Though I could have done without the personal attacks voiced by Paul LePage in his Oct. 13 address to the Androscoggin Chamber of Commerce, I found myself agreeing with a lot of the governor’s comments (since reiterated in other forums) on the misguided and capricious nature of citizen initiative ballots. The initiative is a poor way to make law.

LePage is generally critical of the initiative process and specifically of the five initiative questions that will appear on the Nov. 8 ballot. I don’t concur entirely with his objections, which are based on policy, practicability and constitutionality, but accept they’re worthy of serious consideration.

The initiative, a method which allows voters to enact legislation by direct ballot without going through their elected representatives, was a signature reform (along with referendum and recall elections) of the early 20th-century Progressive Era. It was intended to allow the public to circumvent the back-room deals of corrupt party bosses and state legislators.

According to the website of the National Conference of State Legislatures, South Dakota was the first state to adopt the initiative (in 1898), and 24 states now have it, including Maine (though Maine has an indirect version, which gives the Legislature a chance to offer competing or modified versions of the proposed initiative measure).

Unfortunately, this well-meaning political reform has had unintended consequences.

First, it allows a small number of wealthy people or well-funded groups to secure approval of a single-issue initiative question by gathering enough petition signatures (at least 10 percent of the number of voters who participated in the previous gubernatorial election) to get it on the ballot and by publicly promoting passage of it with a slick media campaign.

Second, it bypasses the more rigorous legislative process, which considers individual issues in a more global context, taking into account policy, budgetary and economic factors, and subjects them to intensive committee scrutiny, public hearings, floor debate, lobbying and compromise. As a result, initiatives often target single issues as if they do not carry the potential for collateral damage or require accommodation of competing interests.

The best use of the initiative, in my view, is as a plebiscite for measures rooted in evolving social attitudes that are too hot for the Legislature to handle (the most noteworthy example being same-sex marriage, approved by voters in 2012, 53 percent to 47 percent). The worst use is for tax or regulatory measures which significantly affect people’s pocketbooks or the state’s fiscal health and need to be considered in their larger economic context.

Initiative Question 2, which proposes a 3 percent  income tax surcharge on taxpayers reporting over $200,000 in taxable income to fund local public education, is a prime example of the latter. It’s the equivalent of a lion cutting an antelope out of the pack for the kill, forcing 2 percent of taxpayers to carry the load for the other 98 percent in order to fund a vital public service that’s important to everyone. Quite aside from the obvious problem of unfairness, no one knows the degree to which this tax (giving Maine the highest top tax bracket rate of any state except California) will cause a flight of affluent individuals from Maine and hence reduce the tax base.

When I’ve confronted proponents with these embarrassing facts, they usually shrug sheepishly and respond that the method, though not ideal, justifies the end, by plugging the shortfall in the state’s required contribution of 55 percent to the cost of operating local schools. There’s no other way, they say.

In fact, there are other ways. In Oklahoma, for instance, an initiative constitutional amendment question on November’s ballot proposes boosting the state sales tax by 1 percent to pay for education.

In addition, Gov. LePage has made clear that, if this measure passes, he’ll propose legislation to cancel out the surcharge by cutting 3 percent off the top tax bracket (of those single filers earning over $37,500 and joint filers earning over $75,000).

Initiative Question 4, which seeks a multi-stage increase in the minimum wage to $12 an hour by 2020, similarly represents a headlong plunge into deep water, where no one can clearly foresee its impact on the economy. The potential adverse effects on Maine’s hospitality industry, especially restaurants, on small business in rural areas, and on teenage employment are particularly concerning.

Question 1, a proposal to legalize, regulate and tax medical marijuana, and 3, to require specific background checks for certain unregulated gun transfer and sales, are probably better suited to the initiative ballot, since they represent, at heart, a test of shifting social attitudes. Both could have financial consequences as well as implications for public health and safety, but the real crux of these matters is the way people feel about using pot and regulating firearms sales.

Question 1 pits those who believe pot no more dangerous than legal substances like alcohol or cigarettes against those who consider cannabis a learner’s permit for hard drugs. Question 3 pits those who consider universal background checks for guns a reasonable public safety measure against those who insist it’s a slippery slope towards abolishing the right to bear arms.

Question 5, which seeks to establish statewide ranked-choice voting, is a pure issue of governance, with the potential to bring more civility and rationality to election campaigns. Unfortunately there is a substantial likelihood that it would require a constitutional amendment to become law, something that cannot be achieved in Maine by initiative.

Whatever happens with these initiative ballots, we should also keep in mind that passage of laws by initiative does not give them special status. They can still be repealed, replaced or modified through the regular legislative process (as Gov. LePage promises to do with the 3 percent education tax). At the end of the day, therefore, the initiatives on the 2016 ballot, even if they pass, may provide nothing more than a feel-good moment for their backers.

Lawmaking is an intrinsically messy process that has aptly been compared to sausage-making. Even the best-intentioned attempts to simplify and purify it, such as the citizen initiative ballot, are, therefore, often doomed to fail.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 10 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer.


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