Sunday, October 23, 2016

Why lying is legal in politics here (or isn't, but the courts will probably make it legal again)

One quote from the robo-call dustup made me think:



You could read this (as did I) as a simple statement of "I'm telling the truth" or at least "I think I'm telling the truth," but in Washington State that isn't necessarily true.

In Washington State, Glen Morgan and Karen Rogers could well be lying, and know their lying, and still not run afowl of state law.

Twice now the state legislature has tried to outlaw lying in political speech, and twice the state Supreme Court has sent them back.

In the 1990s, there was a state law that barred candidates and campaigns from sponsoring "with actual malice" lies.

The first case that struck down these rules involved an assisted suicide initative, specifically one flier that the proponents of the intiative said were innaccurate about suicide safeguards.  The second had to do with one of Tim Sheldon's state senate races in which his opponent tried to make hay over his weak defense of Mission Creek.

Between the two cases the state legislature tried to clean up the law, making it possibly better able to survive court challenge.

The bottom line of these cases is that the Public Disclosure Commission, which usually regulates political and campaign speech in Washington, can't get into the lie vs. truth business.

The deeper reading of these cases shows a divided court weakly coming to this conclusion. Both cases show a small majority coming to a very thin legal conclusion that the state has no part in the lie vs. truth business.

Justice Talmadge in 1998, writing (sort of) with the majority:
I agree with the majority that RCW 42.17.530 is facially unconstitutional because it sweeps protected First Amendment activity within its provisions by penalizing political speech, even if knowingly false, regarding an initiative measure.   I write separately to emphasize that I am not convinced that the same is true where a statement contains deliberate falsehoods about a candidate for public office.   In my view, there is merit to the contention that the Legislature may constitutionally penalize sponsorship of political advertising of such a nature by enacting a narrower statute than RCW 42.17.530.
And Alexander in 2007:
Chief Justice Gerry Alexander joined the majority as well, but in a separate concurrence. He wrote that "the majority goes too far in concluding that any government censorship of political speech would run afoul of the United States and Washington constitutions," but he agreed that the law was unconstitutional because it was overbroad.
But, then, two years later, the legislature again tried to clean up the law to make it illegal to maliciously defame a politician running for office. From the final bill report of SHB 1286:

It is a violation of the campaign laws for a person to sponsor, with actual malice, a statement constituting libel or defamation per se under certain circumstances: the false statement is about a candidate and is in political advertising or electioneering communications; a person falsely represents that a candidate is an incumbent for the office sought in political advertising or an electioneering communication; or a person directly or indirectly implies the support or endorsement of any person or organization in political advertising or an electioneering communication when in fact the candidate does not have such support or endorsement.  
A candidate is also prohibited from submitting a defamatory or libelous statement to the Secretary of State for inclusion in the voters' pamphlet about his or her opponent. For the purposes of this act, "libel or defamation per se" is defined as statements that tend: to expose a living person to hatred, contempt, ridicule, or obloquy, or to deprive him or her of the benefit of public confidence or social intercourse; or to injure any person, corporation, or association in his, her, or its business or occupation. 
 If a person makes a false statement, with actual malice, about himself or herself or falsely represents himself or herself as an incumbent, it is not libel or defamation and is not a violation of the campaign laws. It is also not a violation of the campaign laws for a person or organization to falsely represent that the person or organization supports or endorses a candidate as persons and organizations cannot defame themselves. If a violation is proven, damages are presumed and need not be proven. 
So, there. Clear as mud. Each time the legislature tries to make it unlawful to lie, then the courts kick it back and the legislature tries again. If we were to take a broader view in our historical circle, we're at the point where we wait for a case attempting to enforce this law makes it back to the Supreme Court.

Saturday, October 15, 2016

John Hutchings (yet everyone knows him as Hutch) preaches ignorantly about how Home Rule and county government works



During a recent debate with Jim Cooper, John Hutchings told a tale about why he isn't necessarily in love with the idea of county government becoming more representative.

But, he get's most of it really really wrong. A little disclosure, I am a member of Better Thurston, which advocates for Home Rule and a charter form of government. So is Jim Cooper.

1. Hutchings says we would need to amend the comprehensive plan if we decided to have home rule.

Just quickly, the comprehensive plan is a document required by the Growth Management Act, basically where certain buildings will be built and where people will eventually live.

A charter is how county government is organized.

They have nothing to do with each other.

2. He says we'd have an unelected super bureaucrat vetoing decisions by elected officials. Hutchings:

The charter would also have a component of an executive manager for the county. And no matter what the people want and what the commissioners vote on, the executive manager, who is not an elected position would have veto power. And, I don’t think I like that because that takes what the peoples’ wishes are away from the people. 

Oh man, where to start.

First, in the charter process it is up to an elected group (a disappearing committee) to write a county charter, essentially a county constitution of how political power is divided up through the county. How many seats on the county commissioner? Is the clerk elected? That kind of thing. So, that anything at all (like a veto wielding bureaucrat) would be required is false.

If you look at charter counties throughout Washington, you see a significant diversity of how they manage their own affairs. Whatcom has a non-partisan county commission with seven members and an elected executive. Both San Juan and Clallam stuck at three commissioners.  King County has a nine-member non-partisan council.

That said, Hutchings says that an executive manager could veto decisions by an elected body. So, more than a few of these charter counties did decided to go with a council or commission appointed administrator. This is, in fact, very similar to the forms of governments of Lacey, Tumwater and Olympia. The elected officials approve a budget and policy and the manager executes it.

While this gives the administrator day-to-day control of the county government, they can not veto a damn thing. In American government terms, a veto is literally turning back a decision by the elected board and saying "nope, we're not going to do this."

Veto power does not exist with any single unelected administrator with any local  anywhere in Washington State.  Seriously.

Also, while the Washington State constitution envisioned noncharter commissioners as a cross between executive and legislative actors, Thurston County has in fact had one of these unelected administrators for decades. So, if elected, Hutchings would step into a power structure very much like the one he fumbled through describing.

3. I understand that the county charter process is complicated. So it makes sense that people oftentimes don't get the nuances. But, there's a reason why it's complicated. Its serious business changing our form of government.  And, people running for office should be serious enough to understand it.

This late in the game, you'd hope that a county commission candidate would have ironed out any confusion they had with the process.

But, you know. I don't think Hutchings thinks he's wrong. I think he's pretty confident about his understanding of how the charter process would work.

Listen to the confident way he explains his understanding of the relationship between a county manager and elected officials. He's trying to walk the listener through a complicated arrangement that he is just not getting himself. These aren't shades of gray either here, or things that honest people can disagree about. This is literally a question of elements of government existing or not.

By this point in time, Hutchings or any candidate for county commission, should have their facts straight. Especially about such a hot topic (of which, there are many).

Monday, October 10, 2016

Gary Edwards literally does not believe in land use regulation

Here's Gary Edwards, candidate for Thurston County Commission, talking about his vision for land use management:
I am certainly not in favor of taking through regulatory action. So, if we need to take, we need to compensate.



On the other hand:
You want to be able to do what you want with your land. But at the same time, landowners should not be able to destroy things for the people around them. It shouldn't be a free ticket to do whatever you want.
The point of view that Edwards articulates here is an aggressive and far-right approach to land use management that would not only throw growth management into chaos, but was soundly rejected by Thurston County voters ten years ago.

What he's talking about is called "regulatory takings," which is a strictly legal term that has been hijacked by the right. They've started using the term to describe any sort of local land use rule that prevents a landowner from realizing an economic gain from their land.

County is stopping you from building 100 homes on your 10 acres? That's a taking.

City stops you from opening a convenience store? That's a taking.

Basically, and restriction that keeps the landowner from making any money from their property would be described as a taking.

You can see how cities and governments would just give up on trying to preserve natural resources and the livability of our communities than try to enforce now expensive rules against landowners.



Back in 2006 a coalition of right-leaning organizations came to Washington with Initiative 933. This initiative would have forced local governments to pay landowners anytime a local zoning or land use law conflicted with their interests. If the government couldn't pay, the landowner was free to do what they wanted.

What happened that year was that  64 percent of Thurston County voters rejected the initiative that was based on Gary Edward's bad idea of land use management. That was higher than the 58 percent who voted it down statewide.

Even in Oregon (where the idea to give developers a free ride started with a similar initiative a few years earlier) the idea was turned back in 2007. The people there saw how bad the idea really was, allowing development where it wasn't appropriate and where the natural resources simply couldn't support it.

So, what Edwards is describing is really an extreme, and already rejected, idea for how Thurston County should protect communities and natural resources. Giving landowners free reign by holding the county hostage anytime they disagree is a terrible idea.