Looking to change Michigan's Constitution? Reaching the ballot is as easy as $1-$2-$3 if you've got a big enough checkbook.
Collecting 322,609 valid petition signatures (10 percent of the votes in the 2010 gubernatorial election) for grassroots groups who might want to, say, create a nonpartisan legislative redistricting process, would be an imposing challenge. But deep-pocketed sponsors of four constitutional amendments were able to get their proposals before voters on Nov. 6 after spending a total of $7.4 million on signature gathering.
That has some concerned that wealthy individuals or groups are seeking to circumvent the legislative process by crafting, promoting and financing proposed constitutional amendments.
"Special interests with big money can buy their way onto the ballot, and it doesn't seem like that was the intent when the Constitution was put together in terms of referendums and constitutional issues," said state Rep. Rick Olson, R-Saline.
Backers (and sometimes opponents) also spent millions of dollars on seemingly non-stop TV ads, many of them labeled false or misleading by the Michigan Truth Squad, which fact-checks political advertising and speech. With the election over, some are wondering whether it’s time to address the concern that the growing use of paid circulators has made it too easy to tinker with the Constitution.
Gov. Rick Snyder believes voters may not have understood the proposals when they signed petitions and said reforms should be a topic of discussion. Last week, Rep. Ken Horn, R-Frankenmuth, introduced House Bill 6020 to prohibit circulators from being paid per signature. And circulators compensated in some other way would be required to wear badges identifying them as paid circulators and disclosing the names of the individual or group paying them.
"Whether this bill is the best answer, I don't know," said Olson, who is a cosponsor. "But let's view this as a starting point and see where it leads."
Robert McCann, spokesman for Senate Democratic leader Gretchen Whitmer, said Snyder reached out to her on the issue earlier this year. He said it is something she would like to explore as part of a broader election reform package. Last week, Whitmer called for a bipartisan focus on reducing voting lines and making voting more convenient and efficient.
Voters have amended Michigan's 1963 Constitution 10 times via petition-generated proposals. Among other things, they have eliminated the sales tax on food and drugs, raised the drinking age, established term limits for state officials, banned gay marriage and supported embryonic stem cell research.
This year's election was notable for a surge in the number of proposed constitutional amendments reaching the ballot via petitions. Five made it to the ballot (four with paid signatures), more than the previous four election cycles combined. All five were defeated.
The People Should Decide, the ballot committee set up by Detroit Ambassador Bridge owner Manuel "Matty" Moroun to block a planned second bridge to Canada without voter approval, spent more than $2.3 million on gathering petition signatures, according to campaign finance records filed with the Secretary of State's office. Another Moroun-backed committee, the Michigan Alliance for Prosperity, spent more than $1.9 million for the collection of signatures for Proposal 5, to require a supermajority vote in the Legislature to raise taxes.
Michigan Energy, Michigan Jobs shelled out $1.6 million for petition signatures to get Proposal 3, the renewable energy amendment, on the ballot, while Citizens for Affordable Quality Home Care paid $1.6 million on Proposal 4, regulating home health care workers.
Critics of paid signatures base their case on two arguments. First, they say the high signature threshold was designed to ensure that only proposals with substantial grassroots support made it to the ballot. Second, they argue voters are more likely to be misled by circulators who benefit financially for each extra signature.
"You basically have something (the petition) in someone's face, and to get rid of you, they sign your petition," Olson said. "They don't know what they are really signing and often times are misled."
In 2006, a group operating under the name of the Michigan Civil Rights Initiative sought to ban affirmative action programs in schools, universities and government agencies. In a court challenge to the petitions, U.S. District Judge Arthur Tarnow found that "MCRI engaged in systematic voter fraud by telling voters they were signing a petition supporting affirmative action." Nonetheless, the measure reached the ballot and was approved by voters.
Lansing consultant Dave Waymire, whose company Martin Waymire worked for the coalition opposing the affirmative-action ban, said Republicans and conservatives weren't concerned when MCRI petition circulators were misleading voters back then.
"These people were liars, and the conservatives in Michigan didn't lift a finger," said Waymire. "The secretary of state and the attorney general were derelict in their duty as the judge pointed out, and now all of a sudden, we are excited about this issue? Hilarious. Hilarious."
Waymire said the far bigger danger for voters is the growing influence of money in politics, including gubernatorial candidates like Snyder using their personal fortunes to finance campaigns, and the lack of transparency. "To focus on ballot issues and not recognize that our entire election system is compromised by the massive amounts of money washing around is foolish."
Still, concerns about paid circulators have existed for nearly a century. Oklahoma, South Dakota and Washington prohibited them in 1913 and 1914, according to the National Conference of State Legislatures. The ground shifted in 1988 when the U.S. Supreme Court invalidated Colorado's ban, unanimously upholding a lower court’s ruling that the ban infringed upon the amendment proposers' First Amendment rights. In 2006, the U.S. Court of Appeals overturned an Ohio ban on paid signatures.
Despite this, states have taken a variety of steps toward regulating the process, with mixed results in the courts. An Oregon ban on per-signature compensation was upheld. Several states ban compensation per signature, but allow it in salaries or hourly wages, according to a 2010 report by a the NCSL. Alaska caps payments at $1 per signature. Colorado restricts per-signature pay to 20 percent of a circulator's compensation. Arizona is among at least seven states requiring circulators to disclose whether they are paid or volunteer.
Susan Smith, president of the Michigan League of Women Voters, is concerned that banning paid circulators could impede people's constitutional right to pursue policies through initiatives. "Citizens' right to petition to get an issue on the ballot is an important part of the checks and balances in our government," she said. "What we need is transparency. People have a right to know who's paying for the ads in support or opposition to the particular ballot proposal."
Rich Robinson, executive director of the Michigan Campaign Finance Network, said he's not sure that a state can stop paid circulators in any meaningful way. Efforts to change how they are paid, such as paying them a salary, won't make much difference, he said. He says lawmakers should focus on the many things they can do to require the disclosure of the donors who are bankrolling proposals and committees.
"I don't know how you can protect good speech without protecting bad speech. You have to let it play out," he said.