Taking the initiative | The growing popularity of citizens' initiatives means Maine voters are being asked to decide increasingly complex economic issues. Should the process be changed?

Like most sponsors of a citizens' initiative, Jim Wilfong is a crusader. The former state legislator and small-business consultant believes that fresh drinking water will be the most important commodity of the 21st century, traded globally like oil. Given Maine's abundance of this soon-to-be-hot commodity, Wilfong believes the state must act now to both protect and capitalize on this resource in the future. To that end, he's canvassing the state, collecting signatures to place a proposed law on the 2006 ballot that would establish a tax on bottled water extracted from Maine sources, which in turn would pay a dividend to every Maine resident and create a fund that invests in small businesses.

Initially, Wilfong says he took his water policy ideas to the State House, but found legislators too busy dealing with last year's budget gap, tax reform and other crises to give his proposal much thought. Not content to wait for an opening on Augusta's crowded lawmaking schedule, Wilfong decided to bring the debate directly to the people of Maine in the form of a citizens' initiative. "We think the issue is too important to just let it ride," he says. "This isn't just a small idea ˆ— this could potentially change our way of life with respect to what's happening in the world of water."

Taking on big ideas that legislatures can't or won't address is exactly what the citizens' initiative process is designed to do, say its supporters. It's direct democracy, the purest way to turn the people's opinion into law, and a vital safety valve on the machine of representative politics. But to some political observers, the initiative process can be a dangerous tool if not used wisely ˆ— and those critics uniformly point to California as a cautionary tale. Since 1912, Californians have voted more than 90 citizens' initiatives into law, including a 1978 property tax cap and a 1988 law that locked in $30 billion for annual education funding. Piling tax limits on top of spending mandates, critics say, helped create the catastrophic $30 billion-or-so budget deficit that led to the downfall of Gov. Gray Davis and the subsequent election of Arnold Schwarzenegger.

Count Charles Colgan, the former state economist and current professor of public policy and management at the Muskie School of Public Service at the University of Southern Maine, among those critics. After watching last year's tax cap proposal roil Maine's political waters, Colgan sees trouble ahead should Mainers increasingly turn to direct democracy to answer the state's biggest tax and economic questions. In a speech at a Maine Center for Economic Policy tax forum last year, Colgan described a potential worst-case scenario: California-style politics with Maine's economy. "If California's chaotic politics gets transplanted to Maine's substantially less productive economy, what would we be? Who would look at us twice?" says Colgan in an interview. "We've got enough handicaps as it is."

The potential link between ballot initiatives and Maine's economic performance has become more apparent in recent years. Increasingly, debate over the most controversial ballot measures ˆ— such as the tax cap, the casino or the bear-baiting ban ˆ— ultimately has turned into arguments about their potential economic impact. This year, petitioners are collecting signatures for at least four measures, including a state government spending cap and a repeal of the law allowing slot machines at harness racing tracks. Though most supporters are eyeing the 2006 ballot, the ongoing debate over the newest round of proposals frames a larger question that some in Maine already are pondering: Are citizens' initiatives democracy at its finest, or the path to political and economic chaos?

The intensity of those opinions ˆ— and the gulf between them ˆ— reflects just how prominent the citizens' initiative process has become in American politics over the past 25 years: Between 1980 and 1991, an average of 54 initiatives appeared on ballots across the country during each election cycle, according to the Initiative and Referendum Institute at the University of Southern California. Between 1991 and 2000, that average had jumped to 73 per election cycle.

At the same time, Maine lawmakers have introduced almost as many bills to tweak the process as there have been initiatives placed on the ballot. Gov. Angus King in 2001 supported proposals to increase the number of signatures required to put a measure on the a ballot and to ban signature collection at polling places, among other new rules. Other recent proposals include a requirement that signature collectors disclose if they are being paid for their work, and a proposal that the Secretary of State's Office create a fiscal impact analysis for all ballot initiatives.

That none of these laws has passed is a testament to how popular the initiative process is in Maine. And even though no one in the state appears to be calling for an outright ban on initiatives, some still wonder whether the process needs reform. This year, the Sportsman's Alliance of Maine, along with Rep. Tom Saviello (D-Wilton), has introduced a measure calling for a task force of citizens, legislators, the secretary of state and others to study Maine's citizen initiative law and present any recommended changes to the Legislature in 2006.

"I think this process is absolutely essential and important to people," says George Smith, executive director of the Sportsman's Alliance, adding that he helped collect signatures for the 1990 citizens' initiative that allowed stores to open for Sunday shopping. "We just want to know if certain parts of it are really working in the best interest if Maine citizens."
Piecemeal policymaking?

Maine's initiative and referendum law dates to 1908, around the time that the progressive movement was establishing the initiative process across the country. At the turn of the last century, progressives saw state legislatures as too controlled by parties and corrupt political machines to reflect the will of the people, and began pushing citizens' initiatives as the means to enact reform.

Starting in the 1970s, initiative and referendum use (initiatives are new laws; referenda are attempts to change existing law or new policies proposed by the Legislature but which must be approved by voters, such as bond packages) began to fall into the pattern seen across the country today ˆ— most often proposing anti-tax policies or tackling explosive social issues such as medical marijuana use, gay rights or, most recently, constitutional amendments defining marriage as a relationship between a man and a woman. (For a list of recent initiatives in Maine, see "At the ballot box," p. 14). "This process wasn't created to take on simple issues," says Wilfong. "The Legislature is happy to take on simple changes to the law. It's when the proposals are very controversial that it's difficult for them."

But to critics of the process, the problem with citizens' initiatives is often the measures they push to deal with those big, controversial issues. By establishing tax caps, or mandating minimum spending levels for schools or transportation, initiatives become less about tackling big issues and more about micro-managing a state's budget process, argues Colgan. And that piecemeal policymaking approach undercuts a legislature's ability ˆ— in theory, anyway ˆ— to analyze specific proposals in the context of the entire budget. "These tax initiatives, which are usually anti-tax, end up tying the hands of policymakers who need to look at the big picture," says John Haskell, a senior fellow with the Government Affairs Institute at Georgetown University in Washington, D.C., and author of Direct Democracy or Representative Government?: Dispelling the Populist Myth (Westview Press, 2000).

As a former state legislator, though, Wilfong says he frequently saw specific proposals fail to get that kind of scrutiny. He recalls amendments arriving at the end of a session and just minutes before he was supposed to vote on a bill, giving him barely enough time to read the new measure, let alone examine its potential impact. "I have a great deal of respect for the Legislature and the people who serve there, but anyone who thinks that the Legislature is the only place where you can have a complete airing of different parts of an issue is being naïve about the process," says Wilfong.

Still, even some initiative backers try to find a balance between direct democracy and the legislative process. The Maine Municipal Association turned to a citizens' initiative in 2003 only after several years of unsuccessful lobbying to get the Legislature to fund the 55% of education costs required by Maine law, says MMA Executive Director Christopher Lockwood. But in writing its proposal mandating that change, the group chose not to proscribe specific changes to the tax code so the Legislature would have complete latitude to meet that goal. "We were criticized for not providing the details," says Lockwood. "But we thought that's really the job of the Legislature. They have the resources to do the analysis and make sure good principles of tax policy are followed."

Good tax policy, the MMA believed, wasn't to be found in the Palesky tax cap, which it opposed last year believing the measure would have hurt the state's and municipalities' ability to provide basic services.

A blunt tool
The argument that initiatives can't handle the nuances of policymaking doesn't bother Mary Adams, a Garland tax activist who spearheaded an effort to repeal the state property tax in 1977. This year, she's collecting signatures for her "Taxpayer Bill of Rights" initiative, which would cap state spending and require any tax increases to be approved by voters. Adams maintains that initiatives aren't designed to replace the Legislature but to supplement and influence it ˆ— and in that role, the bluntness of the tool is an advantage. "It's not a scalpel, it's a two-by-four," says Adams, "and sometimes citizens just need to give guidance in that way to the Legislature and the governor when they feel they've gone astray."

As an example, she credits the threat of the Palesky tax cap and her own potential spending cap initiative with helping prod the Legislature into creating its tax reform package this month. Richard Woodbury (I-Yarmouth), co-chair of the Joint Select Committee on Tax Reform, agrees that the flurry of recent and proposed tax-related citizens' initiatives played a part in the committee's work, but only as portions of a wide-ranging look at different approaches to tax reform. "All of the ideas we got from all of these different sources helped us put together a better package," says Woodbury. "The limitation of [certain initiatives] is that they were only partial solutions to a problem."

Using initiatives to prod legislators is fine with George Smith of the Sportsman's Alliance, but he gets concerned when initiatives seek to overturn policies put in place by what he calls "paid professionals," whom the state hires precisely for their expertise. After watching two rounds of proposed bans on clear-cutting in the 1990s and last year's bear-baiting ban, Smith began to question whether it makes sense for voters to weigh in on scientific or resource management arguments. "I think you and I have more interest in and knowledge about tax policy than we do about bear hunting or forestry," says Smith.

His concern is compounded by another factor often cited by critics of the initiative process: Debates over ballot questions typically rest on soundbites and 30-second TV commercials that don't allow citizens to examine the full implications of a proposal. Even Adams agrees that she typically has to resort to one or two soundbites about her proposal when collecting signatures, for example, asking people if they'd like to be able to vote on future tax increases.

But in defense of the process, she argues that citizens have ample opportunity to consider the implications of a measure once it's approved for the ballot, thanks to the inevitable raft of media reports, debates sponsored by local clubs and chambers of commerce and other public discussions. "I think voters get a heck of a lot more information about initiatives than they do when the Legislature passes some bill," she says. "There's a double standard there."

In the end, initiatives also have a fail-safe feature, say supporters: People can simply vote no on a bad proposal. Nationwide, voters have approved only 41% of ballot initiatives nationwide since 1901.

A statewide conversation
So what's the big deal if a few risky citizens' initiatives make it on the ballot? One concern, says Colgan, is that controversial measures can create economic uncertainty while they're being debated, which in turn may cause companies to hold off on investments in Maine. For example, Nestlé Waters North America, which owns Poland Spring, has said it is postponing plans to build a new bottling plant in Maine until it sees what happens with the proposed water tax.

That reaction is similar to the paper industry's response to the proposed clear-cutting bans in the 90s, says Colgan. Faced with uncertainty about the future price and availability of pulp wood, Colgan and John Williams of the Maine Pulp and Paper Association say that large paper companies held off on making some investments in Maine mills.

Today, though, Jim Wilfong sees a positive outcome from that debate: By raising concerns about forest management practices, the clear-cutting bans, he believes, helped start a discussion that's led the state and the private sector to place more Maine forestland into certified sustainable harvesting plans ˆ— which in turn has become a competitive advantage in the marketplace. "I would never want to limit democracy just so things were more predicable," says Wilfong.

Still, some critics see flaws within Maine's initiative and referendum law that make it fall short of ideal democracy. Christopher Lockwood says the MMA spent time and money fighting the tax cap proposal even though he believes portions of the law would have been struck down as unconstitutional. From that experience, he wonders whether the state should create a mechanism to vet initiatives for constitutionality before they're allowed on the ballot.

That would require a change in the existing initiative and referendum law, says Julie Flynn, deputy secretary of state. "The courts have held that we cannot control the content of the legislation," says Flynn. "Even if something may be unconstitutional we cannot reject it because this process is the people's way to initiate legislation."

George Smith also worries about the influence of out-of-state groups on Maine ballot questions. He charges that national organizations like the Humane Society of the United States largely funded the recent bear-baiting ban initiative, and wonders whether it really reflected the work of Maine citizens. During the election debate, though, Mainers for Fair Bear Hunting pointed out that 46,000 Mainers were members of the Humane Society.

Such questions about constitutionality, financing, signature collection and other aspects of the initiative process are likely to be fodder for the task force the Sportsman's Alliance of Maine would like to convene on the subject ˆ— assuming the Legislature votes to enact that resolve. And since the resolve is still being drafted, it's too soon to tell whether the idea will gain traction in the Legislature. In the meantime, petitioners will continue to canvass the state, striking up conversations about slot machines, state taxes, water resources and other issues that most likely will be argued on the basis of financial gains and losses to the state.

But, ultimately, even Charles Colgan believes debating initiatives on the basis of economic impact isn't the healthiest approach. Last fall, for example, he says he had to rely on a 15-year-old study of hunting in Maine to examine the potential impact of the bear-baiting ban because more up-to-date figures weren't available. "The numbers are rarely there to make really sound analytical arguments," says Colgan. "More importantly, economics is just one part of the debate about these things."

When it comes to his proposed water bill, Jim Wilfong agrees. He's seen how the debate already has focused on one piece of the bill, the water tax proposal, but he hopes to engage Mainers in a larger discussion about the sustainability of Maine's water resources. Despite concerns that some have about the initiative process, Wilfong is confident that's a conversation Maine voters can handle, since the state's small population and tradition of town meetings offer what he calls a built-in defense against the worst-case scenario of California-style politics. "We're used to debating issues and direct forms of democracy, that's why I don't have a problem with this process," says Wilfong. "I don't think people are going to be fooled by it. They may have to think about it and discuss it, but I think that discussion is great, and I'm willing to make the effort."