A rare victory for ballot initiative reform

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Late last week the Maine Legislature, for a change, did something that I am very happy about. They took action to reform Maine’s broken initiative and referendum process.

That process is — as I have argued for years — hopelessly broken. Even those who routinely vote yes on certain referendum questions will admit that they are tired of the avalanche of questions on the ballot, the increasing complexity of those questions, and the public campaigns for and against them.

Maine’s referendum system has gone from a reasonable, rarely used mechanism for the people of the state to weigh in on important social questions to a tool of big-monied special interests.

Fixing that system will require a lot.

However, one reform was possible, encapsulated in LD 1209, and was just achieved. It will now be a requirement that the Maine Legislature hold a public hearing on any potential referendum question before it goes to the ballot, unless two-thirds of both the House and Senate vote to waive it.

Prior to the signing of this legislation, the holding of a public hearing prior to a referendum being sent to the people was optional. In the past seven years, the Maine Legislature has chosen to hold a public hearing on one ballot initiative only one time. That time was Question 1 in 2017, which was the ballot question seeking to establish a casino in York County. That measure was crushed at the ballot box.

Now, I’m not suggesting that bad ideas will necessarily be wiped out simply by having a public hearing, but I am suggesting to you that holding that hearing is incredibly powerful, and will make more of a difference than you think.

Imagine this. A referendum is proposed and a public hearing is held in the Legislature. That public hearing attracts 500 members of the public who deliver hours of testimony. Some of that testimony is very insightful and brings up major problems with the proposal.

What do you think the Legislature might do? It is easy to rather cynically say “nothing,” but in reality it has always been hard for lawmakers to ignore that kind of public response.

More likely is that the Legislature may consider proposing what is known as a “competing measure” — something they did on three occasions between 1977 and 2011 — which identifies flaws in the original proposal and seeks a modified version that improves upon the original.

Identifying those issues up front and issuing a competing measure is far superior to allowing a structurally flawed proposal to become law, and fixing it later. This is what the Legislature has had to do a lot, recently.

But beyond inciting a competing measure, a public hearing can help in other ways. In fact, the simple act of getting public reaction and having a public conversation about the issue will help define the issue in the public consciousness.

Look back at the recent universal home care proposal, for example. In that case, the proponents fought tooth and nail against a public hearing and were successfully able to bully and pressure enough lawmakers to see them vote against having one.

Why? What were they afraid of?

Well, they knew that the public at large, particularly home care providers, were firmly against their proposal, and had some very substantive criticisms of it. They didn’t want a public airing of the idea, because doing so would have allowed the issue to be defined by the public, instead of by their campaign, which was filled with misleading statements.

Under the new law, many of the legislative shenanigans would have been identified and responded to before the campaign even began, making it harder to spread falsehoods and confuse voters.

At the end of the day, this won’t entirely fix the legislative process, and it isn’t enough. But it is a beginning, and an important one.

Matthew Gagnon of Yarmouth is the chief executive officer of the Maine Heritage Policy Center, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.

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