When Republican State Rep. Rich McClain filed a bill last week that called for a referendum vote on the controversial right-to-work issue, he had no idea it might be unconstitutional.
Or that he’d be accused of taking part in a partisan conspiracy to trick opponents of legislation that would make Indiana the 23rd right-to-work state in the nation.
“I’m not smart enough to be part of a grand conspiracy,” said McClain, a 17-year veteran of the Statehouse who keeps a low profile in the legislature.
The Logansport lawmaker has found himself on the hot seat in recent days, as the idea of a referendum vote has emerged as a critical issue in the ongoing fight over the right-to-work bill now stalled in the Statehouse.
The House Democrats who’ve refused to show up for quorum calls are now calling for a public referendum vote on the issue in November and demanding the bill be amended to allow for one before they return.
Hundreds of union members who’ve shown up to protest the bill have switched out signs that read “Right to Work is Wrong.” Now they’re carrying signs that read: “What Happened to We the People, For the People. Why not have a RTW Referendum Vote?”
The initials RTW have become shorthand for the legislation that would outlaw mandatory union dues for private-sector workers
McClain doesn’t really want a referendum. He wants to see Indiana become a right-to-work state and he thinks the legislature should vote to do so. He said he filed the referendum bill as fallback “in case that was the only alternative” to getting such a law.
But his little referendum bill triggered a big reaction.
House Democrats who wanted to amend the original right-to-work bill were told early this week that a referendum vote on right-to-work would be unconstitutional. House Minority Leader Patrick Bauer said the late notice was part of a “dodge” crafted by GOP leaders to trick the Democrats into coming back to the House.
On Jan. 13, three days after McClain filed his bill, attorneys at the nonpartisan Legislative Services Agency, issued an opinion that Indiana law has strict limits on what issues can be put to the people for a vote. And that right-to-work isn’t one of them.
“LSA never told me that when I filed my bill,” McClain said Wednesday.
What the LSA opinion said was the state constitution allows for local referendums on issues such as school funding and abolishing township assessors, and it allows constitutional amendments to be placed on the ballot.
But it doesn’t allow voters to decide on whether or not to enact a state law.
It cites Article 1, Section 25 of the Indiana Constitution, which says: “No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.”
There may be another referendum option: State Rep. Ed Delaney, one of the five House Democrats who’ve shown for quorum calls on the House floor, said Indiana could hold an “advisory referendum.”
It’s a rarely used option but it would allow voters to cast an opinion vote on a right-to-work law. Delaney said it could give lawmakers better guidance on how to vote on such a bill in a future session.
Nancy Guyott, a Harvard University-educated lawyer who heads the AFL-CIO in Indiana, said she hadn’t researched state referendum law. “But we’re looking into it,” she said.
Like Delaney, she wants the right-to-work bill killed in the legislature. But she’s willing to take on the public fight, if it’s granted.
“When the public learns more about what a [right-to-work] law is about, they’ll disapprove,” Guyott said.
Maureen Hayden is the Indiana Statehouse bureau chief for CNHI, the parent company of the Tribune-Star. She can be reached at firstname.lastname@example.org