In Federalist No. 63, James Madison wrote that the defining principle of American democracy, as compared to Athenian democracy, “lies in the total exclusion of the people in their collective capacity.” But since Madison wrote those words, several direct-democratic institutions have been introduced into American politics. California became the first state to adopt a ballot-initiative process in 1911, enabling citizens to place a proposal on the ballot after paying a small fee, submitting a written proposal to the California Attorney General, and gathering signatures in support of their initiative.

Ultimately, the initiative process provides an important opportunity for Americans to participate in self-government. But flaws in its implementation have indicated the need for  checks on the system, such as higher thresholds for signatures and a role for the legislature in proposing competing initiatives.

The People Speak Too Easily?

Although most of the Founders did not favor direct democracy, initiatives were eventually incorporated into several states’ constitutions because citizens demanded more direct ways of enacting policy change. As Tom Harman, a California state senator, told the HPR, “Sometimes, the initiatives are a populist reaction to a legislature’s inactivity on issues of importance to the voters.” He continued, “I value the initiative process, and I totally support the people’s right to make decisions, especially when the legislature won’t.” But many critics contend that this is not always a healthy solution to legislative inactivity.

Many call for increased legislative checks on the initiative process, particularly during the signature-gathering process.  For an initiative to qualify for the ballot in California, the number of signatures supporting the measure must be at least five percent of the total votes cast in the last gubernatorial election if the initiative proposes a state statute, or eight percent if it proposes a state constitutional amendment. Some have suggested that these low thresholds make it too easy to place misunderstood or poorly thought-out measures on the ballot.

Several critics have also proposed banning the use of professional signature gatherers, who have little personal investment in the initiative and can persuade citizens to sign documents they do not understand. Nonetheless, reforming the signature-gathering process might not be constitutionally feasible. As Thad Kousser, a professor of political science at the University of California, San Diego, told the HPR, “The courts have taken a clear line against restrictions on paid signature gathering since the 1920s.”

The Problem of Citizen-Legislators

Because there is often little transparency in the initiative-writing process, citizens with no legal expertise are able to draft poorly written laws, which sometimes come with unintended consequences. For example, Colorado’s so-called “English for the Children” initiative in 2002 sought to eliminate many bilingual programs from the public education curriculum. Due to the measure’s vague language, however, if the initiative had passed many experts believe that it would also have eliminated English as a Second Language. As Bruce Cain, a professor of political science at the University of California, Berkeley, told the HPR, “[We need] more transparency in the formulation phase. If that were a more public process that allowed for more input, it would improve the quality of measures.”

Additionally, many critics claim that initiatives do not provide voters with enough options. According to Kousser, “Once an initiative qualifies for the ballot, the legislature should be able to put a competing initiative on the ballot by a simple majority vote.” Joshua Pritikin, a volunteer for The Democracy Foundation, which aims to reform the initiative process, told the HPR, “Votes on initiatives are frequently very close. … One possible reason is that the electorate doesn’t really know which way to vote.” In other words, confusion over initiatives leads to a toss-up outcome that doesn’t reflect the voters’ true will. Pritikin suggested that making the initiative process into “a more deliberative procedure,” in which citizens can debate alternatives or participate in a “formal deliberative poll,” would help to alleviate some of these problems.

Reforming Implementation

Some critics of direct democracy also advocate more legislative oversight after initiatives are passed. One proposal Cain suggested was to “restrict the number of constitutional amendments or constitutional changes” that can be passed by initiative, and instead limit initiatives to “statutory changes that can be amended by the legislature after some period of time.”

Many critics also point to direct democracy’s potential to hurt minority groups, a concern that was borne out by Proposition 8 in California, which overturned the California Supreme Court’s decision allowing gay marriage. According to Pritikin, “Initiatives are drafted by their sponsors, and they tend to be drafted in a way that takes a one-sided position and doesn’t incorporate compromise by looking at solutions that are beneficial for all state residents.” In an environment of legislative debate, on the other hand, the need for compromise usually prevents legislators from proposing bills that restrict minority rights.

Initiatives are also a drain on state finances, since most mandate an increase in government spending, and voters often refuse to accept higher taxes to pay for them.  As State Sen. Harman said, “[We] need to get away from initiatives that earmark funding for certain programs. Right now, the bulk of California’s revenue is directly tied to programs via the initiatives process.” He continued, “This has really limited our ability to fairly rein in spending to deal with a multi-billion-dollar budget deficit.” For example, public education  in California faces drastic cuts because it is one of the few state programs from which legislators can remove funding.

Tensions in Direct Democracy

Steven Greenhut, director of the Pacific Research Institute’s Journalism Center, told the HPR that he agreed  with this assessment of  the “abuses” of the initiative system. But, said Greenhut, “I would hate to give up this tool for reform.” After all, he asked, “When the legislature fails, what do you do for reform?”

In many cases, the only way to get the change that people desire is through the initiative process. Reforming the initiative process might have the unintended effect of removing a valuable avenue for the public to exercise its will. As Greenhut concluded, “With initiatives, you get the good, and the bad, and the ugly.”

According to Cain, distinguishing between populist and progressive reforms can resolve some of the problems with initiatives. The ballot initiative itself emerged from populist ideals that sought to bypass the legislature in favor of the people’s will. In contrast, progressive reforms sought to “complement the legislature” rather than “supplant” it, resulting in institutions like referenda and recalls that give citizens more input into the legislative process without undermining independence completely. Fixing the initiative process will require reconciling the tension between populism and progressivism and preserving the initiative’s underlying purpose: in Kousser’s words, to “give voters a little bit more of what they want.”

Peter Bozzo ’12 is a Staff Writer and Andrew Irvine ’12 is a Contributing Writer.

Photo Credit: Flickr (procomkelly)

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