Where can I read the Initiative Amendment Act?

You can read the text of the IAA here.

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Who introduced this bill in Council?

Council Chairman Phil Mendelson and Councilmember Anita Bonds (at large) co-sponsored the IAA.

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Take me into the weeds. What would this bill do, legally speaking?

Under the Home Rule Act, ballot initiatives are not allowed to propose "laws appropriating funds." Everyone understands that, when an initiative passes, it's up to the DC Council to appropriate the funds to implement the new law. The Council can even choose not to fund implementation, if it so wishes.

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This system has worked for decades. The D.C. Court of Appeals has ruled multiple times (in 1981, 1986, 1991, and 2005, among others) that the prohibition on "appropriating funds" does not mean that an initiative can't have an associated cost. Rather, it means that an initiative can't propose a budget or direct the Council how to spend money. Fiscal authority rests with the Council. The Court has said that an initiative can contain, for example, "a 'non-binding policy statement' that revenues should be allocated for specified purposes." To construe the "appropriating funds" exception to mean that initiatives must be cost-free would, in the Court's own words, "effectively write the initiative process out of existence." That is precisely what the IAA now seeks to do.

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The IAA would insert a provision in the law to the effect that a "measure [...] is not a proper subject of initiative" if it "would be subject to appropriations prior to becoming effective." In other words, if the Council would have to appropriate money to implement an initiative, the initiative is not proper subject matter and cannot appear on the ballot. As we've said, this is absurd because almost any significant change in law requires some funding to implement.

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What do the IAA's proponents say about all of this?

Supporters of the IAA claim that it merely prevents ballot initiatives from using the phrase "subject to appropriations" in their text. They don't like that recent initiatives have included that phrase to signal that funding the implementation of the initiative is the Council's job.

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That argument falls flat for one simple reason: the IAA doesn't prohibit that phrase from appearing in an initiative. The IAA doesn't say anything about the text of initiatives at all. Rather, it prohibits the initiatives themselves from appearing on the ballot if, to take effect, they require appropriations. That's a very different thing.

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Supporters of the IAA claim that making an initiative "subject to appropriations" is a way of strong-arming Council into providing funding. They claim that this phrase is an innovation seeking to create a loophole in the law. These statements couldn't be further from the truth. Council can always refuse to fund the implementation of an initiative — even if it contains the allegedly magic words, "subject to appropriations" — and Council has done so in the past. The initiative system created in the Home Rule Act and interpreted by the Court of Appeals over decades has served the people of DC well. The true innovation is the IAA, a disruptive piece of dangerous legislation that would upset the apple cart by closing off the initiative process almost entirely.

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Isn't this all about Initiative 83?

Councilmembers Mendelson and Bonds refer to Initiative 83 in the introductory memo attached to the IAA. They charge the proponents of Initiative 83 with "craft[ing] a novel approach to circumvent the prohibition" on initiatives appropriating funds by making the initiative subject to appropriations in order to take effect. This isn't "novel"; if you've read all of the material above, you'll realize that making an initiative subject to Council appropriation already is the law.

 

The language in Initiative 83 makes clear that the initiative, if passed by voters, "shall apply upon the date of inclusion of its fiscal effect in an approved budget and financial plan." The text of Initiative 83 further makes clear that "it will not be implemented unless the D.C. Council separately chooses to appropriate funds for the projected costs." This is the current situation, full stop. There is no novelty here. The Councilmembers are simply incorrect.

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In fact, even the Office of the Attorney General has agreed that Initiative 83 "is ... a proper subject [to appear on the ballot] because it 'condition[s] ... compliance' on Council funding by being subject to appropriations. ... [I]t will not apply unless and until the Council chooses to fund it. ... It ... authorizes the Council to fund these changes to the law, if it so chooses. In other words, 'the final decision about allocating funds [remains] the Council's,' in keeping with the fundamental purpose of the appropriations limitation on the initiative right."