CHARTER BARTER: Whatcom County Council continues to tug on the fuse in the moldy stick of dynamite left over from the construction site of the county’s home rule charter in the 1970s, while supporters of the Charter Review Commission wail that their pyrotechnics are being ruined, ruined!
Turns out that not only does the Council have the authority to listen and respond to the requests of citizens to improve the workings of county government (wail!), but they also (wail!) have the power to consider their own modifications and improvements to how their government might function. Imagine that!
County Council is restricted in the changes they might offer to voters by the requirement of a supermajority. Under the current charter, Council is already required to secure five of seven votes to place amendments to the charter on the ballot for voters to consider. They’re proposing the obscure Charter Review Commission should be similarly limited. What restricts them should similarly restrict others, Council reasoned.
It’s a wise idea—probably the best idea to come out of the entire mandated review of the county charter this year. After all, if a proposed change is a good one, you ought to be able to convince large numbers of people invested in studying the issue to at least consider it.
Termed “reducing partisan amendments through supermajority agreement,” Council’s proposed charter amendment attempts to do just as it says, holding the CRC to the same standards as Council in public participation and in submitting charter amendments to voters. Council noted that a supermajority requires greater effort, the fostering of more diverse opinion, to set aside partisan agendas and achieve consensus on how the county’s foundational documents should represent citizens.
If approved by voters in the fall, the amendment would end the tidal slosh of efforts to angrily change the rules every ten years, in the middle of every other county election cycle, and might lessen the foam-flecked screams of “Secession!” that happen every time the outcome of a particular election doesn’t go someone’s way. The amendment might just restore charter review to its original purpose—a mechanism to make local government more responsive and fair, rather than a weapon that allows partisans dominion over others.
The proposal is entirely in line with state and federal models that lock away the actual machinery of government by requiring supermajorities to change it. This should have been enacted by the county decades ago.
County Council also struggled this week with the amendments proposed by the Charter Review Commission. And wrongheaded, problematic and probably unlawful as some of those amendments are, Council appeared inclined to allow them to pass on to the wisdom of voters to judge.
In a seething lather that their authority was being challenged, the majority caucus of the CRC earlier this month abruptly rescheduled their final meeting and rewrote several of these amendments extensively, running roughshod over commissioners in the minority and, indeed, their own absent legal counsel. Through their impulse, the CRC undermined their authority as a process-directed review board and probably jeopardized the capacity of these amendments to withstand the scrutiny of the courts.
Particularly ill-advised and offensive are CRC proposals that attempt to impose through a county charter prior restrictions on future legislative action by councils, councils who derive their powers under the state constitution. The state Supreme Court has already and at length examined and rejected subordinate restrictions such as these. In essence, you cannot strip legislative powers granted by the state constitution without changing the state constitution itself.
Two amendments attempt to destroy the very power of the Council to propose or consider charter amendments, imposing not merely a supermajority requirement on Council action but one of unanimous verdict. Meanwhile, the CRC would continue to operate under the malevolent tyranny of simpletons in simple majorities.
Turnout for the 2014 election was among the lowest ever recorded for Whatcom County, according to Auditor Debbie Adelstein, and from this diminished subset of county voters came the “mandate” of the Charter Review Commission. Some CRC candidates who were elected were separated by a mere handful of votes from other candidates who were not elected. And from this obscure body we determine who gets to participate in our democracy, how our elected Council (elected by ten-fold more voters) should govern?
Can a county charter subordinate and overturn federal and state constitutional doctrine that forbids the delegation of legislative powers or function to other entities (e.g., the CRC) that the legislative power (Council) is constitutionally authorized to exercise itself? Can powers granted to county councils by the constitution be stripped away by poorly informed initiative?
Doubtful; but the more salient question is, why would you even want to try? If there is any matter dubious under the state constitution, it is the authority of charter review, not the established powers granted under Article XI to the legislative branch of county government.
“The architects of the County Charter saw the need for the Council to be able to propose amendments and gave us the responsibility to do so when needed,” Council member Rud Browne observed.
“If I had to even contemplate making any change to the system we have, it would be to consider making whatever gets on the ballot a supermajority vote of the commissioners,” Pete Kremen said, “because this is our constitution. And our constitution is not tinkered with lightly. Very, very seldom do we make changes to the United States Constitution. Well, our charter is our constitution. In order for us to make changes, they should be so compelling that there should be a supermajority of members of the commission in order for it to go to the voters.”
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