As Governor Jay Inslee’s state of emergency first announced last spring continues into the summer, legislative efforts to reform executive power have proven unsuccessful so far. While high-ranking House leaders have hinted at possible action in the years ahead, some government reform advocates believe the route most likely to succeed will be through the ballot box.
That said, the initiative approach has struggled to gain momentum. Restore Washington last June filed Initiative 1114, which would have limited the governor’s emergency powers to 14 days unless extended by the state legislature. A proposal similar to I-1114 was introduced this session via HB 1029 sponsored by Rep. Jim Walsh (R-19). However, the initiative failed to garner the 259,622 verified signatures necessary to be placed on the ballot.
Restore Washington is headed by former 12th district legislator Cary Condotta and Wenatchee retail business owner Mike McKee. In a May post on the organization’s Facebook page, Condotta wrote that the group intends to introduce several new initiatives through the fall centered on a “Defund Olympia” theme.
“Even a change in majority…does not guarantee the things we can achieve through initiatives/referendums,” Condotta wrote.
McKee told Lens that the new initiative they plan to introduce will limit the governor’s powers to 30 days rather than 14. Although last year’s effort to get it on the ballot didn’t succeed, he noted that the effort was impacted by the lockdowns and restrictions on social gatherings.
Toby Nixon is president emeritus of the Washington Coalition for Open Government. Though the organization itself has no official stance on the governor’s ongoing state of emergency, Nixon told Lens that it’s unlikely the legislature will curb executive power when both chambers and the governor’s mansion are controlled by the same political party.
“It’s such a political thing, especially for the 2021 session,” he said. “In the midst of an active emergency it would be extraordinarily difficult. But we have to get past that. We have to be able to take a step back and look dispassionately at what’s the right thing to do. Maybe it can be done in the 2022 session.”
Washington’s laws regarding executive authority during an emergency are considered to be among the “worst” in the nation according to the Maine Policy Institute. As written in statute, the governor can unilaterally declare a state of emergency and also decide when it ends.
“The problem is, there’s no end to the emergency,” House Minority Leader J.T. Wilcox (R-2) said.
Nixon said those laws were written to address issues such as a potential Soviet invasion or natural disasters; situations where critical decisions need to be made quickly, but there’s a breakdown in communication within the government. “Nobody thought at the time, as far as I can determine, that it would be used for something that would go on for years, like a pandemic. Emergency orders should be where the governor takes some kind of action to mitigate the effects of a forest fire, a flood, something relatively short-term.”
During the legislative session Wilcox unsuccessfully attempted to bring a motion under the eighth order of business allowing the House chamber to consider a government reform bill. Under this motion, a bill can be brought from the Rules Committee to the chamber floor by a majority vote. Wilcox said that they will continue to push that legislation and other reform bills next session.
“I think it’s a huge mistake that the Democrats ignored every opportunity to stress test these emergency orders,” he said.
In a recent interview with TVW, Rep. Larry Springer (D-48) said there was no “appetite” to take up the issue during the session while the state was still in the midst of the COVID-19 pandemic response.
“The time to have that conversation is now,” he said.
One potential avenue for that is a task force funded in the 2021-23 operating budget “to conduct a comprehensive after-action review of the statewide pandemic response and recovery.” The task force members will include legislators from both parties, with an initial report due to the legislature and governor in 2022 and a final report in 2023.
However, Nixon is skeptical that any proposal will emerge this year or in 2022. “There’s not enough interim work. It will probably end up getting pushed off. But somehow, we have to figure how… we set aside partisanship and base this discussion on what is the right thing for the people of the state. It’s going to take a lot of political courage.”
Also, any legislation stemming from those recommendations intended to restrict the governor’s powers may require a veto-proof majority or a change of mind on Inslee’s part. When asked recently about reforming executive emergency powers, Inslee said “I’m not sure I want to reform a system that won the Super Bowl.”
Washington Policy Center Government Reform Director Jason Mercier says that argument undermines the concept of a state’s republic form of government. “If the governor’s position is that no changes are necessary because ‘look at what a wonderful job of all the decisions I made,’ why have a legislature? If the rationalization is that the governor is making good decisions and therefore doesn’t require legislative oversight, why does it not extend to everything else that happens in the state of Washington? That’s not what we signed up for.”
Mercier added: “I don’t understand the lack of interest from the majority party in the legislature to demand a seat at the table. You’re not seeing this in other states. This isn’t a partisan thing. I have not seen that response from legislators anywhere else.”
Wilcox, Mercier, and Nixon all said that the governor needs greater authority during genuine emergencies, but it also need limitations that are currently lacking under existing state law.
“The time limit really isn’t as critical as the notion that at some point this awesome grant of power to respond to imminent crisis requires legislative oversight and approval,” Mercier said.