In July, the Utah Supreme Court issued a controversial ruling. In August, the Utah Legislature put Amendment D on the ballot to respond to that ruling. Later in August, opponents of the Legislature formed the “Let Utah Vote Coalition” to oppose Amendment D. In September, members of the Let Utah Vote Coalition sued to stop Utahns from voting on Amendment D.
It is confusing — and it’s another example of lawmaking moving from a duly elected legislative body to the courts. A win-at-all-costs strategy of lawyers and judges usurping representation of the people is a defining feature of the world of lawmaking by ballot initiative.
Some voices in the press and online are framing this issue as a power struggle between the Legislature and the citizens — and more specifically, the disagreement over the single issue of boundaries. But that is deeply incorrect. To be helpful to voters, the debate over the amendment — and media coverage of that debate — must elevate the most important issues at stake, including constitutional principles and wise policymaking.
Amendment D bans foreign money in ballot initiative and referendum campaigns and restores a constitutional vision in which laws enacted by the Legislature and ballot initiatives are both treated equally. Whether that is a good thing depends on your perspective on several important ideas and principles.
Constitutional framers vs. the Utah Supreme Court
The constitutional question at play is this: How do we make laws in America?
The framers of the U.S. and Utah Constitutions risked their lives in revolution and thousand-mile treks to establish an approach that prioritizes representative democracy — where voters choose representatives to make laws through a legislative process that is designed to protect majorities and minorities through principled compromise and consensus. The Utah Supreme Court’s July ruling invented a constitutional protection against some efforts at legislative repeal of ballot initiatives — which you won’t find in the Utah Constitution — on the premise that the addition in the 1900s of a constitutional ballot provision in Utah trumps the clear design of the framers. This alternative is routine in California, where ballot initiatives reign supreme over legislative action, motivating so many ballot initiatives that voting is “a nine-hour research project” for those who want to make informed decisions.
While the court’s ruling created an expectation that ballot initiatives will be protected from some repeal efforts, it weakened voters’ right to elect representatives to reform and repeal bad laws. Three months ago, voters could expect that if they sent state representatives or senators to Utah’s Capitol to reform or repeal a harmful or unpopular ballot initiative law, that’s what would happen. Today, that is uncertain.
If you believe the model of representative government envisioned by the framers is superior, then Amendment D is a worthy “yes” vote. If you believe the model of government elevated by the Utah Supreme Court is superior, then Amendment D is a definite “no” vote.
Reforming or repealing bad laws
Bad laws can be passed by the Legislature or by the people in a ballot initiative. The important question is, how do we amend or repeal such laws?
Before July, reforming or repealing a bad ballot initiative law was a straightforward thing: Organize a legislative consensus for reform/repeal and make it happen through legislative action. Now, reforming or repealing a bad ballot initiative law through legislative action is complicated by being subject to lawsuits.
If you think straightforward repeal of a bad initiative law is a good thing, Amendment D earns a clear “yes” vote. If you think complicating legislative reform or repeal of a bad ballot initiative law is a good thing, then Amendment D earns a “no” vote.
The U.S. Constitution guarantees a representative democracy — a republic — in every state, and the Utah Constitution acknowledges its national counterpart as the “supreme law of the land.” If we are to live up to the higher standard of rights and responsibilities in a representative democracy, then those speaking for and against Amendment D, the media reporting on their comments and those in government — including judges — who are being asked to weigh those arguments must elevate our thinking beyond the political maneuverings undertaken for victory’s sake.
We can secure our constitutional foundations by acknowledging the principles at stake, or weaken them by giving into short-sighted, self-serving passions and simply going for “the win” — in which case we will all stand to lose.
Derek Monson | The Sutherland Institute
Derek Monson is chief growth officer at Sutherland Institute, which seeks to advance principled public policy that promotes the constitutional values of faith, family and freedom.
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