In a tacit admission that he’s very worried about the electoral prospects for a slate of destructive initiatives that he and multimillionaire funder Brian Heywood managed to purchase votes on last year, Washington State Republican Party Chair Jim Walsh is suing to evade a 2022 law championed by the Northwest Progressive Institute which requires that voters be informed if an initiative has a fiscal impact on the ballot itself.
The requirement — which our polling has found is wildly popular, even with Republican voters — has yet to be invoked for any statewide initiative, because there weren’t any statewide measures on the 2022 or 2023 statewide ballots.
But three initiatives to the 2024 Washington State Legislature sponsored by Walsh are now on the verge of becoming the first to be subjected to the transparency law:
- Initiative 2109 (repeals the state’s capital gains tax on the wealthy, thereby repealing billions in education funding)
- Initiative 2117 (repeals the Climate Commitment Act, thereby repealing billions in transportation and clean energy funding)
- … and Initiative 2124 (sabotages the WA Cares Fund by permitting people to withdraw, thereby reducing funding for long-term care)
The Attorney General’s office has until July 23rd to prepare public investment impact disclosures, or PIIDs, for any statewide measures on this year’s ballot. The office has informed Walsh pal and former prolific initiative sponsor Tim Eyman that it has concluded that all three measures would have a fiscal impact and will be issuing PIIDs for each. That prompted Eyman to begin semi-publicly lobbying Walsh and Let’s Go Washington (Heywood’s committee) to hire attorney Joel Ard to file a lawsuit challenging the law.
On May 9th, Walsh did exactly that, teaming up with Mainstream Republicans of Washington Chair Deanna Martinez to file one of the most preposterous lawsuits I’ve ever read. The suit, prepared by Ard, seeks a writs of prohibition and mandate to prevent PIIDs from being added to the ballot titles for Initiatives 2109, 2117, and 2124.
It’s a desperate and blatant attempt to hide information from voters in an attempt to improve the electoral prospects for Walsh’s slate of destructive initiatives.
Walsh is no dummy: he’s seen the polling from Defend Washington (which is corroborated by NPI’s own research) showing that all three measures are on a failing trajectory, especially once voters are shown hypothetical public investment impact disclosures.
If Walsh believed his own bluster, he wouldn’t have brought this lawsuit, but he and Martinez appear to have come to the conclusion that they’re going to have tremendous difficulty replicating Eyman’s old formula for passing initiatives if voters know the truth about what their measures would do. So they’re asking a court to interfere and prevent voters from being shown essential information that they’re legally entitled to.
It’s a truly pathetic and embarrassing move that requires Walsh to make arguments in court that are completely at odds with what he’s saying in the court of public opinion.
In Thurston County Superior Court pleadings, Walsh is now on record as arguing that the Climate Commitment Act does not impose a tax, even though he and Heywood have been clamoring to “stop the hidden gas tax” for like a year now.
Similarly, he and his ally Martinez are arguing that the law that created the WA Cares Fund does not impose a tax, even though they and Heywood have been continuously claiming that I‑2124 will let Washingtonians opt out of payroll taxes.
As for I‑2109, they argue that measure shouldn’t have a PIID either — not because it wouldn’t repeal a tax, but because a different measure Walsh sponsored, I‑2111, has put the kibosh on the tax already. I‑2111 was the initiative the Legislature adopted that bans income taxes. I‑2111 was legally assessed as having no immediate practical effect; Walsh and Martinez now want Judge Allyson Zipp to issue a ruling finding otherwise.
Strikingly, even Tim Eyman — who is bad at writing laws and bad at interpreting them — came to the conclusion that I‑2109 would trigger the disclosure law. Eyman felt a case could be made that I‑2117 and I‑2124 shouldn’t have public investment impact disclosures, but he conceded in a series of emails to his list of ultra MAGA followers that I‑2109 would repeal a tax and drain billions in revenue from the state treasury.
Walsh and Martinez don’t want to make that concession. They want Judge Zipp to join them in pretending that I‑2109 won’t have any fiscal impact at all.
I don’t know the future, but I’m guessing this will be an extremely tough sell.
The Attorney General’s office is urging Zipp to throw the case out completely.
The state’s response brief begins with this wonderfully succinct sentence: “This lawsuit is a meritless attempt to deny voters information. The Court should reject it.”
It goes on to summarize the reasons why the plaintiffs are wrong that none of Walsh’s measures should be subjected to a public investment impact disclosure.
As to I‑2109:
Plaintiffs first claim that Initiative 2109 (I‑2109), which would repeal the capital gains tax, has no fiscal impact because — on their bizarre view — the Legislature already silently repealed the capital gains tax (and many other taxes) when it passed Initiative 2111 (I‑2111), a different initiative to the Legislature. Their argument misreads I‑2111’s text, would render I‑2111 unconstitutional, and is directly contrary to the Legislature’s stated intent in passing I‑2111. Indeed, while the Legislature was debating I‑2111, Plaintiff Walsh, the measure’s sponsor, explicitly rejected the reading of I‑2111 he now advances. Because the capital gains tax has not been repealed, and because I‑2109 would repeal it and would cut billions of dollars in education funding, that measure must have a public investment impact disclosure statement. For the same reasons, there is no basis to direct OFM to alter its fiscal impact statement for I‑2109.
As to I‑2117:
Next, Plaintiffs claim that Initiative 2117 (I‑2117), which would repeal the Climate Commitment Act (CCA), should not receive a public investment impact disclosure statement because the CCA supposedly imposes no taxes or fees. That is inaccurate. Under the CCA, polluters must pay the state in advance based on the amount of carbon they plan to emit, and in its first year alone, the CCA generated nearly $2 billion in state revenue. Payments to the State under the CCA are fees under Washington Supreme Court precedent, and when the Act passed, OFM classified it as a measure imposing “taxes or fees” under a longstanding state law, RCW 43.135.031, requiring certain disclosures when a pending bill would impose a tax or fee. Moreover, Plaintiff Walsh and his fellow supporters of I‑2117 routinely describe the CCA as imposing a tax or fee. Because the CCA imposes a tax or fee and because I‑2117 would repeal it and cut billions of dollars in funding to combat climate change, that measure must have a public investment impact disclosure statement.
It’s also worth noting that the statement of subject for I‑2117 contains the word “tax” — and so does the concise description. Voters were told on the petitions circulated for I‑2117 that I‑2117 concerns “carbon tax credit trading.” But now sponsor Jim Walsh wants a legal determination that I‑2117 wouldn’t repeal a tax or fee.
Hahahahaha — nope!
As to I‑2124:
Plaintiffs also claim that Initiative 2124 (I‑2124), which would allow residents to opt out of the State’s long-term care insurance program (WA Cares), should not receive a public investment impact disclosure statement because WA Cares supposedly imposes no taxes or fees. That argument ignores extensive history and case law about WA Cares. When the WA Cares statute was enacted in 2019, OFM classified it as a measure imposing “taxes or fees” under RCW 43.135.031, and the measure was subject to an advisory vote of the people because the Attorney General’s Office (AGO) and OFM concluded that it raised taxes. The federal district court for the Western District of Washington has held that WA Cares imposes a tax, and the Washington Supreme Court has held that analogous payroll deductions like unemployment insurance payments qualify as taxes. State v. Lawton, 25 Wn.2d 750, 756, 172 P.2d 465 (1946); Bates v. McLeod, 11 Wn.2d 648, 657, 120 P.2d 472 (1941). Moreover, supporters of I‑2124 have routinely characterized WA Cares as imposing a tax. Because WA Cares imposes a tax and because I‑2124 would significantly reduce funding for WA Cares by making participation optional, I‑2124 must have a public investment impact disclosure statement.
Thankfully, “advisory votes” — which were really Tim Eyman written push polls — were repealed last year by a law written by Senator Patty Kuderer and NPI. But the AGO is absolutely correct that before they were abolished, the law that established WA Cares was subjected to one of them. So was the law that created our capital gains tax on the wealthy. Brian Heywood and legislative Republicans have been citing the “results” of Eyman’s push polls incessantly to argue that voters are on their side.
I imagine that when Ard conferred with Walsh and Martinez about this case, he advised them that their prospects of getting a favorable ruling from the Court weren’t good at all, and could even negatively affect their credibility in the electoral arena. Nevertheless, Ard filed the case for the duo and oral argument is scheduled for this Friday.
Yesterday, The Chronicle of Centralia ran a piece on the lawsuit, which contained the following quote from Walsh that our team thought was quite silly:
“Our friends outsmarted themselves,” Walsh said in a statement. “They were very specific when they passed the warning-label law. But they were so specific that the law doesn’t apply to any of the initiatives that go before voters this year. The case is so clear-cut I am surprised we have to take this to court.”
Wrong on all counts.
House Bill 1876, the legislation that provides for fiscal transparency statements on the ballot, was drafted carefully and deliberately. In fact, so much thought was given to its provisions that it was amended more than once. It was even sent to conference so that it could get a final layer of polish prior to being transmitted to Governor Inslee for signature. Our team remembers these events well — it’s something NPI’s Kathy Sakahara and I were prioritizing at the end of the 2022 legislative session.
It is Walsh who’s trying to be too clever by half with this lawsuit. If you read the law, you can see the criteria are simple, but not as specific as Walsh is claiming:
RCW 29A.72.027 — Public investment impact disclosures.
(1) The attorney general must prepare a public investment impact disclosure for any ballot measure that:
(a) Repeals, levies, or modifies any tax or fee, including changing the scope or application of an existing tax or fee; and
(b) Has a fiscal impact statement, as provided by RCW 29A.72.025, that shows that adoption of the measure would cause a net change in state revenue.
I‑2117, I‑2109, and I‑2124 would each repeal, levy, or modify either a tax or a fee. And all of them would also cause a net change in state revenue. Therefore, the criteria for a PIID has been satisfied for each measure. It’s irrelevant what Jim Walsh and Deanna Martinez think — it is not their responsibility to determine the measures’ fiscal impacts.
In the event that Judge Zipp were to give Walsh and Martinez a favorable ruling, the case would probably be appealed by the AGO to the Washington State Supreme Court. But it’s difficult to see a lawsuit this preposterous going anywhere except the dustbin.
The plaintiffs are wasting the judiciary’s time and resources — and their own — trying to get a judge to order our statewide elected officials to conceal from voters information they’re legally entitled to have. Again, this is an admission that they know their slate of initiatives is in big, big, big trouble. A sponsor confident of victory would not undertake a legal gambit like this at such a late hour — they’d be fundraising and campaigning instead.
Lastly, I’ll note that while our team is accustomed to such behavior from Jim Walsh, it is truly disappointing to see the chair of the Mainstream Republicans of Washington joining this legal attack on the public’s right to know about what they are voting on.
I have offered praise in this space before for the Mainstream Republicans for having the courage to break with others in their party and stand against tax-slashing initiatives.
Sadly, those days appear to be over.
As Ard says in court pleadings: “Together with sponsor Walsh, Plaintiff Deanna Martinez intends to promote those Initiatives, as well as vote in favor of them herself.”
The Mainstream Republicans might as well change their name to the Ultra MAGA Enablers of Washington State. They can’t claim to credibly represent any “mainstream” of political thought when their leadership behaves like this. The old party of Dan Evans evidently breathed its last before this election cycle. There’s nothing left of it now.
We’ll keep you posted on what happens in this case, including at this Friday’s hearing.
Unsurprisingly, Jim Walsh wants to evade an NPI-championed law that requires fiscal transparency in initiative descriptions is a post from NPI's Cascadia Advocate, the journal of the Northwest Progressive Institute. Published continuously since March of 2004, NPI's Cascadia Advocate provides thoughtful commentary and analysis on regional, national, and world politics. Keep The Cascadia Advocate going by making a contribution to sustain NPI's research and advocacy here.