ELLSWORTH — The citizens’ referendum, a constitutionally protected option that has been part of Maine’s political fabric for more than 100 years, is beginning to create modern-day headaches for lawmakers.
In the November 2016 general election, four of five citizens’ initiatives succeeded.
Those efforts established ranked-choice voting, added a 3 percent tax on income exceeding $200,000, with the proceeds going to education, legalized the possession, use and sale of marijuana and raised the minimum wage to $12 per hour by 2020.
The lone referendum that was defeated would have required background checks prior to the transfer or sale of a firearm by any individual other than a licensed gun dealer.
Supporters of citizens’ referendums say the process is often triggered by the Legislature’s failure to address voters’ concerns.
Many legislators, however, say voters at times need to be saved from themselves by passing referendums and not understanding the full consequences.
Sen. Brian Langley (R-Hancock County) was one of three panelists who spoke recently at one of several information sessions organized by the Downeast League of Women Voters.
The title of the talk was “Ballot Questions in Maine: Whose Initiatives are They?”
Langley said at the gathering at Pat’s Pizza Feb. 22 that the citizens’ referendum process is best suited for questions that are cut and dry and require no more than a “yes” or “no” answer.
“What I would liken it to is governing by tweet,” Langley said. “There are about 140 words in the questions.”
Tweets generally top out at 140 characters.
He said the citizens’ referendum process is “getting out of hand” and, in some cases, usurping the role of elected officials.
“We sit through 8 to 10 hours of hearings to get all sides of an issue,” Langley said. “It’s not that the Legislature did not take action. They did. They didn’t pass it.”
“It’s really, really hard work to do a thoughtful job,” he added.
Although the citizens’ referendum process bypasses the Legislature, in the end lawmakers have the right to pass legislation amending or nullifying the referendums.
But that is not as simple as it appears.
“The Legislature is nervous about going against the people’s will,” said Rep. Louie Luchini (D-Ellsworth), a member of the panel.
He knows of what he speaks.
It was Luchini who introduced legislation — now law — to delay the opening of any retail stores selling marijuana until after Feb. 1, 2018.
“I got a flood of angry phone calls,” he said. “People think you are trying to overturn the people’s will.”
Luchini said the 30-page marijuana referendum was reduced to four lines on the ballot.
The proposal did not give municipalities time to decide whether they wanted shops in their town, and, if so, what rules would apply, he said.
The referendum, Luchini said, also did not include measures to safeguard children by limiting the minimum age for purchasing and using marijuana.
“It was like the wild West,” Luchini said of the referendum.
He currently is questioning a new referendum due to go to voters later this year that would allow construction of a third casino in Maine, this one in York County.
The referendum is entirely funded by Lisa Scott and is worded such that it would allow only one developer to open the casino, her brother, gambling entrepreneur Shawn Scott.
Political columnist and former legislator Jill Goldthwait, also a panelist at the meeting, said she supports the citizens’ referendum option in general, but not for everything.
“People have been growing more concerned about the process,” she said, referring to instances of heavy contributions from out of state sources as well as signatures gathered by out of towners who are paid by out of state groups .
“I would not like to see it go away,” said Goldthwait, but said laws governing policy are often too complex to be reduced to a four- or five-line question on the ballot.
Governor Paul LePage was so incensed by one of the referendums — adding a 3 percent tax on all income over $200,000 — that he is blocking it in his proposed budget.
The proceeds — estimated to be $157 million — would be funneled to fund public schools.
LePage said the referendum puts Maine in the unattractive position of having the second highest income tax in the country — 10.15 percent once the 3 percent is added. The highest is California.
“California, which is a wealthy state, has the highest tax rate in the nation, but it kicks in at $1 million of income,” the Governor said in his budget message. “Maine is not California. We are not a wealthy state. We do not have the jobs, employers, industry and investment California has. We cannot afford to chase professionals out of our state and watch small businesses close because of this draconian new tax rate.”
“Instead of punishing our higher income earners, they should be working to make the education system more efficient and more effective,” LePage said.
Supporters maintain that the Legislature has not lived up to its legal requirement to pay for 55 percent of local costs of public education so voters decided to make it happen on their own.
The referendum passed by a vote of 383,428 to 373,848.
Luchini said the referendum endorsing ranked choice voting was never aired within the Legislature.
“There was no public hearing, no public vetting,” he said. “The campaign (for the referendum) becomes the public hearing.”
Langley interjected, “And I think the public hearing is often the person who has the most money wins.”
Luchini and Langley said it is difficult to come to a meeting of the legislative minds on putting up a competing measure alongside the referendum question.
The worry, they said, is how that action will be perceived by the voters — despite what the lawmakers view as legitimate concerns about the proposed law.
Ann Luther, the League of Women Voters’ official who organized the Feb. 22 meeting, said the League of Women Voters does not have an official position on the citizens’ referendum option.
“Pro-democracy people tend to think these citizens’ initiatives are good, a safety valve for when the Legislature is not taking appropriate action,” said Luther, who lives in Trenton.
She said comments by the panel at the meeting illustrate their concern and/or frustration with a process they view as becoming out of control.
Luther said everyone needs to remember that the referendums are still only laws that can be amended or repealed.
“Sometimes they don’t work,” said Luther, who would like to see the citizen-initiated law setting term limits for legislators repealed. “But they want to make sure they (legislators) are respectful of the will of the people in the process.”
History of Initiative and Referendum in Maine
In 1908, Maine became the first state east of the Mississippi to amend its Constitution and allow citizens to pass or veto laws on their own. A major proponent of the change, Roland Patten of Skowhegan, heard about a statewide initiative and referendum process in Switzerland and championed the same for Maine. Patten, editor of the Skowhegan Somerset Reporter, had a particular initiative in mind — municipal ownership of public utilities.
Despite vigorous opposition to the 29th Amendment to the Constitution, voters approved the initiative and referendum option by a vote of more than 2-1.
Over the first 60 years, there were only seven initiatives on the statewide ballot in Maine and none at all during the 1950s and 1960s.
But by the early 1970s, voters began rediscovering their power to make law by initiative.
The dominant themes in citizens’ referendums in the 1970s and 1980s were about energy and the environment. This is the same era in which the bottle bill was passed. Voters turned down an initiative to ban nuclear power in the state.
The passage of term limits for legislators in 1998 led to a legislative effort to prohibit petition circulators from being paid by signature. That challenge was struck down in federal court as a violation of the First Amendment.
Maine is the second largest user of the indirect initiative, after Massachusetts.
The required number of signatures to have a referendum placed on the ballot is 10 percent of the total votes cast for governor in the last election.