Upon Review, Panel Not Behind Any Ballot Questions

Initiative Petitions Campaigns Press Ahead With More Signature Gathering

STATE HOUSE, BOSTON, MAY 1, 2024…..The next phase in the fight over half a dozen major and pressing policy proposals kicked off Wednesday with a common feature on Beacon Hill: lawmakers recommending that the Legislature not to take action.

A special committee tasked with overseeing the House and Senate’s biennial analysis of ballot questions concluded none of the measures warrant legislative approval, potentially clearing the way for voters to make decisions on major policies affecting high school graduation requirements, gig economy workers, legislative oversight and more.

The eight-member panel filed reports Wednesday recommending each of the 10 drafted questions — representing six different topics — ought not to be approved. Their rationales varied, from arguing that a measure subjecting the Legislature to new scrutiny by the state auditor would “supplant” lawmakers’ accountability to voters to suggesting there’s “insufficient evidence” about the impacts of increasing the minimum wage that businesses must pay tipped employees.

All six Democrats and two Republicans on the committee agreed to suggest no action on questions that would offer access to psychedelic substances (H 4607), declare app-based drivers to be independent contractors while potentially extending them some benefits (H 4608 through H 4612), and increase the minimum wage that businesses must pay tipped employees (H 4606).

Sen. Jason Lewis (D-Winchester) did not join the majority on questions to allow drivers for platforms like Uber and Lyft to unionize (H 4605) — a proposal similar to a bill he filed — and eliminate the use of MCAS as a graduation requirement (H 4604).

Republicans Rep. David Vieira of Falmouth and Sen. Ryan Fattman of Sutton disagreed with the majority recommendation (H 4603) that the Legislature should not enact an Auditor Diana DiZoglio-backed measure explicitly subjecting the House and Senate to scrutiny by her office.

“The initiative petitions address complex issues in the Commonwealth and for the reasons detailed in the Reports, the Committee does not recommend any of the petitions be enacted by the Legislature at this time,” Rep. Alice Peisch and Sen. Cindy Friedman, the special committee’s chairs, said in a joint statement. “We appreciate the time, energy, and passion of all who took the time to participate in this part of the democratic process.”

Organizers behind the campaigns are eyeing the ballot as a way to force action on tense, impactful issues where lawmakers have hesitated to act or outright oppose the proposals.

The committee’s majority reports collectively signal that the representatives and senators who spent 20-plus hours listening to testimony about ballot questions over the course of five public hearings are mostly comfortable leaving the final decisions to voters, although there’s still time for compromise bills to be crafted that might satisfy proponents of planned ballot questions.

In some areas, lawmakers hinted at an interest in taking action outside possible enactment of the ballot questions as drafted. The report about the tipped minimum wage proposal suggested the Legislature “would be well-served to work with the Attorney General to support enhanced prevention of wage theft, sexual harassment, and assault in tipped wage industries.”

But the majority reports laid out no current plans to push for legislative alternatives or compromise, and the lack of enactment by an end-of-Tuesday deadline allows initiative petition supporters to begin gathering the final 12,429 voter signatures they need. A spokesperson for Secretary of State William Galvin said some campaigns have already picked up new petitions to collect more signatures.

Beacon Hill still could intervene and broker some kind of deal to avert voters from getting the final say on one or more measures, like they did with the 2018 “grand bargain” law. Any action of that sort would likely need to occur before July 3, the date by which campaigns must submit certified signatures to Galvin’s office to lock in a spot on the Nov. 5 ballot.

Every member of the committee except for Lewis, who co-chairs the Education Committee, took a clear stance against one question that would eliminate the use of MCAS exams as a high school graduation requirement.

Supporters, led by the Massachusetts Teachers Association, argue that the high-stakes tests put too much pressure on students and fail to capture performance as well as more individualized classroom exams.

But most lawmakers on the panel found that argument unconvincing.

“Simply eliminating the uniform graduation requirement, which will allow students to graduate who do not meet basic standards, with no standardized and consistent benchmark in place to ensure those standards are met, will not improve student outcomes and runs the risk of exacerbating inconsistencies and inequities in instruction and learning across districts,” they wrote.

Lewis, who declined to take an up or down stance on the MCAS and driver unionization reports, said he hopes lawmakers can secure an agreement on both fronts.

“Productive discussions between legislators and stakeholders on this initiative petition are currently ongoing,” he said in a statement about MCAS graduation requirements. “I am hopeful that a legislative compromise can be reached that would resolve this matter in a manner that is satisfactory to all parties.”

John Schneider, chair of the Committee To Preserve Educational Standards For K-12 Students that is fighting against the teacher union-backed measure, praised the committee for declining to recommend its passage.

“The ballot question would undermine our children’s chances for future success,” Schneider said in a statement. “Eliminating the only statewide standard Massachusetts has for high school graduation would allow each of the state’s 300-plus school districts to devise their own graduation standards, leading to unequal evaluations of student readiness for college and careers and wider inequities in student achievement and opportunities.”

MTA President Max Page and Vice President Deb McCarthy reacted to the legislative report by mostly recounting their case for decoupling MCAS exams from graduation requirements, arguing that it “removes the negative aspects of having the standardized test used as a graduation requirement, while keeping the MCAS exams as diagnostic tools.”

The panel mostly agreed that lawmakers should not take action on a set of intertwined questions dealing with rights and benefits for drivers on platforms such as Uber and Lyft.

One union-backed question would let those drivers collectively bargain with the companies. While lawmakers — who often pitch themselves as union allies — wrote that they see “merit to the subject,” they ultimately recommended the Legislature not approve the measure because “significant questions remain” over how it slots into the broader landscape.

Another proposal funded by gig economy power players Uber, Lyft, Instacart and DoorDash that would declare drivers to be independent contractors, not employees, is also on track to reach the ballot. Meanwhile, a trial is set to begin this month in a nearly four-year-old state lawsuit against Uber and Lyft alleging they violate labor laws by treating drivers as contractors.

The special committee unanimously agreed not to recommend passage of any of the five versions of the company-backed contractor question, some of which also extend additional benefits to drivers.

“The Committee feels that any action on this subject must strike a balance between existing employee rights and protection, and the need to ensure that TNCs can continue to operate, which they maintain would not be possible if Drivers were not classified as independent contractors,” lawmakers wrote. “Particularly salient is the petitioners’ assertion that the drivers will lose flexibility if the Companies are not able to lawfully classify them as independent contractors. Drivers who testified before the Committee focused on the importance of flexibility and the benefit of being able to work whenever they choose. However, proponents did not provide an answer as to why work-hours flexibility would be impossible to provide regardless of employment status. Massachusetts law currently does not limit the flexibility that employers can offer to their employees.”

A spokesperson for the campaign said Wednesday that supporters will collect signatures on all five versions of the question to keep options open given a pending eligibility challenge that the Supreme Judicial Court will hear next week. The spokesperson added that organizers plan to file only one question for the final ballot.

Massachusetts AFL-CIO President Chrissy Lynch commended lawmakers for their recommended non-action on the company-backed question, and called for them instead to take up legislation her group supports that would enshrine employee status for drivers.

Organized labor groups are not united on the best approach. Other unions including 32BJ SEIU and the International Association of Machinists are supporting the driver-unionization ballot question that similarly failed to win legislative support.

Roxana Rivera, assistant to the president of 32BJ SEIU, criticized the committee for “call[ing] for inaction while billion-dollar app companies continue exploiting Massachusetts drivers.” She said organizers are prepared to put the measure before voters.

Lawmakers aimed some of their most pointed initiative-petition commentary at the question pushed by Auditor DiZoglio, a Democrat who previously served in both branches and clashed with legislative leaders during her tenure.

DiZoglio has been trying to subject the notoriously opaque House and Senate to an audit by her office, but top Democrats have refused, arguing that she is overstepping her authority.

Attorney General Andrea Campbell declined to give legal support to the first-term auditor. That left a ballot question explicitly empowering the auditor’s office as effectively DiZoglio’s last hope.

Democrats on the special committee wrote in their report that DiZoglio “lacks the objectivity required to audit the Legislature in accordance with the Generally Accepted Government Auditing Standards,” saying she has regularly “cited perceived political mistreatment in the Legislature” in public commentary.

They also contended that allowing an independent state office in the executive branch to scrutinize the Legislature would take accountability powers away from voters.

“In a representative democracy, power rests with the constituents who elect their Representatives and Senators and hold them accountable,” committee members wrote. “Rather than achieve its stated goals, the proposed the [sic] Initiative Petition would limit the power of the voters who elect Members of the Legislature by expanding the powers of the Executive Branch; essentially, the Auditor would supplant the people for herself in holding the Legislature accountable.”

Most voters will have no electoral choices other than incumbents representatives and senators because so few lawmakers face challengers.

Some Republicans have supported DiZoglio’s effort to shine a spotlight on the Legislature, where decisions are regularly made behind closed doors and bills emerge for votes with mere hours or minutes for review. 

Fattman called the move by Democrats to leave the ballot question untouched “politically tone deaf.” He forecast that the measure will likely pass, wind up in court, and then judges will tell lawmakers the best framework to implement.

“The Legislature had it within its authority to come up with a compromise, say let’s do this, make it constitutional, institute transparency like the Legislature wants, but not get in the way of our responsibilities, our core functions,” Fattman told the News Service. “I think that’s a reasonable response. We could have had manifest destiny, created our own ability to audit, taken the political issue out of it, and yet we didn’t do that.”

Republicans did not file their own minority report, but Fattman said he would explore the option with Vieira.

Legislative leaders this session created a special committee to review ballot questions, rather than distributing each measure to the existing panel that most closely covers its subject area.

House Speaker Ron Mariano and Senate President Karen Spilka said at the time the new group would be “especially equipped to tackle the unique challenges presented by the legal and policy intricacies of the questions this year.”

One byproduct of the move is that the work was concentrated in the hands of high-ranking deputies — Peisch serves as assistant majority leader in the House, while Friedman is vice chair of the Senate Ways and Means Committee — rather than spread more diffusely among multiple committee chairs who are further out in the leadership orbit.

The reports not only serve as an explanation of how lawmakers who participated in the review feel about each proposal. They will also become part of the Legislature’s messaging to voters likely to be tasked with the final decision.

Under the state Constitution, each of the legislative reports must be included in an information pamphlet the secretary of state’s office publishes before the election summarizing the ballot questions and cases for and against their passage.