State legislatures now foil liberal ballot measures
DENVER | A free market guy like the Independence Institute’s Jon Caldara normally doesn’t have much in common with progressives, except when it comes to ballot measures.
Liberal activists are furious after spending millions of dollars to pass left-wing ballot initiatives in November in states such as Oklahoma, Maine and South Dakota, only to see Republican lawmakers use their legislative muscle to gut, modify or outright repeal them this year.
Mr. Caldara feels their pain. A frequent sponsor of right-tilting ballot measures in Colorado, he has watched for years as Democratic state legislators chip away at a conservative favorite: the Taxpayer Bill of Rights, passed by voters in 1992.
The coup de grace came in June, when the Colorado state legislature voted to levy a charge on hospitals without putting the issue on the ballot,
even though the Taxpayer Bill of Rights, also known as TABOR, requires all tax increases to go before the voters.
“There is no better poster child for the political system destroying an initiative by the citizenry,” said Mr. Caldara. “Let me say it really clear: TABOR is dead. The Taxpayer Bill of Rights, for all intents and purposes, is dead in Colorado.”
In other words, the left now is learning the hard way what the right has long known: Just because the voters pass a ballot proposal doesn’t mean the state legislature won’t fight it.
For years, state ballot measures were the go-to mechanism for conservatives shut out of the lawmaking process by Democrats. But with Republicans in control of 32 state legislatures — 33 with the nonpartisan Nebraska unicameral — the citizen initiative process increasingly has morphed into a tool of the left.
Seventy-six initiatives appeared on U.S. ballots in November, “the highest number in more than a decade,” according to the Pew Charitable Trusts’ Stateline blog, and many were from the left, including minimum wage increases, tax hikes and criminal justice reforms.
Justine Sarver, executive director of the liberal Ballot Initiative Strategy Center, cited 2016 progressive ballot triumphs on raising the minimum wage in four states, increasing taxes in two and providing workers with mandatory sick leave in two states. She predicted those wins are only the beginning.
“At BISC we are already more than one year into a multi-year, multi-state, proactive strategy, Roadmap to 2020, which will put measures on the ballot to address economic inequalities and expand access to democracy nationwide,” Ms. Sarver said in a January press release.
In Maine, voters approved a marijuana legalization initiative as well as three left-wing measures — an overhaul of the election system, a tipped minimum wage hike and a 3 percent income tax increase for top earners — but the euphoria for the winners was short-lived.
No sooner had the Legislature convened than Republicans took on the measures, repealing the income tax hike, watering down the minimum wage law — with the support of restaurant servers who feared it would reduce their incomes — and securing a statement from the Maine Supreme Court indicating that swaths of the ranked-choice voting system were unconstitutional.
Ironically, the progressive ballot victories came even as Republicans gained ground in the Maine Legislature.
“It’s a result of the frustration that they have that they can’t get these bad policies through the Legislature because we have a governor who will veto destructive policies,” said Jason Savage, Maine Republican Party executive director. “Instead, they’re just going directly to the ballot to pass their utopian ideas and not even trying anymore.”
‘Will of the voters’
The Republican Party’s dismantling came at a price. In July, Maine Gov. Paul LePage briefly declared a partial government shutdown as lawmakers wrestled with headaches triggered by the passage of the measures, which dominated the legislative session.
“It puts us in a defensive posture defending taxpayers, defending people’s freedom, defending the Constitution,” said Mr. Savage. “It would be a lot nicer for Republicans to talk about the policies that they think would help people instead of undoing policies that are hurting the economy or violating the Constitution.”
There is no end in sight: Maine progressives already have placed an initiative on the November ballot to fund an expansion of Medicaid.
While Maine may represent the most extreme example of progressive ballot activism in Republican-dominated political territory, the Pine Tree State isn’t alone.
In South Dakota, Republican Gov. Dennis Daugaard signed in January a repeal of Initiated Measure 22, a campaign finance proposal passed two months earlier with pressure from a liberal Massachusetts advocacy group, after a court found it unconstitutional.
In Oklahoma, two ballot measures backed by the American Civil Liberties Union and approved in November were promptly met by Republican-sponsored repeal legislation. The bills failed, and the initiatives — to reduce certain drug and property crimes to misdemeanors — took effect July 1.
Progressives who have rallied behind efforts to shift their focus to the ballot initiative have decried Republican efforts to derail the measures, which include moves by state legislatures to make qualifying for the ballot more difficult.
“What all these attacks have in common is a blatant contempt for the will of the voters,” said Ms. Sarver. “Conservatives’ disregard for ballot measures is especially hypocritical because they were once an important political tool for them.”
Of course, conservatives also have had their best-laid ballot measures upended by Democrats. Exhibit A is same-sex marriage.
Voters in California approved samesex marriage bans twice, in 2000 and 2008. The first time, the Democrat-controlled State Legislature voted to repeal the measure, only to have Republican Gov. Arnold Schwarzenegger veto it.
As attorney general, Jerry Brown refused to defend the traditional marriage initiative in response to a lawsuit, forcing the measure’s sponsors to hire private counsel. The legal challenge ultimately prevailed.
In the case of marijuana legalization, Democratic and Republican legislators in several states essentially have deferred the decision to voters. But on other issues, there is often a reason a proposal has not cleared the legislative process.
“Generally speaking, it’s true that if the legislature thought it was a good idea, they would have done it already,” said Craig Burnett, Hofstra University political science professor. “Almost every policy proposed by initiative is almost by construction out of sync with what the legislature wants. If they really wanted it, they could have done it already.”
That means passing the ballot initiative is only the first step. The real work begins afterward, Mr. Caldara said.
“It all goes back to [Thomas] Jefferson saying the price of liberty is eternal vigilance. That’s what this is,” he said. “It’s not a victory until you secure and defend it year after year. Because they will find a way.”