A Statement from I-831 Sponsor David Goldstein Regarding the Attorney General's Request for Injunction

Throughout our campaign to have Tim Eyman proclaimed a horse's ass, I have chosen to communicate with the media through a series of short, satirical press releases. While I intend to continue our puckish tone, the Attorney General's unprecedented actions have forced me to break character for a moment to discuss the very serious issues at the heart of I-831, and to explain the legitimate rationale behind our admittedly unorthodox tactics. I also intend to refute the Attorney General's assertions that she may deny I-831 the "true and impartial" ballot title guaranteed by statute, or that she has either the right or the reason to seek an injunction based on constitutional insufficiency.

I hope you excuse the length of this statement, but the truth behind the jest is too important to be left undefended. It is a truth that has sparked a statewide grassroots movement, and a truth that has provoked unprecedented legal attacks from the Attorney General. It was I-831's outrageousness that unleashed the initial flood of media attention, but it is the message at its core that has kept the story afloat.

I-831: A case for reforming the initiative process.

Few who have followed the initiative process these past years could deny the need for a serious public debate on the obligations of sponsors and voters... if not statutory or constitutional reform. Sponsors routinely and deliberately file unconstitutional initiatives; while in recent elections, voters have passed deep tax cuts and sharp spending increases, simultaneously. One could argue that there is no longer a question as to whether the primary function of the initiative is to directly enact legislation, or to send a message to Olympia. Voters have clearly and resoundingly been using initiatives to send messages... and contradictory messages at that.

But enacting policy based on how angry the voters happen to be on the first Tuesday in November, is proving to be a system of government that simply cannot provide the economic and political stability corporations like Boeing are now seeking in other states. Individuals and businesses alike, have concluded that Washington State simply cannot solve it's fundamental problems... that transportation, education, affordable housing and healthcare, and our stagnant economy are all problems for which we can offer no cohesive, long-term solutions.

But I disagree. This is a great state with enormous resources, and a talented and educated citizenry that is more than capable of rising to the challenges of the twenty-first century. But if we are to consistently and effectively address these issues, it will be through a deliberative legislative process, and not through one in which agenda-driven individuals handcraft legislation, and then place it on the ballot, inviolate, for an up-or-down vote. Crafting effective legislation requires collaboration and exchange, qualities the initiative process inherently lacks.

Now I know that some might argue that the citizens initiative is the purest form of democracy, and as such serves some "solemn purpose." But I prefer to rely on the judgment of true patriots--like the founding fathers who wisely established our representative democracy--rather than on the rhetoric of tinpot populists like Mr. Eyman.

Initiative 831 is intended to spark debate over the proper role of the initiative, and in so doing, contribute to efforts to seek serious reform.

I-831: A legitimate means of delivering a legitimate message.

Initiative 831 has never been about name-calling, or Tim Eyman. Mr. Eyman is a public figure who exploits his own notoriety to promote his political career and agenda, and as such, is a fair and useful foil for our campaign. There is nothing in the “whereas” clauses of our initiative that is not a reasonable statement of opinion, or an undisputed statement of fact. While the resolution itself is sophomoric, and perhaps a bit mean-spirited, it is not, as the Attorney General implies, "vulgar."

Indeed, the language of the initiative was carefully chosen to be as outrageous as possible while avoiding the profane. The phrase "horse's ass" is a funny, descriptive, and visual term, widely used as a synonym for "fool." As has been proven, it is clearly acceptable for print, radio and television... and as we contend, the ballot. Even the word "ass," unmodified, occasionally appears in children's media.

But I wonder if much of the offense taken over I-831 (and there really hasn't been all that much,) is not so much for the language, but for the shameless irreverence it shows towards the initiative process in particular, and state politics in general. I have been told that "political theater" of this sort is selfish and pointless, and that I should devote my energies towards more serious endeavors. But I think these commentators join the Attorney General in confusing "seriousness" with "solemnity." I-831 may be a joke, but it is a totally serious joke, and while some may be offended by the language or the message--and while it may indeed be a sad commentary on the current state of political discourse--whatever you may think of my tactics, you must at least agree that they have worked.

If you doubt that, just look to January 6, when a host of earnest initiative filers stood in line at the Secretary of State's office, only to be denigrated for raining on Tim Eyman's parade. Mr. Eyman curtly dismissed these pretenders, and the media quickly followed suit. If I had joined them that day, with a "serious" initiative in hand, I would have been promptly lumped in with the rest of the wackos, garnering little more than a line or two in a larger article on I-807. End of story.

But I didn't. I chose to be my own wacko; so I filed by mail, and I waited. And the media found me.

Now perhaps, none of the 50-or-so other initiatives were truly newsworthy. In truth, some of them are pretty weird, and none but I-807 appear to have a legitimate campaign behind them. But the same could be said for I-831, if not for the fact that the media ran with it, driving thousands of potential supporters to our website.

I-831 is a symbolic initiative that sends its message indirectly, because that was the only reasonable option I had. Ironically, I merely followed the Tim Eyman playbook, which says: "The bottom line is that unless you can get attention for your ideas, it doesn't matter how good they are. They're never going to happen." My intention, throughout this campaign, is simply to "out-Eyman" Eyman; and in so doing, help my ideas enter the public debate.

I-831: Why the Attorney General's actions are unfounded, extra-legal, and futile.

Recently the Attorney General assigned I-831 a ballot title that failed to mention either "Tim Eyman" or "horse's ass," thus abrogating her statutory obligations. In so doing, she forced us to file an appeal, and then in response she asked the court to issue an injunction preventing I-831 from being placed on the ballot.

Now, I'll leave the lawyering to the actual lawyers, but I couldn't leave her charges unchallenged in the court of public opinion.

First, the ballot title. No one--and I mean no one--who has read the ballot title, lawyer or layman, has not laughed at the sheer audacity of:

"Initiative Measure No. 831 concerns adoption and transmittal of a resolution about a named individual. This measure would set forth whereas recitals negatively characterizing a citizen and initiatives he sponsored, followed by a resolution describing him with a disparaging term that denotes a self-important, silly or stupid person."

The ballot title meets none of the statutory requirements. It is not "precise." It is not "true and impartial." It does not "clearly identify" the proposition. And it is certainly "prejudicial." The Attorney General's denial that this is anything but censorship is as laughable as her tortured use of the English language. The Attorney General defends the title by claiming that a ballot title need only consist of “a few well-chosen words, suggesting the general subject stated." The general subject of I-831 is that Tim Eyman is a horse's ass... how could her words possibly be "well-chosen" and say otherwise?

The Attorney General understands the statute, and we made it clear that we would appeal any title that did not include the pertinent phrases. I can only assume that she deliberately provided an unacceptable and non-statutory title so that she could request an injunction in response to our appeal. She actually tried a similar ploy once before, in which she refused to assign a ballot title, forcing the sponsor to file suit. And she even threatened the same to us, despite the fact the court had ruled that she had no right to do so. If I had not made it clear that we had the will and the legal resources to challenge such an inaction, our campaign would have ended there.

But before I get into the specifics of the Attorney General's requested injunction, I first thought I should address the issue of why any of this matters. After all, the Attorney General is challenging a joke initiative. Joke's over, no big deal.

But it is a big deal, because the Attorney General's selective and extra-legal exercise of her powers is symptomatic of an initiative process that is in dire need of an overhaul. There are 35 other initiatives that have received accurate titles this year, some of them clearly unconstitutional, and a few, nearly as ridiculous as mine. Yet none are being challenged by the Attorney General.

Year after year, Tim Eyman knowingly files unconstitutional initiatives. Year after year he deliberately violates the one-subject clause, because doing so enables him to craft a measure with broader voter appeal. Year after year he qualifies his initiative for the ballot, unimpeded by the Attorney General, and year after year his initiatives are passed, challenged, and invalidated, in whole or in part. But it does not matter, because he has sent his message, and he uses his electoral "mandate" to bully Olympia into enacting his policies regardless of the constitutionality of the initiative.

Should there be a statutory mechanism for reviewing the constitutional sufficiency of initiatives prior to the ballot? Absolutely. Is there? No. And for the Attorney General to pretend otherwise belies a 90-year history in which no Attorney General--her lawyerly ballot title trick notwithstanding--has ever filed an injunction to prevent an initiative from being placed on the ballot.

I-831 is about demonstrating the need for initiative reform, and the Attorney General's challenge is the exception that proves the rule. In attacking I-831 she doesn't end the joke, she becomes part of it.

Now, as to the specifics of the Attorney General's challenge, I'm no lawyer, so I'll leave the legal defense to our attorneys. But as I understand it, she claims that one cannot issue a resolution by initiative, because a resolution is not legislative in nature. She claims I-831 is thus outside the scope of the initiative process, and therefore open to judicial review.

I don't know the legal, Latin term for this, but in the vernacular we call it a load of crap.

When the legislature stops passing resolutions, I'll agree that a resolution is not legislative. I know, I know, I'm missing some finer point of law. What she's really saying is that an initiative must actually amend the RCW. But I don't read that anywhere in the statute or the Constitution, and the language I do read seems quite broad.

Of course there's no actual precedent for attempting a resolution by initiative, which perhaps explains her cloying attempt to plead the dangers of establishing one. According to the Attorney General, allowing resolutions and mere "expressions of sentiment" would create confusion between initiatives that send a message and those that actually change the law.

What world is she living in? Sending a message may not have been the intent of the framers, but it has long since become the initiative's primary use. And does she really believe that warding off resolutions would somehow protect us from initiatives that (gasp) contained expressions of sentiment? Either she's a very poor chess player, or the Attorney General is being disingenuous. Does she think I couldn't send the exact same message while managing to amend the RCW? The only reason I chose a resolution, was that it was the most direct form available. (And in response to her accusation that "I-831’s text is an obvious parody of resolutions adopted from time to time by organizations," she is absolutely correct. And the organization whose resolution I parodied was the Washington State Legislature.)

Now I just want to say that I like the Attorney General. I've voted for her before, and I'll probably vote for her again. (And of course, wherever I refer to the "Attorney General," I am usually referring to her office.) But I just can't figure out why she's chosen to spend taxpayer money to fight I-831 on such a tenuous technicality.

Perhaps she really believes that resolutions by initiative are the greatest threat to democracy this side of the Florida Board of Elections. But I doubt it. Perhaps her office is suffering from "Stockholm Syndrome," that after years of being forced to defend Eyman initiatives, they've started to identify with their captors. Plausible.

But I think the truth is that she is genuinely offended by the language of my initiative, and the tactics I've employed... and I want her to know that I truly empathize. But too bad. It's none of her business.

If she believes that initiatives should be prohibited from containing offensive content, then amend the statute. If she believes that resolutions and expressions of sentiment should be outside the scope of the initiative, then amend the statute. If she believes the Attorney General should have a role in reviewing initiatives for constitutional sufficiency prior to ballot, then amend the statute! She's the Attorney General, and if she tells legislators we need to address a broken initiative process, they will listen to her suggestions, and perhaps even open a serious debate on how and why we might reform this "solemn power." And that, after all, is the whole purpose of I-831.

Again, I apologize for the length of this statement, but as I said before, I take my jokes very seriously, and I wanted to make it clear that I-831 does not make a mockery of the initiative process. If it did, it wouldn't be funny. For the laugh doesn't come from making mockery, but from pointing it out.

David Goldstein
I-831 Sponsor
david@horsesass.org

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