State House News Service
Sunday, November 19, 2000

Legislature faces decisions on if,
how to implement ballot questions

By Elisabeth J. Beardsley

How sacrosanct is the "will of the voters" as conveyed by a ballot question? Well, it depends.

Proposition 2 has stood for 20 years now, despite perennial protests from local officials opposed to the voter-passed law that limits property tax increases. On the other extreme, Question 5 of 1990 -- dedicating 40 percent of new state revenue growth to local aid -- has been utterly ignored. Somewhere in the middle are referenda like the 1996 trapping ban and the 1998 "clean elections" law -- voter-approved laws that lawmakers tinkered with following their passage.

This year, the citizens voted themselves an income tax cut, a charitable giving tax cut, a ban on certain prisoner voting, and the use of updated data for redistricting. They rejected universal health care, tax cuts for tolls and auto excise, and drug treatment over incarceration. Hanging in the uncertain balance of a Boston ballot recount is Question 3, a dog-racing ban that appears headed for defeat.

Since most ballot questions are statutes like any passed by the Legislature, they can be altered or repealed just as any other law, said Common Cause/Massachusetts Executive Director Ken White. But lawmakers must tread carefully when tinkering with the popular will of the citizens, and must present "compelling" reasons for doing so, he said.

"Legally, they can mess with whatever they want," White said. "The burden of responsibility is for that lawmaker to demonstrate to their constituents what important principle are they standing for? What is the driving and compelling reason for changing it, as opposed to saying, 'The default option is it's our right to change it.'"

This year's crop of citizen laws appears to be a balanced and consistent articulation of conservative fiscal philosophy, White said. The absence of radical or contradictory laws, or a critical mass of either spending or tax cutting, means lawmakers will be less inclined to intervene, he said. "We didn't see the voters all over the map," White said. "Unless there's some unbelievably, overwhelmingly compelling reason, lawmakers need to give things passed by ballot question a chance to prove themselves."

The local aid law of 1990 never got that chance. Massachusetts Municipal Association Executive Director Geoffrey Beckwith said supporters knew all along there was nothing they could do if the Legislature ignored it. Initiative petitions can force lawmakers to cut taxes or even increase them, but they cannot tell the Legislature how to spend money, said Beckwith, who left the Legislature in 1990. But the local aid question sent a message to lawmakers that cities and towns wanted more state investment, he said.

"The point there is to gauge a high level of public sentiment and to build momentum to push the policy forward down the goal line," said Beckwith, noting that local aid has increased considerably since 1990. "Even if the passage is not necessarily going to guarantee a touchdown, you get closer to the goal line."

In general, Beckwith said citizens are more likely to accept legislative alteration of complex referenda than of simple ones. "The more complex the issue, the more the public is likely to be willing to say, 'Of course you need to refine this,'" he said. "A question needs to be able to work to implement it."

But such is not the case with this year's income tax cut, said House Speaker Thomas Finneran. While lawmakers are on solid ground in altering referenda that are "loaded with nuance and complexity and actually conflict," like the "clean elections" law and this year's universal health care question, the income tax cut is "very simple," he said. "The voters have spoken. We'll abide by it," Finneran said.

The House budget chief, Rep. Paul Haley (D-Weymouth) also took a hands-off approach to the income tax cut. Voters "struck a balance" by approving the income tax cut but rejecting further tax cuts for auto excise and tolls, as well as avoiding major new spending proposals such as universal health care, he said.

Haley said the tax cut can be absorbed if the economy remains strong, but added that tight fiscal management has to begin with the administration. When Gov. Cellucci sends his budget proposal to the House in January, Haley said he doesn't want to see any major new spending proposals that could become unsustainable as the income tax cut takes bites out of state revenues over the next three years.

When Haley sits down to write the House budget, he said he would avoid initiatives that start as pilots, then phase into full-blown programs. Lawmakers will have to "resist" things like further health care expansions, further senior pharmacy expansions, or reductions in waiting lists for services, he said. "I, for one, intend to honor what the voters have done," Haley said. "We will need to find a way to manage it. What I'll be doing is avoiding embracing programmatic expansions that ratchet up over several years."

Even the Senate, which refused to go along with a more cautious House plan to cut the income tax cut, appears prepared to implement the ballot question. Senate President Thomas Birmingham's spokesman Alison Franklin said, "The voters' will will be done."

The 20-point margin of victory for the income tax cut was so decisive that lawmakers who are tempted to fiddle with it risk political suicide, said Republican State Committee spokesman Bobby Matthews. Despite vigorous debate-centered opposition from top Democratic leaders, Matthews noted that the primary field opposition came from the teachers unions, not elected officials.

"Really, you didn't see a whole lot of Democratic elected officials throw their field organization at something like this because they knew fully well that the public was overwhelmingly supportive," Matthews said. "I think a lot of elected officials didn't want to get overly involved for the risk to their own political lives."

Of the four questions that passed this year, the only one lawmakers might feel compelled to wade into is the greyhound racing ban - if its initial defeat is overturned in an ongoing Boston recount. If the ban were to take effect, the two tracks' host cities -- Revere, Raynham and Taunton -- would lose significant amounts of tax money as well as jobs. Those communities could make legitimate appeals to the governor and Legislature for financial relief, Beckwith said. But even if they were only discussing dollars and not overturning the ban itself, any attempts to delve into the emotional issue could become sticky, he said.

"It's a vulnerable role for officials either at the local level or the state level," Beckwith said. "It becomes even more highly charged in political terms because you're either for or against the people's will and, of course, the people's will is a little more difficult to discern. Are people voting against gambling or the using of greyhounds in racing?"

While lawmakers may not feel the urge to tinker with the substance of the questions, some political observers say there could be legislative action around the conduct of ballot campaigns. Democratic consultant Michael Goldman said that despite the defeat of the universal health care question, he expects continued outrage at the HMOs for using millions of dollars of subscriber money to fight it off.

"I do think the one reform that has to happen is the Legislature has to pass a bill that does not allow special interests like the HMOs to use subscriber money," Goldman said. "It is an abuse of what the responsibilities are of these utilities and these large organizations."

But lawmakers may be given pause by the outcome of the drug treatment question, where it was proven that money isn't necessarily everything in a campaign. Despite millions of dollars from wealthy out-of-state philanthropists, the question was soundly defeated after district attorneys and police chiefs whipped out the shoe leather and took their opposition into the local streets.

"We had zero dollars and we knew we were facing a big dollar opposition," said Massachusetts Chiefs of Police Executive Director George DiBlasi. "Our action plan was to deal with it locally. It worked and we're just grateful that it did."

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