I heard this recently during a panel discussion in which I participated regarding one of the five initiatives on the ballot this fall: “Sure, I think there are a lot of flaws in the question. But we need to pass it, then the Legislature can come back into session and fix the problems with it.”
If that doesn’t tell you why referendums are a tremendously awful way to make law, I don’t know what will. Vote to approve a bad law. We’ll just fix it later.
Saying you don’t like the referendum process is not a popular position, yet most people in Maine government agree with the general sentiment. Ask most lawmakers of both parties whether they think passing large, sweeping bills via the referendum process is either smart or helpful and you are likely to get a firm “no.”
Our entire government is organized around the idea that it is a representative republic, not a direct democracy. We elect lawmakers to represent us as citizens in the lawmaking process.
The theory here is that government is most effective and efficient when a small number of people are involved in the complexities of making law.
These elected representatives have the time and ability to devote to policymaking that the average citizen simply cannot.
Through the legislative process, important, sweeping bills are proposed, go through the committee process where the issue is investigated fully, the bill is marked up, subjected to negotiation, amendment, and compromise, and finally put on the floor of two legislative houses.
That difficult process allows major flaws to be found and dealt with, and opposing opinions to still influence the final bill.
If you are an everyday voter who works 70 hours a week, volunteers for your church and coaches your kid’s Little League team, your ability to do any of that — just based on lack of time — is non-existent. Ergo the benefit of a representative system.
The alternative, direct democracy, is basically rule by the mob, where the rights and opinions of the minority are constantly overruled by the majority, even if the majority is wrong.
Ask yourself, for instance, if the 1968 Civil Rights Act would have passed if it were put up for a national vote in 1960s America. Would schools have been integrated? Would women have achieved the right to vote?
There is nothing inherently more noble about popular ideas than unpopular ones.
In 1908, Maine became the first state east of the Mississippi to create an initiative and referendum process, which was the 29th amendment to the Maine Constitution. This was our attempt at giving ourselves the power of direct democracy.
At first, we used it responsibly. In the first 60 years of its existence, the initiative process was only used seven times, and no initiatives appeared on the ballot in the 50s and 60s. Most of these early initiatives failed.
As time has gone by, though, opportunistic political organizations have begun to look at the referendum process as an easy and effective way to make law that sounds good in a 30-second soundbite, but is bad policy that never would have made it through a representative system.
This year, Mainers will be asked whether they want to legalize marijuana, dramatically raise taxes, institute so-called universal background checks on firearms, approve a massive minimum wage increase, and fundamentally alter how we elect our government representatives.
How many of those of us voting have read the full, legal text of the bills we are being asked to approve? Interviewed experts on both sides of each question? Skeptically examined the proposals, even if we like the general premise? Debated and negotiated with those who favor and oppose the idea to come up with the best possible compromise?
Even the best, smartest, and most informed among us have not done those things. Yet this is an appropriate way to make law?
This year, all five questions are liberal in nature, and the left is already organizing their campaign for ballot initiatives to put up next year. The response to this on the right will be to up the ante and attempt to legislate by referendum, too.
We are looking at the beginning of a referendum arms race, driven by ideological extremes and meant to enact extremist policy — on the right and the left — that is easily sold to the everyday voter.
This is an insane way to make law, and it’s not how Maine should be doing it.