One hundred and 10 years ago, Maine citizens granted themselves the power to make new laws without involving the Legislature.

Since then, Mainers — many with no political expertise or lawmaking experience — have placed more than 60 major pieces of legislation on the public agenda through the Maine Constitution’s initiative process.

Voters approved 29 of those bills, and six were pre-emptively enacted by the Legislature. The remainder were rejected at the polls.

At its best, the citizen initiative process epitomizes “power to the people” — a collection of friends and neighbors united by the same vision, bringing an important policy question directly to their fellow Mainers for an up-or-down vote.

It is pure direct democracy, unmediated by elected officials.

This process has its critics. Recently, one disgruntled legislative leader claimed that Maine’s initiative process is “out of control” and should be curtailed. Some want to reduce the number of issues put to voters, others want to entrust policymaking exclusively to our elected representatives.

Despite its imperfections, the citizen initiative process continues to serve as democracy in action, delivering public policy that a majority of the people want.

Lawmaking by public referendum is arguably more rigorous than the conventional legislative process, since the sheer effort required to wage a citizen initiative weeds out all but the most serious and persistent issues. To bring an initiative forward, advocates must research and analyze an issue, build support among individuals and organizations and draft the statutory language. The proposal is then vetted by officials in several state offices who identify issues or concerns in much the same way as in the conventional legislative process.

The bill then becomes public, and signature gathering begins, triggering open discussion of the merits. This can entail hundreds of thousands of conversations between advocates and voters — a process without parallel in the enactment of laws by the Legislature. This public discussion may continue for up to 18 months, or until more than 61,123 Mainers are convinced to sign the petition.

If enough signatures are certified, the Legislature must then consider the bill.

Any bill not approved outright by the Legislature is placed on the ballot. The ensuing electoral campaign entails a robust, sometimes heated, lengthy, and transparent public discussion, as advocates work to explain the bill and persuade voters.

The citizen initiative process is hardly perfect. As with other avenues of policymaking, ballot questions raise concerns over the role of big money. Some concerned legislators are seeking alternative ways to fund citizen initiatives to keep the process focused on the will of the voters rather than deep-pocketed special interests.

The ordinary “sausage-making” seen in Augusta is not perfect, either. My years as a lawmaker gave me great respect for legislators, staff and advocates. But in recent years, partisan paralysis has hampered the process. And bills that have survived the legislative gauntlet with a strong consensus have sometimes been struck down by vetoes that seem arbitrary.

Even when legislators work collaboratively, lawmaking can be messy, confused and downright irrational. It is not unusual for legislators to vote against their own bills; lobbyists work the back rooms to undermine legislative intent, and, in one recent case, the inadvertent omission of a single word from a law caused numerous problems and great expense.

There are other weaknesses in the legislative process. Overworked legislators can’t hope to read every bill and amendment, and they routinely follow each other’s light — that is, the vote of legislative allies as displayed in the chamber. Not an ideal lawmaking process.

Finally, any process must have some limits reflecting our core values as a society. No law — regardless whether it receives majority support — should be enacted that deprives anyone of their constitutional rights. This applies equally to ballot questions and legislative enactments.

Perhaps some of the resistance to the citizen initiative process can be explained by what it requires of us as citizens. Each ballot question asks us to learn about an issue and take a position. It’s a responsibility that takes effort.

But it also serves as a necessary reminder that “we, the people” are sovereign — we must determine our own fate, and we can’t always defer to the powers that be, even those we elect.

Is the initiative process “out of control”? Maybe it’s just beyond the control of the Augusta establishment.

For many citizens, that’s the way they like it.

John Brautigam of Falmouth served as a Democratic state representative from 2004 to 2008 and has been legal counsel to the organizers of several citizen initiatives.

Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

filed under: