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 themeasure, I vote no" policy because he hopes "to promote greater skepticism of thepopulist mantle with which the initiative process is invariably cloaked." Farfrom being a "pure, direct expression of the popular will," the initiative is adevice used mostly by a dark trinity of wealthy individuals, special interests,and professional initiative activists to force their pet causes to the top of thepolitical agenda. As such, initiatives enfeeble the normal processes ofconstitutional democracy, lure courts into dense political thickets, burdenvoters with decisions they would rather not have to make, and bind futuregenerations by granting constitutional status to fleeting passions. It's a strongindictment, and Ellis makes his case with the expertise of an accomplishedpolitical scientist, the grace of a talented writer, and the fervor of acommitted 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 Americanconstitutionalism and American political culture, a subject that Ellis hasplumbed 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 onall sorts of issues. For example, our populist strain responds to calls forstrict regulation of big business and is open to prayer in public schools; ourlibertarian strain exalts the unfettered market and prefers the dogma-freeclassroom. Yet when it comes to the initiative, there's been no tension at allbetween the two values. The populist faith in the people and the libertariansuspicion of political institutions have converged behind almost anything thatsmacks of direct democracy.
But Americans also admire, even exalt, constitutional government, whicheschews direct democracy for what Ellis calls "deliberative democracy." One greatadvantage of the "long, drawn-out process by which a bill becomes a law" --through the ordinary process of committee hearings and floor debates in abicameral legislature -- is that the bill's design flaws, both political andtechnical, can be weeded out. Another advantage is that by the time thelegislature gets done with a controversial bill, the result is seldom a completevictory for one side and a total defeat for the other. Instead, deliberativedemocracy usually works to "balance rival interests and needs rather than haveone side trump the other." One side trumping the other is, of course, theinevitable outcome of the winner-take-all initiative process.
Through most of American history, Americans' ambivalence about the initiativemanifested itself in occasional rather than steady use of the process. There wasan initial burst of activity in the 1910s, when the initiative was new, but Ellispunctures 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'tpink-cheeked, petition-wielding idealists who enacted Progressive Era reformslike primaries, direct election of U.S. senators, and women's suffrage over theopposition of corrupt politicians. Instead "the Progressive reformation happenedthe old-fashioned way: through electing representatives who did the people'sbidding" in the legislature. Ellis notes that when initiatives gave the voters avoice on women's suffrage, they usually said no. What they liked instead in the1910s 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 measureon the ballot every two years, a function of "demand-side" politics. Voters whowere generally pleased with how their demands were being met by elected officialsseldom saw the need to endrun them.
Recent decades have been different. The number of initiatives that reachedstate ballots rose from less than 100 nationwide in the 1960s to around 250 inthe 1980s and nearly 400 in the 1990s. Seventy-six initiatives were voted on in2000 alone. Yet this was no prairie fire of authentic grass-roots democracy. In1998, for example, nearly half the initiative states had just one measure on theballot, or none at all. Only one state, Mississippi, added the initiative to itsconstitution during the 1990s, and it shackled the process with several checks tokeep it from being used rashly. The campaign for a national initiative amendmentto the U.S. Constitution, which seemed so promising 20 years ago, "dropped almostcompletely off the national radar."
Far from being a national phenomenon, the recent outbreak of initiatives hasbeen confined mostly to California and five other western states: Oregon,Colorado, North Dakota, Arizona, and Washington. Six in 10 of the initiativesthat 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'tbe the mood of the voters -- if it were, then initiative use would be expandingacross the map, citizens in noninitiative states would be clamoring for the rightto make laws by ballot, and Congress would be feeling pressure to create a national initiative.
Instead, the explanation for initiative fever lies in the realmof "supply-side" politics. "According to this theory," Ellis explains, "thenumber of initiatives on the ballot is determined not by the demands of thepeople but by the suppliers of initiatives."
Who are these suppliers? George Soros is one. Like several otherwealthy individuals whom Ellis describes, Soros has turned the ballots of about adozen states (so far) into his personal legislature on the issue of drugdecriminalization -- sometimes in the form of medical-marijuana initiatives andsometimes with measures to limit the power of law-enforcement officers to seizeassets from drug dealers. Soros is able to do this because he can hireprofessional signature-gathering firms to rustle up all the signed petitions ittakes to secure his ideas a place on the ballot. Ironically, Ellis points out,states established these signature requirements in the first place to assure thatvoters would only have to decide on initiatives that have broad-basedgrass-roots support.
Special interests with deep pockets are the second prime supplier ofinitiatives. Nearly every initiative state recently has had at least onecasino-financed gambling measure on its ballot, including a 1998 proposal tolegalize tribal casinos in California that unleashed $97 million in campaignspending by the Indian gambling industry (pro) and a host of Las Vegas casinocompanies (con). Unlike this measure, which passed, gambling initiatives usuallylose. But the financial stakes are so high that casino companies seeking newmarkets may come back election after election. After all, they only have to winonce.
Professional initiative activists are the third major supplier of stateballot measures. Oregon's Bill Sizemore, for example, placed six initiativesbefore his state's voters in 2000. Political life and financial livelihood, sooften in tension for elected officials, happily coincide for Sizemore. Theantitax, antiunion organization he heads, Oregon Taxpayers United, hires thesignature-gathering firm that he owns, I&R Petition Services, Inc., to qualifymeasures for the ballot. Although all six of his 2000 initiatives lost, Sizemoremanaged to divert the political energies and resources of Oregon's unions andother liberal organizations into battling against his initiatives instead ofpromoting their own causes.
As Ellis shows, the pioneers of the initiative process in America wereleft-wing populists like Eugene Debs and Edward Bellamy and middle-classprogressives like Woodrow Wilson, leaders who wanted to enhance popular controlof government. Most contemporary practitioners of supply-side initiativepolitics, however, are unaccountable to the people. An elected official whopersistently 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. WhenSizemore ran for governor in 1998 as the Republican nominee, he received 30percent of the vote, the worst defeat of a major party gubernatorial candidate inmodern Oregon history. Yet two years later his six initiatives dominated theballot. This year he is promoting several more antitax and antiunioninitiatives.
One other electorally unaccountable group has seen its power enhanced by theinitiative process: judges. Nowadays it's a dead-on certainty that anycontroversial proposal will face repeated challenges in court. Round One usuallyinvolves a lawsuit opposing the "ballot title" -- that is, the words used todescribe the initiative on the ballot. The difference between banning "abortionof any fetus located wholly or partly in the birth canal" and banning "thekilling of a child in the process of being born" (the choice faced by theWashington State Supreme Court in 1998) is, after all, worth fighting over.
A second round of legal challenges begins if the initiative passes. Ellisreports that about half of all voter-approved initiatives of the past 40 yearshave been attacked in court (the figure is two-thirds in California) -- and abouthalf the challenges have been successful. Most judges don't like gettingembroiled in the political process, but they're stuck. "In this environment,"Ellis writes, "the election itself becomes almost an interlude between the mainlegal dramas that occur prior to a measure's qualification and immediatelyfollowing 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 andlegislators. 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 anumber of sensible suggestions for reforming it, most of which are already inplace in one or more states. Why not borrow from Illinois, he asks, and stipulatethat initiatives to amend a state constitution need a three-fifths majority topass? After all, constitutional amendments enacted through the legislativeprocess usually require a supermajority. Or why not adopt the Nevada model andinsist that an initiative be approved in two consecutive general elections beforetaking 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 initiativeare deeply embedded in American political culture, that is, in libertarianism andpopulism. What needs to change -- and Ellis hopes that his book, along with otherrecent anti-initiative works like Peter Schrag's Paradise Lost: California'sExperience, 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 DemocraticDelusions, Ellis has made a major contribution to fostering that new way of thinking. And in the meantime, he wants us to just vote no.
