Special Session for Constitutional Amendment D (Initiatives and Referenda)
This post is kind of a follow-up to a blog post on this site that I wrote in March of 2020 in response to a constituent’s email about initiatives. I’ve been contemplating this initiative issue for a long time, so when the Special Session was called, I knew how I would likely vote.
Initiatives and referenda are very important. As a citizen myself, I support them wholeheartedly. What I do not support is outside special interest groups using the initiative process to make laws. It’s much simpler for a corporation or a special interest group to spend millions of dollars on a glitzy media campaign than to convince 104 legislators and the governor to pass the bill they want.
The bill we are about to debate on the floor will preserve the system we have had for 130 years. The people will vote for or against an initiative. If it passes, the legislature will draft the resulting bill, as we have always done. This bill requires us to be especially vigilant about preserving the initiative’s intent. It also prevents the legislature from amending the initiative during the first General Session after it passes.
Regarding referenda, which are essentially a citizen’s veto, it allows proponents 50% more time to gather signatures, and it delays enactment of the legislation in question if it appears that the referenda is likely to pass. (That is, if they have 50% of the signatures required at the half-way point of the collection period.)
We will have a stronger initiative system and a better referenda process.
Here is a very lengthy explanation of why I am supporting these bills and encouraging others to vote for Amendment D in the General Election in November:
Amendment D will be on the ballot in November and I urge everyone in Utah to vote for it.
Let me add some comments and posts from social media that I’ve written in the past few days about this:
Regarding someone’s post on FB that Utah’s redistricting maps were drawn up in Floirida: “Some UT legislators did work on our maps while attending a conference in FL, yes, but no one outside of UT or outside of the legislature was involved. Florida happened to be the location for the National Conference of State Legislators that year. It could have been in any state. Almost all of the map work was done in Utah while meeting w/democrats and republicans. [Please note that the initiative concerning redistricting created an "advisory" commission, not a redistricting commission. The wording on the actual ballot initiative said the legislature could accept, amend, or reject the maps designed by the advisory commission. Meanwhile, the Utah Constitution states that the legislature has the exclusive duty of redistricting. A constitutional amendment would be necessary to change that, not a citizens' initiative, which passed, let's remember, with 50.3% approval. Some of the individuals who sat on the commission said it was a very flawed process, which makes sense, because how could 7 appointed individuals be better suited to represent voters from throughout the state than 104 duly elected individuals who truly live in every part of the state and know the people, issues, etc. in their regions? BUT I DIGRESS, because the amendment is about future initiatives - not past initiatives - and it actually concedes legislative power to the extent that it requires the leg to give deference to the initiative's intent and take a hands-off approach for at least one full general session. (That is more of a concession than any bill we run in the legislature ever gets.) Why would the legislature care so much about this? Because, believe it or not (and I know many do not) there are special interest groups who want to change UT for the worse, and at least 12 organizations have become interested in running initiatives in UT since the Supreme Court created a broader path for initiatives last month. They see our initiative process as a way to bypass the legislative process, not only to get bills enacted (which can already be done) but also to create super laws that can never be amended or repealed b/c a slim majority of the people of 2028 or 2032 or whatever voted for it. The amendment will also remove foreign money from the intiative process. Putting the amendment on the ballot (which is what we did on Wednesday), the people will decide, and it could go either way, but we are vulnerable right now as a state to whichever outside special interest groups have the most appealing advertising campaign with the biggest budget.
More info I posted as a FB comment about the proposed amendment: Every law changes government function to some extent, because every bill or initiative changes existing law and existing govt agencies. Do we want a situation where the legislature is compelled to wait for a judicial decision for every change necessitated by an initiative? How does that comport with separate but equal / separation of powers? The judiciary is already able to weigh in on legislation as lawsuits are filed, and they do weigh in. It works. On your 2nd point -- the proposed amendment stipulates that the legislature must give deference to the intent of the initiative and must not amend it for at least one General Session. Both of those are acknowledgments/concessions, not power grabs. (Not clear on what you mean by point 3 above.) Point 4 -- initiatives are won and lost by majority rule, and that cuts unpredictably both ways. Initiatives that are well marketed and sufficiently funded may prevail despite serious concerns and harmful effects. If the initiative is then deemed to change govt (and that argument could be made about any bill/initiative) then it will be litigated. We have litigation right now before the Utah Supreme Court that has been waiting for a decision for 2+ years. (Lives literally hang in the balance in this case, but still no hurry.) Last point -- Utah is a thought leader nationally when it comes to legislation. I don't know of any bill from ALEC or any other organization that has passed through the legislature w/o being modified. States are the laboratories of democracy, and sometimes we do get ideas from other states and we share our ideas w/other states, but they are just ideas - not fully formed bills or initiatives. Ken Ivory's bill banning female genital mutilization, for example. He presented it in a national conference, and 41 states have now banned this abhorrent practice. But you raise an interesting point w/ the ALEC question, because initiatives, which may appear to be a local grassroots effort, often originate from (and are funded by) out of state entities hoping to bypass the legislative process, including the governor's signature or veto. Finally, this may shock people, but I don't think anyone in the legislature worries about power -- I really, really don't. That would be at the bottom of my list of worries. A while ago I realized that the legislature is what stands between the people of Utah and federal overreach. Now I would add that the legislature stands between the people of Utah and deceptive organizations who see the initiative process as a way to permanently affect the state, and not necessarily for the better. In 2000, for example, an initiative passed in UT that (according to Ballotpedia) "was largely funded by out-of-state donors, including the liberal billionaires George Soros (New York), Peter Lewis (Indiana), and John Sperling (Arizona). Together, they outspent opponents of the measure by $560,000.00 to $15,000." [Another thing - who has the money required to oppose a malevolent initiative?] Utah voters are smart, and they want what's best for Utah, but many of us are susceptible to well funded, well executed marketing campaigns of all kinds. I used an example in another comment somewhere on FB that in ND right now they have an initiative on the ballot that would remove all property taxes. Everyone hates property taxes! Myself included. But it's difficult to imagine what the passage of such a measure would do to local governments and school districts if a similar initiative were to pass here. It's also easy to imagine that, given inflationary pressures on families and the universal hatred of property taxes, it could. I've observed that the Utah legislature is very good at two things: looking down the road and around the corners and stress-testing every bill for unintended consequences. Sometimes that's annoying, especially when they stress-test bills I am trying to pass, but our state is better for the legislative process. Referenda (citizens' vetos) are excellent. No one is quibbling on that. In fact, the amendment makes them stronger (another power concession, instead of a power grab.) Initiatives can be very good or very bad or somewhere in between, but like any legislation, they also may need minor revisions. [One last example: when the legislature went to appropriate money for Medicaid expansion to able-bodied adults after the 2018 initiative passed, we discovered that the organization that drafted it had baked in annual automatic increases for medical providers -- increases that would have blown our state budget! We removed it.]
I SUPPORT AMENDMENT D BECAUSE:
- I DO NOT WANT WELL FUNDED OUTSIDE INTEREST GROUPS TO DECIDE UTAH’S FUTURE.
o I don’t want outside billionaires pushing laws in our state that don’t reflect Utah values.
o Activist groups have poured hundreds of millions of dollars into initiatives across the country. They want to change the laws of each state without going through the state’s more rigorous legislative process.
o Ballot initiatives in 11 states attracted more than $1.1B in spending in one year. Whether an initiative succeeds or fails sometimes comes down to which side spent more money to get their message out through expensive advertising and direct mail campaigns.
o Self-interested activist groups with deep pockets are using initiatives to create “super laws” on such hotly contested issues as abortion, tax increases, and recreational marijuana.
o Examples for 2024 include
§ Florida - Legalize recreational marijuana - $40 Million from CEO of Trulieve cannabis company
§ Florida - Abortion - $42 Million from group that includes out of state abortion activists
§ Arizona - Abortion - $17 Million from group that includes ACLU,Planned Parenthood, and Bill Gates’ daughter
§ Colorado - Abortion - $4.7 Million from group that includes out of state abortion activists
o Examples in 2023 include:
§ Ohio - Abortion - $124 Million from group that includes “1630 Fund,” which receives millions from foreign activists
§ Ohio - Legalize recreational marijuana - $5 Million from group whose largest donor is a national marijuana advocacy group
§ Nevada - Ranked Choice Voting - $23 Million from group primarily funded by out of state groups and individuals
o Examples in 2022 include:
§ California - Sports Betting - More than $407 million was spent by interest groups for and against Prop 27 in a failed effort to legalize online and mobile sports betting
§ Michigan - Abortion - $48 Million - from group that includes “1630 Fund,” which receives millions from foreign activists
§ Massachusetts - Raise taxes - $31 Million from group that includes National Teachers Union and “1630 Fund,” which receives millions from foreign activists
o An example from 2011:
§ Washington – Liquor privatization – Costco spent $22 million to support ballot initiative I-1183 to sell liquor in their warehouse stores
- I WANT TO KEEP FOREIGN MONEY OUT OF UTAH’S INITIATIVE PROCESS.
o Foreign dark money donations are bankrolling initiatives across the country through “undisclosed political spending.”
o Even small states like Maine have seen tens of millions in foreign money pour in to fund initiatives over the past two years.
- I DON’T WANT UTAH TO HAVE THE SAME PROBLEMS THEY CURRENTLY HAVE IN CALIFORNIA.
o Many Utahns enjoy vacationing in California, which has wonderful weather and scenic beauty, but as a state, California has been severely damaged by overuse of the initiative process for several decades. Examples include:
§ Prop 47 in 2014 changed looting from a felony to a misdemeanor, and we have all witnessed the results.
§ “Ballot box budgeting” has contributed to huge budget deficits, including California’s current deficit of $68 billion. (By contrast, Utah does not have a budget deficit. We balance our budget every year with surpluses and tax cuts year after year.)
§ Prop 64 in 2016 legalized recreational marijuana for people 21 and older. (Recreational marijuana had not passed in California despite its supermajority Democrat legislature, so proponents of full legalization ran an initiative.)
§ Prop 30 in 2022 sought to raise taxes to pay for electric vehicle infrastructure. It was funded with $47 Million from Lyft.
- WHY SHOULD VOTERS BE CAUTIOUS WHEN VOTING FOR INITIATIVES?
o Some initiative proponents use deceptive practices and deep pockets to improve their chances for victory. Groups and individuals who oppose the initiative must match them in messaging, usually without similar resources to run advertising campaigns, etc.
o Many initiatives pass by very slim margins, yet permanently alter the law state-wide. The three initiatives passed in Utah in 2018, for example, won with 52.7% (medical marijuana), 53.3% (expanding Medicaid to able-bodied adults), and 50.3% (establishing a Redistricting Commission.) A citizens’ initiative bypasses the legislature altogether and only requires a majority of votes.
o Initiatives often involve “wedge issues” that divide the electorate, creating a contentious environment.
o Political parties sometimes use ballot initiatives to “get out the vote.” They can be used as tools to motivate voters to show up at the polls.
o A citizens’ initiative bypasses the legislature’s vetting process altogether and only requires a majority of votes.
- I WANT TO KEEP UTAH THE BEST-MANAGED STATE IN THE NATION.
o Utah is consistently ranked at the top of every list for good governance in almost every metric, including:
§ U.S. News & World Report ranked Utah as the best state in the nation for two years in a row.
§ Utah was ranked #2 out of 50 states for education by U.S. News and World Report.
§ ConsumerAffairs ranked Utah as the best state to live in in 2024, citing our low cost of living, booming economy, and exceptional quality of life.
§ The Wall Street Journal found Salt Lake City had the country’s hottest job market last year.
§ Rich States, Poor States has ranked Utah #1 out of 50 states for economic outlook for 18 years in a row. They found that Utah’s superlative performance is the result of sound legislative policies.
§ WalletHub ranked Utah #2 out of 50 states for best overall economy and #1 best state to start a business.
§ Archbridge Institute found that Utah had the best environment for upward mobility in 2023.
§ While other states were laying off teachers during the pandemic, Utah teachers were receiving unprecedented bonuses – another example that Utah is well managed.
FAQ
WHY DOES THE LEGISLATURE KEEP CHANGING INTITIATIVES THAT THE PEOPLE OF UTAH VOTED FOR?
- The wording of initiatives on the ballot are, of necessity, very brief. Voters express their will by voting for or against what is essentially a concept in light of its fiscal note, which is also on the ballot. This estimates how much enacting the legislation will cost.
- In General Session after the initiative passes, the legislature drafts a bill that will be included in the Utah Code. They also appropriate funds to pay for it.
- Sometimes people expect an initiative to do more or less than the wording on the ballot implied it would do. Some examples:
o Some who voted for medical marijuana (Prop 2 in 2018) wanted it to include recreational marijuana and ‘grow your own’ provisions as well, but the resulting bill did not.
o Some who voted to create an independent redistricting commission (Prop 4 in 2018) hoped that the legislature would be required to accept the commission’s recommendations, but the wording of the initiative on the ballot said the legislature could ‘enact or reject’ the Commission’s maps. The Utah Constitution grants exclusive redistricting authority to the legislature.
o Some healthcare providers who funded the initiative to expand Medicaid to able-bodied adults (Prop 3 in 2018) wanted it to include automatic increases for healthcare providers, but the resulting bill did not. Legislators determined that such a provision would exponentially increase the cost of that legislation over time, threatening the state’s financial security.
- Despite these sometimes unmet expectations, the initiative process worked for those who voted for these propositions. The majority of people voted for medical marijuana, expanded Medicaid, and the establishment of a redistricting commission. All three were enacted because of the initiative process, and it is extremely unlikely that they would have been enacted without it.
- In this way, citizens’ initiatives are much like traditional legislative bills. The bills we end up passing in the legislature are rarely the bills we envisioned at the beginning of the process. They go through a thorough refining process between the initial draft and the governor’s signature, if they make it all the way through the process at all – and many do not.
AS A RESIDENT OF UTAH, I WANT MY VOICE TO BE HEARD. HOW CAN I ENSURE THAT MY VOICE WILL BE HEARD?
- With Amendment D, the legislature is asking the people of Utah to decide the nature of future initiatives and referenda.
- If voters approve the proposed amendment, the constitutional and statutory changes will:
o Prohibit foreign entities from contributing to ballot initiatives or referenda.
o Restore and strengthen the long-standing practice that voters, the legislature, and local entities (all three) may amend or repeal legislation.
o Allow 20 additional days for citizens to collect signatures for a referendum, extending it from 40 to 60 days and delaying enactment of the legislation in question if at least half of signatures are collected by the half-way point, 30 days into the process.
WHAT EMERGENCY HAS NECESSITATED THE SPECIAL SESSION AND THE PROPOSED CONSTITUTIONAL AMENDMENT?
- The Utah Supreme Court’s recent ruling on redistricting has piqued the interest of outside and foreign interest groups, who see the court’s reinterpretation of initiative legislation as an opportunity to change Utah law – fundamentally and permanently – without going through the rigorous legislative process.
- Until we clarify the intent of the initiative process through Amendment D, our state is vulnerable to special interest groups who see this new interpretation as an opportunity to enact the legislation they want.
- Laws created by initiatives will be “super laws” under this new interpretation – laws which cannot be changed. They will achieve this status without having been stress-tested by the vigorous legislative process.
DOES AMENDMENT D GIVE MORE POWER TO THE LEGISLATURE?
- Amendment D will not change the initiative process that has served us well for more than 100 years.
- Utahns will continue to have the ability to propose and run ballot initiatives as they see fit, but foreign interests will be excluded.
- Utahns who want to exercise a “citizens’ veto” through the referendum process will have much more time to collect signatures, not less.
- If a referendum effort has acquired at least half of the needed signatures by the half-way point in the signature gathering period, enactment of the legislation in question will be delayed pending the referendum’s outcome. If anything, this strengthens the prospects for citizens’ referenda and weakens the legislature.
WHY SHOULD WE KEEP THE INITIATIVE AND LEGISLATIVE PROCESS WE’VE ALWAYS HAD?
- Exercising lawmaking power through the legislative process, as the state has always done, offers the opportunity to refine and adjust laws in ways that would be impossible under the new ruling, including:
o encouraging more thorough debate of policy that impacts the whole state. Ballot initiatives are brief and only give voters an overview of the proposed law without many critically important details;
o facilitating the ability to quickly respond to changing economic, financial, and security issues within the state and address unintended consequences as they arise;
o allowing citizens and stakeholders to participate in the policy making process with public meetings and discussions with their representatives, rather than being locked into a simple yes or no vote.
o more checks and balances and more accountability in the traditional legislative process. Every bill passed by the legislature has to survive at least five critical votes (two committee votes, one vote in the House, one or more votes in the Senate, and the governor’s signature.) Legislators who pass a bad law have names and faces and will have to answer for their decisions in the next election cycle, but no one can be held accountable for a bad idea that was enacted by initiative.