Six taxpayers filed a lawsuit this week to invalidate an executive order issued by Washington Gov. Chris Gregoire. The taxpayers believe—with good reason—that the governor violated the doctrine of separation of powers by snatching a failed bill out of the legislative process and issuing it in the form of an executive order. They are being represented by the Evergreen Freedom Foundation, an Olympia-based government watchdog group.

Last year, after the Washington state legislature failed to pass a climate change bill championed by the governor, she took matters into her own hands by issuing an executive order directing the Departments of Ecology and Transportation to take action to reduce climate-changing greenhouse gas emissions and increase transportation and fuel-conservation options. At a press conference, Gov. Gregoire stressed that the executive order was intended to replace her failed legislation. “What we’ve done in the executive order is everything that was in that final bill—plus. Plus. There’s more in the executive order than what was in the final bill that did not pass the Legislature,” she told reporters.

It gives one pause to consider that Governor Gregoire should record herself talking for vetting purposes prior to making such admissions in public.

There are strong parallels in this case to what is happening on a national scale. President Obama’s drilling ban end-run around the law, for example, which has signaled his administration’s strategy to push through certain policies notwithstanding any legal restrictions. Or the passage of the so-called “health care reform” bill, which was rammed through in a suspect reconciliation process designed to bypass opposition. Or the arguably abusive use of signing statements by President Bush to tell agencies to ignore certain provisions of bills he disagreed with—1,200 times. President Obama intends to continue the practice, though he claims he will “act with caution and restraint, based only on interpretations of the Constitution that are well-founded.” I’m sure we’ll all sleep  better at night.

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As Americans rise up all across the country to challenge a political elite that many believe does not listen to them, it is important to consider the tools that people in many states have employed to directly affect change: the petition.

In Missouri, our Constitution includes the following passage:

The people reserve power to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly, and also reserve power to approve or reject by referendum any act of the general assembly, except as hereinafter provided.  (Article 3, Section 49)

The document  clearly states that the people possess the right to initiate laws and constitutional amendments, even though they grant those same powers to their representatives in the legislature.  This is an important since it permits the people to enact laws directly and without going through the standard legislative process.

Unfortunately, in Missouri and other states where the people enjoy this right, the initiative process is continually under assault from state legislatures—Republican and Democrat alike—even to the point of adopting unconstitutional limitations to them.  Such efforts have included the following:

• A 1969 law in Oklahoma required that petition circulators be state residents.  In December 2008, the Tenth Circuit Court unanimously struck down that law as unconstitutional.  The Court did the same to a similar law in Colorado in 2002.

• A 2005 law in Ohio that restricted petition gatherers from being paid per signature was struck down by the Sixth Circuit Court struck in March 2008.  Ohio appealed the decision but the U.S. Supreme Court declined to hear it.  Similar pay-per-signature regulations have been overruled by federal district courts in Idaho, Maine, Mississippi and Washington.

• A Colorado law that required petitioners to wear badges with their name and whether they were a volunteer or paid circulator was struck down as unconstitutional by the U.S. Supreme Court in 1999.

A common argument for limiting the petition process is that it puts too much money into politics or that it invites fraud.  Yet courts have found this not to be the case.  In the 2005 ruling against Ohio, the Court concluded that prohibiting payment per signature would increase the costs and the time necessary to obtain the required signatures. The Court also rejected the evidence that this particular form of payment resulted in fraud.

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