Commentary

Ballot Questions Are Terrible Ways to Make Law

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If I told you an interest group sent a legislator a draft bill and told them to submit it as-is, no questions asked, most would call foul and cry “corruption!” And if that same interest group filled the State House with paid advocates demanding legislators only consider a yes-or-no vote, people would suspect something afoot. And they would probably be right.

When we elect lawmakers, we expect them to weigh various proposals. Recognizing that a first draft isn’t always the best, we empower the Legislature to amend bills, sanding off rough edges and trying to fashion the best solution to the problem at hand. They don’t — or at least, shouldn’t — capitulate to an advocacy group simply because that group has a lot of money or yells the loudest.

Yet when questions go on the ballot — and the people take on the role of lawmakers — the entire construct is flipped on its head. Mainers are forced make an up-or-down choice. No amendments allowed. And often the only way to get the signatures necessary to put a question on the ballot is to spend gobs of money on professional petitioners “from away.” Then the interest group uses its hefty checkbook to flood the airwaves with TV and radio spots.

Still worse, the arguments appearing in the slick ads don’t always match reality. Remember last year’s Clean Election question? The one that promised all sorts of great things, including improved disclosure laws like requiring the top three donors be listed on commercials? Let me ask: how many advertisements supporting the gun control question have you seen that list their donors?

The answer? None. The group that wrote the Clean Elections law conveniently left themselves and their compatriots — the interest groups peddling ballot initiatives — outside the law’s disclosure requirements. Yes, the very same disclosure requirements they trumpeted as a major selling point.

That is part of the perversity of the referendum process. We constantly hear how dangerous big donors are when it comes to influencing Maine legislators, tying ourselves up in knots to combat them. Yet most legislators can easily run a race for a few thousand dollars as long as they knock on doors and adequately reflect their district. No matter how much money is spent by a GOP candidate, you’re not going to see a Republican House member from Munjoy Hill in Portland.

But when we are dealing with ballot questions, big donors do have a substantial impact. Look at the spending reports for organizations supporting the five referenda on this November’s ballot. In each case, the vast majority of the money spent advocating passage comes from New York- and Washington, D.C.-based organizations. They hired lawyers to write the exact language they want, they paid for signature gatherers to place it on the ballot, and they pay canvassers to share their talking points and get it passed.

Instead of entrusting these matters to the 186 legislators Mainers choose every two years — and can throw out after two years if they aren’t doing a good job — we get self-contained campaigns that potentially let interest groups write exactly what they want into law. Oddly enough, this is often what groups on the right are accused of doing when they offer model legislation. Yet those bills go through a legislative process, and are often significantly amended on the way to enactment, if they even get that far.

So, as we approach November, consider whether referenda really are best way to make law. No amendments, up-or-down votes, with language written by those advocating for a specific outcome — no compromise. Sounds like everything wrong with politics, no?

*This article was originally published in the BDN.

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.

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