Legislating by referenda — a bad idea?

Once again Maine voters will be asked to become legislators for a day next November when there will be at least two citizens’ initiated referendum questions to vote on. To date, the secretary of state’s office has certified — and we will be voting on — another attempt at a York County Casino and the expansion of Medicaid under the Affordable Care Act.

The problem with legislating by referenda is that all the answers to the difficult questions aren’t considered by the authors of such questions. They simply put in the language that suits their political agenda and leave it to the Legislature to figure out how to implement and pay for their initiatives without authoring any implementation options or budgetary considerations. 

The citizens’ referendum process was originally designed for the voters to have a check on legislation enacted by the state Legislature. Several years ago, the Legislature passed a bill that increased the amount, number of items and services to be taxed under the Maine State sales tax. A citizens’ petition was circulated and placed on the ballot and the law was rescinded by a citizens’ initiative. This was truly a grassroots, Maine citizen-initiated process.

Last November, five citizens’ initiatives were on the ballot. Unfortunately, many legal, financial and constitutional problems existed with many of those questions. The legalization of marijuana had 31 pages of new law that was so flawed that the Legislature has passed a one-year moratorium for enactment of the retail sales and public use of marijuana in order to give the state time to forge through the legislation and correct the problems it has created. Several immediate issues that the Legislature had to address in the law include: there was no penalty for the possession of marijuana by a minor, and the law allowed for smoking marijuana in public, even while driving a car. 

The real problem with legislating by citizens’ referendum initiatives is that they do not go through the normal vetting process that bills do when they come before the Legislature. Once a concept bill has been written by a team of lawyers in the revisor’s office, it is assigned to a committee of jurisdiction. Once assigned, there is a public hearing where folks on all sides of the issue get an opportunity to discuss the pros and cons of the bill and offer suggestions for ways to improve or change the proposal. 

Once the public hearing concludes, the committee will schedule a work session where more analysis of the proposal is discussed with various state agencies, perhaps the secretary of state’s office, the attorney general’s office and even the administration, to fully vet the bill for all possible consequences. Also evaluated on every bill before the Legislature is the constitutionality and its potential financial impact to the state budget; a very thorough process.

Many of the citizens’ initiatives are sought by special interest groups, outside of Maine, who see our ballot process as an easy testing ground for legislation in other parts of the country. Many of these groups pay thousands of dollars to individuals to gather the signatures and then spend millions of dollars promoting it through 60-second radio and TV sound bites that only tells one side of the story.

Some citizen groups criticize the Legislature’s failure to act on these proposals as the justification of the citizens’ initiative process. While many of these proposals have come to the Legislature, there is often good reason they do not pass as a result of the vetting process that a bill must go through. Good public policy comes from a vigorous debate between all sides of an issue, and once consensus is reached the result, often times, makes for a better outcome. We need to let the legislative process work or why have that process in the first place?

As a legislator, I read every word or every bill that comes before my committee and most of the bills that we debate and vote on. As we approach next November, I encourage folks to fully read the proposed legislation, not just the language within the title of the bill. It is the language behind the bill that matters and where many of the flaws, whether intentional or not, can be found.

— State Rep. Robert Foley, R-Wells, represents House District 7, which includes part of Wells.