If we’re up to the responsibility of a pure democracy, which is deciding directly by popular vote on all policy matters, then the rationale for Tim Eyman’s latest – which would seek to overturn the gay rights bill just passed by the Washington Legislature – would make some sense.

But doing away with representative government altogether never has been much on the agenda. Do all of us have time to educate ourselves and carefully consider the hundreds of policy decisions that come to legislatures, councils, commissions and the rest every year? In initiative-heavy states, not many voters even do so dandy a job of self-education on the issues. (Don’t get us started on self-education re the candidates.)

So here we have Eyman delivering a statement to the press saying this: “Politicians are deciding based on special interest group pressure and their own reelection calculations … The voters have watched this disgusting display of arrogance and selfishness for weeks.”

Putting his point in different words: Politicians have been listening to people who petition their governmental policymakers (something encouraged in the federal constitution) and have been bearing in mind “their own reelection calculations” – which means they are bearing in mind whether their constituents will favor or oppose their actions. Horrors!

Eyman is even more explicit, though, in his actual initiative, numbered 927.

Sec. 1. The people oppose important public policy changes being made without voter approval. The voters want an open debate where both sides are given the opportunity to have their voices heard and to persuade the voters on the issues involved. And after months of deliberation and discussion, the voters want to have the final say so that the decision can be made without fear of retaliation or intimidation. The people oppose the government forcing anyone to impose quotas, set-asides, or other preferential treatment for any group. This measure would prohibit state government from requiring any school, church, employer, or other public or private entity to impose quotas, set-asides, or other preferential treatment to any individual or group based on sexual orientation or sexual preference. Sexual orientation or sexual preference shall not be a specially protected class. The inclusion of this group as a protected class is preferential treatment over other groups not included in this chapter, such as military status,
income level, medical history, or political party membership. The people do not support preferential treatment because the people do not want it to be used as a basis for requiring the legalization of same-sex marriage. This issue has become hopelessly politicized in Olympia. Politicians aren’t thinking about what the voters want. Let the voters decide.

In other words, the legislature has no place in making law: only the voters at the ballot do. In other words, presumably, the legislature is best done away with.

When the initiative process was created and spread, the idea was that it would serve as a safety valve and, maybe, a warning vote – something to ensure that the legislative process would not become so fouled up that the people could not express their will, or – in extreme cases – force action. It has never been held up as the preferred mechanism – and given its history in the last few decades, has little claim on the time – for legislating.

Till now.

The specific subject of Eyman’s latest enterprise, which has to do with gay civil rights, may be its less wild-eyed component.

State legislatures seldom are popular, and Washington’s doesn’t have enthusiastic cheerleaders in the streets. But do the people of Washington really want to take on the whole job themselves? Before answering in the affirmative – or passing an initiative that embraces the proposition – the good voters of Washington probably should consider just how many hundreds of hours a years they are willing to devote to civic legislation. It might cause them to appreciate their legislators just a little bit more.

Backers of the gay rights bill (HB 2661) which cleared the Washington Legislature on Friday, after more than a decade of effort, were heavy into celebration Friday afternoon. That’s understandable enough after disappointments through the years, but two significant points should not go unnoted. Taken together, they point out the road ahead: Passage (and the certain signing) of the bill are only early steps down this path.

The first point is what changed between last session, when a similar bill failed, and this one. Nothing much changed in the House, where it passed both times. Only a little changed in the Senate, where it failed by a single vote in 2005 and passed by one this time. The difference was one senator, Kirkland Republican Bill Finkbeiner, who voted against last year and reversed his stand this year.

This was expected (and already announced), which is why Senate approval was expected. Finkbeiner was the only Republican (he is a former Democrat) to vote in favor (two Democrats voted against), but he carries some significance, for two reasons. One is that last year, he was the Republican floor leader but resigned from that post between sessions; you can’t escape the speculation (though he hasn’t said so) that Finkbeiner resigned from leadership so he could cast this particular vote. And why would that be so significant? Gets to the second reason:

Finkbeiner’s district in northeastern King County is no superconservative enclave. True, the Reverend Joseph Fuiten’s Faith & Freedom Network is quoted as saying “It’s time for Bill Finkbeiner to move on. I’ll never endorse him again. He is not representing the values of the 45th District or the views of the people in the 45th District.” Fuiten does run a large megachurch with plenty of constituents in the 45th, and he is not shy about his political preferences.

But this area is overall socially moderate to liberal, and corporations (such as Microsoft) have applied some pressure in favor of the bill. The two House seats in the 45th are split, one Democratic, one Republican. And Fuiten has lost a string of local political battles in the last few years. Finkbeiner was unopposed in 2002, but Democratic opposition has been gearing up this year. His change took some guts, but it also may have been the politically shrewd move. And it may foreshadow trends on the pivotal King County east side.

Leading to the second major thing to watch: Ballot action. There will likely be a ballot proposal before long on the subject of repeaking the gay rights law. But how much push will it have? Some communities, especially on the east side of the Cascades, will support such a measure enthusiastically, and the odds of it reaching the ballot are good.

But will it pass? Odds are against, for two reasons. One is th structure of the issue: Repealer of a measure extending civil rights, which would play horribly in the media and would likely have not near the centrist push of a measure to, say, prohibit gay marriage. Such an issue would be structurally problematic.

The second reason is suggested by Finkbeiner’s switch: The voting pivot, the suburban areas are the Puget Sound, are likely to think much as Finkbeiner did, and come to the conclusion (without the joy of the Seattle Democrats, but to the conclusion nonetheless) that rejection of the law would open more problems than it could solve. The center is not likely to embrace this happily, but it does seem to be moving in that direction.

One more factor to consider: Washington is the 17th state to pass something along this line. Is it within the upper third or so of the states for cultural liberalism? Maybe right around there; which suggests that passage is more or less reflective of the state as a whole (if not all of its component parts).

The bill’s critics would be well advised to move cautiously. Intemperence in their next moves could blow up in their faces.

The case of Washington v. Tracey Johnston revolves around the subject of spoken threats, and whether the threat is “real” or not.

This may sound either esoteric or like the trickery of a clever defense lawyer. It’s not. How many times have you muttered a desire to wreack bodily harm on someone – maybe, for example, a driver on the highway – with no practical intention to follow through? (When I was in college, the phrase “he ought to be taken out and shot” popped up from time to time, usually for minor offenses.) Death and injury feature regularly in metaphor. Should all that be actionable as a felony offense?

On its face, Washington law (RCW 9.61.160(1)) seems to contemplate something like that. It says, “It shall be unlawful for any person to threaten to bomb or otherwise injure any public or private school building, any place of worship or public assembly, any governmental property, or any other building, common carrier, or structure, or any place used for human occupancy . . .”

The first amendment does come into play here, because courts have ruled that speech can be circumscribed only under extreme circumstances. The legal principle is that while most speech is “protected,” one of the categories of unprotected speech is that of a “true threat” – a threat issued with apparent connection to actual or intended behavoir. The Washington Supreme Court has defined it, “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of an intention to inflict bodily harm upon or to take the life of {another individual}.”

So what to do about Travey Johnston, who blurs the lines just a tad?

Johnston was drinking, apparently heavily, on an Alaskan Air flight into SeaTac, and as a result of his behavoir was accosted by law enforcement at the airport. The incident might have ended simply except that Johnson, according to testimony, “‘started vocalizing his unhappiness.’ TR at 92. Johnston said that ‘he would come back to the airport and . . . this place up’ and that ‘he was going to blow this place up.’ TR at 94. Blackwell testified that Johnston said that ‘he knew about the airport, and he knew what it would take . . . all he needed was a Ryder truck and some nitro diesel fuel . . . .’ TR at 94-95. Johnston also said that ‘he would fin{d} that bitch of a flight attendant [who had called law enforcement] . . . and get her and said he believed she lived in Mercer Island.'”

At that point he was charged with violating the bomb threat law.

But was it Johnston or just the alcohol talking? Did Johnston, once sobered up, really plan such violent revenge?

We can’t settle that here, not knowing Johnston or many of the details about the incident and his background. The Washington Supreme Court did, however, send his conviction back to trial court for re-trial. (This involved reversing a Court of Appeals decision.) The main reason is that the judge in the case informed the jury about the Washington bomb threat law, but not the legal perspective on it – that conviction had to rely on Johnston making a “real threat” and not just mouthing off.

“In Johnston’s case, the jury was influenced by the erroneous jury instructions that governed the trial. Under these circumstances, independent appellate review is inappropriate. Instead, this case must be remanded for a new trial under proper instructions,” the court concluded.

Significance here on the free speech front.