Ballot Boxing
By John Maggs, National Journal
© National Journal Group Inc.
Friday, June 30, 2000
If you’re looking for an interesting place to spend Election Day this year, consider watching the returns in Arizona. The state has backed a Democrat for President exactly once since 1948. Even this far out from Election Day, hardly anyone says that George W. Bush can lose this GOP stronghold, especially with Sen. John McCain of Arizona on his side. Well-known Democrats have shied away from taking on Sen. Jon Kyl, the state’s popular first-term Republican, and politicians from both parties are forgoing challenges to House members, since redistricting after the 2000 census will add two House seats. The only competitive House race will be for the seat of Tucson Republican Jim Kolbe, but most expect him to win — he’s weathered rougher moments, such as his 1996 revelation that he is gay. Ballot initiatives to bypass gridlocked lawmakers are becoming increasingly popular. But to David Broder & Co., plebiscites subvert the role of legislators as democracy’s true traffic cops.
Oh yes, and voters in Arizona this fall will probably get to decide whether to abolish all state and local income taxes, decriminalize most drugs, end bilingual education, and perhaps legalize prostitution. Arizona is one of 24 states that allows lawmaking through ballot initiative. This method of “direct democracy” has come to play a major role in Arizona and often overshadows the Legislature’s activities and the governor’s policies. As usual, the lineup of possible ballot questions is generating a lot more interest than the lineup of politicians. If Arizona’s ballot agenda for 2000 sounds radical, most political observers consider this a slow year for initiatives. In 1998, Arizona voters approved a sweeping campaign finance reform, took a stab at legalizing marijuana for medical purposes, and approved an initiative opposed bitterly by environmentalists that prevents the legislature from imposing limits on suburban sprawl.
Elsewhere this election year, voters will weigh initiatives on many of the most controversial issues of the moment — gun control, school choice, genetically modified foods, and preserving “open spaces,” to name just a few. Indeed, over the past 20 years or so, there has been an undeniable boom in state ballot initiatives and referenda. (An initiative is placed on the ballot by a petition of citizens, and a referendum is generally put on the ballot by the legislature.) Most people connect this boom to California’s Proposition 13, a 1978 tax-cutting initiative that spawned many imitators. Since then, initiatives have become more numerous, ambitious, diverse, and far-reaching. And they have become more successful — in the 1990s, initiatives passed about 25 percent more often than they did in previous decades. (See the chart) Polls show that the public overwhelmingly supports the idea of initiatives. Depending on how survey questions are phrased, between two-thirds and three-fourths of respondents want the option to vote directly on laws, a proportion that is about the same in states that permit initiatives as in those that do not.
Despite its popular approval, a powerful backlash is building against ballot initiatives. Propelled by two successful books and the warnings of a number of historians and political commentators, an expanding group of critics argues that initiatives are causing unpredictable and unaccountable changes in society, crippling state legislatures, and undermining the very structure of representative government in the United States.
David vs. the Gilded Goliaths
The event that has most fed this backlash was the publication in April of Democracy Derailed, by Washington Post columnist David S. Broder. Broder became interested in initiatives in 1997 while doing what he is famous for — chewing up a lot of shoe leather while traveling the country to investigate how big trends affect little people. After a swing through Oregon and California to look into recent initiatives there, Broder came away unsettled. In the book’s first chapter, “A Republic Subverted,” Broder writes:
“A new form of government is spreading in the United States. It is alien to the spirit of the Constitution and its careful system of checks and balances. Though derived from a reform favored by Populists and Progressives as a cure for special-interest influence, this method has become the favored tool of millionaires and interest groups that use their wealth to achieve their own policy goals — a lucrative business for a new set of political entrepreneurs.
“Exploiting the public’s disdain for politics and distrust of politicians, it is now the most uncontrolled and unexamined arena of power politics. It has given the United States something that seems unthinkable — not a government of laws, but laws without government.”
Broder’s subtitle is Initiative Campaigns and the Power of Money, and this is the crux of his warning. Using well-known examples, such as California’s recent initiative on bilingual education and the initiatives in a dozen states to legalize marijuana, Broder argues that millionaires and moneyed interests have come to dominate the initiative process, and can dictate outcomes. Because initiatives bypass the time-consuming steps normally associated with legislation, they advance ideas and proposals without, in Broder’s words, the “complex matrix of procedures designed to require the creation of consensus before the enactment of laws.”
As a result, many quirky ideas (in Broder’s view), such as banning bilingual education, are helped onto the ballot by millionaires such as Ron Unz, the Silicon Valley entrepreneur who accomplished this feat in California. Wealthy interests then spend their millions on media campaigns that, Broder says, are less deliberative than the legislative process, and thus less illuminating for voters. Broder uncovers a growing industry of political-initiative companies that he alleges are helping to pump up demand for initiatives, which are now a $250-million-a-year business. Part of that business is paying signature-gatherers a commission for each name they get on a petition. Jim Kolbe said he was approached recently by one of these paid petitioners in Arizona. “He said he was getting $1.25 per signature, that he was doing it for bar money,” said Kolbe. “I’m not sure that this was the kind of citizen’s process that people intended.”
Democracy Derailed has sold well for its genre, but this doesn’t begin to gauge its impact. In scores of excerpts, reviews, adulatory articles by fellow columnists, and television and radio interviews, Broder’s thesis, helped by his prominence as the dean of political commentators, has reached a wider audience. Also aiding the Broder cause is another book that makes much the same argument about the impact of initiatives, this time in California. Paradise Lost by Peter Schrag, the former editorial page editor of The Sacramento Bee, argues that Proposition 13 and other initiatives have played a dominant role in the erosion of California’s schools, infrastructure, and quality of life since the 1970s. Much worse than the reduction in property taxes enacted by Proposition 13 were the restrictions the measure put on future tax increases. Schrag says that this played a central role in the deterioration of public education in the state. And the curbs on property taxes have spurred local jurisdictions to encourage unwise commercial development in order to pump up sales taxes. This new development, in turn, is contributing to sprawl.
Subsequent initiatives, Schrag says, have further hamstrung local governments from raising taxes to fund education, infrastructure, and social programs. In an interview, Schrag said that California’s yawning inequalities of wealth and income have been reinforced by the initiative process, which gives a dwindling majority of upper- and middle-class whites a veto over expanding government meant to help the growing number of poor Hispanics, blacks, and Asian-Americans. In this way, initiatives tend to strip away minority rights, which are an essential goal of representative government, Schrag argues.
Broder’s and Schrag’s disquiet over ballot initiatives seems to be shared widely in the political establishment. Many people who are critical of money’s rising importance in politics second Broder’s view that money has also perverted the initiative process; even some defenders of money in politics feel that way. Bradley Smith, newly sworn in as a member of the Federal Election Commission, favors scrapping most restrictions on political funding for elections but is sympathetic with those who think that big money has taken over initiative campaigns. Kolbe, who hasn’t read the Broder book but does have more than 20 years of experience in Arizona politics, says that he is worried about how “money has taken over” initiatives in his state.
“There definitely is a place for ballot initiatives,” said Kolbe, who served in the state legislature before coming to Washington. “That said, there is a great danger in overuse. All you need nowadays is a lot of money. That’s not good.”
Origin Of Species
Initiatives might seem like a throwback to the early days of American democracy, but they are a relatively modern invention. Imported from Switzerland about 100 years ago, their adoption here was the work of two political movements — populism, a farmer-worker campaign against corporate interests that began in the late 1800s, and progressivism, which came in the early 20th century and was driven mainly by middle-class voters who wanted to curb corruption.
Broder forcefully argues that the direct democracy represented by initiatives was considered and rejected by the framers of the Constitution as a threat to minority rights and stable government. He quotes Fisher Ames, a delegate from Massachusetts to the Constitutional Convention, as writing that direct democracy “would be very burdensome, subject to factions and violence; decisions would often be made by surprise, in the precipitance of passion…. It would be a government not of laws, but of men.”
Broder’s most voluble defender, however, is James Madison, a dominant force at the convention and a future President. Under “pure democracy” without a legislature, “there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention, have been found incompatible with personal security or the rights of property, and have in general been as short in their lives as they have been violent in their deaths.”
In making his case for how money dominates initiative campaigns, Broder relies on a series of examples from the West Coast. California Indian tribes spent $66 million to win a ballot measure on expanding casino gambling in the state, while gambling interests from neighboring Nevada spent $25 million trying in vain to defeat the measure. Ward Connerly, owner of a consulting firm, gathered money from conservative organizations to finance a successful initiative banning affirmative action in California state government. Ron Unz, the high-tech millionaire, provided $650,000 of the $976,000 spent to win an end to bilingual education in the state. And Microsoft billionaire Paul Allen, in Washington state, footed all of the $10 million tab for an initiative to get partial public funding of a new stadium for the football team he owns, the Seattle Seahawks.
Considering how important the argument is to his book, it is surprising that Broder ignores the academic analysis of money’s role in initiative campaigns. In fact, almost all of the work by political scientists undermines his thesis. Broder makes a nod to the academicians by citing one leading researcher who rejects “the allegation that economic interest groups buy policy outcomes through the direct legislative process.” But he dismisses this in favor of his more anecdotal approach: “That conclusion does not jibe with what I observed — or what I was told by practitioners in the initiative industry.”
Much of the most important work in assessing the importance of money in initiative campaigns was done by Daniel Lowenstein, a law professor at the University of California (Los Angeles). As summarized by another researcher in this area, Elisabeth Gerber: “Money matters when it is spent to kill an initiative. And money is necessary to get an initiative on the ballot. But it is not sufficient to win — even when there is a big advantage in spending vs. the no side.”
For Shaun Bowler, a researcher of ballot initiatives who teaches at the University of California (Riverside), this is a crucial distinction: Initiatives are a more conservative method of lawmaking than Broder and others allege. “Keep in mind that initiatives are all about choosing between some change and the status quo,” said Bowler. And until the 1998 elections, the status quo won most of the time, with the success rate of voter-sponsored initiatives averaging about 40 percent. This principle applies to one example featured prominently in Broder’s book – the “paycheck protection” initiative in California, in which business interests from inside and outside the state tried to force unions to obtain written permission from their members before using dues for political purposes. Unions, in the end, spent twice what business spent and were able to defeat the measure. “To me, this only shows that it is a lot easier to stop initiatives with money than to pass them,” Bowler said.
In her book The Populist Paradox, Gerber studied 161 initiatives in eight states over six years, and analyzed the role of money in those efforts. Her conclusion:
“It is a mistake to equate money with influence in the context of direct legislation. Without a doubt, organized interests, especially business interests, now play a greater financial role in the direct legislation process than at any time in history. Big spending, however, does not imply big influence. To pass initiatives and referendums, interest groups must be able to mobilize an electoral majority. As wealthy interests such as the insurance industry, trial lawyer associations, and tobacco companies have recently demonstrated after expensive defeats at the ballot box, if voters do not like what initiative proponents are selling, not even vast amounts of campaign spending can get them to vote for a new policy.”
Money Is A Many-Sided Thing
Gerber’s central conclusion is that “the relationship between money and influence is far more complex and more limited than many observers believe.” For example, in the Indian gambling initiative cited by Broder, was the outcome influenced more by the fact that Indians spent twice as much as the opponents of the measure, or because the opposition came from interests outside the state? Or were voters motivated by a sense of guilt about the past treatment of Indians? Gerber cites another example: an effort by the tobacco industry to push through a California initiative that would have replaced tough, local anti-smoking ordinances with a looser, statewide standard. Although initial support for the initiative was high, once it became known that the primary sponsor was Philip Morris Cos., opposition surged and it was rejected by a wide margin. “Philip Morris spent much more than the anti-smoking side, but in the end it didn’t matter,” Gerber said in an interview.
Gerber’s research backs up these examples. She found that when funding came primarily from “economic interests” (business and professional groups), the initiatives passed 31 percent of the time; when funding came from “citizen interests” (which include rich individuals such as Ron Unz), initiatives passed 50 percent of the time. The experts call this “statistically significant.” For those worried that big business will come to dominate the initiative process, there is no indication so far that this is happening.
Broder says he is familiar with Gerber’s research, and suggests that he didn’t take it more seriously because he thought her category of “citizen interests” (including people like Unz) was too broad. Broder wants to group Unz with “economic interests,” because his influence as a citizen is much larger than that wielded by citizens with less money. But where to draw the line? Influence in politics always varies widely from citizen to citizen. What if it were revealed that most of the funding for an initiative came from 100 well-heeled people? Would they still be citizens, Gerber asks? “We know that money matters in all kinds of politics,” she said. Broder seems to long for a process where everyone has roughly the same amount of influence, but such an egalitarian process has never existed, Gerber said.
In focusing their criticisms on the role of money in the initiative process, Broder and his fellow analysts fail to show that money has been any less corrupting on the alternative they prefer — representative legislatures. This is certainly not the opinion of most Americans, who, polls say, overwhelmingly favor radical campaign finance reform; or the millions of people who voted for John McCain this spring, and consistently register their disapproval with the way that moneyed interests influence events in Congress. “I think there is a naiveté about this position that money has taken over initiatives,” said Bowler. “Where hasn’t it taken over?”
Broder is also sure that initiatives tend to involve much less deliberation than the legislative process, and thus they yield less well considered results. “It doesn’t always work that way, but I think it does most of the time,” said Broder, in an interview. “There is discussion, there are hearings.” Again, Bowler sees this as “a little too much of a generalization.” On the one hand, “there is an idealization” of the way that legislatures make laws “that doesn’t fit with reality. I think Broder’s got a little bit of Mr. Smith Goes to Washington.” If legislatures were more effective at thoroughly debating the great issues of the day, then that might help raise the abysmal ratings of their job performance, he said.
Kolbe echoes Broder’s complaint about how little deliberation goes into initiatives. “They are all sound bites. You don’t have a candidate there saying, ‘This is what I stand for.’ You have media and spin. The voters are completely reliant on this” because the legalistic wording of the initiatives themselves is usually so hard to understand, he said.
But Gerber says that this is an oversimplification of the often-complex role that initiatives play in fostering debate. As an example, she cited California’s Proposition 187, which restricted education and social services for illegal aliens. “Polls showed that Prop. 187 was not the law that a majority of voters wanted, but it passed anyway because a majority felt that something had to be done.” As the law went through the courts, and was briefly defended by California’s new Democratic governor, there was a debate about what should be the proper policy toward illegal immigrants “that there would never have been otherwise,” she said.
For supporters of ballot initiatives, it is this latter point that is ignored by the critics. As one of those critics, Jim Kolbe, pointed out, “There is definitely an important place for ballot initiatives. They are an important escape valve to allow citizens to press for an idea when they are faced with recalcitrant legislatures. And that is often the case.”
Bypassing Legislatures
When Broder cites initiatives as a threat to the power of legislatures, he is exactly right — they are almost always the tool of some interest that believes it cannot get a positive result though the legislature. Broder’s assumption is that this end run is illegitimate, but this argument “puts too much faith in the effectiveness of legislatures,” Gerber said. For example, Broder laments the fact that Unz and his money were able to get bilingual education on the ballot in California, but does not address the fact that “in this case, and many others, there are many controversial issues that legislatures just don’t want to deal with,” Gerber said.
One state legislator who is unafraid of the challenge that initiatives pose to representative government is state Sen. Chris Cummiskey of Arizona. “The growth in the use of the initiative in Arizona is due to the inactivity of the legislature,” said Cummiskey, a Democrat. “The public has been dissatisfied, and they have been forced to compel us to act.” Like Gerber, Cummiskey says that initiatives play a catalytic role in a complex process that involves the legislature. “With tobacco, taxes, education and growth, these are all matters that the legislature has been forced to deal with” because of pressure exerted by the initiatives process, he said.
Often this fact can be buried in what seems like the kind of big-money power play that initiative critics deplore. Cummiskey described an initiative to be voted on this fall that would commit almost all of the state’s share of the tobacco settlement to fund health care. “Now this was entirely financed by the hospital companies. Some point to that as anathema to democracy, but the fact was that the Legislature was doing nothing, and couldn’t come up with a plan.” With the pressure of this deadline the legislation is now beginning to move, he said.
There is a tendency among the initiative critics to disagree with the results of the most far-reaching votes. Schrag clearly sees every tax-limiting initiative in California as another crack in the foundation of the state and does not have much patience for those who felt in 1978 that government was growing uncontrollably. Broder abhors term limits, disagrees with the way Proposition 13 restricts tax increases, and makes clear that he believes the ban on bilingual education was an improper abridgement of the rights of a minority by the majority of Californians. In all cases though, Broder’s sympathies lie with legislators. He describes a California court fight over a term limit initiative: “The only people who had no voice in the outcome were the elected officials of the state. They were mere spectators on the sidelines, waiting for the verdict.” There is little recognition in this phrase for the deep dissatisfaction that voters have registered about their elected representatives. He seems not to have considered the possibility that the performance of legislatures might warrant a restriction, or a bypass, of their powers.
Broder exalts James Madison’s side of the framing of the Constitution, but most historians portray a dynamic tension between Madison’s views of representative government and Thomas Jefferson’s view that “I know of no safer depository of the ultimate power of society but the people themselves.” The Jeffersonian ideal of participatory democracy has influenced the United States from the start, beginning with the Constitution’s provision for a popular vote to rewrite that document, if need be, in a Constitutional Convention. Later, the ideal of greater participation and access led to important amendments to that original document, including the direct election of Senators and the indirect popular election of the President. “I think that’s a weak part of [Broder’s argument],” said Bowler. “If he’s saying, ‘Look, the framers didn’t think of it,’ then we never would have had a Civil Rights Act.”
While Broder laments the way that state initiatives have chipped away at the power of legislatures, he reserves his sternest warning for the potential they have for transforming federal government. In his final pages, he notes the popularity of Ross Perot’s 1992 proposal for “electronic democracy,” and the power of the Internet for making that idea a reality. Will the runaway popularity of initiatives in the 50 states lead to the thing that Broder fears most — a national initiative process, and a subsequent alteration in the system of checks and balances enshrined in the Constitution?
Notwithstanding Broder’s sense of alarm, it is hard to find any groundswell of support for national initiatives and referenda. In fact, populists and progressives have been trying to advance the initiative process in Washington just as long as they have in the states, with absolutely no success. In his book Congress & the People: Deliberative Democracy on Trial, Donald R. Wolfensberger, the director of The Congress Project at the Woodrow Wilson International Center for Scholars, said that while “eighteen states adopted the initiative and referendum between 1895 and 1918,” momentum at the national level never developed. The first proposal for a constitutional amendment to allow for a national initiative came from Sen. William Peffer, a Populist Party member from Kansas who sported a white flowing beard and who was once described by reformer Theodore Roosevelt as “a well-meaning, pin-headed, anarchistic crank.” The last lawmaker to propose a national initiative amendment was a second-term Missouri congressman named Richard A. Gephardt, who decided in 1980 that congressional leadership was out of touch with the people. Twenty years later, now Minority Leader Gephardt has no plans to revive that constitutional amendment, said a spokeswoman.
Considering all of the gee-whiz excitement lately about the Internet, Broder seems to be one of the few people today who can even remember Ross Perot’s plan for “cyberdemocracy.” Part of the final chapter of Democracy Derailed is occupied with a May 1999 conference in Washington of initiative supporters, who spun out their visions for national plebiscites. The biggest name at the conference was lame-duck Gov. Kirk Fordice of Mississippi, who described the audience as “the greatest collection of mavericks in the world.” Broder faithfully reports how ragtag this band of anti-nuclear activists, libertarians, and assistant professors was, but doesn’t make it sound like they were about to succeed at shaking the foundations of the Republic.
Maybe there’s a reason that initiatives grow more popular at the state level but don’t get much traction in Washington. Perhaps initiatives are part of a much broader trend of devolving power to the states. The federal government has always struggled with the task of fashioning a uniform approach to controversial issues that would be acceptable in most parts of a very diverse Republic. Congress ducks controversial issues such as bilingual education, gun control, and drug legalization, in part, because of the impossibility of ever creating a consensus on the issues. Broder is right to point out that creating consensus is one of the great achievements of representative democracy, and that the initiatives process can run roughshod over this goal. But when legislatures will not or cannot tackle important issues (including the limiting of their own powers) it seems inevitable that some alternative form of government will try to fill the void.
James MacGregor Burns, a historian and scholar of leadership, shares Broder’s concern that ballot initiatives are an unaccountable method of making “laws without government.” But he concedes that the rise of
initiatives is a reflection of how the strength of leadership in our lawmaking institutions has suffered recently. “It is true that if there were more effective leadership, then there wouldn’t be as much interest in ballot initiatives,” Burns said. “But there is a vicious circle here,” in which initiatives can further undermine leadership, he added. “I worry about how to stop that cycle.”
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