Jocelyn Benson

The Michigan and United States Constitutions provide the bedrock of our democracy.  They establish the standards, the protections and the promises that government cannot abridge.  They establish a right to free speech, to worship and to vote, along with other protections.  And the Michigan Constitution grants citizens the right to hold our state officials accountable, by giving them the authority to overturn bad laws.

“The people reserve to themselves the power to propose laws and to enact and reject laws,” says the Michigan Constitution, including “the power to approve or reject laws enacted by the legislature.”

This means that, under our state constitution, if enough citizens disagree with legislation that the state enacts, they can vote to get rid of it.

But crafty lawmakers in Lansing have figured out a way to override this overriding authority.  Because courts have ruled that if legislation they enact in some way grants funding – an “appropriation” – the further its purpose, then that new law is immune to potential repeal from the voters.

Redistricting doesn’t cost a lot of money.  But this year’s law to redraw Michigan’s congressional lines included a $30,000 appropriation.

Ending the requirement that retail items carry a price tag was, according to Governor Snyder, supposed to save money.  But legislators felt they should attach an appropriation to the legislation anyway.

Does it cost $50,000 to alter the state’s no-fault auto insurance law?  It would seem that way, as the legislative proposal to amend the law appropriates that much to study the impact of the law.  Might this appropriation have something to do with the fact that voters have already overturned legislative attempts to change the no-fault system twice before?

Legislators are duly elected and free to pass laws, but they are not free to take away the rights of those they serve.

Yet the primary impact of each of these appropriations is to do just that, abusing the loophole that makes these policy changes referendum-proof.  It is a loophole that prevents constituents from holding their elected officials accountable, and it is a loophole that must be closed.

How can this be done?

One possibility is for the Michigan Supreme Court to follow the lead of its counterparts in Ohio. That state’s Supreme Court recently ruled that the state’s redistricting plan could be subject to a voter referendum override, because the appropriation attached to it was not genuine and did not further the purpose of the legislation.  Michigan’s justices should issue a similar ruling if given the opportunity in challenges to any of the policy legislation to which lawmakers have attached disingenuous appropriations.

Another solution is to amend the Michigan Constitution to clarify and strengthen the voters’ referendum authority. State Rep. Jim Townsend (D-Royal Oak) has offered such an amendment. Townsend’s language would exempt legislation from voter override only if the bill’s “primary purpose” is providing funding for state departments and agencies.

A supermajority of the State House and Senate could vote to place Townsend’s amendment on the ballot, where voters would have the opportunity to vote to amend the Constitution accordingly.  But would a Legislature that has so actively taken advantage of the existing loophole be likely to invite citizens to vote on an amendment to close that loophole?  Probably not.

Which means that voters themselves could gather signatures to place such language on the ballot themselves.  It would involve, ironically, using the referendum process to expand and clarify the referendum process. And it may be the only way, absent the court’s intervention, to force legislators to stop this trickery.

One Response to “Close the loophole that protects Michigan legislators from voter override”