To provide a check on the legislature, the state constitution grants the people the power to veto unwanted legislation through the use of a referendum. This right is guaranteed on any bill adopted by the legislature except those that include an "emergency clause." An emergency clause states that a bill is exempt from repeal by referendum because the bill is, "necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions."
The purpose of the emergency clause is to allow state government to respond to true public emergencies, like a large-scale natural disaster or wide-spread epidemic disease.
Yet, over the years lawmakers have routinely abused the exemption by attaching an emergency clause to more than 700 bills since 1997, including 75 times during the 2007 Legislative Session and special session. This means the people of Washington were denied their right to repeal bills by referendum on approximately 17 percent of all the bills enacted since 1997.
Responding to the public outcry over this abuse, Governor Gregoire in 2007 vetoed the emergency clauses off of ten bills before signing them into law.
Here is an excerpt from one of the Governor's veto messages, in which she explains her reasons for removing the emergency clause: "An emergency clause is used when immediate enactment of a bill is necessary to preserve the public peace, health, or safety or when it is necessary for the support of state government. It should be used sparingly because its application has the effect of limiting citizens' right to referendum." (Line-item veto of HB 1000, April 17, 2007.)
Despite these positive steps, the Governor failed to veto the emergency clauses off of all non-emergency, controversial bills passed in the 2007 Session. While the governor has at least taken some action, the judicial branch has refused to bring clarity to this controversy. The State Supreme Court has accepted the legislature's misuse of emergency clauses by declining to rule on what constitutes a "public emergency" within the meaning of law. A majority of the court ruled that an "emergency" is anything the legislature says it is.
In 2005, the state Supreme Court, in a 6-3 ruling, upheld the legislature's use of an emergency clause on SB 6078, which changed the I-601 voter-approved spending and tax limit. At the time no threat to public peace or safety, or to the existence of government institutions, existed.
The impact of the ruling was to give the legislature a blank check to use emergency clauses any time it wants. This has the effect of routinely stripping the people of their right of referendum.
Due to the state Supreme Court's refusal to serve as a check on the legislative abuse of the emergency clause, the only recourse remaining for the people to restore their right of referendum is with a constitutional fix. One such proposal (HJR 4218) was introduced last session and would require a sixty percent vote of the legislature to enact a bill with an emergency clause. Despite a legislative hearing at which no opposition to the reform was expressed, no public vote was scheduled.
The best way the legislature can preserve the people's constitutional right to referendum is to refrain from attaching an emergency clause to controversial bills, and return to using the clause for its original purpose: to respond to true public emergencies.
Short of that, the only way to rein in the legislature's abuse of the emergency clause is with a constitutional amendment creating a supermajority vote requirement for its use. If a true public emergency occurs that warrants denying the people their right of referendum, a 60 percent vote requirement in the legislature should not be difficult to achieve. In the case of a true emergency, such as the recent flooding, the public would most likely welcome the use of the emergency clause by the legislature, recognizing it is intended to be used at just such a time.
Jason Mercier is director of the Center for Government Reform at Washington Policy Center. WPC is a non-partisan public policy research organization in Seattle and Olympia. Nothing here should be construed as an attempt to aid or hinder the passage of any legislation before any legislative body.
