Constitutional amendment over ballot initiatives would help Utah avoid ‘nightmare scenario,’ says Derek Monson

Derek Monson wants to avoid a “nightmare scenario” where a law passed by ballot initiative has negative consequences and lawmakers cannot amend or override it.

That is why he wants a constitutional amendment to give the Utah Legislature the ability to amend and veto laws passed by initiatives, he said.

“That’s the extreme scenario,” said Monson, chief growth officer at Sutherland Institute, adding he did not think the court would smile upon that situation. But he also does not think the Utah Supreme Court made its position clear in a July ruling.

The state’s highest court allowed a lawsuit over redistricting to move forward, and in that ruling the court said when citizens pass initiatives, those initiatives are protected from “unfettered legislative amendment, repeal or replacement.” Lawmakers are weighing if they will call a special session to attempt to put a constitutional amendment on the ballot, which could come as soon as Wednesday.

The Sutherland Institute, along with the Utah Republican Party and other conservative groups and leaders, all called for a constitutional amendment on Friday afternoon. Utah GOP chair Rob Axson told the Deseret News the language in the decision conflicted with the principles of a constitutional republic and removed the process for good lawmaking.

In a phone call with the Deseret News Saturday morning, Monson also explained his reasoning. One of his concerns was that the language in the ruling could give the court a kind of lawmaking power because it hampers the ability of the Utah Legislature to amend or veto laws passed by ballot initiatives.

The Utah Supreme Court ruling created two types of laws, said Monson. One category of laws which can be amended and reformed in a deliberative process for the public good, and a then second category — law passed by initiatives — where the amendment process is unclear and perhaps not possible.

“Ultimately, you have a lot of uncertainty created by the court in ballot-issued laws,” said Monson. This could create a situation in which after an initiative passes, if it has negative consequences Utahns would have to suffer through them because the amendment process is not possible.

But there is another issue Monson sees. He thinks the decision does not reflect the reality of legislative power.

When speaking to a legislator on Friday, Monson said this lawmaker made a comment to him about not a single law he has ever passed has not been amended at some level. He said the Utah Legislature needs to retain the amending power for initiatives, too.

Monson asked if the choice is between having to live with negative consequences from ballot initiatives or giving lawmakers veto and amendment power, which would people really prefer?

“Do you want to give anybody who has money the power to enact a law, however good or bad it may be?” asked Monson. “Or do you want the laws to be determined by a deliberative process where you are forced to make compromises in order to get the support to enact laws?”

California has a lot of ballot initiatives, said Monson. “There’s a reason people are leaving California, it’s not the weather.”

Limiting the ability of the Utah Legislature to amend ballot initiatives will incentivize more of them, said Monson.

“If you’re gong to enact a law for a ballot initiative, you have to have some money,” he said, explaining the threshold for signatures is such that it is difficult to gather enough just through volunteers. Interest groups also spend money to put out materials about initiatives they support.

“So, in many instances, a ballot initiative proposal has backing of some special interest group, many times it is out of state,” he said. As it happens, if your ballot initiative is part of a larger push, then you might be able to get more national money that way.

Monson: It’s different from national criticisms of the U.S. Supreme Court

Monson said the push for a constitutional amendment in response to a court ruling is different from advocacy to change certain aspects of the way the U.S. Supreme Court operates.

“Because on the local level, what this is about is basically a fundamental disagreement with the view of the (Utah) Supreme Court when it comes to the court’s interpretation of the (Utah) Constitution,” said Monson. On the national level, he said there are attacks on the legitimacy of the institution and even the institution itself.

It is not a reasonable disagreement on the law while still upholding the institution of the court, Monson said.

The decision is “clearly a weakening of the institution of the legislature,” he said. A facet of authority has been taken away from the legislature and this “is going to ultimately kind of enshrine harmful public policies.”

Monson said this decision forces the Utah Legislature into the same boat as Congress — in the sense that Congress is seen by some as ineffective.

“Now the court is having to decide public policy,” said Monson, explaining this decision will lead to more litigation. “They’re kind of inserting themselves into a lawmaking role because of how they chose to interpret the Constitution.”