How Might Washingtonians Enforce the McCleary Decision?

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Modified: 23 Jul 2020

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The Situation

In the 2012 case of McCleary v. Washington State, the state Supreme Court found that the Washington State Legislature had failed in its constitutional mandate to “amply” fund education for the 1+ million schoolchildren of the state, and set a goal of an additional 3.3 billion dollars in funding before 2019. In addition, McCleary set targets for action, and when the legislature failed repeatedly to show any progress, the Supreme Court declared the Legislature in contempt in September 2014.

The Supreme Court declined to discuss potential sanctions in its contempt ruling, but implied that it could take action. It may be able to fine the legislature, and in extremity, order the Executive Branch. But whether it can really do so, and whether it’ll work, is another question. Nobody seems to be sure.

Can The Citizens “Enforce” McCleary?

My purpose here is to explore mechanisms whereby the citizenry could enforce McCleary themselves, by forcing action.

There are two “tools” at our disposal:

1. Initiative
2. Turnover in legislators

These are the obvious mechanisms, but they each present electoral issues. An initiative which simply declares the taxes required to bridge the gap would be very difficult to pass, in an age where new taxes are resisted mightily by the population.

And turnover of legislators requires several electoral cycles, and an engaged citizenry which can stay focused over several electoral cycles. And the likelihood of that is well understood by the legislators themselves, who will see no real threat to their officeholding.

So the question is, can we combine these mechanisms, and the recall mechanism from the state Constitution, to create a situation where it would be in the best interest of legislators themselves to allow an initative to solve the McCleary funding gap? Where doing something to block a solution would carry a steep price which was immediate – not merely the threat of being voted out down the road.

A Proposal

The basic idea is to create a situation where an initiative forces a tax reform which would be popular among voters, but hated by the lobbyists and pressure groups that currently prevent legislators from raising the revenues needed to fund the McCleary requirement. If legislators attempt to stop the initiative reforms from going into effect to fund McCleary, they automatically open themselves up to a recall election in their district.

Here’s the details:

1. Elected officials are subject to recall under the WA Constitution (Article I, Section 33)¹ for (a) malfeasance, (b) misfeasance, or (c) violating their oath of office. They can’t be recalled simply because constituents disagree with their policies or the way they’re voting on an issue. Nor can they be recalled for not acting on a piece of legislation or issue (i.e., nonfeasance).

2. Misfeasance is a term from English common law, referring to a type of offense involving the discharge of public obligations existing under statute, custom, or the common law. There are three related concepts:

• Nonfeasance is the failure to act where action is required - willfully or in neglect.
• Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
• Malfeasance is the willful and intentional action that injures a party.

3. We cannot recall legislators for nonfeasance (failure to act where action is required). We can only recall them for malfeasance or misfeasance.

4. So we set a trap – an initiative which pays for the McCleary gap by closing every tax loophole and tax preference, specifically stating in the bill that (a) the bill is the mechanism adopted by the Legislature to meet the McCleary obligation, and (b) that the proceeds of closing each loophole and deduction eliminated will go towards satisfying the Supreme Court’s requirements in McCleary and subsequent orders. The bill also prohibits reinstatement of the tax loopholes by legislation until the Supreme Court deems the McCleary requirements satisfied.

5. Then we have to pass the initiative. But it’s not an initiative to create new taxes, it’s a bill to close tax loopholes. Which potentially makes it easier.

6. If no legislators attempt to block the law resulting from the initiative, we’ve made headway on funding the McCleary education gap.

7. If a legislator, under pressure from lobbyists or corporations who are losing their tax cuts, attempts to block the bill, or reinstate a loophole, they will not longer be engaging in inaction, but instead taking “intentional incorrect action” with respect to the Supreme Court’s orders in McCleary and the contempt order. In other words, blocking the initiative tax loophole reforms is misfeasance.

8. Each legislator attempting to block the bill or reinstate a loophole would then be open constitutionally to recall, and would have a recall election petition filed, to remove them from office. And they’d have to campaign in the recall election given the fact that they directly defied the will of the people during the initiative process. That might work in some districts, but not as many as would support the “no new taxes” especially when we’re talking schools.

Advantages

This idea thus combines electoral turnover (or the threat of it, in a very public manner) with an initiative, to create a trap. Technically, it creates a game-theoretic dilemma in which the strategy with the highest payoff for most legislators is to do nothing once the initiative passes, and imposes potentially heavy costs on taking further action.

The strategy makes use of precommitment on the part of the organizers, and complete information: it must be completely clear to legislators that action against the initiative will automatically result in a recall filing. This would be accomplished by campaigning for the initiative, and gathering signatures for the recall petition simultaneously. The petition would only have force and be “file-able” if the legislator did somethign that met the legal standard for misfeasance. It is, in other words, the insurance policy. Or loaded gun, or whatever metaphor you want to use.

Disadvantages

The disadvantages are obvious: it requires state-wide organization, lots of on-the-ground petition gathering, and winning an initiative campaign which would be strongly resisted by the corporations and industries that get tax loopholes.

Footnotes

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1. Article I, Section 33 states: “Every elective public officer of the state of Washington expect [except] judges of courts of record is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, signed by the percentages of the qualified electors thereof, hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided.”↩