Opinion: Call for Utah constitutional amendment is about safeguarding checks and balances in lawmaking

In a recent statement, Sutherland Institute called for legislative action in a special session, preparatory to a constitutional amendment on the ballot in November. The catalyst is the peril created by the recent Utah Supreme Court ruling stating that when citizens pass initiatives, those initiatives are protected from “unfettered legislative amendment, repeal or replacement.”
In an election year, any hint of action designed to protect the Legislature can quickly devolve into partisan reactions. To be clear, this call for constitutional action is not based on any single ballot initiative. Rather, it is because — in a nation founded on an expressed desire to accommodate both the will of the majority and the rights of the minority — we should always seek the highest possible level of consensus when it comes to the rules under which we make rules. That level of consensus is not a feature of the ballot initiative process.
According to many advocates, the increase in ballot initiatives over the last five years is a result of increasing frustration with the effectiveness of state and federal legislative bodies, and an eroding trust in elected officials generally. Arguably, initiatives are a safety net against a legislature unresponsive to the will of the people.
That point about trust is important — but granting status to laws enacted by initiative such that they are immune from “unfettered legislative amendment, repeal or replacement” is not the correct solution to the erosion of trust.
The process of refining and reforming law — and sometimes changing it wholesale — is not a flaw within our form of government; it is an indispensable feature. It was designed to protect the rights of the majority and the minority — a balance that James Madison addressed. “The tyranny of the majority is an inherent weakness to majority rule in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions.”
In practical terms, the debate between opposing views is fundamental to the deliberative lawmaking process that occurs in the Utah Legislature, wherein a threshold of consensus must be achieved to pass a law, often requiring amendment and compromise to the original proposed law. Under the initiative process, there is no practical equivalent, and so disagreements — as well as details of budget and compliance — are never fully addressed. To remove the ability of the Legislature to reconcile and refine such omissions does not serve the interest of the people.
An Oregon news story by Christina Williams offers experienced insights from a state that has heavily adopted the initiative process. Initiatives passed since 1990 have negatively impacted the state budget, “to the detriment … of public schools and public safety,” she writes. “At their best, ballot initiatives are an effective form of direct democracy, giving voice and real power to voters. At their worst they are co-opted by deep-pocketed sloganeers eager to push a national agenda (in reference to out-of-state money) and adept at using the voters’ distrust of local politicians to their advantage.”
Kelsey Piper of Vox adds, “A system that funnels lots of issues, both big and small, directly to the voters leads to bad policy judgments, because under-informed voters don’t have time to research and form opinions on all the issues. It leads to a handicapped legislature that can’t do its job, because large sections of state law are untouchable.”
The reality is many of the process-driven checks and balances within the legislative process are missing from the ballot initiative process. Despite Utah Code requirements, initiatives typically bypass important debates that regularly occur in the Legislature. As an example, recall Prop 3, which proposed expanding Medicaid eligibility and implementing a 0.15% nonfood sales tax that would have been inadequate to cover initial costs — and the future increase of expenses was virtually uncapped.
We should not do away with the important tool that is the ballot initiative. However, we also should not cloud the ability and clearly enumerated constitutional authority of an elected legislature to refine and amend. The initiative process should be available, but it should recognize the essential balance between majoritarian democracy and sufficient consensus and consistency under state law. Applicable guidelines should be clear and reside at the state constitution level rather than being decided by judicial opinions. And we should not allow debate over such a beneficial protective structure to rest on any single partisan issue.
The voice of the people should be heard — both in elections and, at times, even distinct from Utah’s elected Legislature on matters of substance when following the right process. But that voice cannot supersede the necessary stability of balanced budgets, prioritized services and programs and compliance with existing commitments and laws. That is why Sutherland issued the call for a state constitutional amendment.
The people of Utah should have the opportunity to vote on a constitutional amendment this fall that would clarify the legislative powers vested in the people as well as their elected representatives in a way that remains true to a representative partnership built on trust. The principles and structures of Utah’s — and America’s — system of government demand no less.
Rick B. Larsen is the president of Sutherland Institute, a nonprofit public policy think tank that advocates for faith, family and freedom. Scott Anderson is a Utah native and resident of Salt Lake City.