Direct Democracy and the Initiative Process

California Cases Reveal the Dangers and Successes of Direct Democracy at the State Level

A major flaw of direct democracy is a tendency of the majority to abuse the rights of the minority.  Such abuse is mitigated on the national level by the restraints in the Constitution that established our federal republic. The Electoral College is a consequence of the protections built into the Constitution. Rules established by the Senate and House of Representatives on the federal level can also be used by the minority party to moderate abuse by the majority (eg. the fillibuster rule in the Senate). Similar procedural rules are available in the various state legislatures to varying degrees.  The deliberative process of legislatures generally can be credited with allowing cooler heads to prevail. While in the early days of the Republic there were many examples of minority rights being trampled by the majority, as our nation matures the genius of our founding documents is increasingly evident as the rights of minority persons and parties have been protected, occasionally requiring an appeal to the federal courts and the U.S. Supreme court for redress.

Direct Democracy is Safer when it is Closer to the People

Direct Democracy is dangerous on a national level, questionable on a state level, an amusing hobby for politicians on a county and muncipal level, and virtually ignored on a family level. Is it any wonder then that the word DEMOCRACY does not appear in the Constitution of the United States. Democracy doesn’t even function on an individual level as is evident when a person resolves to to abide by self-discipline only to succumb to human frailty. At least little damage is done when an individual makes a bad decision; it is easily reversable.

Twenty-six states plus the U.S Virgin Islands have provisions in their laws that allow direct Initiatives or Referendums by the people. In practice the exercise is not direct democracy becasue most of the initiatives are sponsored and funded by special interest groups as an end run around the more reserved and deliberative legislative process by elected representatives.  In 2001, the National Conference of State Legislatures assembled a task force to review the growing use of initiatives and referendums around the country and to examine their effect on representative democracy at the state level. They found that abuse of the Initiative and Referendum process outweighed the  advantages and suggested that other states should avoid enacting such provisions.

The case of California is an example of why the Initiative process has outlived its usefulness.

California has become a one party state with Democrat supermajorities in both houses of the legislature, able to run roughshod over the minority party.  The supermajority allows Democrats in California to raise taxes, place measures on the statewide ballot, enact laws with “urgency” clauses, and override the governor’s veto. In spite of the concentration of power in the Democrat Party, state legislators have their hands tied in 2017 because of past citizens’ Initiatives. On the surface it can be argued that the initiative power of the people can overcome abuse by elected officials. But what started in 1978 as a citizen revolt against high taxes has combined with intervening economic and demographic events to create a crisis in California’s finances.

Since 1978, when Proposition 13 (prop 13) lowered property-tax rates, hundreds of recalls, initiatives, and ballot propositions have been approved in California, but few have had the long term and poorly understood effect of  prop 13. In response to rising property taxes, the people amended the state constitution to fix property taxes at 1%.  In 1992 the U.S. Supreme Court upheld the constitutionality of prop 13 in Nordlinger v. Hahn, 505 US 1 – Supreme Court 1992.

Now it appears that the rigid property tax regime built into the state constitution has distorted economic conditions in a similar way that rent controls and over-regulation can distort a free economy. It has reduced local control of schools because inflexible property tax revenue has necessarily been replaced by funds from state income taxes. The following articles review some of the other distortions to California’s economy.

Citizen legislation through the Initiative process does not uniformly result in disasters. Here we have explored the unintended consequences of prop 13 that have left the state with intractable economic problems. The two propositions 8 that follow, while not resulting in disaster, demonstrate the questionable value of direct democracy on the state level.

Proposition 8 (2008)

In 2008, citizens of California placed a referendum on the ballot to ban gay marriage.  It passed by a vote of 52 to 47 percent.  As a State Constitutional Amendment, it was ruled constitutional by the California Supreme Court in 2009.  In 2010, it was ruled unconstitutional by a federal district court on the basis that it violated the Fourteenth Amendment of the U.S. Constitution (Equal Protection). Finally, in 2013, the case was decided on technical grounds (standing) by the U.S. Supreme Court:

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) – this case dealt with the Prop 8 litigation coming out of California. The Court held that, as private parties with a “generalized grievance,” the Prop 8 proponents did not have standing to appeal the District Court ruling. The Court explained that Article III of the Constitution confines the power of the federal courts to deciding actual “cases” or “controversies.” Once the District Court issued its order, the Prop 8 proponents “no longer had any injury to redress,” and that “no matter how deeply committed petitioners may be to upholding Proposition 8,” their interest was insufficient to confer standing. Given its ruling, the Supreme Court left the District Court’s opinion – that Prop 8 violated the Fourteenth Amendment – as the final and controlling decision on the merits.

Proposition 8 reflected deep religious and political views of people who financed the Initiative and validated both the informed and uninformed sentiments of enough people for it to pass. One can assume that a great number of the 47 percent who opposed the Initiative voted based on reason, emotion, or both.  The 2008 prop 8 occurred within the context of national debate about same-sex marriage where other states ended up voting laws both in favor and against. Finally in  June 26, 2015, the United States Supreme Court settled the matter in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional. It is understandable that Californians who wanted to preserve traditional marriage would use the only tool available to them, the Initiative. They knew that the legislature would not, or perhaps could not, give them the result they wanted.  Liberty demands

The Other Proposition 8 (1982)

Proposition 8 (or The Victims’ Bill of Rights) was a Initiative enacted by California voters on 8 June 1982 that amended the state constitution.

“A growing hyper-vigilance about “unsafe streets” paired with a general perception that state judges were more concerned with safeguarding criminal defendants’ rights than with affording victims a meaningful voice within the trial process sparked an impassioned victims’ rights movement. A broad constituency of politicians, police officers, prosecutors and activists lobbied extensively to correct what they considered a substantial imbalance between victims’ and defendants’ rights. This coalition urged the state legislature to enact reforms that prevented judges from broadly applying the exclusionary rule, which, under certain circumstances, excluded relevant evidence from trial. Fundamentally, this coalition sought to give victims the opportunity to become more active participants in the trials of their assailants.  But when the activists found legislators to be indifferent to their cause, they turned instead to California’s initiative power for a solution.”  (Berkeley Journal of Criminal Law, Volume 14, Issue 1, Article1, p 4)

It passed 56 percent to 44 percent, making California the first state to have a constitutional amendment that provides specific enumerated rights to victims of crime.  The California Supreme Court upheld the amendment in a 4 to 3 decision.

This is a case where those most familiar with issues of criminal justice formed and financed the coalition to advance the Initiative. Rather than being an instance of the majority taking the advantage of a minority, prop 8 (1982) is seen as a win for the victims of crime and brought California’s liberal exclusionary rules into conformity with narrower federal rulings.

California’s Direct Democracy Simplified

Here is a concise definition of California’s direct democracy courtesy of the Houghton Mifflin Company’s Weekly Reader

Do Citizens’ Initiatives make Legislators More Responsive?

Whether direct democracy achieves its goal of making state legislators in the United States more responsive to the concerns of the people is a question still debated today (See, e.g., Richard J. Ellis and Michael Nelson, editors, Democratic Delusions: The Initiative Process in America, 2002). Here are some quotes that sum up Ellis’ argument against the initiative process as it has been proposed on a national level:

“For all their failings, legislatures have the singular virtue of being capable of identifying, correcting, and learning from past errors…and so neither citizens nor legislatures see anything wrong or unusual in changing and improving current laws. …government policy enacted by the legislature is treated as the law of the land, not as the godlike voice of the people.The real problem with initiatives is not that they are more likely to produce poor public policy than are legislatures – though they may – but rather that mistakes made by initiatives are generally more difficult to correct. A successful initiative, unlike a legislative action, is widely assumed to be the authentic expression of the “voice of the people.” …Even the modest attempt to have voters reconsider their decision brings howls of populist outrage.”

“When activists proclaim that the initiative process “belongs to the people” they obscure the political reality behind a fog of populist platitudes. The initiative literally belongs to the few who write the measures, not to the many who vote. A national initiative would do little or nothing to empower the people; instead it would provide political activists, politicians, and special interests another way to get what they want.”

Direct Democracy in Switzerland

Switzerland has a population of just under 8-1/2 million. Each of the 26 sovereign cantons (states) has a population of under 500,000 except Zurich and Bern with populations slightly over one million, and Argau and Vaud with close to 500,000 each  The literacy rate of those age 15 and over is 99% compared to the United States at approximately 86%.  Direct participation in government begins with the self-determination of the individual,then to the municipalities, district, canton, and finally to the national level. Most of the power resides with the cantons and municipalities.

Citizens routinely propose measures for consideration by all levels of government, which if not acted upon by government, is taken to a vote of the people. What happens in practice is proposals by the people are analysed by the elected officials, who propose a similar but better formulated and written solution, which is then substituted for the citizen iniatitive, and eventually ratified by a vote of the people. It is a collaborative form of governing with very little dissent.  The percentage of successful initiatives is Switzerland is only about 10 percent.  Most initiatives are withdrawn from the legislature before they reach the ballot.

According to Richard Ellis (cited above) in Democratic Delusions: The Initiative Process in America, the most common reason for the Swiss consensus is that the legislature has promised or taken action that satisfies the proponents.

Ellis writes that:
 “The initiative in Switzerland is thus an integral part of the legislative process and is often used as a spur to get a majority in the legislature to heed the concerns of minority groups that have previously been thwarted in the assembly. Unlike in the United States, where the initiative process is a badly confrontational, zero-sum game, in Switzerland it is often employed to arrive at a consensus by facilitating legislative deliberation and compromise.”

The major difference between direct democracy in Switzerland and the U.S. is a higher degree of participation by a highly literate populace in Switzerland, and a low degree of interest in the United States, particularily at the local level where voter turnout often does not exceed 20%.

Here is an interesting article about Direct Democracy: Ties between Switzerland and the U.S. from the Library of Congress.

Who Really Controls the United States?

In the above article from the Library of Congress, James W. Sullivan (1848-1938) stated that the goal “of the direct democracy movement was to circumvent the legislators whom he considered “habitually” corrupt and non-responsive to the needs of the people in a society in the transition to an industrial country.”

Now we have evolved from an industrial economy to what has been described as retail and service economy. Even that description is in transition as most areas of the country are in a “healthcare and social service” economy.  As the debate over Obamacare rages on, Federal deficits soar, and both direct and representative democracy seem to have failed us.

Watch this animated map from the Bureau of Labor Statistics (HERE-opens in a new window)     Press PLAY to see the changes from 1991 to 2013

The debate over healthcare brings the centuries old argument about socialism into sharp focus except that no one dare utter the word socialism.  At this point in our national journey through time, there are more questions than answers. Representative Democracy has served us well in preserving personal liberty but can personal liberty survive in the face of socialism?  Certainly a large number of Western European Democracies are indulging in what is called Social Democracy. The trouble with incremental social change is that the time cycles are very long and by the time a society experiments with an idea many years can pass before the wisdom or the folly of the idea is clearly mainfest. Will Social Democracy evolve into Democratic Socialism as advocated by the self-styled Democratic Socialist Bernie Sanders?

The answer to that question depends on a literate populace participating in Representative Democracy, acting on unbiased information from a well informed media. In this way, the people will continue to control the United States.

The problem we now face appears to be a poorly educated populace acting on propaganda from a poorly educated media marching in lock step with a global elite whose wealth  individually exceeds that of many nations. As smart as the global elite are at making money, it is doubtful that they match the wisdom and knowledge of liberty that animated the Founders of our nation and the Swiss Confederation. The Western Democracies come in a close second in preserving personal liberty but they too face an erosion so imperceptively slow that one day the free nations will awaken and wonder what happend to freedom.

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