Our Era of Law-Making by Threat of Ballot Measure

This is a thing that is happening in Massachusetts.

With the passage of a minimum-wage increase law and a nurse-staffing law in the past week, Massachusetts showed that we are clearly in a new Golden Age of Law-Making By Threat of Popular Vote. I’m not sure whether that’s a good or a bad thing, but it’s definitely a thing.

The era properly dates to 2006, when a coalition of groups wanted to hold political feet to the fire (specifically, the tootsies of Governor Mitt Romney, Senate President Robert Travaglini, and House Speaker Salvatore DiMasi) on their promise to enact health care reform to cover the uninsured. They pushed forward with a universal health care initiative that was polling at one point at 66 percent in favor. The broad nature of the ballot measure, to put it bluntly, scared the piss out of insurance companies, health care providers, and business owners. For a long time, those folks thought they could get the do-gooders to back down, but they held firm and kept moving forward with the initiative process, and eventually the stakeholders worked out the law the country now calls RomneyCare.

This was not a brand-new idea: in 2000, for example, the threat of a ballot initiative prodded the legislature to pass an HMO patients’ bill of rights. But the high-profile success of the 2006 effort—DiMasi, among others, publicly credited the initiative threat for making the bill happen—really spurred others to consider the strategy.

One such effort was a threatened 2010 initiative to lift the charter school cap, which pushed the Massachusetts Teachers Association to give the legislature room to pass a limited cap increase. Another was a 2012 “right to repair” initiative that scared automobile dealers and prompted passage of a compromise bill—too late to withdraw it from the ballot, and despite promises from all sides to urge rejection of the ballot question, the measure passed.

Also in 2012, medical marijuana advocates made perfectly and repeatedly clear that they would happily withdraw their ballot initiative if the state legislature passed their own version. Lawmakers chose to call their bluff; it wasn’t a bluff, and the measure passed easily. And clearly not in a version the legislature would have come up with. Lesson learned on Beacon Hill.

So it’s not a huge surprise that two bills have just passed the otherwise log-jammed legislature, just in time to stave off ballot initiatives on the issues. Raise Up Massachusetts has withdrawn its minimum-wage measure, thanks to the state house’s movement on their version, which was signed by Governor Deval Patrick Thursday. (The same group is pressing forward on a paid sick days initiative.) And the Massachusetts Nurses Association (MNA) has taken its nurse staffing initiative off the table—a measure they’ve been pushing for some 15 years—now that a compromise measure (led by Senate President In Waiting Stan Rosenberg, I’m told)  has passed, requiring minimum nurse-patient ratios in intensive care units.

The nurses also agreed to withdraw a separate initiative that added a brilliantly evil twist. The “Hospital Profit Transparency and Fairness Act” would have require hospitals to disclose their profits and CEO pay, while placing a cap on both and siphoning excess funding to hospitals serving poorer populations. MNA had already started its PR and ad campaign on that measure, pointing out that Massachusetts taxpayers fork over enormous sums to hospitals that stash unknown gazillions in Cayman Island accounts and support their executives’ lavish lifestyles. I suspect that some members of the Massachusetts Hospital Association, which had so furiously opposed nurse staffing requirements for so long, found themselves in a compromising mood when facing the prospect of several months of that abuse.

These successes figure to spur even more efforts in the future. That’s not necessarily the best way to make law in the Commonwealth, but it is kind of fun to watch.