Paul Jacob

Nebraska State Senator DiAnna Schimek’s 20-year legislative career is nearly over. She feels victimized, no doubt, by the voter-enacted term limits that make this her final year in power. Still, Senator Schimek hopes to go out with her boots on, firing one final shotgun blast to maim or kill the initiative process she has long abhorred.

You see, it was only through the voter initiative that Nebraskans passed term limits . . . three times.

Yup. It took three petition drives and three votes of the people.

Of course, term limits passed overwhelmingly each time. But a charmed third initiative was required because Nebraska’s supreme court struck down the first two citizen-sponsored measures. Those votes were tossed out (if we wish to be overly kind) because of legal technicalities or (if we wish to be more honest) because of outrageous and tyrannical court rulings.

Though term limits enjoyed sustained and overwhelming public support throughout the battle, the nation’s only unicameral never seriously entertained passing such a measure. After all, what do the voters know?

And without the initiative process, legislators-know-best would have been the rule. That’s reason enough for legislators to despise the initiative, certainly, but there are a plethora of other reasons. The fact that a cap on state spending growth made the ballot in 2006 is one more.

In fact, every initiative breaks the law-making monopoly of legislators. And every initiative is likely to be something legislators oppose, or citizens wouldn’t have to go through all the work of petitioning to place such an issue before their fellow citizens. Most significant reforms have to be enacted over the objections of those who are supposed to be representing us, but are so often representing themselves.

Schimek and her fellow know-it-all nabobs realize they can’t stop term limits at the ballot box. This reality was proven yet again in recent months by voters in California and Maine, defeating attempts by politicians to weaken their respective term limits laws. So, the politicians’ best hope appears to be to wreck the path by which such popular reforms can be instituted over their objection: the voter initiative.

That’s why Legislative Bill 39 passed by a lopsided margin of two to one. Intriguingly, more than 90 percent of those termed-out this year supported Schimek’s parting shot.

What would LB39 do? First, it outlaws paying circulators based on the number of signatures collected. So, what else would determine the pay of those circulating a petition? Paying hourly dramatically ups the cost of petition drives, which is, of course, the goal. That’s simply because it destroys any incentive to work hard, since someone standing on their feet in the hot sun asking everyone they see to sign the petition would be paid the same as his or her colleague sitting under a shade tree talking to friends on the cell phone.

LB39 would also forbid hiring professional petitioners from other states, or even allowing volunteers to cross state lines to assist.

Funny, these legislators forgot to outlaw their own use of out-of-state campaign managers, pollsters, advertising firms, etc.

Both restrictions are, at best, constitutionally questionable. They dramatically impair the ability of citizens to associate and to effectively speak out (I have italicized the keywords here; please cross-reference with the First Amendment). This is not likely an unintended consequence, but the very purpose of this legislation, and of other, similar bills so often advanced by politicians elsewhere.

Schimek certainly isn’t new to the game. Last year she introduced legislation to force petitioners to wear large badges in public, displaying personal information. This equivalent of a Yellow Star would have made it easier to harass and intimidate any citizen who dared petition his or her government. Today’s leftist thugs who have embraced street-theater warfare as a legitimate tactic of (or against) democracy must have wetted themselves when they heard of this measure. And wept when it failed.

Little do these legislators care if courts later find they have violated the constitutional rights of their constituents. They don’t pay the wasted legal fees; the taxpayers do. For instance, two years ago when the cities of Lincoln and Omaha, Nebraska, attempted to deny people circulating a Taxpayer Bill of Rights petition access to public property. It took a federal judge to stop them. They not only ran up their own legal tab, but also — because the civil rights abuse was so egregious and purposeful — were required by the judge to pay over $100,000 to cover the challenger’s legal bills.

Apparently, there’s no ignominy in passing unconstitutional restrictions. Legislators deem any law — no matter how short-lived — effective if it silences citizens who cannot afford legal challenges. And while litigation goes on, the law remains law, prohibiting citizens from effectively gathering signatures.

Politicians are at war with their constituents. In war you use short-term counter-measures as well as long-term ones.

Thankfully, a few politicians show a great deal more respect for the state’s citizens and constitution. When Nebraska Governor Dave Heineman vetoed Schimek’s bill, he wrote to legislators:

In my view, the restrictions proposed by LB39, when coupled with the signature threshold requirements that exist in current law, would unfairly inhibit the ability of citizens to petition their government. I do not believe that we should enact additional barriers to the powers that are reserved for the people in Article III of the Nebraska Constitution.

In fact, Nebraska’s supreme court has ruled that Nebraska’s unicameral has no legitimate power to pass such restrictions, ruling many years ago that the constitutional establishment of the process also means that, “Any legislation which would hamper or render ineffective the power reserved to the people would be unconstitutional.”

This Tuesday, however, Nebraska’s legislature will be back at it, attempting to override the Governor’s veto in what, for some like Schimek, will be their last chance to violently slash back at the power of the people, the power that dares set limits on politicians.

Those who care about such issues — you know, freedom, the First Amendment, and all that — might weigh in with their own voices.


Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.