Taking the laws into their own hands

The Bay State's referendum process lets voters take control--sometimes

When it comes to democracy, is it possible to have too much of a good thing? Today, the question applies to the Massachusetts initiative-and-referendum process–the power of citizens to write and approve laws and constitutional amendments–as it faces a growing crisis of legitimacy and authority.

NICK GALIFIANAKIS

Supporters of ballot initiatives say the people’s will has been defied by unprecedented legislative interference with voter-approved measures to reduce the state income tax and to establish a Clean Elections campaign-finance system. Also at issue is the people’s basic right to be heard, thwarted by the Legislature’s refusal to permit a proposed constitutional amendment defining marriage as the union of a man and a woman to appear on the ballot. Ballot initiative critics point to these same propositions as examples of what’s wrong with running state government by popular referendum: sweeping measures presented as commonsense wisdom to lightly informed voters without regard for fiscal or social consequences.

It’s not just here that the ballot initiative is under attack. Heaviest criticism is directed at states such as California, Arizona, Oregon, and Washington, where the number of initiatives in a single election can be in the dozens, and where voters have the power not only to pass laws but also to make appropriations and directly rewrite state constitutions. In San Francisco, the ballot guide for the upcoming election–which will tally votes on 19 city, state, and regional questions–runs to more than 300 pages.

It’s not just the volume of voter initiatives that draws fire. In Democracy Derailed, one of a flurry of recent critical books, The Washington Post‘s David Broder declares ballot questions ” alien to the spirit of the Constitution,” calling them ” the favored tool of millionaires and interest groups that use their wealth to achieve their own policy goals.” Broder’s prediction is dire: ” The initiative process…threatens to challenge or even subvert the American system of government in the next few decades.”

In this despairing atmosphere we observe the 85th anniversary of Article 48, the initiative-and-referendum section of the Massachusetts constitution. The actual birthday –for those considering a party–is November 28. Many surely will take a pass, among them opponents of Clean Elections and the income tax cut, not to mention those who view the two 2002 initiatives–the loony Libertarian Party proposal to abolish the state income tax and California millionaire Ron Unz’s vanity initiative to sledgehammer bilingual education–as evidence of the process’s degradation.

So what’s to celebrate? Voter initiatives may not be the best way to craft public policy, but they’re not the worst, either. In Massachusetts, the initiative process has, on balance, done more good than harm. It’s given citizens a voice on important controversies, and it’s compelled action when the Legislature preferred not to take any, especially on matters affecting legislators’ own behavior.

In honor of this anniversary, solemn or not, let’s appreciate the unique structure, dynamic history, and endlessly compelling role ballot initiatives have played in the Commonwealth’s public affairs. In full recognition of its shortcomings, I propose two–not three–birthday cheers for Article 48.

The mechanics

The initiative-and-referendum process makes democracy direct, but not easy. First, let’s understand the basics. Article 48 provides four distinct ways for citizens to pass judgment on laws and revisions of the state constitution:

Initiative is the process most people recognize: a proposed law placed on the ballot at the behest of citizens. Such a proposition can appear only on the general election ballot, in November of an even-numbered year. The secretary of state issues petitions in September of the preceding (odd-numbered) year, on which proponents must collect signatures equalling at least 3 percent of voters in the previous gubernatorial election (57,100 valid signatures from registered voters were required in 2002), with no more than 25 percent coming from any single county, by early December–an onerous chore. The Legislature has until the first Wednesday of the following May to enact the proposal or come up with a competing question. (It did the latter in 1980, but its softer version of a property-tax cap lost at the same time that voters passed Proposition 2 1/2.) If the Legislature fails to enact the proposal, advocates must gather a second round of signatures, equalling an additional one-half of 1 percent of voters, by the first Wednesday in July. That puts the question on the November ballot–unless courts intervene, as they occasionally enjoy doing.

Referendum presents a law that has already been enacted to the people for approval or repeal. Normally, a referendum halts implementation of the law until approved by the voters–unless legislators or the governor make the law an ” emergency” measure. It takes signatures equalling 2 percent of voters in the previous gubernatorial election to suspend a law, or 1.5 percent if objectors can live with the statute until the election.

Constitutional amendments must be submitted to the voters for approval even when crafted by the Legislature. The proposed amendment must be approved by majority vote of the Constitutional Convention–the 200 House and Senate members sitting jointly–in two successive sittings over two years. If two separate conventions in a row (i.e., 2003 and 2005, or 2004 and 2006) approve the proposal, it goes before the voters at the next general election.

Initiative for a constitutional amendment allows citizens to propose constitutional revisions. By collecting valid signatures equal to 3 percent of voters in the previous gubernatorial election, proponents can submit their proposed amendment to the Constitutional Convention. If at least 25 percent of senators and representatives vote, in two conventions in a row, to allow the amendment to appear on the ballot, the people vote on it in the next general election. But nothing compels the Constitutional Convention to take that vote. If the presiding officer–the Senate president–refuses to bring the matter up for action, no go, which is what happened this year to the marriage proposal.

The process is layered with booby traps.

The process for putting matters before the voters is layered with nuance, booby traps, court rulings, and intrigue. The biggest wrinkle is what Article 48 calls ” Excluded Matters,” or things that cannot be done by initiative or referendum. These include appropriating money, calling a Constitutional Convention, revisiting a question that failed in a recent election, and altering the constitution’s Declaration of Rights. No matter having to do with religion can be put to a vote, nor any having to do with judges and the courts. Nor can any item that applies to particular cities or towns.

In spite of these restrictions, as of 2000, 140 measures had made their way to voters by way of Article 48. But initiative-and-referendum didn’t catch on all at once. In the first four decades, only 45 proposals were put before voters, including 15 constitutional amendments proposed by the Legislature. Things picked up in the 1960s and ’70s, but mostly in lawmaker-initiated constitutional amendments–36 of them in those two decades. It was in the 1980s and ’90s that citizen initiatives took off: 32 statutory initiatives, four constitutional initiatives, and seven referenda from 1980 to 2000. (This recent upsurge in activity reflects national trends: 183 ballot questions in the 1970s, 253 in the ’80s, and 383 in the ’90s.) Constitutional amendments coming from the Legislature have had the most success at the polls, with 52 of 60, or 86 percent, winning voter approval; four of the six citizen-initiated amendments prevailed as well. Statutory initiatives and referenda bat around .500. Ten of 20 referenda have been winners (that is, the law in question was repealed), but just 25 of 54 initiatives prevailed, for a win rate of 47 percent.

The history

The initiative-and-referendum process is largely a western phenomenon (while 17 of 24 states west of the Mississippi allow voters to pass laws, only seven of 26 Eastern states do) that has its roots in urban and rural populism. “Direct legislation began as the handmaiden of economic radicalism,” writes Broder. “It would enable farmers and workers to turn the tables on corporate power and economic privilege, using numbers to defeat money.” South Dakota went first in 1898 and was joined by 17 others, including Massachusetts, by 1918. Only six more have joined the pack, all since 1959, and none since Florida in 1972. No state has gotten rid of it, and agitation for its adoption today is strongest in New York and Minnesota.

In Massachusetts, advocates of citizen initiative were unions and progressives who believed the General Court thwarted social reform. Democratic Gov. David Walsh tried, but failed, to call conventions in 1914 and 1915 to write initiative-and-referendum into the constitution. His successor, Republican Samuel McCall, did manage to pull the convention together, and the battle for direct legislation–one that lasted from June 12 to November 28 of 1917–was on. The delegates included “some of the foremost legislative, judicial and academic figures of the time,” write Alec Gray and Tom Kiley in their definitive 1991 legal treatise on Article 48. And these lions were not brief in debate: The Proceedings on initiative-and-referendum run 1,062 pages.

Former House Speaker Joseph Walker, a Brookline Republican, carried the proposal. “This Convention is here…in response to the progressive spirit surging in the Commonwealth. It means that this government shall be brought back to the real control of the people,” he stormed. “The very fact that those who have exercised sinister influence in the Massachusetts Legislatures in the past are the most bitterly opposed to it–the interests–is convincing on this point.” The villains, as Walker described them, included “the lobbyists who appear yearly” and ” lawyers with whom legislative practice is their principal business,” who ” exercise an undue influence,…sometimes a controlling interest” on the Legislature. The antidote to this special-interest poison, argued Walker, was the people. “In a democracy, the only safety lies in an educated electorate. There is nothing else that can save us.”

Knowing they could not defeat the initiative-and-referendum push outright, opponents worked to limit it as much as possible. The litany of excluded matters–including any constitutional amendment by initiative that would alter the list of excluded matters–is testament to fears of how the process might be used. Disparaging references to other states’ initiative systems are abundant in the Proceedings. As narrowly drawn as its enemies could make it, Article 48 passed the convention 163 to 125. Voters gave their approval in November 1918, though narrowly,170,646 to 162,103.

Those anticipating a rush of progressive legislation from the citizenry must have been disappointed by the early results. In the first ballot initiative, in 1920, Massachusetts voters tried to thwart Prohibition by defining cider and beer as non-intoxicating liquors. The initiative won in a nail-biter: 442,215 to 432,951. (Note the markedly higher voter turnout as compared with the 1918 vote on Article 48 ratification.) In 1922, a statute to censor movies was overturned by referendum. In 1924, a legislative constitutional amendment permitting women to hold elective office was approved 473,744 to 266,377, though nearly a half-million voters failed to register their views on the question. In 1928, voters authorized Sunday sporting events by nearly two to one; four years later, a proposal to legalize chiropractors was voted down by a similar margin. My favorite, passed in 1938, legalized “free public taxi stands.” That same year, voters approved a citizen-initiated constitutional amendment for biennial legislative sessions and budgets, but they went back to annual sessions and budgets in a 1944 amendment put forward by the Legislature.

The watershed year for Article 48 was 1948. President Harry Truman was an underdog to Republican challenger Thomas Dewey, while Democrat Paul Dever had an uphill climb to unseat Republican Gov. Robert Bradford. Four ballot questions turned the election. Corporate interests sought to reverse labor union gains in the 1930s by placing three anti-union questions on the ballot: prohibiting the “union shop,” requiring annual union elections, and limiting strikes. Meanwhile, the Planned Parenthood League promoted a question to permit physicians to prescribe contraceptives for married women. These ballot initiatives stirred a backlash by labor and the Catholic Church–core Democratic constituencies–and a turnout effort that generated the largest voter turnout in the Commonwealth’s history up to that time. All four questions were soundly defeated, Truman and Dever both won, and Democrats seized control of the Massachusetts House of Representatives (122-118) for the first time, electing Thomas P. O’Neill Jr. of Cambridge as their Speaker.

But after that momentous year, the use of ballot questions tailed off. Not a single proposition appeared on the ballot in 1952, ’54, ’56, or ’60. However, the 1960s and ’70s were years of major structural change in state government, mostly through constitutional amendments originated by legislators. In 1964, voters approved four-year terms for the governor and other constitutional officers. In 1966, they agreed to a limited form of home rule for cities and towns, and permitted candidates for governor and lieutenant governor to run as a ticket in the general election. Classification of real property was first permitted in 1970, and then expanded in 1978. The voting age dropped from 21 to 19 in 1970, then to 18 in 1972. In 1974, the House of Representatives was cut from 240 to 160 members. (Though proposed by the Legislature, this change was in response to a League of Women Voters ballot-initiative push quashed by legislative leaders in 1970–and to the public furor that followed.) In 1976, we ratified a mandatory retirement age for judges (which, because it was initiated by the Legislature rather than the voters, did not fall into the “excluded matters” category) and approved an equal rights amendment for women, even as the national amendment crashed and burned.

Voters have passed judgment on handguns, seat belts, and abortion.

In the last quarter-century, Massachusetts has seen an explosion in statutory initiatives. Of the 54 law-writing initiatives that made it to the ballot between 1920 and 2000, 36 appeared since 1976. Behind most of them were grass-roots citizen organizations, from the Massachusetts Public Interest Research Group, Mass. Fair Share, and the Tax Equity Alliance for Massachusetts on the left to Citizens for Limited Taxation and the Small Property Owners Association on the right. Since 1976, voters have passed judgment on state and local tax matters (14 times), utilities and environmental issues (12 times), legislative pay and campaign rules (seven times), as well as handguns, the death penalty, seat belts, abortion, prevailing wages for construction, trapping and hunting, and much more.

The well-tempered initiative

Even with the post-1976 surge, ballot-question politics have never gone as crazy here as in California, Oregon, or other western states. That’s because initiative-and-referendum processes are not all alike, and Massachusetts’s procedure is the most restrictive in the nation. As Alec Gray observes, “The brilliance of Article 48 is its temperance.”

Initiative-and-referendum systems fall into two broad categories: direct and indirect. Under direct systems, initiatives and constitutional amendments go straight to the ballot once the prescribed number of signatures is obtained. Indirect systems require that these measures go to the Legislature before being placed before the voters. Only one of the 24 initiative-and-referendum states uses an indirect process for both initiatives and constitutional amendments: Massachusetts. “The Massachusetts procedure…is the most indirect of any American initiative procedure,” write Philip DuBois and Floyd Feeney in Lawmaking by Initiative.

The severe limit on voter-initiated constitutional amendments, in particular, has discouraged their proliferation. Of the 47 proposals filed between 1918 and 1992, only 12 obtained the necessary signatures, and only five of them got the minimum showing of support (25 percent) in back-to-back constitutional conventions needed to earn a spot on the ballot. Of those that survived this grueling procedure, all but one were approved by the voters.

This makes the Massachusetts experience with initiative-and-referendum quite different from that of other states. Between 1980 and 2000, only four of 36 initiatives (11 percent) in Massachusetts were proposed constitutional amendments, versus 60 percent in Oregon and 80 percent in Colorado. Why the discrepancy? In most states, the only difference between putting a statutory initiative and a constitutional initiative on the ballot is the number of signatures required, and a constitutional amendment is a far more potent political weapon. A legislature can always change a statutory initiative by passing another statute–witness the Legislature’s suspension, mid-phase-in, of the income tax rollback approved by voters in 2000. But in these other states, just by gathering a greater number of signatures, proponents can write their pet policies right into their state constitutions–and let their legislatures be damned.

Thus it’s no surprise constitutional amendments have become the preferred vehicle for citizen revolts in these states. (In Arizona, initiative backers even won a constitutional change prohibiting the revision of any ballot-passed measure for three years after passage.) But the impregnable nature of these provisions makes for some bizarre governing documents. Among the most irrational situation is Oregon’s, where voters installed strict constitutional limits on taxes and budgets, then constitutionally mandated high levels of spending on public education.

Other elements of the Massachusetts ballot initiative are noteworthy. Ours is one of nine states that prohibit appropriations by initiative. Here, no ballot question can order the spending of taxpayer money for any specified purpose–hence the hex on Clean Elections, created by the voters yet unfunded because of legislative antipathy. And we’re one of only 11 states that prepare voter information booklets. DuBois and Feeney praise the information provided in Massachusetts for its “simplicity and clarity.”

To be sure, keepers of the flame, such as the Washington, DC-based Initiative and Referendum Institute, regard the Massachusetts model as retrograde and inconsistent with the spirit of direct democracy. But when groups such as the National Conference of State Legislatures talk about initiative-and-referendum reform, most of the proposals they raise are already in place in Massachusetts.

The objections

Not even the restrictions built into the process inoculate Massachusetts against complaints about initiative-and-referendum. Here are five charges that go to the heart of the matter:

Ballot initiatives undermine representative democracy and deliberative democracy. The explicit purpose of voter initiatives is to allow citizens to write laws and constitutional changes when legislators can’t or won’t act. The core idea is to trump representative democracy. Not much to argue about here. More compelling is the argument that ballot questions rob the lawmaking process of its deliberative nature. Voter information guides notwithstanding, most voters make up their minds based on 30-second TV commercials. (For succinct political messages, it’s hard to top the 1988 bumper sticker created by the unions fighting repeal of the construction wage law: question 2: bad for you.) It’s not just sloganeering that distorts decision-making, it’s the take-it-or-leave-it nature of ballot questions. For the 15 months between filing and Election Day, initiatives cannot be amended. In the Legislature, a bill may go through a dozen versions before becoming law. For simple proposals (mandating seat-belt use in 1986 and 1994), the lack of fine-tuning is no big deal. For complex initiatives such as tax policy, the process can be awkward, to say the least.

Ballot questions present issues in isolation and out of context. Voters who approve tax cuts or costly new programs never have to balance budgets to implement these initiatives. With nothing holding voters to consistency, the initiative-and-referendum process allows what psychologists call cognitive dissonance–holding two contradictory beliefs at the same time–to run amok. We almost suffered a massive case of this in 2000 when voters slashed the state income tax at the same time they came close to requiring the state to provide universal health insurance.

Many voters don’t understand the issue on which they are voting. This has always been an objection; now we have a smoking gun. This past August, a Boston Globe poll asked 801 registered voters if they supported the 1998 Clean Elections law. They did, 60 percent to 35 percent. Then pollsters asked if voters agreed with the nonbinding question that will appear on the November 2002 ballot to permit “taxpayer-financed elections.” They were opposed, 74 percent to 22 percent. According to KRC Communications’ Gerry Chervinsky, who conducted the poll, 184 of 801 respondents indicated opposition to taxpayer-funded elections and support for Clean Elections, apparently unaware they are one and the same thing. Those who suggest the voters are always right and that legislators ought never to tamper with voter-approved initiatives now have some explaining to do.

Ballot initiatives threaten minority rights. Submitting policy questions to popular vote is the ultimate in majority rule, and with no protections for minority interests, initiative-and-referendum can be an instrument of ignorance, if not bigotry. Nationally, the initiative process has been used to attack affirmative action and bilingual education; to limit the rights of gays and lesbians, welfare recipients, and immigrants; and to designate English as the ” official language.” Until this year, we had not seen such appeals in Massachusetts. But in November, voters–most of them white suburbanites with no firsthand knowledge of either bilingual education or immigrant children–will decide how non-English-speaking students should be taught. And only lawmakers’ refusal to vote on the “defense of marriage” amendment, choosing instead to adjourn this summer’s Constitutional Convention, knocked a constitutional prohibition against same-sex marriage (and even benefits for domestic partners) off track for the 2004 ballot.

How would Article 48’s authors, who hoped to unleash a torrent of progressive legislation, feel about the process today–a vehicle for attempts to abolish the income tax, end bilingual education, and prohibit gay marriage? I identified 35 Massachusetts initiatives between 1980 and 2000 that could be readily categorized as liberal/conservative choices; in 19 cases, the conservatives won, and 16 times, the liberal view prevailed. That’s vox populi, for sure, but hardly one vox.

Ballot initiatives are a big money game. Between 1988 and 2000, there were 25 Massachusetts questions where both sides spent significant sums to influence the outcome. The big money side lost only four times. This is close to the national success rate for those on the short side of the money race, about 20 percent. As ballot questions have mushroomed, the initiative-and-referendum market has become big business. Consultants interviewed by David Broder demand $1 million up front to take on an initiative campaign. Most of the time, rich interests or individuals can buy the outcome they want, although money spent in opposition to a question seems to be a better value than equivalent sums expended convincing people to vote yes. (For the 10 costliest Massachusetts ballot campaigns, see table below).

The 10 costliest Massachusetts ballot campaigns.

Why isn’t something done to limit the influence of money in ballot campaigns? Ask the US Supreme Court. In First National Bank of Boston v. Bellotti, in 1978, the high court struck down a Massachusetts statute forbidding corporate contributions to influence initiative campaigns. In 1981, in Citizens Against Rent Control v. City of Berkeley, the court negated a city ordinance limiting ballot campaign contributions to $250. When it comes to initiative campaigns, money rules, and the US Supreme Court agrees.

And what about those damn paid signature gatherers? It sticks in lawmakers’ collective craw to see signature gathering become big business for national firms–to such an extent that some states passed laws banning paid collectors. Guess who stood up for the signature industry? The US Supreme Court. In Meyer v. Grant, in 1988, the court declared that circulating an initiative petition was “‘core political speech’ for which First Amendment protection is at its zenith.” The court returned to the battlefield in 1999, in Victoria Buckley v. American Constitutional Law Foundation, invalidating Colorado requirements that petitioners wear ID badges and that their employers file financial disclosure forms. If signature gathering seems to have become a constitutionally protected industry nationally, the Massachusetts judiciary has provided a compelling reason for initiative organizers to hire professionals locally: a Supreme Judicial Court decision invalidating petition forms with insignificant, stray pen markings. These strict standards discourage initiative organizers from relying too heavily on volunteer labor.

Why it’s still a good thing

Despite these objections, the initiative process has served Massachusetts well overall. I identify three categories of circumstances under which ballot initiatives have been constructive vehicles for political progress.

When money doesn’t rule. This happens so rarely one can’t help admiring those who pull it off. Most impressive was the 1992 American Cancer Society campaign to raise tobacco taxes, as an indirect means to fund anti-smoking programs. (Because initiatives cannot mandate appropriations, revenues from the tobacco tax instead go to a segregated fund. It is still up to the Legislature to approve the use of the fund for specific programs.) The tobacco industry spent $7.15 million against $666,439 paid out by proponents. The cancer society won, 51 percent to 43 percent, and the Department of Public Health created one of the nation’s most successful programs–a program now weakened by budget cuts even as the tax continues to be collected.

The Bottle Bill was another victory of a cash-strapped David over a financial Goliath. Activists from MassPIRG fought for years to establish a deposit-and-redemption system for recyclable beverage containers. They narrowly lost a 1976 initiative vote, but the Legislature enacted the Bottle Bill in 1981, over industry and labor opposition. Then the bottling industry backed a 1982 referendumto repeal the law. Though outspent $1.4 million to $660,000, the law’s defenders won, 54 percent to 38 percent. While some say it has outlived its usefulness, the Bottle Bill had a dramatic effect in reducing litter and giving recycling a jump-start.

Let’s also tip our hats to Barbara Anderson and her Citizens for Limited Taxation for overcoming the combined forces of government and labor in winning passage of Proposition 2 1/2 in 1980, despite being badly outspent. While 2 1/2’s motivation was pure tax limitation, the law compelled state government to dramatically increase support for public education–reducing reliance on the unfairest major tax of all, the property tax.

Kudos as well to the state’s district attorneys who, outspent $1.64 million to $39,450, beat a proposal bankrolled by moneybags George Soros to change the state’s drug laws. The proposal to swap treatment for imprisonment had merits and flaws, but its greater significance was the example it set of a wealthy gadfly trying to buy his pet public policy in states that allow him to do so. I propose a deal: Right, left, or center, let’s reject any initiative sponsored and paid primarily by out-of-state interests and tell these rich guys to get lost. That means you, Ron Unz.

When the Legislature needs help. Sometimes the Legislature finds itself in a quandary, and only the voice of the people can settle a dispute. For example, in the 1989-91 fiscal crisis, the Legislature raised the income tax two years in a row. Critics declared the citizenry in mad revolt, but whether public disgust with Beacon Hill translated to support for gutting state services was unclear. CLT put the question of repealing the tax hikes to voters in November 1990 and lost decisively, 58 percent to 39 percent, putting the matter to rest. On another tax issue, whether to amend the constitution to permit a graduated income tax, populists declared the public soundly in support, but in votes, the public said otherwise. Five times between 1962 and 1994 the question was put forward, never getting more than 28 percent. Progressives don’t like it, but they can’t deny the people have spoken, repeatedly.

Sometimes, even the threat of an initiative can overcome a political impasse. For four years, House and Senate leaders deadlocked on a bill of rights for HMO enrollees. Providers and patient advocates favored the Senate plan, while HMOs and employers preferred the House’s. Faced with a wrecking ball of a 2000 initiative that would have been more disruptive than either legislative version, HMOs and employers urged the House to concede to the Senate on nearly every point, and citizens got a strong law. With five of nine sponsoring groups dropping support for the initiative, the question was defeated, 48 percent to 45 percent.

Then there was the seat-belt issue. In 1985, the Legislature passed a law mandating seat-belt use. Those with a libertarian (small “L”) impulse, particularly talk show host Jerry Williams, placed the issue on the 1986 ballot, and voters repealed the mandate, 50 percent to 43 percent. Rep. Barbara Gray of Framingham refused to give up, pushing year after year for re-enactment and finally winning in 1993 over Gov. William Weld’s veto. Opponents went back to the ballot in 1994, but this time lost, 38 percent to 56 percent, and gave up the ghost.

When the Legislature needs a kick. Lawmakers always have difficulty with laws regulating their own behavior, particularly in ethics and campaign finance. For their part, good-government advocates often dream up rules for politicians that are high-minded and impractical. Pushing these proposals as ballot initiatives has often prodded the Legislature to pass workable laws that satisfy reformers enough to lay their ballot initiatives aside. For example, in 1974 and 1994, Common Cause promoted initiatives to overhaul campaign finance. Both times, legislative leaders negotiated alternative laws that met reformers’ goals. The 1974 law created the Office of Campaign and Political Finance and lowered contribution levels to $1,000; the 1994 law tightened the statute further, lowering contribution levels to $500 ($200 for lobbyists) and eliminating many paths of abuse. And in the late 1970s, Common Cause made ethics their target in the wake of state construction contract scandals. Leaders like Sen. Chet Atkins and Reps. Jack Murphy and George Keverian negotiated an agreement to create an independent State Ethics Commission governing the behavior of all public officials–state, county, and local. Common Cause supported the final product and withdrew its initiative.

It’s unfortunate that the 1998 Clean Elections initiative does not appear in this category. It ranks as the most poorly managed initiative issue in 85 years, by proponents and lawmakers alike. Like most complex initiatives, the proposal contained flaws and inconsistencies, and would have benefited from dialogue between its advocates and critics (demonstrating the wisdom of the Article 48 architects in adopting an indirect process encouraging public/legislative interaction). But rather than engaging in negotiation, proponents and lawmakers ignored each other in 1998. For Clean Elections boosters, that tack made sense (why engage an enemy that isn’t putting up a fight?), but their unchallenged victory lulled them into political complacency. The animus shown by the Legislature, flouting instead of funding the voter-approved law, suggests that lawmakers shirked their responsibility in 1998 to negotiate a more palatable version of Clean Elections–or else to campaign forcefully against it. The failure to do either lays fault for this embarrassing catastrophe in their laps.

Looking ahead

Initiative-and-referendum combines two powerful strains in our political culture, populism and libertarianism. The populist impulse created Article 48 and inspires today’s groups such as MassPIRG, the Tax Equity Alliance for Massachusetts, Common Cause, the League of Women Voters, animal rights groups, and others who have bypassed lawmakers and taken their causes to the people. The libertarian impulse–get government out–reared its head early in the 1920s over alcohol and motion pictures and became a powerful strain in ballot-question politics in the 1980s and 1990s through CLT, anti-seat belt crusaders, anti-rent control advocates, and term-limiters.

It now appears that grass-roots dynamism is diminishing. Even CLT’s 2000 win to roll back the income tax was more a victory for Gov. Paul Cellucci, seeking clout with a veto-proof Democratic Legislature, than for politics-from-below. Many key initiative promoters have become gun shy, having scored some wins but even bigger losses. Growing disengagement in our political culture is another factor. It’s possible the initiative surge since 1976 is a spent force.

Former TEAM executive director and ballot-question veteran Jim Braude sees a new, troubling trend since 1998: initiatives backed by corporate and wealthy sponsors seeking to purchase public policy changes. Big money has always played a major role, but primarily a defensive one, defeating the initiatives of citizen populists. Since 1988, we have seen four initiatives backed by wealthy corporations or individuals to win laws suiting their interests or whims:

  • In 1998, corporate groups won a cut in the tax rate on interest and dividends from 12 percent to 5 percent, spending a mere $398,899 (against $0 by opponents).

  • In 2000, corporate groups (and their philanthropic beneficiaries) won tax deductibility for charitable contributions, spending only $467,500 against no organized (or funded) opposition.

  • Also in 2000, financier George Soros spent $1.63 million in a failed effort to rewrite the state’s drug laws.

  • This year, California millionaire Ron Unz is paying out-of-pocket to overturn Massachusetts’s bilingual education law.

Meet the Author

Another new dynamic is the increasing ease by which the Legislature alters initiatives after passage (three tax cuts, Clean Elections) and refuses to bring citizen-initiated constitutional amendments before the constitutional convention for a vote (term limits in 1992, gay marriage in 2002). Because of Article 48’s tight restrictions, ballot questions in Massachusetts have never been sacrosanct. (The politically bulletproof Prop. 2 1/2 is the exception that proves that rule.) But if the Legislature treats statewide votes as mere straw polls, our constitutional framework loses legitimacy.

With its elaborate checks and balances, Article 48 has proven itself a resilient tool to resolve conflict among varied interests–right, left, and center–when the Legislature can’t or won’t act. If it becomes primarily an instrument for corporate interests and rich guys to win new laws on the cheap, and if the Legislature becomes increasingly brazen in undermining or manipulating the process, we may see something unprecedented since 1917: serious discussion of reforming a vehicle that, if treated with proper respect, is in no need of reform. It’s hard to see how we could make the Massachusetts ballot-initiative process better. But it’s easy to see how we could make it worse.