* David Frockt and ** Kenneth Fockele
America has a systemic governance problem. The country that once came together to solve big challenges—through endeavors such as the New Deal, the Interstate Highway System, and the space program—now suffers a partisan and policy divide so deep that we seem incapable of meeting the moment even when inaction threatens us all.
At both the national and state levels, constitutional structures and deep political divides make progress difficult. Federal legislation often runs into the roadblock of the Senate, while state legislatures—even those without internal filibuster rules—frequently face their own procedural hurdles. The United States Senate was conceived of as “a temperate and respectable body of citizens” that could cool the passions of the people and take a longer-term perspective than the House of Representatives,1 THE FEDERALIST NO. 63 (Alexander Hamilton). but today it has become as much a bottleneck as a “cooling saucer.”2 Senate Created, U.S. SENATE, https://www.senate.gov/artandhistory/history/minute/Senate_Created.htm [https://perma.cc/ZUK5-DLV8] (last visited Oct. 20, 2022) (recounting the history of the founding of the Senate). Wyoming and California have the same number of votes in the Senate on climate change policies. A majority of the U.S. Senate now represents a minority of the U.S. population.3 See Stephen Wolf, How Minority Rule Plagues Senate: Republicans Last Won More Support Than Democrats Two Decades Ago, DAILY KOS (Feb. 23, 2021), https://www.dailykos.com/stories/2021/2/23/2013769/-How-minority-rule-plagues-Senate-Republicans-last-won-more-support-than-Democrats-two-decades-ago [https://perma.cc/X5KE-MWVA]. And yet the Senate refuses to change its rules on the filibuster to allow for majority action on even the most pressing of our collective problems.4 See Press Release, Joe Manchin, Manchin Again Reiterates His Commitment to Protecting Filibuster (Jan. 13, 2022), https://www.manchin.senate.gov/newsroom/press-releases/manchin-again-reiterates-his-commitment-to-protecting-filibuster [https://perma.cc/6GSM-XUAC].
In the Washington State Legislature, there is no self-imposed filibuster, but constitutional requirements for supermajority votes on various financing mechanisms give veto power to electoral minority blocs. This can prevent critical expenditures necessary to solve major problems, particularly problems that are not perceived as urgent.
In Washington state, one such problem, deadly serious but seemingly not imminent, is the woefully inadequate state of public-school buildings to withstand earthquakes and tsunamis. Scientific research in recent decades has revealed that seismic activity presents a much greater danger in Washington state than previously thought.5 Kathryn Schulz, The Really Big One: An Earthquake Will Destroy a Sizable Portion of the Coastal Northwest. The Question Is When, THE NEW YORKER (July 20, 2015), https://www.newyorker.com/magazine/2015/07/20/the-really-big-one [https://perma.cc/Q2SX-HJEA]. Every student should have a safe place to learn. That is one of the government’s most fundamental responsibilities. But right now, students in schools across the state, and especially in low-lying coastal areas or geologically active regions, are at risk when a seismic event inevitably strikes.
In 2022, the Washington State Legislature overcame the forces of political inertia and passed Senate Bill 5933, establishing a landmark program addressing the catastrophic risk that earthquakes and tsunamis present to children in the care of public schools—a risk that may not even occur in the lifetime of any legislator currently serving.6 S.B. 5933, 67th Leg., 2022 Reg. Sess. (Wash. 2022). What happened offers a window into how, with a spirit of goodwill, compromise, and creative tactics, other long-range policy problems might move past partisan stalemates.
The Risk of ‘The Really Big One’
Wildfires and even volcanic eruptions are well-known risks of living in Washington state. Earthquakes, however, have not held the same urgency for Washingtonian policymakers. That began to change in 2015, when the New Yorker examined the risks associated with a cataclysmic seismic event occurring on the Cascadia Subduction Zone, which runs 80 miles off the coast from Cape Mendocino in northern California to northern Vancouver Island off the coast of British Columbia.7 Supra note 5.
The article described in vivid detail what likely happened on January 26, 1700, when an estimated 9.0 earthquake on this tectonic fault caused devastating tsunamis in both Japan and what is now known as the American Pacific Northwest, wiping out villages in the Japanese islands and native villages along the coast of what is now Washington and Oregon.8 Id. Importantly, scientists estimated that when “the big one” occurred, the tsunami wave hit the Northwest Coast in perhaps as few as 15 minutes.9 Id. Even more importantly, they predict there is another “big one” in our future, and there is no telling precisely when.10 Id.
The 2015 New Yorker article brought our region’s seismic risk to a broader audience, but knowledge had been growing for some time in expert circles, as the Seattle Times reported in 2016.11 Daniel Gilbert & Sandi Doughton, Buildings That Kill: The Earthquake Danger Lawmakers Have Ignored for Decades, THE SEATTLE TIMES (May 14, 2016), https://www.seattletimes.com/seattle-news/times-watchdog/buildings-that-kill-the-earthquake-danger-lawmakers-have-ignored-for-decades/ [https://perma.cc/6CSW-X9Q3]. Doughton had also written about the 1700 earthquake as early as 2013. See Sandi Doughton, The Next Giant Quake: It’s Coming and Here’s How (Oct. 4, 2013), https://www.seattletimes.com/pacific-nw-magazine/the-next-giant-quake-itrsquos-coming-and-herersquos-how/ [https://perma.cc/R5PZ-W5DH]. It is hard to overstate how influential the New Yorker article was in Washington state policy circles, perhaps because it minced no words about the risk. As the article bluntly explained: “When the next full-margin rupture happens, that region will suffer the worst natural disaster in the history of North America, outside of the 2010 Haiti earthquake, which killed upward of a hundred thousand people.” One of the preeminent experts cited, Chris Goldfinger of Oregon State University, put the odds of a catastrophic quake—“the really big one”—happening here in the next 50 years at one in three, in a state where public-school buildings are woefully unprepared for even lesser earthquakes or tsunamis.
Washington’s West Coast Seismic Gap
What policymakers clearly failed to grasp at the time the article was published was that our sister coastal jurisdictions in the U.S. and Canada were far, far ahead of Washington in addressing the safety of public schools.
California tightened seismic standards for schools with the Field Act in 1933.12 Cal. Edu. Code §17281. A long history of significant earthquakes in the state provided ample motivation for lawmakers to ensure that schools were built or retrofitted with safety in mind.13 See STATE OF CAL. SEISMIC SAFETY COMM’N, SEISMIC SAFETY IN CALIFORNIA’S SCHOOLS: FINDINGS AND RECOMMENDATIONS ON SEISMIC SAFETY POLICIES AND REQUIREMENTS FOR PUBLIC, PRIVATE, AND CHARTER SCHOOLS 3 (Dec. 2004), https://www2.gov.bc.ca/gov/content/education-training/k-12/administration/capital/seismic-mitigation#progress [https://perma.cc/Y682-NGT2].
British Columbia and Oregon, though they have a seismic history more similar to Washington’s, have been comparatively quick to take note of the emerging science on the seismic danger presented by the Cascadia Subduction Zone. Beginning in 2004, British Columbia enacted a seismic mitigation program that has since spent $1.9 billion to retrofit or replace public school buildings in high-seismic-risk areas.14 Seismic Mitigation Program, BRITISH COLUMBIA (May 11, 2021), https://www2.gov.bc.ca/gov/content/education-training/k-12/administration/capital/seismic-mitigation#progress [https://perma.cc/5Z2W-NH7Y]. As of July 2022, the province had completed work on 205 schools, with another 291 potential candidates identified for future work.15 Seismic Mitigation Program Progress Report, BRITISH COLUMBIA (Sept. 2022), https://www2.gov.bc.ca/assets/gov/education/administration/resource-management/capital-planning/seismic-mitigation/smp_progress_report.pdf [https://perma.cc/6PS9-9FZ6]. In Oregon, under legislation passed between 2005 and 2009, the Seismic Rehabilitation Grant Program began providing public school districts with bond-funded grants of up to $2.5 million per building for seismic retrofits.16 See Yumei Wang, Oregon’s Seismic Rehabilitation Grant Program: AKA Courtney Grants (Proceedings of the 9th U.S. National and 10th Canadian Conference on Earthquake Engineering, 2010), https://www.caee.ca/10CCEEpdf/2010EQConf-001816.pdf [https://perma.cc/WFW7-VZKS]; STATE OF OR., Seismic Rehabilitation Grant Program, https://www.oregon.gov/biz/programs/SRGP/Pages/default.aspx [https://perma.cc/GPM4-MXFQ]; Gloria Zacharias, Leanna Heiman, Cale Ash, Heejae Yang, Josh Sizemore, Sarah Bergquist & Ken Goettel, Seismic Rehabilitation Grant Program: 2022 Applicant Training Session, Or. Dep’t of Educ. (Jan. 13, 2022), https://www.oregon.gov/biz/Publications/Oregon%20SRGP%20Workshop%2001-12-22.pdf [https://perma.cc/MY26-QRP6]. In fiscal year 2022, the grants awarded totaled $37 million.17 See Investment Reports: FY 2022, State of Or., https://www.oregon.gov/biz/reports/investment-reports/Pages/FY2022.aspx?wp2441=l:50 [https://perma.cc/5F44-45P5].
By contrast, Washington had taken no steps of significance until 2018, when the Legislature commissioned the first study of seismic safety in the state’s public schools.
Barriers to Action in Washington State
Washington has lagged behind our sister states and provinces in making seismic improvements for its most at-risk public schools for at least three reasons.
First, Washington has a unique approach for school capital financing that makes it difficult to approve funds for seismic safety improvements. School construction has historically been funded from a combination of both state and local sources, with local funding predominant.18 WASH. OFF. OF SUPERINTENDENT OF PUB. INSTRUCTION, School Facilities Construction Projects Funding, https://www.k12.wa.us/policy-funding/school-buildings-facilities/school-construction-assistance-program-scap/school-facilities-construction-projects-funding [https://perma.cc/FN4V-8CKF]. However, Washington’s state constitution requires that school districts wishing to issue bonds for construction receive the approval of 60% of local voters in an election.19 WASH. CONST., art. 7, § 2. . This high bar has led, in recent decades, to a series of school construction bond failures, particularly in poorer, rural, and coastal communities.20 See Allison Needles, School bond issues are failing all over Washington. Will the Legislature Do Something?, THE NEWS TRIBUNE (Nov. 9, 2018), https://www.thenewstribune.com/news/local/education/article221317720.html/ [https://perma.cc/98PL-YR4D]. . According to legislative staff tabulations, from 1990 through February 2022, 630 local school bond measures have failed at the ballot box in Washington state despite garnering a majority of the vote.21 Internal Document, Washing State Senate Committee on Ways and Means, Local School Bond Vote 50-59.9 percent 1990 to Feb 2022 (Sept. 21, 2022) (on file with staff of the Washington State Senate Committee on Ways and Means). Under a simple majority system, all of those bond measures would have passed, which might have led to a significantly higher number of new, renovated, and presumably seismically safer school buildings around the state.
Second, changing the constitutional threshold for local bond approval to 50% plus one, to make it easier to raise local funds for school construction, is a tall political task. As with any amendment to the state constitution, it would require a supermajority vote in each chamber of the Legislature, followed by a majority vote of the people in a statewide election.22 WASH. CONST., art. 23, § 1. As with our counterparts in the U.S. Senate who govern under the filibuster, the Legislature has failed to muster a supermajority when the issue has come to the floor.23 Jim Camden, School Bond Levies Will Still Need Supermajority After Senate Rejects Constitutional Amendment, The Spokesman-Review (Mar. 12, 2019), https://www.spokesman.com/stories/2019/mar/12/changes-to-school-bond-levy-requirements-fail-in-s/ [https://perma.cc/N4VL-7EQL]. The bond threshold continues to divide majority Democrats who favor a majority vote on these property levies and minority Republicans who do not.24 See James Drew, School Bonds Will Continue to Require 60 percent Approval After GOP Blocks Reform, The News Tribune (Mar. 12, 2019), https://www.thenewstribune.com/news/local/article227403579.html [https://perma.cc/5C9J-LVCW].
Even if such a constitutional amendment were to pass the Legislature, it is not clear that the electorate would approve the change. Though by many metrics Washington is a progressive state, the electorate has frequently voted against measures that would allow increased taxation at the state or local levels.25 WASHINGTON SECRETARY OF STATE, Income Tax Ballot Measures, https://www.sos.wa.gov/elections/research/income-tax-ballot-measures.aspx [https://perma.cc/M99P-GM7A]. Indeed, beginning in the early 1990s, voter-passed statutory initiatives required a two-thirds vote in the Legislature for any tax measure, thereby ensuring minority veto power over basic government funding decisions involving taxation.26 See Ann Donnelly, State Tax Initiatives – I-601: Develop a Spending Limit and Make Government Stick To It, The Seattle Times (May 23, 1993), https://archive.seattletimes.com/archive/?date=19930523&slug=1702591 [https://perma.cc/MA3U-KE8D]; Editorial, The Times Recommends: Yes on Initiative 1185, Two-Thirds For Tax Increases, THE SEATTLE TIMES (Oct. 15, 2012), https://www.seattletimes.com/opinion/the-times-recommends-yes-on-initiative-1185-two-thirds-for-tax-increases/ [https://perma.cc/6NR8-BUKK]; Andrew Garber, Tax Initiative Requiring Two-Thirds Vote Wins Handily, THE SEATTLE TIMES (Nov. 6, 2012), https://www.seattletimes.com/seattle-news/tax-initiative-requiring-two-thirds-vote-wins-handily/ [https://perma.cc/B3N7-3JUA]. Under those initiatives, the Legislature was prevented from passing virtually any revenue legislation on a simple majority vote until 2013, when the Washington State Supreme Court ruled the restriction unconstitutional.27 See League of Educ. Voters v. Washington, 295 P.3d 743, 745–46 (Wash. 2013); see also Kirk Johnson, Washington State’s Top Court Strikes Down Law on Taxes, N.Y. TIMES (Feb. 28, 2013), http://www.nytimes.com/2013/03/01/us/tax-law-is-struck-down-in-washington-state.html?_r=0 [https://perma.cc/6JFL-D8CJ].
Third, for the past decade, statewide education funding conversations in Washington were dominated, to the exclusion of all other topics, by the ramifications of the 2007 lawsuit McCleary, et al. v. State of Washington, accusing the state of unconstitutionally failing to fully fund public education.28 McCleary v. Washington, 269 P.3d 227, 244–45 (Wash. 2012). This suit led to years of work in the Legislature, culminating in a significant increase in baseline education funding in 2017. The Washington State Supreme Court finally ruled in 2018 that the state was fulfilling its constitutional duty.29 Joseph O’Sullivan, Washington Supreme Court Ends Long-Running McCleary Education Case Against The State, THE SEATTLE TIMES (June 7, 2018), https://www.seattletimes.com/seattle-news/washington-supreme-court-ends-100000-per-day-sanctions-against-state-in-mccleary-education-case/ [https://perma.cc/S9PU-MCP7]. Only after this milestone was there enough spare political oxygen in Washington state to nourish discussion on another major funding issue related to schools.30 A separate lawsuit arguing that capital school construction funding formulas are constitutionally deficient is also now pending in Washington. However, the initial review by the Wahkiakum County Superior Court held that Washington’s current approach is not a constitutional violation. This lower court decision is on appeal to the Washington State Supreme Court. Diana Zimmerman, School District Files Appeal for Facilities Suit, WAHKIAKUM COUNTY EAGLE (Aug. 11, 2022), https://www.waheagle.com/story/2022/08/11/news/school-district-files-appeal-for-facilities-suit/21182.html [https://perma.cc/6WGC-PMSA].
Laying the Groundwork to Unify Policy and Funding
Despite numerous barriers to action, sober media coverage propelled the Washington Legislature into action. Reporting that frames a problem as one of systemic failure across all levels of government, rather than as one of partisanship, heightens its relevance and compels politicians to take on the issue. In this case, a series of articles by the Seattle Times between 2016 and 2018 was critical in highlighting the region’s overall lack of readiness for a Cascadia subduction event, including specifically the risk to children in un-retrofitted public schools.31 Sandi Doughton, Daniel Gilbert, & Justin Mayo, Seismic Neglect: The Earthquake Nightmare Public Officials Are Failing to Confront, THE SEATTLE TIMES (May 14, 2016), https://projects.seattletimes.com/2016/seismic-neglect/ [https://perma.cc/N95Y-GC23]; Sandi Doughton & Daniel Gilbert, ‘We Should Be Screaming’ With Outrage: State Does Little to Protect Schoolkids from Earthquake, Tsunami, THE SEATTLE TIMES (July 13, 2016), https://www.seattletimes.com/seattle-news/times-watchdog/is-your-child-safe-washington-state-does-little-to-protect-older-schools-from-earthquakes-tsunami/ [https://perma.cc/6TYK-GA2P].
To build support for solving a long-range risk that may require sustained action, policymakers must first establish a definition of the problem that can be sustained over a long period of time. They must develop a basic knowledge of the extent of the risks and provide a framework for discussion that can capture and maintain the attention of lawmakers over the number of years it will take to successfully address an issue of this complexity and magnitude.
In Washington, the first step in this approach came after Democrats took the majority in the state Senate in 2018. At that time, I was appointed by my colleagues to lead the capital construction budget for the Senate.32 Throughout this piece, the first person refers to Sen. Frockt. The state’s primary tool for funding school construction is the capital budget, traditionally an area of bipartisan cooperation largely because a significant part of its funding comes in the form of general obligation bonds.33 WASH. STATE SENATE COMM. ON WAYS AND MEANS, A CITIZEN’S GUIDE TO THE WASHINGTON STATE CAPITAL BUDGET (2021), at 6, https://leg.wa.gov/Senate/Committees/WM/Documents/Citizen%27s%20guides/2021%20Citizens%20Guide%20to%20Capital%20Budget.pdf [https://perma.cc/8HHD-JYLS]. The Washington state constitution requires that these bonds can only be issued if approved by a 60% vote of each legislative chamber.34 WASH. CONST. art. VIII, § 1.
In 2018, the Legislature’s capital budget appropriated $1.2 million for the state Department of Natural Resources (DNR) to conduct what appeared to be the first comprehensive statewide school seismic needs assessment.35 S.B. 6095, 65th Leg., 2018 Reg. Sess. (Wash. 2018). In the capital budget bill, the Legislature mandated that DNR, “in consultation with the office of emergency management, the office of the superintendent of public instruction, and the state board of education, shall develop a prioritized seismic risk assessment that includes seismic safety surveys of public facilities that are subject to high seismic risk as a consequence of high earthquake hazard and soils that amplify that hazard.” Id. It further specified: “A preliminary report on the progress of the statewide seismic needs assessment specified in this section shall be submitted to the appropriate committees of the legislature by October 1, 2018. The final report and statewide seismic needs assessment shall be submitted to the office of financial management and the appropriate committees of the legislature by June 30, 2019.” Id. DNR’s School Seismic Safety final report, released in 2021, showed that 93% of public-school buildings sampled statewide are at high risk of serious damage during a significant earthquake or tsunami.36 CORINA ALLEN, WASHINGTON STATE DEPARTMENT OF NATURAL RESOURCES, SCHOOL SEISMIC SAFETY PROJECT 2019-2021 LEGISLATIVE REPORT 4 (2021), https://fortress.wa.gov/dnr/geologydata/school_seismic_safety/phase2/School_Seismic_Safety_Project_2021_Final_Report_DNR.pdf [https://perma.cc/UJF3-PWWN]. The greatest risk is to schools in the western part of the state, especially in low-lying coastal Pacific areas, which face both threats.37 Id. at 12.
This final report garnered significant attention from the Seattle Times, again galvanizing the kind of reaction among the public and elected officials going into the 2022 session that could lead to a more robust policy and funding response.38 See The Seattle Times Editorial Board, Simplify Approval of School Construction for Earthquake Safety, The Seattle Times (Nov. 15, 2021), https://www.seattletimes.com/opinion/editorials/simplify-approval-of-school-construction-for-earthquake-safety/ [https://perma.cc/Z7ZD-EFSD]; Sandi Doughton, As Oregon Outfits Its Schools for Seismic Safety, Many in Washington Remain Highly Vulnerable to Earthquakes and Tsunamis, THE SEATTLE TIMES (Nov. 21, 2021), https://www.seattletimes.com/pacific-nw-magazine/as-oregon-outfits-its-schools-for-seismic-safety-many-in-washington-along-with-the-students-inside-remain-highly-vulnerable-to-earthquakes-and-tsunamis/ [https://perma.cc/5XJN-2A73]; Sandi Doughton, If Our Schools Are Vulnerable in Earthquakes, So Are Our Kids – and Our Hearts, PACIFIC NORTHWEST MAGAZINE (Nov. 21, 2021), https://www.seattletimes.com/pacific-nw-magazine/if-our-schools-are-vulnerable-in-earthquakes-so-are-our-kids-and-our-hearts/ [https://perma.cc/A2SJ-BKDX].
Negotiating a Bipartisan Bill
Opening Negotiations in Good Faith
In response to DNR’s final report and renewed press and public interest in how the Legislature might address the vast funding and policy challenges it showed were needed, my colleague Sen. Mark Mullet (another Democrat involved with the capital budget) and I began discussions with staff and experts to address possible approaches.39 Critical advocacy to address the challenges of the report came from a former Republican state representative who seemed to make it his personal policy mission to get the Legislature to focus on the dangers to schoolchildren in his community. Jim Buck had previously represented coastal communities at risk and had strong ties to key Republicans serving in the State Senate. Jim Buck, Lawmakers Neglect of School Seismic Safety Risks Children’s Lives, THE SEATTLE TIMES (Jan. 11, 2022), https://www.seattletimes.com/opinion/lawmakers-neglect-of-school-seismic-safety-risks-childrens-lives/ [https://perma.cc/V2EL-GC8F]. In private conversations, some key legislators advocated using one-time money from federal pandemic-related sources as well as revenues from a growing Washington state revenue forecast.40 WASH. STATE ECONOMIC AND REVENUE FORECAST COUNCIL, November 19, 2021 Revenue Review Meeting Materials (Nov. 19, 2021), https://erfc.wa.gov/sites/default/files/public/documents/meetings/rev20211119.pdf [https://perma.cc/6J3L-U657]; Wash. State Economic and Revenue Forecast Council, February 16, 2022 Revenue Review Meeting Materials (Feb. 16, 2022), https://erfc.wa.gov/sites/default/files/public/documents/meetings/rev20220216.pdf [https://perma.cc/EN68-CYVQ]. The Office of the State Superintendent of Public Instruction (OSPI) publicly proposed a modest allocation of $8.5 million to complete six seismic retrofit projects that had been previously authorized in the 2020 budget.41 Aaron Kunkler, Capital Projects Funding Fix Needed for School Seismic Upgrades, WASHINGTON STATE WIRE (Sept. 27, 2021), https://washingtonstatewire.com/capital-projects-funding-fix-needed-for-seismic-school-upgrades/ [https://perma.cc/CZP5-P4EC]. The general thinking at the outset was that this was just another budget problem that simply required a yearly appropriation.
Unfortunately, this approach potentially made seismic upgrades subject to piecemeal funding without an overarching defined policy goal of systematically upgrading schools. Indeed, the DNR report did not and could not quantify the overall cost to upgrade the most seismically dangerous schools, instead offering a range of $63,000 to $15 million per school given the particulars of location and building age.42 Allen, supra note 36, at 4 (“Phase 1 concept-level design building cost estimates ranged from a median of $63K to $5.01M, where the median represents the range of cost estimates for a single building. Phase 2 median concept level design building cost estimates ranged from $1.24M to $15.26M. Cost estimate methods for Phase 2 were improved from Phase 1 and now include projected soft costs. Phase 1 concept design schools were selected to represent a variety of building construction types and vintages in different seismic hazard areas.”). Even today, the cost to achieve the goals identified in the DNR report is not fully known but is clearly going to run into the billions of dollars over the next decade or more.
In late 2021, no one was advocating for a statute codifying a new program of sustained investment toward an unknown expenditure, much less incorporating both local and state funding for areas that have historically been unable to pass local school bond construction measures.
These initial discussions in late 2021 led me to draft legislation that would have funded seismic upgrades through the existing school construction funding mechanism (known as the School Construction Assistance Account), which triggers state financial assistance only when a local district has passed a construction bond with a 60% vote. This proposed legislation, however, would have reduced the threshold for local bond votes to a simple majority when and only when the purpose of the local bond was to help upgrade at-risk schools.
Given the grave risks presented in the report, the thinking was that the promise of state funding might help to break through the normal local opposition during the campaigns for these bonds and put more bond votes over the top with a simple majority. We also thought the seriousness of these newly salient seismic risks might create an opening to make inroads to gain Republican support in the Legislature for this approach.
We were wrong.
Preliminary discussions with our key Republican colleagues responsible for the capital budget, indicated that lowering the 60% threshold remained a nonstarter. Nevertheless, Sen. Mullet and I still concluded that putting a process in statute, rather than merely making a budget appropriation from year to year, might establish a forced function dynamic that would spur future budget writers to transparently accept or reject state funding for schools most at risk. Such a statute, if it transparently ranked projects in most immediate need of funding (a process that the state community colleges have used successfully for years), would be most likely to prevent budget writers from punting on the funding assistance for seismic upgrades needed in any given year.
Additionally, even though our outreach to our Republican colleagues, Senator Jim Honeyford and Senator Mark Schoesler, did not gain their support (the initial draft was scrapped before being officially filed), the process of bipartisan engagement set the right tone.
Several pre-existing factors contributed to this. One was that, historically, capital expenditures have almost always been bipartisan. While the state’s operating budget depends more directly on tax revenue and funds many of the programs that the parties have philosophical disagreements about, the capital budget funds the kind of infrastructure that, broadly speaking, both parties in Washington agree fall under the responsibility of the state government. In addition, while local district projects supported by individual legislators are a small part of the overall capital budget, they have a catalytic effect on overall support when major initiatives are presented in the rest of the capital budget. Indeed, projects that benefit multiple districts often bring together legislators of both parties in support.
Another factor contributing to the positive tone was that in recent years, after unified Democratic control of the Legislature began in 2018, operating budgets have passed on time.43 See WASH. STATE LEGISLATURE, Length of Sessions, https://leg.wa.gov/History/Legislative/Documents/2021/LengthOfSessions.pdf [https://perma.cc/6TND-MZB7]. Concurrently, capital budgets have also passed on time and always unanimously or nearly so.44 See S.B. 6090, 65th Leg., 2018 Reg. Sess. (Wash. 2018); S.B. 6095, 65th Leg., 2018 Reg. Sess. (Wash 2018); H.B. 1102, 66th Leg., 2019 Reg. Sess. (Wash. 2019); H.B. 6248, 66th Leg., 2020 Reg. Sess. (Wash. 2020); H.B. 1080, 67th Leg., 2021 Reg. Sess. (Wash. 2021); S.B. 5651, 67th Leg., 2022 Reg. Sess. (Wash. 2022). This meant that there was a reservoir of collaboration and a history of working together on this important part of the budget process in recent years, even while the typical differences between Republicans and Democrats on other fiscal matters remained wide.
Perhaps just as importantly, when trying to solve a serious problem, refraining from easy political shots should be the norm, not the exception. Democrats could have used Republican opposition to simple majority to argue that “Republicans are just not interested in protecting school children from earthquakes and tsunamis and are hiding behind a rule to subvert majority will on most local school funding decisions.” We chose not to make such a provocative statement because it would have soured our discussions.
Republicans, meanwhile, though unwilling to soften their opposition to a simple majority requirement on local property tax votes, resisted the urge to frame our initial foray as simply “another effort by Democrats to make it easier to raise your local property taxes.” They too showed restraint—perhaps because of the initial, even if unsuccessful, constructive engagement the majority undertook. Legislators who were in the political minority were sought for their consultation and input on a major policy problem.
As a result, the takeaway from our initial discussion was constructive: we agreed to disagree on the simple majority question, and to keep talking about a problem that we agreed is important and affects our entire state—rural, urban and coastal.45 Ironically, during these negotiations, Washington state received a reminder of what could be at stake when an underwater volcanic eruption near Tonga led to a tsunami warning for the state’s coastline. Ultimately, the effects in North America were minimal, with maximum waves of just over 4 feet in California, but the warning kept the issue in the news and top of mind. Josephine Peterson, Tsunami Advisory Canceled for Washington, but Serves as Reminder for the ‘Big One’, THE NEWS TRIBUNE (Jan. 15, 2022), https://www.thenewstribune.com/news/local/article257372217.html [https://perma.cc/W5LJ-WHPH].
Incorporating Bipartisan Viewpoints
As noted above, the first effort at crafting this legislation failed. One option would have been to acknowledge an impasse on a tax question that has presented problems for years; make short-term, ad-hoc appropriations in the budget; and be done with it. However, one of the most underrated skills in lawmaking is creativity and the second-most underrated is persistence. Consequently, we stayed with it and looked for a different way forward.
The second version of the legislation we drafted moved away from the traditional school construction assistance model. Instead, it established a new grant program to provide direct state funding toward the cost of replacing or seismically retrofitting school buildings in high seismic areas or tsunami zones. The most at-risk schools would be ranked by an advisory committee established through the state superintendent’s office, which would prioritize risk zones as designated under U. S. Geological Survey (USGS) criteria.46 S.B. 5933, 67th Leg., 2022 Reg. Sess. (Wash. 2022) (“(i) Any location identified by the United States geological survey national seismic hazard map with a two percent probability of exceedance in 50 years and a national earthquake hazards reduction program site class D that are 0.3 peak horizontal acceleration or greater peak ground acceleration areas; or (ii) Any area located within a Washington tsunami design zone map or, where a Washington tsunami design zone map is not available, an American society of civil engineers tsunami design zone map, that requires structures in risk category three or four to be designed for tsunamis.”). The state superintendent would be required to submit a proposal for funding that would then be ranked in time for the governor to include in his or her annual budget proposal to the Legislature. The grants would pay two-thirds of the cost of replacing or retrofitting eligible school buildings—those built before 1998 and not retrofitted more recently than 2005—with funding not predicated on the passing of a local bond.47 Id.
This ranking system was readily accepted by my colleagues, in part because it resembled one that has been used successfully for many years to prioritize capital projects at public community colleges that exist in 34 separate districts around the state, encompassing both Republican- and Democratic-leaning areas. One advantage of the seismic ranking system is that it would use an objective list produced by a third party, composed of scientists. In addition, the areas that will benefit the most from the funding, low-lying coastal areas, are some of the last in the state to be represented by both Democrats and Republicans, bringing in bipartisan support. Also, despite the concentration of high-need school districts on the coast, school buildings in very different areas around the state are at risk—in regions that are Democratic and Republican, rural, urban, and coastal.48 Allen, supra note 36, at 12.
Significantly, this version of the bill appropriated $500 million for school seismic upgrades outside the state’s statutory debt limit. To go outside the constitutional debt limit, the $500 million fund would have to be formally approved by voters at the next election.49 WASH. CONST. art. VIII, § 3, amend. XLVIII (1966).
The bill was introduced on January 24, 2022, with the lead sponsors being all four key capital budget writers in the Senate—myself, considered a liberal democrat from Seattle; Sen. Mullet, a moderate Democrat from the Seattle suburbs; and Sen. Honeyford and Sen. Schoesler, two of the most conservative Republicans in the Senate.50 S.B. 5933 (Wash. 2022).
As sponsors, we began to jointly promote the bill as a bipartisan solution and undertook a key media appearance together—a liberal Democrat from Seattle joined by a conservative Republican from Eastern Washington. As Sen. Schoesler told the Seattle Times editorial board: “It’s a statewide issue. Putting statewide debt into it doesn’t bother me.”51 The Editorial, Designate Funds to Help School Buildings Withstand Earthquakes, THE SEATTLE TIMES (Feb. 9, 2022), https://www.seattletimes.com/opinion/editorials/designate-funds-to-help-school-buildings-withstand-earthquakes/ [https://perma.cc/7SFE-2ZSK]. Despite representing a district that was not threatened by earthquakes or tsunamis, he viewed seismic safety as fundamentally similar to our state’s approach to fighting wildfires or other emergencies of the type that do present a disproportionate danger in his district, where the responsibility lies with the entire state.
Bringing the Rest of the Legislature on Board
This strategy succeeded in generating broad support for funding seismic upgrades at a significant level. However, not only more fiscally conservative members but key Democrats on the Ways & Means Committee remained concerned about going outside the constitutional debt limit. The state treasurer, also a Democrat, also expressed to me his preference for remaining inside the debt limit.
There were three reasons for these concerns. First, Washington’s fiscal governance in recent years has garnered upgrades in status by the major credit rating agencies.52 Sen. Christine Rolfes, Opinion, Why Our State’s New Gold Standard Credit Rating Matters, BAINBRIDGE ISLAND REVIEW (Sept. 28, 2019), https://www.bainbridgereview.com/opinion/why-our-states-new-gold-standard-credit-rating-matters-guest-viewpoint/ [https://perma.cc/TMC3-RJ63]. Moving outside of our internal debt limiting structures, while perhaps not materially significant at this specific funding level of $500 million, could set a precedent for loosening fiscal constraints in future years, thereby affecting the state’s credit rating and increasing borrowing costs. Second, during discussions it became clear that OSPI and individual school districts were unprepared to spend $500 million in the upcoming biennium or perhaps even the next two. There were simply not enough shovel-ready projects, and more time would be needed for design and engineering. Finally, if the voters did not approve lifting the constitutional debt limit for this specific purpose, everything would go back to square one.
After the hearing on the bill, it became evident that the legislation was not likely to have enough support to pass the Ways & Means Committee with the funding mechanism outside the debt limit. On the other side of the coin, there was strong support for passing a law to establish a formal, ongoing program to spur future legislatures, OSPI, and school districts to prepare a project pipeline and keep a steady stream of funding going for seismic upgrades. Funding would have to occur annually through the normal budget process, rather than being predetermined by a large appropriation this year, but at least there would be a formalized structure in place for sustained investment.
A new version of the bill removed the new bonding authority and the referendum requirement but kept the structure of the funding program otherwise intact.53 S.B. 5933, supra note 50.
Current events enhanced the political prospects for passage. The day before the bill was due to come to the floor of the Senate, voters in the small coastal school district of North Beach, in Grays Harbor County, soundly defeated a $110 million bond measure for seismic upgrades to seriously deficient school facilities.54 Eric Scigliano, How Politics Have Stalled Tsunami Prep Efforts on the WA Coast, CROSSCUT (May 26, 2022), https://crosscut.com/environment/2022/05/how-politics-have-stalled-tsunami-prep-efforts-wa-coast [https://perma.cc/HZ2J-ZBAA]. This result underscored the need to develop an alternative to a process dependent on bond referenda if schools were to make these upgrades. The following day, February 9, senators debating the bill emphasized the statewide nature of the problem and solution. Sen. Schoesler summarized it concisely: “Some of us have tragic fires, some of us have floods, some are in a position that, it’s not a matter of if there is an earthquake disaster but when, or a tsunami…It is a statewide issue that requires a statewide solution.”55 Senate Floor Debate – February 9, TVW (Feb. 9, 2022), https://tvw.org/video/senate-floor-debate-february-9-2022021163/?eventID=2022021163 [https://perma.cc/5N3B-XFEL].
Senators who spoke also rightly emphasized the need for policymaking on an issue of this nature to be led by the budget writers so that the structure of the program passed into statute would mesh with the mechanisms of capital construction funding. That debate ended with a unanimous yes vote in the Senate.56 S.B. 5933, supra note 50.
While the dynamics of the debate in the House were somewhat different, ultimately the bill passed both House committees and off the House floor with unanimous support. Not a single dissenting vote was seen in either chamber of a legislature usually sharply divided on major fiscal questions. Governor Inslee signed SB 5933 into law on March 23, 2022.57 Id. The 2022 final capital budget formally appropriated $100 million to the new seismic safety program.58 S.B. 5651, 67th Leg., 2022 Reg. Sess. (Wash. 2022). The process of new funding of seismic school safety is currently in development for consideration by the 2023 Legislature under the framework of this new law.
Lessons for Addressing a Long-term Problem in Politically Polarized Times
First and foremost, taking on a large-scale, long-term issue like seismic safety requires getting a handle on the facts and the best science. That information is necessary but not sufficient to frame the issue in a way that resonates with key segments of the public. Developing publicly available information for members of the media who demonstrate a special interest in the issue can be as effective as pursuing a broader media strategy.
Once the time comes for legislative negotiations, it is important to approach counterparties in the right spirit. Rather than trying to persuade the other side to change long-held positions, finding creative new joint approaches is more effective at building the kind of bipartisan leadership that can compel new solutions and progress. Passing this legislation required continually leveraging public concern to cultivate a sense of shared responsibility while negotiating a solution that specifically and intentionally avoided having to make decisions that would have otherwise stalemated the process. Even in the most partisan times, big problems can have bipartisan solutions if lawmakers are willing to engage personally and without preconceived agendas on shared challenges that people face across geographical and ideological boundaries.
Finally, legislators should maximize the potential for sustained commitment by future legislatures, even if the commitment cannot bind them. Setting up a formalized, ongoing program in statute makes it harder for future legislatures to ignore the problem. The existence of the program puts the onus on legislators to respond to funding requests from a continuing effort. Even if, in tough economic times, they make the decision to decrease funding, it is less likely the funding will be zeroed out and more likely that it will be restored again in the future.
After years of inaction, 2022 was the year the Washington State Legislature finally began to make significant progress to address seismic safety in our public schools and appropriated $100 million to this effort. Though we cannot bind future legislatures to specified funding levels, establishing the program in statute sets the expectation that it will receive ongoing support in future budgets for years to come. This significant bipartisan achievement in an era of polarization shows how sustained, collaborative efforts can achieve progress even on issues that extend well beyond the likely terms for current lawmakers. And perhaps it shows a way forward for a “temperate and respectable body of citizens” to provide the long-range vision that our society and government need.
* David Frockt (D-Seattle) is completing his 12th year in the Washington State Senate. He has served in Democratic leadership and, since 2018, as vice chair of the Senate Ways & Means Committee with primary responsibility for Washington’s multi-billion-dollar capital construction budget.
**Kenneth Fockele is a senior communications specialist for Washington’s Senate Democratic Caucus.