The state of Maine may well be on the verge of an unfortunate – and possibly destabilizing – political era: governing by referendum.

You may be immediately thinking to yourself, “Hey, hold on a minute. I thought we successfully avoided two referenda this year.”

That’s certainly true. Legislators went ahead and enacted a paid family leave law, avoiding a statewide campaign on that issue, and conservatives elected not to attempt a people’s veto of Gov. Janet Mills’ bill expanding abortion access. So we certainly did dodge a bullet on those two, avoiding what would very likely have been acrimonious and expensive campaigns. Still, that doesn’t necessarily bode well for the future.

By avoiding a campaign on both of these issues this year, we may have only encouraged future referendum campaigns on a wide variety of issues.

Curiously enough, ducking a referendum on paid family leave wasn’t a failure for its supporters, rather another victory. The Legislature, in enacting its own version of the program, gave its supporters much of what they wanted while allowing them to avoid the expense of a major campaign. With the threat of a referendum hanging over their heads, rather than negotiating with business interests or minority Republicans, Democratic legislators were more concerned with satisfying left-wing activists. Essentially, the pending referendum held the Legislature hostage, preventing any kind of centrist program from being passed – even if Mills or legislative Democrats had wanted to at all.

If Maine really wanted to prevent this tactic from being used in the future, we’d have a couple of options, legislatively.

One would be to make it harder to place questions on the ballot in the first place. This option would be unnecessary, ineffective and fundamentally undemocratic. The well-organized groups that gathered the signatures for the paid family leave referendum would probably be able to overcome any additional hurdles the Legislature placed in front of them. Similarly, any new law restricting the citizen initiative process would probably itself be put to a vote as a people’s veto, and it would probably go down in flames. Moreover, majority Democrats would be exceedingly unlikely to go along with attempts to limit the referendum process; for the most part, it’s been working entirely to their benefit as of late.

Another option would be to change the process after the initiative is approved. Right now, citizen initiatives have to go through the legislative process like any other bill, but they could simply be placed directly on the ballot. That would eliminate the use of citizen initiatives as a governing tactic, as happened this past session. One could even argue that this process is more democratic than the current system; it would take the Legislature out of the equation. Maine could also institute a process for reviewing the constitutionality of citizen initiatives before they’re on the ballot, rather than afterwards. It’s also not unheard of – several states have this process already in place.

Even so, either of these proposals are unlikely to be passed. If they were, they too would probably be challenged through a people’s veto.

There’s another way to avoid the type of situation we saw with the paid family leave bill this past session, however, without passing laws to change the process.

If opponents of a measure placed their own proposal for the same topic on the ballot as well, neither could simply be enacted by the Legislature; instead, both could be voted on as competing measures. That would prevent one side of the ideological spectrum from holding a veto over any compromise, as happened with paid family leave. However, if implemented successfully, it would also hobble the entire legislative process on that issue in a particular year.

Fundamentally, the citizen initiative process in Maine could use some tweaking around the edges, but it’s not broken – not yet, anyway. If, however, progressives continue to use the threat of a referendum campaign as a governing tactic and conservatives remain disorganized, we risk becoming a one-party state where our elected officials are increasingly irrelevant.

The citizen initiative process isn’t a problem in and of itself but, like any tool, there’s potential for it to be abused. To avoid that, it’s incumbent on citizens to stay aware, informed and involved so that activists on both sides don’t see citizen initiatives as an easy way to get what they want.

Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at:
jwfossel@gmail.com
Twitter: @jimfossel

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