September State Legislatures magazine: Taming the Initiative Beast

State Legislatures Magazine: September 2000

Editor's Note: This article appeared in the September issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Taming the Initiative Beast

Not So Broken It Can't Be Fixed
Opening the Process
What's on the Ballot in 2000

Taming the Initiative Beast
As the number of initiatives on the ballot skyrockets, so too has the level of controversy
over do-it-yourself lawmaking.

By Jennifer Drage
With the explosion in the number of initiatives on statewide ballots over the last decade, the merits and weaknesses of the process have become a subject of national debate. At the heart of it is the question: Does do-it-yourself lawmaking threaten our system of representative democracy or is it a valuable supplement to representative government?

Political consultant Sue Tupper sums up one side's view: "Its effect on representative democracy is chilling. Those elected to office, when threatened with an initiative, act like deer in the headlights and choose to dump the controversial issues on the voters. They end up either frozen in fear, or, cynically, have learned to use the process." The opposing side claims that the initiative is merely a check on one institution of representative democracy, the legislature, not a substitute for it, and that it is in fact often the only route available to those who seek to reform government.

A recent conference sponsored by the University of Virginia's Center for Governmental Studies provided a forum for debate on these questions, and for an exchange of ideas on how, and if, the process should be reformed. The National Direct Democracy Conference drew a wide array of participants and observers of initiative and referendum from pollsters, political consultants and professional signature gatherers to academics, journalists, attorneys and citizen groups that use the initiative. Panels covered such topics as how direct legislation affects state public policy, the financing of initiative campaigns, the role of the political consulting industry and an examination of proposals for reforming the process.

NOT SO BROKEN IT CAN'T BE FIXED
While the political ideologies of the participants varied widely, there seemed to be a general consensus that the initiative process isn't so broken that it can't be fixed. Some advocated radical reforms and regulations intended to decrease the use of the initiative, while others advocated less stringent action that might shed light on the sources of money in the process and encourage grassroots, volunteer efforts. A few favored a moratorium on all reforms of the process, believing it is already too heavily regulated and unfairly suppressed.

The ideas that percolated in this conference centered on reforms that would reduce the costs of qualifying an initiative, thereby making the process accessible to everyone, not just well-financed special interests. They also include providing information on a measure, including who supports and who opposes it, and adding ways to encourage deliberation, debate and compromise.

Many participants voiced the concern that money has too much influence in the initiative process.

"Because there's money in politics, money does buy access," said Rick Arnold, the CEO of National Voter Outreach, a political consulting firm that specializes in qualifying initiatives for the ballot. "Money is so involved in I & R," he says, "that no strictly grassroots effort can get very far without it."

Journalist Peter Schrag said groups without money don't even get to the table. "Unless you've got dough, you don't play. Period."

The issue of regulating money is troublesome, however, since courts have said that contributions and expenditures in issue campaigns cannot be limited.

OPENING THE PROCESS
So what can be done to open up the process to grassroots campaigns? Suggested reforms include establishing a two-tier signature requirement, with a lower requirement for proponents who run a strictly volunteer signature-gathering team, or allowing petitioning over the Internet. Both would reduce the cost of qualifying an initiative, often the most expensive part of the campaign.

Critics of the initiative process often voice the opinion that voters, without the legislature's access to a professional staff of issue experts and its view of state policy as a whole, aren't equipped to make decisions about complex ballot measures. Many states provide detailed information on ballot measures through a pamphlet that is mailed to the home of every registered voter. More and more often, the information is also posted on the Internet.

Panelists at the University of Virginia conference argued that the way to better educate voters on ballot issues isn't to provide more information, but to provide a different kind. Research by Arthur Lupia, professor of political science at the University of California at San Diego, has shown that voters tend to rely on relatively simple clues and signals in making their decisions at the ballot box-for example, that a measure is supported by the National Rifle Association or by the Sierra Club. The key to helping voters make their decisions is to provide them with information about those who support and oppose ballot measures. Armed with this information, voters can make judgments about the motives of each group and base their decisions on that.

Reforms such as requiring equal broadcasting time for proponents and opponents, identifying major supporters and opponents in advertisements, and requiring signature gatherers to disclose whether they are paid or volunteer can help pass this information on to voters.

Finally, a common criticism of the initiative is that it lacks the flexibility of the legislative process. Debate, deliberation and compromise are noticeably absent from the initiative process. Suggested reforms include providing drafting assistance to proponents and holding legislative hearings on all measures that qualify. A proposal considered by the Oregon legislature in 1999 would have created a 12-member citizen initiative review committee to look at proposed initiative measures, identify the issues they raise, conduct hearings, and issue a report that would be distributed to the public and news media. The proponents would then be permitted to make certain amendments without filing an additional petition.

A similar proposal in California would have triggered public hearings as soon as a petition had 15 percent of the required signatures. Proposals of this sort are meant to add flexibility to the initiative process and make it more closely mirror the more deliberative legislative process. But these proposals have failed to pass.

Whether you're a fan of the initiative process or a foe, you have to admit that it's here to stay, and the popularity it enjoyed in the 1990s isn't likely to wane in the near future. The questions to consider are how to ensure the process remains transparent, so that voters can make informed decisions, and how to keep it open to all, not just wealthy special interests who can afford to buy their way onto the ballot.

WHAT'S ON THE BALLOT IN 2000
While it's too early to say what will be on the 2000 ballot in most states, because many petitions don't have to be turned in until after press time, nearly 300 measures are circulating in the 24 initiative states. At least 37 were qualified for the ballot as this issue of State Legislatures went to press.

Here's what we know so far:

Alaska voters will consider two initiatives: one to legalize hemp and one to reduce property taxes. Arizona will consider a measure requiring tobacco settlement funds be used for health care. Seven additional measures have been submitted. If they have sufficient signatures, they will be on the November ballot. They address the formation of an independent redistricting commission, a phase-out of state and local income taxes, telephone deregulation, further legalization of medical marijuana, urban growth control and a ban on bilingual education.

In California, five initiatives have qualified. They address using private contractors for public works projects, creating a drug treatment diversion program for nonviolent offenders, requiring a popular vote on new fees imposed by state and local governments, allowing school vouchers, and lowering the passage requirement from two-thirds to 55 percent for local school bond measures.

Colorado already has two measures approved for the ballot: a proposal to reduce utility, vehicle and property taxes, and a measure to legalize medical marijuana. More measures were circulating at press time, addressing abortion, gun control and urban growth.

In Maine, voters will consider three initiatives concerning physician-assisted suicide, video lottery and protection of forests. Voters in Michigan will decide on school vouchers. And at least one initiative has qualified in Massachusetts. It would require universal health care for all Massachusetts residents, establish a patients' bill of rights and prevent nonprofit health care providers from becoming for-profit entities. Five more initiatives are in the signature verification process. Montana voters will consider one initiative prohibiting alternative livestock ranches, also known as game farms, and Oklahoma has one to ban cockfighting.

Oregon voters may well face more than 20 issues on their fall ballot. Fourteen initiatives and one popular referendum have been certified so far, including voter approval of taxes, paycheck protection, repeal of mandatory minimum sentences, performance pay for teachers, prohibition on imposing restrictions on the initiative process except by initiative, pet protection, a ban on the use of public resources for political purposes, safeguards to assure quality home care for elderly and disabled people, school funding equity, gunshow background checks, public campaign financing, requiring a conviction before property forfeiture and dedicating tobacco settlement proceeds to low income health care.

Utah has two initiatives this year. One would make English the state's official language. The other would provide uniform procedures for criminal and civil forfeiture property.

On South Dakota's ballot are an initiative that would change the maximum bet limit in Deadwood from $5 to $100 and another that would prohibit video lottery. A third initiative would prohibit a state inheritance tax.

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