The Scrum: The ballot question that explains why Mass. has so many ballot questions

This article is republished from The Boston Globe's October 7th edition of their politics newsletter, The Scrum, written by Kelly Garrity. You can read the full edition of The Scrum here.

The record-tying bevy of questions on the November ballot all reflect, in one way or another, advocates and others’ frustration with trying, and often failing, to get legislation through Beacon Hill, where lawmakers are either cautious, indifferent, or outright opposed to the various proposals.

It might be one of the lowest-profile questions that best illustrates the trend.

Question 2 would give employees at the Committee for Public Counsel Services, the state’s public defenders agency, the right to unionize, a change supporters say they’ve spent years trying — and failing — to win in the Legislature.

If you don’t really know what Question 2 is about, you’re not alone. A MassInc Polling Group/CommonWealth Beacon poll out last week showed that more than one in four of the 800 likely Massachusetts voters surveyed don’t yet know how they’ll vote on the proposal, the highest of any of the nine ballot questions polled.

Unlike many other state employees, the attorneys and other workers at CPCS are currently barred from collective bargaining. There’s also a quirk in the way the agency is set up: CPCS is nominally part of the judicial branch, but it’s set up to work independently of the judiciary, leaving open the question of with whom the agency’s hundreds of employees would negotiate their contracts, according to an analysis from Tufts University’s Center for State Policy Analysis.

The proposed fix? Creating a multi-step bargaining system. Should the question pass, the Tufts center analysis explains, the ballot question would set up a structure where CPCS workers would negotiate with the agency’s management, and then seek the governor’s sign off on the funding for whatever deal emerges. (The Legislature then would have to actually fund it.)

The question itself wouldn’t create a union, but it’d give employees at CPCS the ability to form one.

Employees of the agency, and the unions assisting them, turned to the ballot after trying and failing to push a similar bill across the finish line for at least six legislative sessions, said Tom McKeever, the president of SEIU Local 888, one of two unions helping bankroll the ballot campaign.

The question is one of a “lot of things that wouldn’t be on the ballot if the Legislature had dealt with them,” said David Holway, president of the National Association of Government Employees, which is also helping fund the campaign.

There are, however, reasons lawmakers may have been reluctant to act. Allowing CPCS employees to unionize could ultimately cost the state more money if workers negotiate higher wages and benefits, and those raises would bleed into the state budget.

In a report a legislative committee released this past spring, lawmakers said that experts warned that allowing public defenders to unionize could “disrupt existing management and supervisory frameworks, introduce ambiguity into lines of authority, and create operational inefficiencies.”

But, McKeever argued, the question itself “doesn’t cost the Commonwealth anything, other than what a collective bargaining agreement would bring.”

Those concerns help explain why this particular question, facing roadblocks in the Legislature, is now going before voters. But it also speaks to the wider trend.

“It perfectly encapsulates why we’re seeing more ballot questions,” said Evan Horowitz, executive director of Tufts University's Center for State Policy Analysis. “Groups have lost faith in the legislative process and are turning to the ballot more often and earlier.”

That’s not to say there’s not a recognition that something needs to change with the public defenders system itself. The state’s inspector general office this year flagged several problems with the current structure, which came under intense scrutiny last year during a months-long work stoppage by bar advocates — private attorneys paid by the state to represent defendants — who demanded higher pay and threw the state’s busiest courts into crisis.

On the campaign trail this fall, there is no formal opposition committee to Question 2. But the proposal’s relatively low profile and the campaign’s comparatively modest war chest — the unions have so far reported putting roughly $1 million behind the effort — could leave it struggling to break through as better-funded ballot campaigns begin to flood the airwaves with ads.

Though they have no major television buys on the horizon — McKeever said the campaign plans to focus instead on digital advertising — Question 2’s backers still say they’re confident they can get sufficient support in November.

Still, “it’s costly,” McKeever said, “and yeah, it keeps me up at night.”