A Healthy Democracy Requires Transparency; Then Why Do Lawmakers Seek to Limit the Powers of the Public Disclosure Commission?

In 1972 the Washington state Public Disclosure Commission (PDC) was created by the dogged determination of a small group of citizens with the radical notion that transparency and disclosure are essential for a healthy and vibrant democracy. With I-276, (you didn’t really think the legislature would create it did you?) the voters passed the measure, by a phenomenal 72% to 28% margin, voting to require financial disclosures about political campaigns, lobbying contributions, and expenditures, and for a prohibition against use of public facilities in electoral politics. 

It is especially helpful, and informative, after the passage of time, and with the resulting experience, to revisit political fights and see if what the opponents said was true, and survived the test of time.

Opponents called I-276 “well-intentioned but certainly over-enthusiastic legislation,” and contended it would violate the privacy of campaign donors and discourage participation in the political process.

When one wants to discourage people from voting for change, reform, or some would say progress, the easiest chant is that a measure or proposal is “well-intentioned but over enthusiastic”. Auto makers used it to oppose seat belts. The gun-obsessed use it to convince the public that common sense gun safety measures are, well they don’t even say “well-intentioned”. 

The “over enthusiastic legislation” was certainly better than nothing but was so tepid that the voters had to again, in 1992, by an even bigger margin of 72.9% to 27.1%, write and pass I-134 to set limits on contributions to state executive and legislative candidates, political parties, and legislative caucuses. Again, it was the people who passed this law, not the legislature who can be particularly averse to transparency and disclosure.

As for violating the privacy of donors and discouraging participation in the political process: even libertarians who call for unlimited donations say we need full disclosure, and both the amount of money in political campaigns, and the number of candidates running indicate we  are discouraging participation in the political process. Now, if we want to talk about participation by voting, let’s have that conversation but that is not what those who opposed I-276 were concerned.

So, now that we have a PDC. How’s it working?

Glad you asked…Like the creation of safe and commutable bike paths in urban areas, or the state’s record on environmental protection, we are much better than Mississippi and we love to overstate our accomplishments, but we are also nowhere near where we should be.

The PDC was created specifically to be an “independent” agency. After all, it regulates the Governor and legislature as candidates, and public office holders. Certainly, it would be a bit awkward wouldn’t it if those who must comply with transparency and disclosure laws are able to use their power and leverage to control those who regulate them?

Yet, that’s exactly the situation in Washington state. We are one of a small number of states which rely on the legislature for 100% of its funding. Most others collect at least some of their funding from the lobbyists, and political committees they monitor and regulate – so the public can easily access the information it needs to be an informed citizenry and electorate.

While there are likely a few legislators who fully believe in the inherent value of transparency, and disclosure, and that their letting the public know about where potential conflicts may exist between their personal interest and the public interest and is vital for our democracy to work, there are also likely, what one former legislator said recently,  a “super majority of legislators who would love to see the PDC go away”.

The danger of the fox being in charge of the hen house was evident for all to see last year when a particularly hubristic and irascible legislator, who not coincidentally happens to be the chair of a committee with jurisdiction over the PDC, tried to bully and intimidate the agency from making his, and all other legislators, public filings available online. The nerve of the PDC, in the 21st century making already public information available to the public…over the internet!

The exertion of power by the legislator worked, as indelicate as though it may have been, as the then-Chair and the agency’s Executive Director decided to accommodate the legislator’s baseless rant that the “PDC is being assaulted by international data thieves from China, Russia, and Germany”. Not only did he present no evidence of such a threat, but neither did any of the state’s cybersecurity staff. Even more importantly, one can’t hack the PDC’s site – it is all wide open, because, you know… it’s supposed to be easily available to the public!

Another way legislators flex their power, and sometimes just spite, over the PDC is through bills passed intended to directly limit the PDC from achieving its mission. In May of 2019 the legislature listened to Sen. Sheldon make up a story about a ransom and kidnapping in order to justify preventing the PDC from posting their financial disclosures online. Notwithstanding Sheldon’s lies, the legislature passed that bill with overwhelming majorities. It was then vetoed by Gov. Inslee saying that it would be ““contrary to the interests of transparency and public disclosure.” Inslee saves us from legislature

Fear and ego are powerful forces, and passing legislation, and getting it signed by the Governor takes time and potentially catches the attention of those pesky good government groups and that nosy media. So…legislators intent on further handcuffing an agency and making transparency and disclosure even harder, can always look to the budget to achieve those things they want to keep quiet but still deliver the necessary punch.

This year, the legislature is proposing two “provisos” in the budget that would restrict the agency from filling an IT position and prevent the agency from spending any money on developing the first-in-the-country digital mechanism for the public to see all digital ads that were paid for in an election. Why would they do such things, you ask? Well, simply because they (well a couple of legislators in particular) are mad that agency staff proposed a stipulation with Facebook last year, to settle a complaint filed against them by a journalist for not complying with Washington law and making digital political ads available upon request by the public, which appeared to go easy on the behemoth corporation. The Commission, when we finally had a chance to see the proposed stipulation, also thought the proposed settlement did not adequately hold Facebook responsible for violating Washington law and sent it to the Attorney General to litigate.

“Democracy is not a spectator sport”, it is said. Damn right. It takes attention, and intention, and persistence, and the obligation to stand up and expose those who don’t really want to be transparent. We saw on January 6 that our Democracy is indeed fragile. 

By Russ Lehman

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