Opinion Editorial on Referendum
A Middle Way Makes Sense for StateHoward Healy
If New York state should decide it wants initiative and referendum, it will have another choice to make. Should it be direct, or indirect? Of the 24 states that now have initiative and referendum, 16 have the direct process under which the people can bypass the Legislature and place issues directly on the ballot. This is the proposal advanced by Gov. George Pataki and approved by the state Senate. The remaining eight states have an indirect process under which the people first petition the Legislature to act on an issue. If the lawmakers refuse, the matter could go on the ballot if certain conditions are met.
There are good reasons for New York to go the indirect route. Former Gov. Mario Cuomo favored a limited form of initiative and referendum as a way to force the Legislature to do its job and vote on a long list of issues that had been bottled up in committee year after year, despite strong public support for action. And state lawmakers have another, infamous way to dodge their duty to decide key issues -- they resort to the old game of introducing so-called one-house bills.
These proposals are to make it appear that the Legislature is responding to public appeals, when in fact the lawmakers have no intention of doing so. It works this way: A bill is proposed in the Assembly, where the majority Democrats approve it by a wide margin. But the Democratic legislators know full well that the bill stands no chance of winning approval in the Republican-controlled Senate. Thus, they can claim to be in support of an issue without ever having to face the prospect that it might become law. Of course, the process works in reverse as well, with the Senate passing legislation it knows will fail in the Assembly.
Indeed, some critics have accused Pataki and Senate Majority Leader Joseph Bruno, R-Brunswick, of playing just this sort of game with initiative and referendum. They know that Assembly Speaker Sheldon Silver, D-Manhattan, is adamantly opposed to the reform, and thus they can support it without any risk that it might actually become law.
An indirect form of initiative and referendum would put an end to this kind of legislative sleight of hand. If lawmakers could not decide an issue within a specified deadline, they would have to face the prospect of the people deciding it for them.
This is the system in Massachusetts, where an issue can be placed on the ballot if proponents collect signatures from 3 percent of the electorate. Once that test is passed, the lawmakers have two years to act. If they refuse to act, or vote against it, the process can continue if one quarter of the lawmakers in both houses of the Legislature have voted in favor of the proposal. It is a good system of checks and balances. It includes, rather than bypasses, the Legislature, but it also sets reasonable time limits for action. And, more importantly, it makes it impossible for one house, or one party, to have the kind of veto power that New York's legislative leaders now possess.
It may be that two years would be too short of a deadline for New York state, where the population and geography are more diverse than in Massachusetts. But that needn't be an obstacle to reform. The limit might be, say, four years, to give two separately elected legislatures the opportunity to act. And the signature requirements could be calibrated to reflect New York's large population.
But this process would address the major concerns of critics like Silver, who insists that the people are best served by their elected representatives. An indirect form of initiative and referendum would give lawmakers the time and opportunity to represent the people. It just wouldn't give them all the time in the world to ignore the public, or to abuse the system by passing one-house bills year after year. It would break the power of the special interests, too. They would not be able to kill legislation simply by prevailing on legislative leaders to keep it from coming to the floor for a vote. Instead, they would have to persuade more than 75 percent of the lawmakers to vote against a proposal -- a much tougher challenge.
And that's more significant than it may at first appear. Winning Mr. Silver over may not be easy, but it is not impossible either. Remember Jenna's Law? Pataki and Bruno were strong supporters of this measure that denies violent offenders parole. But Silver was opposed, and the Legislature wrapped up its regular session without acting on the bill. However, the speaker soon had to call the Assembly back to Albany to pass the law after Democratic lawmakers sensed the public outrage over the lack of action.
When it was all over, the parents of Jenna Grieshaber, the young woman whose murder prompted the law, said they had persuaded the Legislature to enact the law by making themselves ``pests'' in the Capitol.
That's what all New Yorkers must do now -- make themselves pests on behalf of initiative and referendum. While there is still time. Howard Healy is the Times Union's editorial page editor.
This 2004 editorial from the Times Union demonstrates the challenges to initiative and referendum becoming a reality in New York State -- and how these "direct democracy" resources could be beneficial to the Empire State.