This fall, voters will consider I-645, which would repeal the income tax. Under a 2022 law, a public investment impact disclosure (PIID) will appear in the middle of the ballot title for I-645. The PIID has drawn two challenges.

Under current law, any ballot measure that makes a change to a tax or fee and “would cause a net change in state revenue” must include a PIID, which is written after the official fiscal impact statement is prepared by the Office of Financial Management. (Fiscal impact statements are prepared after initiatives are certified to the ballot.) But the PIID is not based on information in the fiscal impact statement, except as to which accounts are affected by the tax change. Instead, the PIID statute is very prescriptive.

1. Under the PIID statute, the PIID “must include a description of the investments that will be affected if the measure is adopted.” (Emphasis added.)
2. However, the statute requires a certain wording, regardless of the actual direct impact of the initiative. If the “fiscal impact is primarily to the state general fund, . . . the description must list the top three categories of state services funded by the general fund in the current state budget.”
3. The statute further specifies the exact wording: “This measure would (increase or decrease) funding for (description of services).” (Emphasis added.)

There is no way to know with certainty how spending will be affected by any initiative that changes taxes (see No. 1 above). The Legislature makes appropriations; their future choices are unknowable at the time the PIID is written. The statute tries to get around this by just requiring the PIID to list the top three services funded in the budget (No. 2 above), which effectively divorces the PIID from the actual language of the initiative (and from the effects estimated in the fiscal impact statement). And then the statute requires the PIID to say that the initiative “would” decrease funding for those top three services (No. 3 above), as if they are knowable.

At a very basic level, if revenues are lower, the available funding for services is lower. However, other revenues could increase, or the Legislature might choose to cut other spending. It is not a given that the current top three spending areas would be cut—especially when the revenues in question are not yet being collected.

I’ve written before that the PIIDs generally do not provide meaningful context for voters and that they can even convey false information. Nevertheless, the statute requires the PIID to “use neutral language that cannot reasonably be expected to create prejudice for or against the measure.”

The PIID for I-645 states, “This measure would decrease funding for public K-12 education, higher education (including universities and community colleges), and human services (primarily healthcare).”

Thus, the PIID for I-645 follows the requirements of the statute. The income tax will be deposited in the general fund–state (GFS), so the PIID lists the top three broad categories of spending in the 2026 supplemental. (GFS appropriations are $30.525 billion for K-12, $3.932 billion for higher education, and $31.073 billion for human services.)

(Note that the fiscal impact statement for I-645 estimates that it would directly reduce state spending in the current biennium, mainly related to administration of the income tax and not to K-12 or higher education. But, as mentioned above, the PIID is not meant to be based on the fiscal impact statement.)

Let’s Go Washington is challenging the PIID. I haven’t seen the challenge itself, so I can’t evaluate their arguments. Their press release states, “The PIID as currently written is inaccurate and would mislead voters.”

A second lawsuit is more interesting. Arthur West challenges the PIID statute on constitutional and statutory grounds:

• Article 1, section 4 of the state Constitution states, “The right of petition and of the people peaceably to assemble for the common good shall never be abridged.” West argues, “By authorizing the government to insert new, state-drafted content into the official ballot presentation after petitioning concludes, the statute allows the government to become a co-author of the outcome the petition was supposed to produce, at the one stage in the process when the Constitution places authorship exclusively in the people’s hands. That is the abridgment . . . .”
• Article II, section 1 of the state Constitution states, “the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature.” West argues, “The initiative power is not a legislative privilege the Legislature administers by grace; it is a constitutional reservation of authority the Legislature may facilitate but not burden.”
• According to West, “The separation of powers doctrine . . . operates whenever one governmental actor threatens the core function of another.”
• Finally, West argues that the PIID for I-645 is not neutral. He writes, “the mechanism as a class produces exactly the prejudicial effect the statute forbids.”