The legislature is holding public hearings on emergency powers reform bills. The first hearing will be on Friday January 28 on SB 5909 in the Senate. The second hearing will be on Monday January 31 on HB 1772 in the House. Remote testimony sign in for both bills is available here.

Encouraging citizens to let their voices be heard, The Tri-City Herald has an editorial today saying:

“In a state emergency, decisions must be made as quickly as possible. That’s why in 1969 legislators gave the governor sweeping authority to take charge in times of crisis. But at the time they were thinking more along the lines of short-term emergencies like power outages and natural disasters. Nobody considered a pandemic that lasts for months or even years. We have said before that Washington state is supposed to have three branches of government, but when it comes to managing COVID, the Legislature has become an insignificant limb. This imbalance must be adjusted. No one elected official should have that much power over people’s lives for an indefinite period of time.”

I have been invited by lawmakers to testify on both bills. Here is a copy of my written testimony on the need to adopt emergency powers reform.

WPC written testimony on SB 5909/HB 1772

In an emergency, governors need broad powers to act fast. Legislative bodies inevitably take longer to assemble and act than a single executive, so they temporarily delegate their power to the executive in emergencies. But these powers are supposed to be transferred for a limited period of time.

For example, in Wisconsin a state of emergency cannot exceed 60 days unless it is extended by a joint resolution of the legislature, and in Minnesota, a governor must call a special session if a “peace time” emergency lasts longer than 30 days.

When situations last for extended periods, longer term policies need to be implemented and the legislature needs to debate risks, benefits and trade-offs of various approaches. Lawmakers may end up passing the very policies the governor would prefer to see implemented, but they do it after deliberation as representatives of the people and do it in a public process.

It’s the legislature, not the governor, that is charged with making law, and the governor who is charged with implementing the laws passed by the legislature. Washington, however, has very weak statutory emergency powers oversight according to a national study:

“Vermont, Washington, Ohio and Hawaii are among the worst-ranking states because they bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist.”  

Though waiving of a statute during an emergency by the Governor expires after 30 days in Washington unless approved by the legislature, restrictive proclamations aren't subject to time limits, nor do they require any legislative review.

There is no logical reason to treat waiving of statute and restrictive proclamations differently. The same legislative oversight should exist for both and require lawmaker approval after a set period of time.

Here is my recommended amendment to RCW 43.06.220 (4):

"No emergency order issued by the Governor may continue for longer than 30 days unless extended by the legislature through concurrent resolution. If the legislature is not in session, the emergency order may be extended in writing by the leadership of the senate and the house of representatives for 30 days or until the legislature can extend the emergency order by concurrent resolution. For purposes of this section, 'leadership of the senate and the house of representatives' means the majority and minority leaders of the senate and the speaker and the minority leader of the house of representatives. An emergency order narrowly written solely to qualify for federal funds is exempt from the requirement to receive legislative extension."

This reform would ensure that every emergency order by the Governor is subject to at least some type of legislative oversight while maintaining the flexibility to issue very narrow orders to receive federal relief funds.

Long lasting emergency orders should receive the input of 147 legislators from across the state following a public process, allowing the perfection of policies through a collaborative weighing of all the options, alternatives and tradeoffs. This is precisely why the people’s legislative branch of government exists - to deliberate and provide guidance to the executive branch on what policies should be in place and how to implement them.

At some point the executive branch should be required to receive permission from the legislative branch to continue making far-reaching policies under an emergency order. Our system is not meant to be the arbitrary rule of one behind closed doors. It is time to end governance by press conference and return to the normal public legislative process.

Additional Resources

Last November the Senate State Government & Elections Committee held a work session titled “Legislative role during state emergencies.” Here are copies of the presentations the committee members heard:

1. Update from staff on current emergency powers statutes
    
2. NCSL update on Legislative Oversight of Emergency Executive Powers
    
3. Washington Policy Center presentation on Requiring Legislative Oversight of Emergency Powers

Updated 1/28

Here is my emergency powers reform testimony today on SB 5909.

Updated 1/31

Here is my emergency powers reform testimony on HB 1772.