition. Will more people run for office? Probably—there’s free money available. But will incumbents actually face more competition? Probably not. Public finance advocates often cite Arizona, Maine, and North Carolina as positive examples of how competition increases (i.e. “levels the playing field”) when taxpayer funds are available to candidates. The number of contested legislative elections in Arizona, however, actually fell in 2000, the first year public financing was available. The number rose in 2002 and 2004, but the enactment of legislative term limits and a new redistricting plan during that period were a big part of the change. Is public financing cost-effective? No. Public funding programs struggle to have adequate money because they can’t adapt quickly to a changing environment, and because the vast majority of voters don’t want to pay for them. For example, North Carolina’s program ran out of money in 2004 because two last-minute vacancies on the court increased the number of candidates. Private donors in a free-market system could have responded quickly to this change, but the government-run program struggled to adapt. Adaptability problems aren’t just short term. Most candidates now opt out of the presidential funding program and Wisconsin’s public financing because the amount of money offered has become too small to run a
competitive campaign. Addressing this problem requires constant raises to the funding level, taking increasing amounts of money out of taxpayers’ pockets. For a public financing program to work (in the sense that it survives) taxpayers must be forced to pay for it in increasing amounts, either through direct budget grants, new fees, or new taxes. Costs outweigh the benefits Public financing programs shift campaigns from citizen control in a free-market environment to government control. They place government officials in the role of defining proper campaign speech and expenditures, but don’t prevent negative campaign tactics. They often run into funding problems, and are not immune from corrupt practices. Taxpayers are forced to give money to people they don’t agree with, and would never voluntarily contribute to. In return for these negatives, voters are promised that public financing might cause voter perception of government to improve and elections to get more competitive. Studies have shown, however, that perception may just as easily get worse and that incumbents will become more entrenched. Public financing is a bad deal for Washington. The quickest route to voter confidence is full disclosure of campaign coffers and timely investigations of dishonesty and fraud. Washington’s Public Disclosure Commission has been a model for the nation in keeping campaigns transparent, and the $4.4 million proposed for public funding of campaigns could instead be used to improve disclosure by beefing up the Commission’s budget. Full disclosure, larger fines for persistent violators and swift justice have proven to increase the public perception of integrity, and are where the governor and legislature should be concentrating their efforts.
A PUBLICATION OF THE EVERGREEN FREEDOM FOUNDATION
“Our interns don’t just get coffee; they get laws passed.”
“I learned more at EFF than I did in my four years in private university.”
E VERGREEN FREEDOM FOUNDATION
Applications are due March 9, 2007
To identify student
YOUNG LEADERS INTERNSHIP PROGRAM
leaders and cultivate within them a love of free market principles,
The Evergreen Freedom Foundation is now accepting applications for seven summer internship positions. Applications are due March 9, 2007. Preference is given to students entering their sophomore or junior year of college. Applicants must demonstrate strong research, writing, computer, and oral communications skills as well as a track record of leadership.
For more information, please visit our website at
the power of limited
w w w.effwa.org/youngleader or contact Kristen Mercier at firstname.lastname@example.org.
This year the Young Leaders Internship Program is also offering an internship in EFF’s Communications Department focused on media and public relations as well as writing, layout and design projects. Preference for this position will be given to students with experience in graphics layout, desktop publishing, Adobe software products, public speaking or persuasive writing.
The cost of EFF’s summer internship program (administration, faculty costs and student wages) is $3,100 per student. If you would like to help sponsor a student, please contact Gail Kramer at email@example.com, (360) 956-3482 or PO Box 552, Olympia, WA 98507. You can also donate online at our website: www.effwa.org.
IRA continued from page 11 . . . funds count towards a person’s minimum required distribution. If you think this provision might help you avoid paying some taxes while benefiting the charity of your choice, please consult with your legal and tax advisors. For a detailed explanation of HR4, contact your tax professional or go to www.house.gov/jct/. If you have retirement assets in a 401(k), 403(b) or other non-qualified account, you must roll these funds into an IRA before making the transfer to the non-profit organization. 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. Note: This information is not intended to be legal tax advice. It is being provided for your information. You should check with your own attorney or accountant to verify that the new law applies to your specific circumstance before making a gift. If you would like to make a transfer, please contact Gail Kramer at 360-956-3482 or GKramer@effwa.org.
Which donors can benefit from this new provision? VirtualGiving.com has a great list. • Those who take their mandatory minimum withdrawals, but don’t need additional income. • Those who wish to give more than the deductible ceiling of 50% of AGI. • Those who are subject to the 2% rule that reduces their itemized deductions. • Those whose major assets reside in their IRAs and who wish to make a charitable gift during their lifetime. • Those who intend to leave the balance of their IRA to charity at death.
A Movie No One Should Miss
by Lawrence W. Reed
ave you ever seen a movie so good, so moving, that tears flow freely as the audience rises to its feet to applaud as the closing credits roll? Director Michael Apted’s “Amazing Grace” (http://www.amazinggracemovie.com) is just such a film. Mark this on your calendar: It debuts nationwide on February 23— the 200th anniversary of the very event featured in the film’s climax, the momentous vote of the British Parliament to abolish the slave trade in 1807. Last October, I saw the film twice in one day at a festival in Indianapolis. I have doubts that I will ever see a better movie. I confess to a personal attachment to the true story depicted so faithfully and brilliantly by Apted. Over the years, I’ve spoken and written much about the characters: William Wilberforce, the Yorkshire Parliamentarian whose campaign to end slavery ranks as one of the greatest humanitarian movements of all time; Thomas Clarkson (www.mackinac. org/7112), Wilberforce’s compatriot on whom he relied for mountains of evidence and encouragement; and John Newton, the former slave ship captain who became a Christian and composed the most popular hymn in Christendom, the hymn from which Apted’s powerful work of silver screen art takes its name. “Amazing Grace” boasts an all-star cast of some of the finest British actors of our day: Ioan Gruffudd (“Horatio Hornblower”) as Wilberforce, Rufus Sewell as Clarkson, Michael Gambon as Charles Fox, Ciaran Hinds as Lord Tarleton, Benedict Cumberbatch as William Pitt the Younger, and the incomparable Albert Finney as John Newton. Their flawless performances amidst a mesmerizing cinematography bring 18th century Britain compellingly alive. The story brings the best of the human spirit to the fore - faith, integrity, courage, conviction, leadership, optimism and perseverance - in a struggle to rid the world of the worst of human contrivances. The film’s central figure is Wilberforce. Elected to Parliament in 1780 at the age of 21, he drifted without focus until Christianity sparked a lifelong, inner calling. Repulsed by the hideous barbarity of the slave trade then prevalent in the world, he resolved in October 1787 to do what he could to end it. Abolitionism was a tall order in the late 1700s. Viewed widely at the time as integral to British naval and commercial success, slavery was big business. It enjoyed broad political support, as well as widespread (though essentially racist) intellectual justification. For nearly a century before Clarkson, Wilberforce and their associates began their crusade, Britain enjoyed the sole right by treaty to supply Spanish colonies with captured Africans. The trade was lucrative for British slavers but savagely merciless for its millions of victims. Along the way, countless setbacks bedeviled the abolitionists. The scene in which an aged John Newton urges Wilberforce not to give up is worth the ticket price all by itself, and ought to earn Finney an Oscar. “Do it!” he exclaims. “Blow their dirty, filthy ships out of the water!”
With the indispensable help of Clarkson and his Society for the Abolition of the Slave Trade, Wilberforce labored relentlessly for the cause. “Our motto must continue to be perseverance,” he told followers. Indeed, he endured and overcame every obstacle imaginable, including ill health, derision from his colleagues, and defeats almost too numerous to count. Wilberforce rose in the House of Commons to give his first abolition speech in 1789, not knowing that it would take another 18 years before the slave trade would be ended by law. Every year he introduced an abolition measure and every year it went nowhere. At least once, some of his own allies deserted him because the opposition gave them free tickets to attend the theatre during a crucial vote. Wilberforce was often ridiculed and condemned as a traitorous rabble-rouser. He had reason to fear for his life. What once seemed an impossible dream finally became reality in 1807. Abolition of the slave trade won Parliament’s overwhelming approval. “Amazing Grace” captures that monumental moment so brilliantly that I find it impossible to adequately describe in words. This is history-telling at its finest. The world is rife with corruption and inhumanity. William Wilberforce showed us two centuries ago that it can be made better. Michael Apted now gives us a film that no one who wants to make it so should miss.
Lawrence W. Reed is president of the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Michigan.
“History telling at its finest.”
Ioan Gruffudd portrays William Wilberforce in Director Michael Apted’s “Amazing Grace”.