The Idaho Legislature makes a power grab

The Idaho Legislature will soon pass legislation, Senate Bill 1159, that will make it virtually impossible to get an initiative or referendum on the general election ballot. Existing law is already a substantial impediment to the people’s right to pass or repeal legislation.

Since 2013, proponents of an initiative or referendum have had to circulate and file petitions, signed by a number of legal voters exceeding 6% of the qualified voters in the state during the last general election, in order get get their measure on the ballot. And, at least 6% of the signatures had to come from each of 18 of Idaho’s 35 legislative districts. Proponents had 18 months to gather the signatures.

Senate Bill 1159 requires the signatures of at least 10% of the legal voters from each of 32 of the 35 legislative districts and at least 10% of the number of  voters in the state. Proponents will have only 180 days to complete their work. It will require a herculean signature-gathering effort to get a measure placed on an election ballot. The legislation will essentially nullify the initiative/referendum process.

Like many other concerned Idahoans, I testified before the House State Affairs Committee on March 26 in opposition to the bill. The legislation was voted out of Committee, will likely be approved by the House, and will very soon be sent to Governor Little for signature.

The statement I submitted to the Committee follows:

Article I, section 2 of the Idaho Constitution declares: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary.” In 1890, the people approved the Idaho Constitution, which delegated a portion of their power–the legislative power–to the Legislature.

However, 22 years later the people decided to take back some of the delegated legislative power out of concern that legislators might ignore or violate their wishes. A populist movement was sweeping the country, largely fueled by farmers who were being oppressed by railroads, oil monopolies, and other powerful special interests. The oppressors were being aided by legislatures that they essentially controlled.

In order to get around unresponsive legislatures beholden to the special interests, the people adopted two constitutional amendments in 1912. The initiative, which insured the right of the people to enact laws, was approved by 71.92%, and the referendum, which could affirm or repeal laws, got a 76.39% vote.

Senate Bill 1159 would largely nullify the legislative power the people reserved for their protection in 1912. The legislation would make it virtually impossible to qualify an initiative or referendum for the ballot and that appears to be the objective of the bill. Its oppressive signature requirements would likely have prevented the Medicaid expansion initiative, and most of the previous initiatives and referenda, from coming to a public vote.

It is not as if the people of Idaho have misused the initiative/referendum process. Although the process was put into the Constitution in 1912, the referendum did not come into play until 1936, when the voters killed a 2% sales tax bill passed by the Legislature. The initiative was not used until 1938, when the voters established the Idaho Fish and Game Commission by a vote of 75.98%. It has been sparingly used since then. But, even if it had been abused by the voters, it is their constitutional power. This effort to kneecap that power is likely violative of the Constitution.

When the Legislature failed to limit dredge mining in riverbeds and require restoration of dredged areas, the people approved an initiative in 1954 to get the job done. It passed by a whopping 85.28%. It is doubtful that many nowadays would regard the people’s decision to have been misguided.

There are a couple of instances where the Legislature was directly impacted by people-powered legislation. The people hit the Legislature in the pocketbook in 1970 by vetoing a pay raise the legislators had given themselves. That may have given legislators a jaundiced view of the initiative process. They couldn’t have been pleased, either, when the people enacted the Sunshine Law initiative in 1974 by a 77.56% vote. The Legislature had refused for years to require financial reporting by candidates and lobbyists.

Members of the majority party in the Legislature have sometimes used the initiative/referendum process to their advantage. Right-to-Work legislation is an example. A Right-to-Work initiative was defeated by a narrow margin in 1958. The Legislature passed a Right-to-Work bill in 1986, but Governor John Evans vetoed it. However, the voters approved a referendum that year to overcome the veto and write the Right-to-Work law into the Idaho Code.

Idaho might not have a state-run lottery and tribal gaming but for the initiative process. After the failure of efforts to get two-thirds of each house of the Legislature to agree to put a constitutional amendment for a lottery on the November ballot, Jim Risch, then a State Senator, decided to run a lottery initiative. As Attorney General, I cautioned that it could not be done by an initiative but he proceeded. The initiative passed in 1986 by a 60% vote, but was found by our Supreme Court to violate the constitutional prohibition against gambling. The size of the vote on the initiative caused some legislators to change their position on pursuing a constitutional amendment and, as a result, the voters approved the lottery amendment in 1988.

The initiative has been used when there is legislative paralysis on tax issues. The voters approved an initiative in 1978, limiting property tax increases to 1% of property value. In 1982, the people approved a residential property tax exemption of 50% or $50,000.

Some legislators are still irritated about the initiative expanding Medicaid that passed with a 60.6% vote last year. However, the people had waited for years for their duly-elected representatives to act and had gotten no response. And, I suspect there are legislators with lingering heartburn over the fate of the Luna Laws in 2012. The people used the referendum to handily defeat three education bills passed by the Legislature.

I can also appreciate that the Legislature wants to be the only policy-making body in town. During my tenure as Attorney General, I noticed that the Legislature was very stingy in granting policy-making authority to city and county governments, particularly local option taxing authority. And, the special interests prefer that governmental authority be concentrated in the hands of legislators. It is easier to lobby one entity, rather than having to travel the state to lobby local governments. And, how can you effectively lobby citizens who will be proposing or voting upon an initiative or referendum?

Placing unreasonable restrictions on the initiative/referendum process should be looked upon with skepticism. If the effect is to make the process unworkable, it amounts to an unconstitutional power grab. After all, the Idaho Constitution clearly specifies that the people have the unfettered right to “alter, reform or abolish” the government “whenever they may deem it necessary.” How can the people possibly exercise that awesome power if the Legislature cuts off practically every reasonable means of doing so? The courts may well decide that Senate Bill 1159 is an unconstitutional restriction on the people’s legislative power.

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5 thoughts on “The Idaho Legislature makes a power grab”

  1. When I see who all sponsored this bill, there is an implicit power grab with the Governor’s Office as well. Will he veto it given all the ‘majority leadership’ that participated in its sponsorship? Medicaid expansion moves forward with all the ‘sideboards’ & funding….and we’ll kill the future initiative process…..

    1. The Governor has been getting lots of pressure from both sides and it is not clear what he is going to do. A couple of initiatives have been filed to undo the damage caused by SB 1159, if he approves it. If an initiative qualifies for the 2020 ballot, it could be a defining moment for people power in Idaho. Those who voted to restrict that power could find themselves in hot water. The legislation will also be challenged in court on constitutional grounds. I will be supporting both efforts.

  2. I fear that reasonable Republicans, such as yourself, are a dying breed. ☹️

    I hope you’ve forwarded this to our new governor so he can think about a veto.

    1. The Legislature has a tendency to make public policy based upon fairly isolated events. The legislative majority got angry because the pesky voters had the audacity to take the law into their own hands last year and pass a law to make medical care available to working or disabled people who couldn’t afford it. So, they decided to teach those presumptuous voters a lesson and proceeded with legislation to make it virtually impossible to do it again. They don’t understand that this is not a partisan issue. The initiative and referendum have been an important safety valve in establishing public policy and have been used by both parties and varied interests when recalcitrant Legislatures will not honor the public will.

      I don’t know that they will get away with so severely restricting the constitutional legislative power of the people. I have made my views known to the Governor’s office but he is under pressure from his people in the Legislature. I think there is some fear that a veto could be overridden, although it would depend on how the Senate might vote. If the bill becomes law, we will not have seen the end of the fight.

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