.
NCSL
Task Force Aims to
Uplift Initiative Process
by
Judah Ken Freed
Proposals
for improving ballot initiatives offered
at annual meeting for National Conference
of State Legislators.
.
"We
are offering many recommendations to make
the state initiative and referendum
process more transparent and flexible
while protecting it from fraud and abuse,"
said Rep. Lane Shetterly, speaker pro
tempore of Oregon, who co-authored the
final report of the NCSL Task Force on
Initiative and Referendum in the 21st
Century.
"But I want to make
clear from the outset," he told a large
audience at the 2002 annual meeting of the
National Conference of State Legislators
in Denver on July 25, "that for those
states that do not have an initiative
process in place, we do not recommend they
start one."
Shetterly
co-anchored the NCSL session with state
Sen. Dianna Schimek of Nebraska, who
chaired the task force. "We undertook this
study because of the growing use and abuse
of the initiative and referendum process,"
she said, "and because it has outgrown the
existing laws."
Grassroots
initiatives tend to offer quick fixes to
complex problems, she added, "and their
'yes' or 'no' approach are not necessarily
the best solutions possible."
"Initiatives were
meant to complement the legislative
process, not replace it," said Shetterly.
"The problem is that these measures are
generally written in obscure or misleading
language by well-financed special
interests that want to bypass the rigorous
debate and amendment process such
proposals would face as bills in the
legislature."
An example is the
"English Language Initiative" to abolish
bilingual education under the guise of
reforming it, funded by Californian Ron
Unz, then pending before the voters in
Colorado (defeated) and Massachusetts
(passed).
Because initiatives
often lack specific details about the
costs and logistics of implementation, he
said, "this lack of transparency harms our
ability to create public policy in a fair
and comprehensive manner. Also, because
these initiatives often amend the
constitution when statutory solutions
would be more appropriate, they make a
mess of the legal system."
Recommendations in
the report cover general types of
initiatives, the role of the legislature
in the initiative process, subject matter
for initiative, the drafting and
certification, the signature gathering
phase, voter education, financial
disclosure, and voter
procedures.
The
Initiative Reform Proposal
Among more than 30
recommendations, some of the specific
items include:
> States should
limit themselves to either advisory
initiatives or general policy initiatives
instead of specific projects or programs.
> Whenever
possible, states should adopt an "indirect
initiatives" process where meeting
petition signature thresholds requires the
legislatures to draft and debate
legislation true to the intent of the
initiative, then refer that measure to the
voters for final approval.
> States now with
direct initiatives should add an indirect
initiative process and strongly encourage
its use.
> States adopting
a direct initiative process should limit
it to statutory changes, but any state
with a constitutional initiative needs to
balance that right with a statutory
initiative process.
> When
appropriate, legislatures should offer a
countervailing referendum proposal on the
ballot to counter direct
initiatives.
> Initiatives
that collect the requires signatures for
placement on the ballot should then be
subject to extensive public hearing on the
proposal, organized through the
legislature.
> When voters
reject an initiative, states should
prohibit the same or a similar initiative
from appearing on the ballot again for a
specified time.
> Initiatives
should be limited to single subjects, and
the ballot titles should use clear yet
brief language to plainly explain the
intent and effect of the
initiative.
> States should
require a review of initiative language by
a state agency, plus requiring a fiscal
impact statement, and these findings
should be made widely available to the
public.
> States should
provide a means for public challenges of
initiative on technical grounds, such as
keeping to a single topic, prior to the
commencement of the signature gathering
phase.
> States should
guards against fraud in signature
gathering by prohibiting financial or
other inducements to sign petitions,
requiring signature gatherers to sign an
oath verifying the validity of all
signature submitted, and requiring
petitions circulators to disclose (like
with a badge) if they are paid or
unpaid.
> States should
require a higher percents of voter
signatures for constitutional amendments
than for statutory changes.
> State should
require that signature be gathered from a
widely representative geographic area, not
just major metro areas.
> States should
publish and distribute by print and
electronic means unbiased and balanced
voter education materials, including
information on the initiative process
itself as well as pro and con arguments on
each measure certified for the ballot.
> States should
require full and accurate financial
disclosure identifying all of the
individuals and/or organizations for and
against each initiative, and these rules
should be consistent with disclosure for
candidates.
> States should
wholly prohibit the use of public funds to
support or oppose ballot initiatives, but
this fiscal ban should not restrict public
officials from expressing opinions about
any measure before the voters.
> Initiatives
should be allowed only on general election
ballots, not on special election ballots
with low voter turnout.
> States should
adopt a procedure for determining which
approved initiative should be adopted in
cases where voters approve two or more
conflicting initiative.
> Constitutional
initiatives should require a higher
percentage of voter approval than
statutory initiatives.
Proposal
Responses
"I think the final
report has both good and bad points," said
panelist Dane Walters, president of the
Initiative and Referendum Institute in
Washington, DC. "My concern is showing
lawmakers how they can effectively reform
the process in a way that will strengthen
public confidence in direct democracy, and
I think that's happened. But I'd hoped the
report would offer ways of making the
initiative process more accessible to
average people without the money now
needed to fund a ballot
campaign."
"I believe it's very
healthy to reform the initiative process,"
said Pete Maysmith, executive director of
Colorado Common Cause, which is supporting
the 2002 Campaign Finance Reform
Initiative (passed), the only ballot
measure this year not funded by a wealthy
backer. Earlier successful initiatives
from Common Cause Colorado include the
state's open meetings law.
"The grassroots
initiative process contributes to the
quality of state governance by giving
citizens direct access to the ballot," he
said. Involving voters in "good government
reforms" provides for checks and balances
between legislators and citizens that in
almost every case has improved public
policy.
The key to
initiatives working, Maysmith explained,
is effective voter education combined with
honesty in the ballot initiatives
themselves. "I'd also like to see the
required petitions signature levels pegged
to the turnout from the previous election
for the Secretary of State."
Making initiatives
subject to vetting by the legislative
council before signature collection begins
would help, commented Colorado Secretary
of State Donetta Davidson, speaking from
the audience, "but how much information
should you provide about an
issue?"
"That can be a
slippery slope," responded Walters. "If
you make available statements from both
sides of an issue, there's no guarantee
the information is correct. Legislative
services can help solve the problem, such
as producing a voter education pamphlet,
but then you have to look at the costs for
both publication and distribution, which
can be enormous." [Online is cheaper
-- kf]
"The goal it keep
the ballot initiatives out of the courts
after approval," said Schimek. "and the
best way to manage that risk is to make
sure the initiative process is fair and
honest from the start."
Revised
from first publication in The Colorado
Statesman
August 2002
(c) 2002-03 by Judah Ken Freed
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