Down With Initiated Measures, Because All American Policymaking Should Be Subject to Checks and Balances

A week ago, in my Sunday newspaper column (here’s the Dickinson Press version), I questioned the wisdom of legislating at the ballot box through the initiated measure process.

Today a letter writer to the Fargo Forum takes me to task for my argument. “I was disappointed to read Rob Port’s Marsy’s Law column,” Dennis Ell writes. “Talk about sour grapes. Instead of accepting the wishes of the voters on Marsy’s Law, Port advocates stripping the voters of North Dakota of the right to initiate laws and constitutional amendments.”

The problem isn’t really Marsy’s Law, though I think very little of that billionaire’s pet project which was bought into our state constitution. I’ve both supported and opposed ballot measures in the past, based on the merits of the proposed policy. I don’t have “sour grapes” over the outcome of this one particular vote.

I’ve just come to the conclusion that ballot measures are a poor way to make public policy, and I’m afraid Marsy’s Law will soon become a shining example for why that’s true.

There are no checks and balances to initiating measures. It makes our state’s laws, up to and including our state constitution, subject to the whims of fallible voters.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]This is usually where supporters of the initiated measure process get indignant, invoking terms like “the will of the people.” But again, our country’s governance was largely structured in such a way as to tamp down the whims of the electorate.[/mks_pullquote]

America is a country which, historically, does not embrace direct democracy. Our presidents have never been elected by the popular vote, as Donald Trump’s electoral college victory over Hillary Clinton attests, and originally just one chamber of Congress, the House of Representatives, was elected popularly. Senators were appointed by the state governments (and I think our nation would be better served if that were still true).

In legislating no one branch of government can impose its will. The legislative branch, both nationally and here in North Dakota, must build consensus in two chambers to pass legislation, and even then those bills are subject to the veto of the executive branch before they can become law. The courts wield another veto still in the form of judicial review.

These checks and balances ensure that the awesome power of government is distributed and diluted. They mandate a process through which proposed policy is scrutinized and amended and, hopefully, improved in its final form.

But the initiated measure process has none of those checks and balances. Here in North Dakota any deep-pocketed interest can buy their way onto the ballot, and into the hearts of mercurial voters, and make policy at the ballot box.

That’s a problem. Something as important, as foundational to the workings as our society, as making law is deserves a more rigorous process than collecting some signatures and running an advertising campaign.

This is usually where supporters of the initiated measure process get indignant, invoking terms like “the will of the people.” But again, our country’s governance was largely structured in such a way as to tamp down the whims of the electorate.

Direct democracy is a poor way to govern. The initiated measure process is a bad way to make public policy. The only voter-initiated ballot activity I support is referendums. I’m in favor of the people having veto power over the legislative and executive branches as part of a rigorous overall process.

Marsy’s Law, I’m afraid, is going to prove me right on this. Here’s a headline from the Bismarck Tribune this week: Years of litigation will determine meaning of Marsy’s Law, lawyers say

That might have been avoided had Marsy’s Law been subjected to the rigors – the checks and balances – of the legislative process. But it wasn’t, and real people will suffer as a result.