Better Know a Ballot Measure
When Oregon voted on the nation’s first ballot initiative in 1904, the idea—as high-school civics teachers have told students ever since—was to take power away from the industries that ran the state legislature through bribes and corruption and return it to the people. In those days, corporate interests dominated and corrupted state politics all across the United States. Mining and railroad companies loomed particularly large, buying off entire legislative chambers and putting lawmakers on their payroll.
The emerging progressive movement thought it had found a way to fight back: Give citizens the ability to create their own legislation and put it up for a popular vote—a process known as the initiative. There was also the referendum, a tool citizens could use to veto laws at the ballot box. These ballot measures offered a way for the grassroots to make their voices heard. As your civics teacher might have told you, several states would soon join Oregon in using the new power of “direct democracy” to pass laws that improved working conditions and created more corporate regulations and government transparency.
“The level of corruption in state legislatures in the late 19th century was beyond belief,” says Jim Grossman, executive director of the American Historical Association. “The initiative was seen as a way for the people to, in essence, transcend the corruption that was plaguing state legislatures." The notion, as Grossman says, was that “if the people could rule, the people would be wise.” Of the 24 states that now allow initiatives and referenda, 20 adopted them during the Progressive Era.
The civics-class story next gets picked up more than half a century later. That’s when California’s infamous Proposition 13—as reactionary as the early initiatives were progressive—passed. Prop. 13, originally called the People's Initiative to Limit Property Taxation, severely limited the state legislature’s ability to control fiscal policy, partly by requiring a two-thirds vote in both chambers to raise revenues or taxes. One result: budget problems that still plague the nation’s largest state. The "People's Initiative" made representative democracy largely dysfunctional.
But the truth is "direct democracy" was never quite as politically pure as the Cliffs Notes history might lead you to believe. While ballot measures certainly allowed for Progressive Era reforms to become law, they also became tools for moneyed interests to get their way. “There's a strong mythology about how progressive the early initiatives actually were,” says Daniel Smith, a political-science professor at the University of Florida who's an expert on ballot measures. Smith’s research reveals a different and far more complicated story.
Take Colorado, supposedly one of the prime examples of states where ballot measures ushered in much-needed progressive reforms. In 1912, Colorado voters approved an eight-hour workday for women as well as a constitutional amendment to create a recall process for removing elected officials (the corrupt ones, presumably) from office. But that same year, teachers' groups also successfully repealed two progressive laws passed by the state legislature—one that required examinations for public school teachers and one that extended the school year. Public utility companies, which ran virtually unregulated in Colorado, successfully killed a progressive initiative that would have created a regulatory board.
“It was clear from the very first usage of direct democracy in Colorado that vested interests were not timid about using the extra-legislative devices to promote their own welfare,” Smith writes in an article with Joseph Lubinski.
Manipulation by special interests and big money is just one of the reasons that ballot measures have proved controversial from the start. Direct democracy still has its fierce advocates as well as its staunch critics, and this election year offers fodder for both sides. Among the 174 measures on 37 state ballots are corporate-sponsored initiatives, including a handful authorizing new casinos, that are meant to bypass the legislative process. There are citizen-driven measures, ranging from the very progressive to the very reactionary—sometimes on the same issue, namely same-sex marriage. There are libertarian issues like marijuana legalization. In California, there are two measures asking citizens to raise their own taxes—measures necessitated by that notorious "People's Initiative," Prop. 13.
Throughout this month, the Prospect will shine a light on the often-overlooked, but quite consequential, ballot measures across the country.
Of the 174 measures, there are 44 initiatives and 12 popular referenda; the rest are constitutional amendments or statutory changes passed by state legislatures that require popular approval. While the number of initiatives is down—10 years ago, there were 62—you have to go back to 1920 to find this many referenda (aka "people's vetoes") in one year.
While they garner little attention from the national press, voters' decisions on ballot measures can powerfully influence the national debate—and also directly affect people's lives. In Michigan, for instance, voters may decide to make collective bargaining a constitutional right—while in California, voters could take unions out of politics by passing a law barring them from making political contributions. Georgia voters will decide whether to dramatically expand the role of charter schools, while Oklahoma's may bar affirmative action in education and government contracting. Five states could vote to legalize marijuana, while three may decide to allow same-sex marriage.
We’ll tackle the issues across states, focusing particularly on the national debates. We'll look at the symbolic fights as well—including initiatives in Montana and Colorado designed to repudiate the Supreme Court’s Citizens United decision, and the proposals in five states opposing elements of the Affordable Care Act.
Direct democracy makes a lot of people queasy, and not just because well-funded business interests can manipulate the process. Even when the proposals derive from grassroots citizen groups, there’s no guarantee that the proposals will be good for the state—or the country.
While advocates argue that direct democracy encourages voter participation and helps citizens take ownership of the lawmaking process, others argue that the tyranny of the majority is no way to govern. Both have a point: In states where presidential elections aren’t competitive, ballot measures drive up voter participation. But it’s also true that the general population isn’t always known for its wisdom and foresight, as Californians have demonstrated. Prop. 13 crippled state lawmakers’ ability to govern, and the problem was subsequently exacerbated by numerous citizen-driven efforts in California to require more state services—which the cash-strapped state, undermined by the original "People's Initiative," couldn’t pay for.
This year, in what amounts to a major political shift, education advocates are using the state’s initiative process to fight back. Both Governor Jerry Brown and activist Molly Munger have floated proposals for tax increases to help improve the state’s fiscal health and prevent cuts to public education. It’s ironic, of course, that the process used to create California’s troubled fiscal policy may now be the best tool to fix it.
That's how initiatives work. Because voters don’t have to worry about getting re-elected, there’s also a possibility they’ll grapple with issues state lawmakers are afraid to touch, like raising taxes or legalizing marijuana—an issue that has advocates on the right and the left but lacks corresponding support with lawmakers, many of whom get nervous about alienating centrist voters.
Referenda, known as “people’s vetoes,” have become more popular as state legislatures are increasingly dominated by a single party. For instance, in Democratic-controlled Maryland, conservatives are challenging laws that allow same-sex marriage and in-state tuition for undocumented students. Meanwhile, in heavily Republican Idaho, the legislature passed a series of education reforms that took away teacher protections and encouraged online classes. The teachers' unions, which were ignored by lawmakers, are now getting their say by putting those laws on the ballot.
“It’s the other side of the aisle pulling back in that game of political tug-of-war,” says Jennie Bowser, a policy analyst at the National Conference of State Legislatures who focuses on ballot measures.
Industries continue to play a big part in the process. Gaming interests these days rely heavily on initiatives to get their way. This year, there are five measures in four states (two in Rhode Island) to allow for casinos and gambling, a number consistent with recent years. One in Arkansas even names the specific casino in its initiative: Nancy Todd’s Poker Palace is on the ballot. Other industry-specific efforts seem quite obscure, like Oregon’s effort to “ban commercial, non-tribal fishing with gillnets”—but this is a measure that would give an advantage to certain fishing companies.
It’s not always easy to figure out who is behind such ballot measures. Money trails are difficult to follow in the world of initiatives and referenda. The Supreme Court has allowed tremendous latitude: In 1976, it ruled that states could not ban corporate contributions to issue-oriented campaigns, including those for or against ballot measures, and in 1981, it ruled contribution limits to ballot-measure campaigns were also unconstitutional. That leaves states to rely on their transparency and disclosure laws to show which groups are promoting which measures. But disclosures get murky quickly; the money often originates with national groups that can locate in states with more lax disclosure laws. “It’s a free-for-all,” Bowser says of efforts to pinpoint who’s behind a ballot measure. “Eventually you run into a blank piece of paper.”
For many industries, the combination of limitless giving and a process that doesn’t rely on currying favor with legislators makes ballot measures a nice way to go. It’s easier, not to mention cheaper, to get approval for a new casino through an initiative process than to lobby and woo lawmakers.
Which brings us back to the question: Are ballot measures good for democracy?
Smith, the political scientist, describes himself as “agnostic” on the issue. His research does show that ballot measures have a positive impact on turnout and citizen engagement. “Citizens who are asked to be lawmakers for a day are more politically engaged,” he says. “They're more civically engaged, they join more groups, they are more knowledgeable about politics, they vote more.”
That’s true particularly when electoral politics aren’t keeping voters engaged. For instance, in a state like Maryland, where the outcome of the presidential race is a foregone conclusion, there are hotly contested referenda on the ballot this year—same-sex marriage and in-state tuition for undocumented students, along with a new casino. Around the state, activists on both sides are pushing voters and canvassing neighborhoods, while the airwaves are flooded with ads for and against the casino. People can turn out knowing their votes matter on these issues, at least, if not on the presidential race or even statewide races.
Of course, just because people vote doesn’t mean they’re going to make good decisions. Same-sex marriage is one glaring example. In 31 states, voters have supported ballot measures to define marriage as between a man and a woman. Such laws constitute examples of majorities trampling the rights of minorities—sometimes against the will of a more tolerant legislative body. Only in the state of Washington have voters ever supported an expansion in gay rights; the state voted to legalize domestic partnerships.
This year, however, the tide seems to be turning. In Maine, a popular referendum in 2009 repealed a law that legalized same-sex marriage. But this year, Maine voters will vote on the opposite; there’s an initiative to legalize, rather than outlaw, same-sex marriage. Based on polls, it stands a good chance of passing. The state, one of three (along with Maryland and Washington) where voters can vote for marriage equality, illustrates the best and worst of direct democracy. While legislatures may be ahead of the public or hold the public back from progress, direct democracy tracks public opinion. When the public opposed gay marriage, it was easy to get voters to turn out against equal rights for same-sex couples. Now some of the same voters are poised to support them.
The stakes in this year’s measures are high. They could nudge the country further in the direction of marijuana legalization—and, maybe, a wholesale rethinking of the drug wars. They could validate the momentum toward marriage equality. They could either undercut or reinforce public support for workers’ rights to organize and set a new course for public education. They could begin to reverse the anti-tax orthodoxy that was ushered in by Prop. 13. And they could set the stage for a new round of challenges to Obamacare.
Ballot measures are certainly not as noble as what the most sanguine of civics teachers have sometimes taught. But they provide glimpses of where the country, where the people, are moving. At the turn of the 20th century, they highlighted the conflict between plutocracy and progressivism. In this new century, they highlight the ways in which the people are ahead of their lawmakers—and the ways in which they want to drag them backward.
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