Democratic Delusions

Richard Ellis always votes no. Since moving to Oregon in
1990 to teach political science at Willamette University, Ellis has been asked to
pass judgment on 74 statewide initiatives, an average of more than 12 per
election. Initiatives are proposed laws or constitutional amendments placed on a
state's ballot by citizen petition (that's how they differ from referenda, which
originate in the legislature). In the last decade alone, Oregonians have been
required to make binding decisions on proposals to roll back property taxes,
reduce public-employee benefits, impose term limits on legislators, and make
prisoners work 40-hour weeks, among dozens of other mostly right-wing measures.
This year there are serious efforts under way to make voters decide on such
matters as "paycheck protection" (requiring individual workers' explicit
permission to spend union dues on political causes), more term limits, and
judicial elections with a "none-of-the-above" option.

Ellis adopted his "no matter what the issue, no matter what the
measure, I vote no" policy because he hopes "to promote greater skepticism of the
populist mantle with which the initiative process is invariably cloaked." Far
from being a "pure, direct expression of the popular will," the initiative is a
device used mostly by a dark trinity of wealthy individuals, special interests,
and professional initiative activists to force their pet causes to the top of the
political agenda. As such, initiatives enfeeble the normal processes of
constitutional democracy, lure courts into dense political thickets, burden
voters with decisions they would rather not have to make, and bind future
generations by granting constitutional status to fleeting passions. It's a strong
indictment, and Ellis makes his case with the expertise of an accomplished
political scientist, the grace of a talented writer, and the fervor of a
committed public citizen.

Americans aren't completely sold on initiatives as a way of
conducting public business: Only 24 states (beginning with South Dakota in 1898)
allow them. The roots of this ambivalence are in the clash between American
constitutionalism and American political culture, a subject that Ellis has
plumbed expertly in other books.

Two of the leading values in American political culture, Ellis argues,
are populism and libertarianism. These values are in tension with each other on
all sorts of issues. For example, our populist strain responds to calls for
strict regulation of big business and is open to prayer in public schools; our
libertarian strain exalts the unfettered market and prefers the dogma-free
classroom. Yet when it comes to the initiative, there's been no tension at all
between the two values. The populist faith in the people and the libertarian
suspicion of political institutions have converged behind almost anything that
smacks of direct democracy.

But Americans also admire, even exalt, constitutional government, which
eschews direct democracy for what Ellis calls "deliberative democracy." One great
advantage of the "long, drawn-out process by which a bill becomes a law" --
through the ordinary process of committee hearings and floor debates in a
bicameral legislature -- is that the bill's design flaws, both political and
technical, can be weeded out. Another advantage is that by the time the
legislature gets done with a controversial bill, the result is seldom a complete
victory for one side and a total defeat for the other. Instead, deliberative
democracy usually works to "balance rival interests and needs rather than have
one side trump the other." One side trumping the other is, of course, the
inevitable outcome of the winner-take-all initiative process.

Through most of American history, Americans' ambivalence about the initiative
manifested itself in occasional rather than steady use of the process. There was
an initial burst of activity in the 1910s, when the initiative was new, but Ellis
punctures the myth, perpetuated by modern initiative advocates and some scholars,
that this was a latter-day Periclean age. He shows that in most states, it wasn't
pink-cheeked, petition-wielding idealists who enacted Progressive Era reforms
like primaries, direct election of U.S. senators, and women's suffrage over the
opposition of corrupt politicians. Instead "the Progressive reformation happened
the old-fashioned way: through electing representatives who did the people's
bidding" in the legislature. Ellis notes that when initiatives gave the voters a
voice on women's suffrage, they usually said no. What they liked instead in the
1910s was Prohibition.

By the 1940s, initiative use had fallen to half or less of its earlier peak.
Ellis shows that from 1942 to 1971, the typical initiative state had one measure
on the ballot every two years, a function of "demand-side" politics. Voters who
were generally pleased with how their demands were being met by elected officials
seldom saw the need to endrun them.

Recent decades have been different. The number of initiatives that reached
state ballots rose from less than 100 nationwide in the 1960s to around 250 in
the 1980s and nearly 400 in the 1990s. Seventy-six initiatives were voted on in
2000 alone. Yet this was no prairie fire of authentic grass-roots democracy. In
1998, for example, nearly half the initiative states had just one measure on the
ballot, or none at all. Only one state, Mississippi, added the initiative to its
constitution during the 1990s, and it shackled the process with several checks to
keep it from being used rashly. The campaign for a national initiative amendment
to the U.S. Constitution, which seemed so promising 20 years ago, "dropped almost
completely off the national radar."

Far from being a national phenomenon, the recent outbreak of initiatives has
been confined mostly to California and five other western states: Oregon,
Colorado, North Dakota, Arizona, and Washington. Six in 10 of the initiatives
that reached the ballot between 1990 and 2000 were in that handful of states.
Thus, Ellis argues, the explanation for the recent outbreak of initiatives can't
be the mood of the voters -- if it were, then initiative use would be expanding
across the map, citizens in noninitiative states would be clamoring for the right
to make laws by ballot, and Congress would be feeling pressure to create a
national initiative.

Instead, the explanation for initiative fever lies in the realm
of "supply-side" politics. "According to this theory," Ellis explains, "the
number of initiatives on the ballot is determined not by the demands of the
people but by the suppliers of initiatives."

Who are these suppliers? George Soros is one. Like several other
wealthy individuals whom Ellis describes, Soros has turned the ballots of about a
dozen states (so far) into his personal legislature on the issue of drug
decriminalization -- sometimes in the form of medical-marijuana initiatives and
sometimes with measures to limit the power of law-enforcement officers to seize
assets from drug dealers. Soros is able to do this because he can hire
professional signature-gathering firms to rustle up all the signed petitions it
takes to secure his ideas a place on the ballot. Ironically, Ellis points out,
states established these signature requirements in the first place to assure that
voters would only have to decide on initiatives that have broad-based
grass-roots support.

Special interests with deep pockets are the second prime supplier of
initiatives. Nearly every initiative state recently has had at least one
casino-financed gambling measure on its ballot, including a 1998 proposal to
legalize tribal casinos in California that unleashed $97 million in campaign
spending by the Indian gambling industry (pro) and a host of Las Vegas casino
companies (con). Unlike this measure, which passed, gambling initiatives usually
lose. But the financial stakes are so high that casino companies seeking new
markets may come back election after election. After all, they only have to win
once.

Professional initiative activists are the third major supplier of state
ballot measures. Oregon's Bill Sizemore, for example, placed six initiatives
before his state's voters in 2000. Political life and financial livelihood, so
often in tension for elected officials, happily coincide for Sizemore. The
antitax, antiunion organization he heads, Oregon Taxpayers United, hires the
signature-gathering firm that he owns, I&R Petition Services, Inc., to qualify
measures for the ballot. Although all six of his 2000 initiatives lost, Sizemore
managed to divert the political energies and resources of Oregon's unions and
other liberal organizations into battling against his initiatives instead of
promoting their own causes.

As Ellis shows, the pioneers of the initiative process in America were
left-wing populists like Eugene Debs and Edward Bellamy and middle-class
progressives like Woodrow Wilson, leaders who wanted to enhance popular control
of government. Most contemporary practitioners of supply-side initiative
politics, however, are unaccountable to the people. An elected official who
persistently promotes causes that the voters despise can be tossed out of office.
But Soros and Sizemore can just keep coming back with more ballot measures. When
Sizemore ran for governor in 1998 as the Republican nominee, he received 30
percent of the vote, the worst defeat of a major party gubernatorial candidate in
modern Oregon history. Yet two years later his six initiatives dominated the
ballot. This year he is promoting several more antitax and antiunion
initiatives.

One other electorally unaccountable group has seen its power enhanced by the
initiative process: judges. Nowadays it's a dead-on certainty that any
controversial proposal will face repeated challenges in court. Round One usually
involves a lawsuit opposing the "ballot title" -- that is, the words used to
describe the initiative on the ballot. The difference between banning "abortion
of any fetus located wholly or partly in the birth canal" and banning "the
killing of a child in the process of being born" (the choice faced by the
Washington State Supreme Court in 1998) is, after all, worth fighting over.

A second round of legal challenges begins if the initiative passes. Ellis
reports that about half of all voter-approved initiatives of the past 40 years
have been attacked in court (the figure is two-thirds in California) -- and about
half the challenges have been successful. Most judges don't like getting
embroiled in the political process, but they're stuck. "In this environment,"
Ellis writes, "the election itself becomes almost an interlude between the main
legal dramas that occur prior to a measure's qualification and immediately
following the election."

Ellis's indictment of the initiative is so persuasive that one can forgive
him for not adequately discussing the effects it has on governors and
legislators. As The New York Times reported on March 3, a raft of successful
ballot measures in states such as Colorado and Arizona, passed in isolation from
each other, have imposed contradictory tax limitations and new spending
requirements (usually for schools) on state governments that have rendered the
normal processes of constitutional government almost unworkable.

Ellis accompanies his critique of the initiative process with a
number of sensible suggestions for reforming it, most of which are already in
place in one or more states. Why not borrow from Illinois, he asks, and stipulate
that initiatives to amend a state constitution need a three-fifths majority to
pass? After all, constitutional amendments enacted through the legislative
process usually require a supermajority. Or why not adopt the Nevada model and
insist that an initiative be approved in two consecutive general elections before
taking effect, which would give the state legislature time to address the issue
between votes?

But Ellis is smart enough to realize that the roots of the initiative
are deeply embedded in American political culture, that is, in libertarianism and
populism. What needs to change -- and Ellis hopes that his book, along with other
recent anti-initiative works like Peter Schrag's Paradise Lost: California's
Experience, America's Future
and David Broder's Democracy Derailed:
Initiative Campaigns and the Power of Money
, will help -- is not our
adherence to libertarianism and populism but rather our understanding of how
these cultural values apply to the initiative. The libertarian in us will
continue to distrust politicians, but maybe we can be convinced that entrusting
political authority to wealthy individuals, special interests, and professional
initiative activists who can't be voted out of office is worse. As for our
populist faith in the people, what has that to do with a process that makes
courts the ultimate arbiters of public policy? Americans need not abandon our
values; we just need to apply them differently. By writing Democratic
Delusions
, Ellis has made a major contribution to fostering that new way of
thinking. And in the meantime, he wants us to just vote no.

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