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December 2008

Vol. 13, No. 51 Week of December 21, 2008

Initiatives: past, present and future

Ballot initiatives in Alaska Constitution; bill next year will propose financial disclosure, public hearing requirement changes

Kristen Nelson

Petroleum News

Of the 46 initiatives that have appeared on the ballot in Alaska, a number have been energy or development related, resulting in a panel on the subject at the Resource Development Council’s annual conference in Anchorage.

It was a past, present and future look at the initiative, anchored by Vic Fischer, a delegate to Alaska’s 1955-56 constitutional convention.

Initiatives were included in the Alaska Constitution so citizens could enact legislation if the state’s Legislature and its executive were not responsive, Fischer told the RDC conference Nov. 19.

“There was a very populist feeling at the convention,” “great idealism” and a commitment to framing a constitution “where the executive branch is headed by a governor who’s going to be responsible and responsive to the people; a legislative branch that would be as effective as legislators could be.” Fischer said the belief was that “government can function well,” but there was also “a strong belief in direct democracy.” That led to provisions for initiatives, recalls and a requirement for a vote by the people every 10 years on whether to hold a constitutional convention.

The initiative provision stated that people may propose and enact laws by initiative. It’s simple and direct, Fischer said: “The people are given the law-making power,” just as was given to the Legislature.

Fischer said he argued — and voted — against the initiative at the convention. “Those in favor of the initiative felt that the people should have a right to enact legislation when the Legislature was not responsive to the needs of the people, when the Legislature was not acting.” Half the states in the nation at that time had provisions in their constitutions for the initiative, which came about in the early 20th century when many state legislatures were controlled by rural areas, even though the population base was urban, because legislatures were not reapportioned, leaving the majority of the people under-represented.

Fischer said it wasn’t until 1964 that the U.S. Supreme Court ruled that legislatures had to be apportioned on a one-person one-vote basis.

Fischer said he argued against the initiative at the constitutional convention because “it is a device that lends itself to special interests and to groups that want to get something that they cannot get through the Legislature” and because he believed that in Alaska the Legislature would “do what is best for the people.”

“Generally, I’ve not been overly disappointed,” Fischer said.

The Alaska initiative process

One hundred signatures are needed to start the initiative process, Lt. Gov. Sean Parnell told the RDC conference. The initiative with those signatures is submitted to the Division of Elections and is reviewed by the Lt. Gov.’s office and the Department of Law.

There are four prohibitions, Parnell said: An initiative cannot dedicate state revenues; it cannot make or repeal appropriations; it cannot create courts or redefine their legislation; and it cannot enact local or special legislation.

Initiatives are measured against those minimal criteria, but there are intricacies, he said. An initiative can’t make an appropriation; so obviously you couldn’t have an initiative giving out state revenues, which would clearly be an appropriation. Parnell said over the years the courts have broadened the definition of appropriation “to include everything from salmon to water to any public asset” — none can be appropriated by initiative.

If those hurdles are cleared, then signatures have to be gathered, a total of 10 percent of the turnout in the last general election, with signatures coming from 30 of the state’s 40 House districts — and signatures must exceed 7 percent of the turnout in those 30 districts.

The constitution requires the initiative to be put on the general ballot 120 days after the last general session of the Legislature. Parnell said that was the general election — but since the state went to a 90-day legislative session, by initiative, initiatives are now on the primary ballot.

A weapon of first resort

And how are initiatives used? Parnell said it was formerly the case that where people, or interest groups, “cannot legislate, they tend to regulate; where they cannot regulate, they litigate; and where they cannot effectively litigate, they initiate and litigate again.”

Today, he said, some initiatives are not weapons of last resort, but “have become more of a tool of first resort. And I think that’s something that we’re going to need to take a look at in the future.”

“The people’s right to pursue the initiative process is a very powerful tool,” Parnell said. “It takes those significant policy choices out of the hands of lawmakers and out of the hands of state employees who write our regulatory regime and places it squarely into the hands of individual voters.”

He said he is concerned by initiatives that prohibit resource development projects because “we lose the benefit of a rigorous, scientific, public permitting process. I strongly believe that companies and Alaska resource jobs depend heavily on a clear and consistent regulatory process,” he said.

If project after project is decided by initiative, “then we’ve lost the battle for a truly informed public project based on science. Our regulatory processes then become meaningless and undependable.”

With dollars from Outside apparently flooding in for initiatives, “one could conclude that Outside interests are also availing themselves of Alaska’s constitutional provisions and not just our citizens. Clearly our constitution’s framers did not design the right to an initiative to protect Outside interests,” Parnell said.

“Alaskans have always resented uninformed voices from Outside our state and for good reasons: Alaska is best managed by Alaskans.”

Initiative vs. Legislature

Ralph Samuels, R-Anchorage, outgoing House majority leader (Samuels did not run for re-election this year), asked how many at the conference had followed a bill through the “painful” committee process in the Legislature.

For those who hadn’t, he reviewed the process — from drafting of a bill by the Legislature’s attorneys, to committee assignments and hearings and changes. By the time a bill has gone through a couple of committees, Samuels said, “usually everything heads to the middle; middle ground usually gets found in the committee process,” which, whether in Congress or the state Legislature, is painful, but it works.

After the committee process the bill goes to the House or Senate floor for a vote and amendments can be proposed: “Sometimes they pass; sometimes they fail. But everybody has their shot,” he said. If the bill passes it goes to the other body and the process starts all over again.

With the initiative process, “the language is drafted by somebody; they gather 100 signatures” and if those signatures are confirmed as registered voters and the initiative passes muster the sponsors go out for mass signature collection.

Who did the drafting?

Concerns with the initiative process start with who did the drafting and did they think through all the things that could be changed with one piece of legislation? You don’t know, he said, if the drafters want to change something or if “all they really want to do is screw something up.”

A recent initiative, which passed, gave duties to the Department of Revenue “which didn’t belong to them and now there’s a little bit of confusion on who’s supposed to write the regs and how are we supposed to move forward,” Samuels said.

It could be done deliberately; it could be an error — but once an initiative is certified the language cannot be changed, he said.

Signature gathering is done for a fee and Samuels said those collecting signatures probably paint an accurate picture of what the initiative would do — “sometimes.”

But that’s not the complete initiative.

The complete initiative doesn’t even appear on the ballot, he said, just a 250-word summary.

Changes being proposed

Samuels said several things could improve the initiative process.

A 2004 constitutional amendment changed the signature-gathering process to require a certain percentage of voters in 30 or 40 House districts. Before that, one vote was required in 27 districts, “so if you stand in the Dimond Center and you get enough people walking in there, you can probably cover that — in a matter of months you’ll get enough of one vote in 27 districts to get the signatures,” Samuels said.

The 2004 amendment required an initiative sponsor to travel around the state to get the required signatures.

Another issue that needs to be addressed is the money — there’s no limit to the money that can be spent on a ballot initiative, he said. And there’s no limit to the amount of money an individual or a group can give, either for signature gathering or for promoting the initiative. And there’s no limit to the money that can come from Outside.

The U.S. Constitution will probably be a problem in limiting the money, Samuels said, because the standard is that “ideas cannot be corrupted so therefore you cannot limit the amount of money given to sell an idea.”

There are disclosure requirements, he said, but too many loopholes, such as the ability with an initiative to give money to Group A which then gives money to Group B. The relationship between Group A and Group B has to be disclosed, Samuels said, but not the donation to Group A. “So you set up a shell company or a shell organization of some kind and you can collect and funnel money to anything that you want to.”

And if you don’t promote an opinion on a specific measure — just information without an endorsement — there are no disclosure requirements. “Obviously problematic,” Samuels said.

No hearings

Public hearings — or legislative hearings — should also be required, he said, so that members of the public in a district can hear all sides of an issue.

And the initiative language should be on the ballot, he said, not so that a voter would read all of the language before voting, “but they would certainly know how complicated the issue is.”

Rep. Kyle Johansen, R-Ketchikan, will introduce a bill which will include a lot of these concepts, Samuels said, including provisions for streamlining the disclosure process with online filing so you can get online, from day one, when they start collecting signatures, and see who supports the proposal, he said.

Public hearings would be required in various districts and legislative hearings so that departments would be able to identify areas of initiatives that would be problematic administratively.

And if an initiative fails, “it shouldn’t be allowed for another election cycle.”

Just in the last 10 years almost $30 million has been spent on initiatives, not counting the “loophole money” where an organization didn’t advocate for or against an initiative.

“All in all there have been 46 initiatives on the ballot in Alaska; exactly half of them have passed, and there’s never been a public hearing on any of them,” Samuels said.






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