{"id":598,"date":"2018-03-13T13:47:31","date_gmt":"2018-03-13T17:47:31","guid":{"rendered":"https:\/\/sites.bu.edu\/dome\/?p=598"},"modified":"2018-03-13T13:47:31","modified_gmt":"2018-03-13T17:47:31","slug":"ballot-initiatives-as-a-fourth-branch-of-government","status":"publish","type":"post","link":"https:\/\/sites.bu.edu\/dome\/2018\/03\/13\/ballot-initiatives-as-a-fourth-branch-of-government\/","title":{"rendered":"Ballot Initiatives as a Fourth Branch of Government?"},"content":{"rendered":"

<\/b>The Massachusetts Marijuana Legalization Initiative was a\u00a0consistent conclusion to the State\u2019s foray into cannabis regulation. Massachusetts <\/span>decriminalized<\/span><\/a> and <\/span>legalized cannabis for medical use<\/span><\/a> through ballot initiatives in 2008 and 2012, preparing the public for a <\/span>controversial<\/span><\/a> and <\/span>protracted<\/span><\/a> path towards legalization. The <\/span>success<\/span><\/a> of Question Four raised\u00a0a multitude of familiar policy questions; what are the legal risks legalizing\u00a0a federally prohibited substance, or how to entice investor confidence in a cannabis market given\u00a0the Trump Administration\u2019s <\/span>regressive<\/span><\/a> cannabis policy? There is also\u00a0a more democratically existential question: what is the role of the voter initiative, and should this role be celebrated? <\/span><\/p>\n

The Commonwealth of Massachusetts provides for such direct participation through <\/span>four ballot initiative forms<\/span><\/a>: law petitions, constitutional amendment petitions, referendum petitions, and public policy petitions.<\/span> \u00a0<\/b>Law petitions, the mechanism most widely understood through the public, are governed by surprisingly straightforward rules. Ballot petitions begin their lives as petitions of law to be adopted by the Legislature. Massachusetts first requires a minimum of ten qualified voters to draft and sign a petition containing the full text of the proposed law for submission to the Attorney General, who returns the petition with a concise summary following confirmation that the subject of the proposal has not violated\"Unknown\"<\/a> any Constitutional or procedural requirements. Petitioners then file the proposed law and summary with the Secretary of the Commonwealth, who in return provides signatory forms containing the law\u2019s summary for the gathering of signatures. Assuming that this summary and petition form are returned without challenge, <\/span>an achievement it its own right<\/span><\/a>, petitioners may then move to acquire the requisite signatures, <\/span>quantified as<\/span><\/a> \u201cat least . . . 3% of the total vote cast for all candidates for Governor (excluding blanks) at the last state election.\u201d<\/span><\/p>\n

The ballot initiative process is not designed to circumvent the legislature \u2013 at this stage, the legislature considers the petition, without opportunity for amendment, and may ultimately vote for engrossment and delivery to the Governor for final signature. Even at this stage, the democratic power of ballot initiatives is compelling, regardless of whether enactment follows. The legislature may feel <\/span>increased pressure<\/span><\/a> to address the subject through independent legislation, responding to a newly recognized mandate from the public will, while\u00a0avoiding the drafting and policy\u00a0deficiencies sometimes associated ballot initiatives. These responses are not direct responses to the initiative petitions, however. The legislature may only take\u00a0<\/span>four actions<\/span><\/a>: enactment, disapproval, inaction, or proposal of a substitute. Any action beside enactment returns the initiative to its petitioners, who upon gathering the requisite number of signatures, puts the question to the voters at the next state-wide election. \u00a0<\/span>

Democracy in Action, or a Breakdown in Lawmaking?<\/b><\/p>\n

The utility of ballot initiatives is more than the results they may yield. Substantive results aside, the evaluation of ballot initiatives is multifaceted. First, ballot initiatives provide an opportunity to spur\u00a0<\/span>reactionary legislation<\/span><\/i>, by presenting to legislatures with a choice between engrossing the initiative law petition themselves, pursuing independent legislative action on the matter, or rejecting the measure and resigning its fate to the public\u2019s will.<\/span><\/p>\n

Second, ballot initiatives provide a path for\u00a0citizens to\u00a0democratically express their ideas. Of course, the democratic nature of ballot initiatives says nothing of morality: initiatives range from the laudable measures calling for statewide universal healthcare to the<\/span> morally insolvent<\/b><\/a> \u00a0represented by acts like the \u201cSodomite Suppression Act\u201d, a reprehensible initiative calling for statewide execution of members of the LGBTQ community.<\/span><\/p>\n

The range of subjects covered by ballot initiatives is nearly limitless, and while most initiatives do not survive long enough to receive a vote from the general public, ballot initiatives<\/span>\u00a0remain <\/span>procedurally significant<\/span><\/i> merely in that they are introduced\u00a0into the marketplace of ideas. This procedural significance exists regardless of the substantive merits of the initiatives, with\u00a0democratically compelling state ballot initiative questions like: \u201c<\/span>should we give $1 million to one random voter?<\/span><\/a>\u201d, \u201c<\/span>should Denver set up a commission to track aliens?<\/span><\/a>\u201d, and \u201c<\/span>should we stop selling the Europeans our horse meat?<\/span><\/a>\u201d Regardless of \u00a0the content of the initiatives, \u00a0their consideration\u00a0is itself a democratic virtue and strong argument\u00a0for the continued use of ballot initiatives. \u00a0<\/span><\/p>\n

Third, while ballot initiatives are democratic,they sometimes\u00a0produce substantively imperfect results. Despite being the will of the people, the substantive terms of the\u00a0Massachusetts Marijuana Legalization Initiative were short-lived. Towards the end of July 2017, Massachusetts Governor Baker <\/span>signed into law<\/span><\/a> House No. 3818, An Act to ensure safe access to marijuana. This law <\/span>amended the voter approved cannabis<\/span><\/a> laws by raising taxes on cannabis from 12% to 20%, altered the scheme in which municipalities could ban legal cannabis sales, and restructured the newly formed Cannabis Control Commission. As a result, although legalization advocates were able to achieve their goal of legalizing cannabis, the regulatory structure was significantly\u00a0different than originally\u00a0envisioned.\u00a0<\/span><\/p>\n

Ballot Initiatives: The People\u2019s Branch of Government \u00a0\u2013 Truism, or Absurdity? \u00a0<\/b><\/p>\n

The debate over the place of ballot initiatives within democracy is ongoing. On one hand, ballot initiatives can be construed as a \u201cfourth branch of government\u201d (or perhaps fifth, for those readers who may also delegate such status to administrative agencies).<\/p>\n

\"Unknown-1\"<\/a>Ballot initiatives<\/span>\u00a0allow citizens to <\/span>circumvent special interests<\/span><\/a> and legislative roadblocks to see their will materialized. Alternatively, \u00a0although ballot initiatives support the free expression of ideas, they fail to provide an\u00a0opportunity for consideration and compromise with dissenting views, which is substantially undemocratic. Rather than circumventing special interests, this shortcoming may make ballot initiatives the <\/span>epitome of special interests<\/span><\/i>, allowing the loudest voices in the room to acquire funding and support on the public sphere, regardless of their relative merits and detractors. \u00a0\u00a0<\/span><\/p>\n

The cannabis ballot initiative saga in Massachusetts presents a compromise between this dichotomy. Ballot initiative lawmaking may indeed represent a new \u201cfourth branch of government\u201d \u2013 but a fourth branch that is weaker in its power. As Massachusetts has shown, voter approved laws remain subject to the check and balance of\u00a0subsequent legislative action, which in turn is\u00a0checked by traditional balance of powers built into state and federal constitutions. The ballot initiative process has a demonstrable capacity to force legislative action, a democratic strength in its own right. \u00a0<\/span><\/p>\n

\"Mullen_Connor_U54447213\"<\/a>Connor Mullen<\/strong> anticipates graduating from Boston University School of Law in May 2018.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Massachusetts Marijuana Legalization Initiative was a\u00a0consistent conclusion to the State\u2019s foray into cannabis regulation. Massachusetts decriminalized and legalized cannabis for medical use through ballot initiatives in 2008 and 2012, preparing the public for a controversial and protracted path towards legalization. The success of Question Four raised\u00a0a multitude of familiar policy questions; what are the […]<\/p>\n","protected":false},"author":14578,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[10,7,5],"tags":[101,99,100,22],"_links":{"self":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/598"}],"collection":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/users\/14578"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/comments?post=598"}],"version-history":[{"count":5,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/598\/revisions"}],"predecessor-version":[{"id":632,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/598\/revisions\/632"}],"wp:attachment":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/media?parent=598"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/categories?post=598"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/tags?post=598"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}