Ballot initiative committees can count on adding a stop at the Legislature to their list of duties if Rep. Kirk Adams succeeds in adding new oversight to the citizen lawmaking process.
Adams’ efforts follow the 2006 general election that gave voters a record-setting ballot with 19 initiatives and referendums that covered contentious topics such as gay marriage, eminent domain, a voter lottery, illegal immigration, pork industry practices and a minimum wage increase.
Backers of the process are wary of change. They argue that an un-infringed initiative right is essential to fix or pass policy the legislature or the courts can’t, or won’t, address.
“We certainly will not agree with anything that restricts citizen government and the right to go to the ballot with an issue the Legislature refuses to address or even discuss,” said Rebekah Friend, executive director of the Arizona AFL-CIO, a big player in the recent passing of Prop. 202, which established a state minimum wage of $6.75 an hour.
Adams, a Mesa Republican, has introduced H2441, which would expand authority of the Legislative Council by mandating a review of ballot proposals for errors, potential conflicts with existing state and federal laws, and create public meetings for initiative debate.
“All parties pro and con can come testify here at the Legislature and let their feelings be known and on the record,” said Adams, of the effects of his bill. “When you have that process it allows for that vetting. With the initiative process we don’t have that.”
Reduce ‘unintended’ effects and what-if scenarios
The advantage, he said, is preventing “unintended” consequences of successful initiatives, such as the recent layoff of severely disabled workers that followed the passing of Prop. 202, which contains no exceptions for the wage increase.
Many supporters of the wage increase such as Rep. Steve Gallardo, D- 13, have said the lack of exemptions is deliberate, but the effects have left others, including the state’s labor oversight commission, scrambling.
The Industrial Commission of Arizona, charged with enforcing the new law, advised owners and operators of sheltered work centers to continue to hire and pay contracted workers under federal wage guidelines, which include exemptions for the handicapped — until the commission establishes conclusive policy.
But that has left employers of the handicapped, and the commission, vulnerable to lawsuits. Fearing such action and unable to afford the wage increase, Dave Cutty, president of the Tempe Center for Habilitation, stopped contracting work for 75 clients with substantial physical and mental impairments.
Legal snafus from 2006 initiatives have so far required three separate legal opinions from the attorney general to clarify a tobacco tax rate and regulations of sales of tobacco on Indian reservations.
Though the Legislative Council, which consists of 14 House and Senate members, is responsible for providing the text that describes initiatives on the ballot, H2441 would add the right of naming the proposals to the duties of the oversight body.
Currently that power resides with ballot initiative committees themselves, but the change would help eliminate potentially misleading titles and provide a “precise description of what the initiative does,” said Adams, adding a 1998 campaign finance ballot initiative entitled “Clean Elections,” has arguably created even more contentious races.
Not so fast, says Carol Springer, former chairman of the Arizona Homeowners Protection Effort. Her group, heavily financed by New York Libertarian activist and real estate developer Howard Rich, was responsible for greatly reforming eminent domain and regulatory takings law in 2006 with Prop. 207.
Springer, a former lawmaker and current Yavapai County supervisor, agrees that potential for dishonesty exists.
“Unfortunately initiatives pass or fail by sound bites and the title is part of that sound bite,” said Springer, whose initiative drew wide criticism for its effect of requiring compensation for almost all government land use actions that devalue private property. “And I don’t know if you could keep someone who has a free speech right from calling it whatever they want to call it.”
The reform, billed as a protection against intrusive government, was sparked by a 2005 U.S. Supreme Court decision in Kelo v. City of New Haven that affirmed the rights of local governments to seize private property in order to make way for projects that boost economic development.
Set in stone
The need to adjust the process is magnified by the near permanence of citizen-passed initiatives brought by the 1998 Voter Protection Act, said Adams.
The act, passed by citizen approval, requires a three-quarter legislative supermajority to amend passed initiatives and states that changes must further the purposes of initiative in question.
The measure was greatly inspired by the almost immediate repealing by the state Legislature of Prop. 200, which passed in 1996. The measure would have greatly reduced penalties for drug possession and allowed the prescribing and use of controlled substances such as marijuana for medical conditions.
“There is nothing more essential to a democracy than having your vote count,” wrote Richard Mahoney, the initiative committee’s chairman in the 1998 Secretary of State’s ballot initiative publicity pamphlet. “That’s how we distinguish real democracies like our own from other regimes that only go through the motions of voting…
“The message is clear from the politicians: ‘we know better than you,’” wrote Mahoney, a former secretary of state.
But a legislative supermajority and “furthering an initiatives purpose” effectively make an initiative impossible to alter and that’s not always a good thing, said Adams, who is unaware of any changes to an initiative since 1998.
And HCR 2012, a legislative referendum that would allow the Legislature to amend an initiative — and grant legislative control of necessary appropriations — by a simple majority after four years of an initiative’s passing, could help minimize potential damages of citizen lawmaking and increase legal flexibility necessary for rapidly growing Arizona, he says.
His idea is not supported by Tucson physician Mark Osterloh, a frequent participator in the initiative process who views the Voter Protection Act as a powerful defender against government overthrow of citizen resolve.
“The Voter Protection Act is probably one of the best things that has happened, because the public would work very hard and diligently to get a reform and law passed, the Legislature would right away repeal it for total disregard for what the public had voted for,” said Osterloh, author of a defeated 2006 initiative to randomly reward a single voter with $1 million each election cycle.
But politicians already have a deterrent to void citizen will without good reason, says Adams, who likens the practical effects of the Voter Protection Act to forcing consumers to drive the same car forever despite changing needs or lifestyles.
“You would naturally not attempt to change a voter passed initiative for several years — four or five years — and the reason why is there is a political risk of doing that,” he said. “And that would still apply.”