Massachusetts State House.
Boston Bar Journal

Making “Good” Laws Through the Ballot Initiative Process

October 21, 2015
| Fall 2015 Vol. 59 #4

Kim_Tori by Tori T. Kim

Practice Tips

From marijuana legalization to campaign finance reform to a constitutional amendment to impose a “millionaire’s tax,” citizen groups turned to the initiative petition process this year to propose a variety of public policy measures. The process, governed by article 48 of the amendments to the state constitution, allows citizens to place measures directly on the ballot as an alternative to enacting legislation through elected representatives. Twenty-three other states permit similar forms of “direct democracy.” But compared to some systems (notably, the much-criticized California model), the Massachusetts process contains comparatively strict requirements to help ensure public support before a measure reaches the ballot and to make better law.

The initiative petition process is straightforward in theory but complex in its implementation. It begins with a filing with the Attorney General’s Office, usually by the first Wednesday in August of the year preceding a biennial state election. If the petition is “certified” by the Attorney General, the petitioners must then collect thousands of signatures by the first Wednesday in December in order to present the petition to the legislature. The legislature can choose to enact the petition in the same form or take no action by the following May, and, in the latter event, the petitioners must gather more signatures in order to place the petition on the November ballot. Proposed constitutional amendments follow a similar process, except that the measure must receive at least 25 percent support in joint sessions of two successive legislatures before it can appear on the ballot. Thus, a proposed constitutional amendment submitted in 2015 could not appear on the ballot until the 2018 election year.

Article 48 also restricts the types of initiative petitions that may appear on the ballot. Among the most litigated limitations is the requirement that the petition must contain “only subjects . . . which are related or [] mutually dependent.” Art. 48, The Initiative, II, § 3. In Carney v. Attorney General, 447 Mass. 218 (2006), the Supreme Judicial Court construed this phrase narrowly as requiring that a measure reflect an “operational relatedness among its substantive parts that would permit a reasonable voter to affirm or reject the entire petition as a unified statement of public policy.” Id. at 230-31. The Court applied this standard to deny certification of a petition seeking simultaneously to ban the dog racing industry and to increase penalties for the inhumane treatment of dogs. Although the Carney standard did not pose a hurdle for this year’s petition to legalize marijuana for adult users, similar petitions that address one “subject” broadly, but seek to make reforms in many “operationally” unrelated areas of the law, could be susceptible to challenge.

Importantly, article 48 bars petitions that are “inconsistent” with certain rights enumerated in the Declaration of Rights. See art. 48, The Initiative, II, § 2. For instance, the Supreme Judicial Court in Bowe v. Secretary of the Commonwealth, 320 Mass. 230 (1946), denied certification of a petition proposing to eliminate all forms of political spending by labor unions as “inconsistent” with unions’ free speech and assembly rights. Id. at 252. However, the list of rights in article 48 is limited, reflecting a compromise among the members of the constitutional convention to prospectively allow voters to “override” decisions of the state’s highest court only in certain areas. The members specifically had in mind Lochner-era cases declaring social welfare legislation invalid as violating “due process” as a type that could be addressed by an initiative petition, but they identified other “concrete” and “definite” rights enumerated in the Declaration of Rights that would not be subject to the initiative petition process. This compromise impacts advocates of all political persuasions, as is evident from this year’s petition to roll back corporate political spending in a manner similar to that in the Bowe petition banning labor union spending.

In addition, article 48 bars initiative petitions that make a “specific appropriation of money from the treasury of the commonwealth.” While this limitation preserves the legislature’s exclusive authority to make appropriations, it does not prohibit a petition from specifying how funds may be spent once they are so appropriated. For instance, this year’s petition imposing an additional 4% tax on incomes over $1 million states that the revenues collected under this provision shall be spent for the purposes of enhancing public education and transportation, but specifies that such spending is “subject to appropriation.” While this could mean that the legislature may decline to appropriate the collected revenues for the stated purposes, the fact that the “millionaire’s tax” is proposed as a constitutional amendment—which requires at least 25 percent support of the legislature—could reduce the chance of such a result. So too may the legislature’s separate duty under article 48 to “appropriate such money as may be necessary to carry such law [if passed] into effect.” Art. 48, The Initiative, II, § 2; see also Bates v. Director of the Office of Campaign and Political Finance, 436 Mass. 144, 154-61 (2002).

Whatever one’s views on the effectiveness of the initiative petition process as a means of making public policy, everyone should agree that any measure that is destined to become law should be well-drafted. A few suggested guidelines in this regard include the following:
• Research the law to ensure consistency with existing provisions. Some changes proposed by a petition could be achieved through existing law or a more modest modification of such law.

• Consider the impact of the petition on other areas of the law. For instance, a change in the definition of a term could affect every provision of the General Laws where that term is used.

• Keep the legislative language succinct. An often-cited rule of thumb is to draft a summary of the petition as it would appear on the ballot, and then craft legislative language to match the summary.

• Consider issues that may subject the law to constitutional or other challenges if the petition were enacted, even if such issues would not bar certification. For instance, laws that have retroactive effect could raise due process issues.

These suggestions could help reduce duplication and confusion in the law, while also keeping issues succinct and clear for the voters. Overall, they further the goal of making “good” workable laws, in accordance with the overriding purpose of article 48.

Tori T. Kim is Deputy General Counsel in the Executive Office for Administration and Finance. Previously, as Assistant Attorney General, she co-directed the review of initiative petitions at the Attorney General’s Office.