By David S. Broder Sunday, March 26, 2000; Washington Post
An alternative form of government—the ballot initiative—is spreading in the United States. Despite its popular appeal and reformist roots, this method of lawmaking is alien to the spirit of the Constitution and its carefully crafted set of checks and balances. Left unchecked, the initiative could challenge or even subvert the system that has served the nation so well for more than 200 years.
Though derived from a century-old idea favored by the Populist and Progressive movements as a weapon against special-interest influence, the initiative has become a favored tool of interest groups and millionaires with their own political and personal agendas. These players—often not even residents of the states whose laws and constitutions they seek to rewrite—have learned that the initiative is a more efficient way of achieving their ends than the cumbersome and often time-consuming process of supporting candidates for public office and then lobbying them to pass legislation.
In hundreds of municipalities and half the states—particularly in the West—the initiative has become a rival force to City Hall and the State House. (The District of Columbia allows voters to enact laws by initiative, but the states of Maryland and Virginia do not.) In a single year, 1998, voters across the country bypassed their elected representatives to end affirmative action, raise the minimum wage, ban billboards, permit patients to obtain prescriptions for marijuana, restrict campaign spending and contributions, expand casino gambling, outlaw many forms of hunting, prohibit some abortions and allow adopted children to obtain the names of their biological parents. Of 66 statewide initiatives that year, 39 became law. Simply put, the initiative’s growing popularity has given us something that once seemed unthinkable—not a government of laws, but laws without government.
This new fondness for the initiative—at least in the portion of the country where it has become part of the political fabric—is itself evidence of the increasing alienation of Americans from our system of representative government. Americans have always had a healthy skepticism about the people in public office: The writers of the Constitution began with the assumption that power is a dangerous intoxicant and that those who wield it must be checked by clear delineation of their authority.
But what we have today goes well beyond skepticism. In nearly every state I visited while researching this phenomenon, the initiative was viewed as sacrosanct, and the legislature was held in disrepute. One expression of that disdain is the term-limits movement, which swept the country in the past two decades, usually by the mechanism of initiative campaigns.
It is the clearest expression of the revolt against representative government. In effect, it is a command: “Clear out of there, you bums. None of you is worth saving. We’ll take over the job of writing the laws ourselves.” But who is the “we”? Based on my reporting, it is clear that the initiative process has largely discarded its grass-roots origins. It is no longer merely the province of idealistic volunteers who gather signatures to place legislation of their own devising on the ballot. Billionaire Paul Allen, co-founder of Microsoft, spent more than $8 million in support of a referendum on a new football stadium for the Seattle Seahawks. Allen, who was negotiating to buy the team, even paid the $4 million cost of running the June 1997 special election—in which Washington state voters narrowly agreed to provide public financing for part of the $425 million stadium bill.
Like so many other aspects of American politics, the initiative process has become big business. Lawyers, campaign consultants and signature-gathering firms see each election cycle as an opportunity to make money on initiatives that, in many cases, only a handful of people are pushing. Records from the 1998 election cycle—not even one of the busiest in recent years—show that more than $250 million was raised and spent in this largely uncontrolled and unexamined arena of politics.
This is a far cry from the dream of direct democracy cherished by the 19th-century reformers who imported the initiative concept from Switzerland in the hope that it might cleanse the corrupt politics of their day. They would be the first to throw up their hands in disgust at what their noble experiment has produced.
The founders of the American republic were almost as distrustful of pure democracy as they were resentful of royal decrees. Direct democracy might work in a small, compact society, they argued, but it would be impractical in a nation the size of the United States. At the Constitutional Convention in 1787, no voice was raised in support of direct democracy.
A century later, with the rise of industrial America and rampant corruption in the nation’s legislatures, political reformers began to question the work of the founders. Largely rural protest groups from the Midwest, South and West came together at the first convention of the Populist Party, in Omaha in 1892. The Populists denounced both Republicans and Democrats as corrupt accomplices of the railroad barons, the banks that set ruinous interest rates, and the industrial magnates and monopolists who profited from the labor of others while paying meager wages.
Both the Populists and Progressives—a middle-class reform movement bent on rooting out dishonesty in government—saw the initiative process as a salve for the body politic’s wounds. An influential pamphlet, “Direct Legislation by the Citizenship through the Initiative and Referendum,” appeared in 1893. In it, J.W. Sullivan argued that as citizens took on the responsibility of writing the laws themselves, “each would consequently acquire education in his role and develop a lively interest in the public affairs in part under his own management.”
Into this feisty mix of reformers came William Simon U’Ren, a central figure in the history of the American initiative process. In the 1880s, U’Ren apprenticed himself to a lawyer in Denver and became active in politics. He later told Lincoln Steffens, the muckraking journalist, that he was appalled when the Republican bosses of Denver gave him what we would now call “street money” to buy votes. In the 1890s, having moved to Oregon in search of a healthier climate, U’Ren helped form the Direct Legislation League. He launched a propaganda campaign, distributing almost half a million pamphlets and hundreds of copies of Sullivan’s book in support of a constitutional convention that would enshrine initiative and referendum in Oregon’s charter. The proposal failed narrowly in the 1895 session of the legislature, in part because the Portland Oregonian labeled it “one of the craziest of all the crazy fads of Populism” and “a theory of fiddlesticks borrowed from a petty foreign state.”
Eventually, U’Ren lined up enough support for a constitutional amendment to pass easily in 1899. It received the required second endorsement from the legislature two years later, with only one dissenting vote. The voters overwhelmingly ratified the amendment in 1902 and it withstood a legal challenge that went all the way to the Supreme Court.
U’Ren’s handiwork is evident today in his adopted state. The official voters’ pamphlet for the 1996 Oregon ballot—containing explanations for 16 citizen-sponsored initiatives and six others referred by the legislature—ran 248 pages.
It also included paid ads from supporters and opponents.
Money does not always prevail in modern-day initiative fights, but it is almost always a major—even a dominant—factor. In the fall of 1997, more than 200 petitions were circulating for statewide initiatives that sponsors hoped to place on ballots the following year. The vast majority did not make it. The single obstacle that eliminated most of them was the ready cash needed to hire the companies that wage initiative campaigns. In 1998, the most expensive initiative campaign was the battle over a measure legalizing casino-style gambling on Indian lands in California. The Nevada casinos, fearful of the competition, shelled out $25,756,828 trying to defeat the proposition. The tribes outdid them, spending $66,257,088 to win. The $92 million total was a new record for California.
But of all the ventures into initiative politics that year, perhaps the most successful was engineered by three wealthy men who shared the conviction that the federal “war on drugs” was a dreadful mistake. They banded together to support medical marijuana initiatives in five Western states. The best known of them was billionaire financier George Soros of New York, who had made his fortune in currency trading. He and his political partners—Phoenix businessman John Sperling and Cleveland businessman Peter B. Lewis—personally contributed more than 75 percent of the $1.5 million spent on behalf of a successful medical marijuana initiative in just one of the states, Arizona. The issue isn’t whether medical marijuana laws are good or bad. As Arizona state Rep. Mike Gardner complained to me, “The initiative was part of our constitution when we became a state, because it was supposed to offer people a way of overriding special interest groups. But it’s turned 180 degrees, and now the special interest groups use the initiative for their own purposes. Why should a New York millionaire be writing the laws of Arizona?”
When I relayed Gardner’s question to Soros, he replied: “I live in one place, but I consider myself a citizen of the world. I have foundations in 30 countries, and I believe certain universal principles apply everywhere—including Arizona.”
It won’t be long before the twin forces of technology and public opinion coalesce in a political movement for a national initiative—allowing the public to substitute the simplicity of majority rule for what must seem to many Americans the arcane, out-of-date model of the Constitution. In fact, such a debate is already underway, based on what I heard at a May 1999 forum sponsored by the Initiative and Referendum Institute here in Washington.
- Dane Waters, the institute’s president, cut his political teeth on the term-limits movement, and the group’s membership includes firms in the initiative industry. But Waters strove to keep the forum intellectually honest, inviting critics as well as supporters of the initiative process. There was no doubt about the leanings of most of those in attendance. The keynote speaker was Kirk Fordice, then governor of Mississippi, who was cheered when he saluted the audience as “the greatest collection of mavericks in the world. The goal that unites us is to return a portion of the considerable power of government to individual citizens . . . and take control from the hands of professional politicians and bureaucrats.” Fordice, a Republican, noted that his state was the most recent to adopt the initiative, in 1992. Since then, he lamented, “only one initiative has made it onto the ballot,” a term-limits measure that voters rejected.“Thank God for California and those raggedy-looking California kids who came in and gathered the signatures,” he said. “Now the [Mississippi] legislature is trying to say we can’t have them come in, and we’re taking it to court.”
Then came Mike Gravel, former Democratic senator from Alaska and head of an organization called Philadelphia II, which calls for essentially creating a new Constitution based on direct democracy. Gravel’s plan—simplicity itself—is to take a national poll, and if 50 percent of the people want to vote on an issue, it goes on the next general election ballot. Then Congress would have to hold hearings on the issue and mark up a bill for submission to the voters. Once an issue gets on the ballot, only individuals could contribute to the campaign for passing or defeating it. When I began researching the initiative process, I was agnostic about it. But now that I’ve heard the arguments and seen the initiative industry in action, the choice is easy. I would choose James Madison and the Constitution’s checks and balances over the seductive simplicity of Gravel’s up-or-down initiative vote. We should be able to learn from experience, and our experience with direct democracy during the last two decades is that wealthy individuals and special interests—the very targets of the Populists and Progressives a century ago—have learned all too well how to subvert the initiative process to their own purposes. Admittedly, representative government has acquired a dubious reputation today. But as citizens, the remedy isn’t to avoid our elected representatives. The best weapon against the ineffective, the weak and the corrupt is in our hands each Election Day.
Ben White, The Post’s political researcher, assisted David Broder in the research for his book on the initiative process.
David Broder is The Washington Post’s senior political writer. This article is adapted from his new book, “Democracy Derailed: Initiative Campaigns and the Power of Money” (Harcourt).