A Lack of Initiative

3/1/2015

STATE LEGISLATURES MAGAZINE | march 2015

Fewer citizen initiatives could make life easier at the Capitol, but at what cost?

By Jennie Drage Bowser

By now we’ve all read about voters’ contradictory behavior in the 2014 elections. Although they overwhelmingly favored conservative candidates at the state and federal levels, they leaned left on several citizen-initiated ballot measures.

Voters increased the number of states with GOP majorities in both legislative chambers to 30, the highest number since 1920, while also raising the minimum wage, legalizing recreational marijuana, strengthening gun control laws and rejecting abortion restrictions.

What’s even more remarkable about the recent two-year election cycle was the scarcity of initiatives—only 38 made it onto statewide ballots. That’s quite a drop from 70.2, the average number of ballot measures during the “boom years” between 1987 and 2012. It’s even remarkably lower than 43.7, the all-time average going back to 1904, when voters in Oregon faced the nation’s first initiatives.

The number of initiatives in the 24 states that allow them hasn’t dropped uniformly, but in the three states that have traditionally used the process the most, the number has dropped significantly.

Consider California: In 2006, there were 17 initiatives on the ballot; in 2014, just three. Oregon’s experience is similar. There were 10 initiatives in 2006, but just four in 2014. And in Colorado, initiatives peaked in 2008 at 10, dropping to half that last year.

This decline may be welcomed by some lawmakers and staff involved in the budget process. Initiatives can require quite a scramble to implement and a squeeze to fit into the budget. But a decline in initiatives may also result in even fewer citizens turning out to vote. And that concerns many Americans.

What’s Really Happening?

So why are citizen initiatives, in general, declining? Are lingering traces of the recent recession still making it tough for initiative sponsors to raise the funds necessary to collect signatures and run a campaign? Are regulations making it more difficult to qualify initiatives?

In 2008, when the number of initiatives dropped to 59, from 76 in 2000, it seemed reasonable to hypothesize that the recession was at fault.

The slide in numbers began with the 2007–2008 cycle, which correlates with the financial crisis beginning at the end of 2007. With the economy in the dumps, one could assume interest groups were having trouble raising the money necessary to qualify initiatives for the ballot. It didn’t even seem far-fetched to blame the slow economic recovery in 2010 for only 42 initiatives on general election ballots.

But when that low number repeated itself in November 2012, observers began to wonder if something else was at play. And after the drop last year they are no longer just wondering. They are now asking: Why hasn’t the current revitalization of the economy had an impact on the initiative process?

Data released in November 2014 by the Center for Public Integrity cast further doubt on the idea that the cost of qualifying an initiative and running a campaign had squeezed out all but the wealthiest sponsors.

Campaign spending on statewide ballot measures, according to the center, swelled in 2014—to $196 million. That’s more than double the $87 million spent in 2010. Given that increase, a shortage of cash doesn’t appear to be the cause for the continuing decline in initiatives.

Maybe a recession, by itself, isn’t enough to send the initiative into a bust cycle. In 2007, the country was not only heading into a bad recession, it was also approaching its sixth year of war. Perhaps the boom years simply proved to be unsustainable throughout a major recession combined with more than a decade of war. Instead of looking at the recent low numbers as a sign of a downward trend, perhaps they indicate more of a return to normal.

Are We Asking the Right Question?

The drop in initiatives may be more about politics than economics. “The R vs. D, blue vs. red, in legislative and congressional battles have taken so much attention in the past few elections that people are just not as active on the initiative side,” says Paul Jacob, president of the Liberty Initiative Fund, a national organization based in Virginia that helps citizens qualify initiatives on conservative issues like term limits and government seizure of private property.

Jacob thinks the tight presidential race in 2012 and the fight for control of the U.S. Senate in 2014 simply sucked organizations’ and fundraisers’ time and attention away from initiative campaigns.

Ben Morris, communications and political manager at the Ballot Initiative Strategy Center, has a different perspective. The center, based in Washington, D.C., offers advice to liberal groups. He equates the decrease in initiatives to the increase in Republican majorities in state legislatures. Conservatives—previously big users of initiatives—haven’t had to turn to the process as often, he says, because they have found more success in legislatures.

“What you’re seeing now is a temporary lull rather than an ongoing trend,” says Morris. “Progressives are just beginning to ramp up their initiative efforts, and I predict you’ll see the number of initiatives bounce back over the next several elections.”

Other Factors at Play

Of course, changes in state laws, along with a wide variety of rules governing the process in the 24 states, influence how many citizen initiatives make it onto ballots as well.

When initiative use was at its highest, between 1988 and 2012, California averaged 12.6 initiatives per election. In 2014, the number was just three. Mark Baldassare, president and CEO of the Public Policy Institute of California, speculated at the time that the passage of Senate Bill 202 in 2011 might have been the reason for the drop.

The bill limited initiatives to general election ballots; before that, it wasn’t uncommon to see them on primary ballots. Baldassare  speculated that some groups might have shied away from the 2014 ballot because they support causes that might be more likely to succeed in primaries, when turnout is lower and voters tend to be older and more conservative.

Another law in California might also have an effect on the number of initiatives, although it was never the goal of the legislation, says former Senate President Pro Tem Darrell Steinberg (D), author of the bill.

Senate Bill 1253, which passed in 2014, adds a 30-day public review of initiative proposals, allows proponents to make certain amendments in response to public comment, and requires legislative committees to hold hearings on any initiative that gathers 25 percent of the necessary signatures.

The legislation adds opportunities for public deliberation, debate and compromise into the process—elements critics argue are vital to good policymaking, but missing in the initiative process.

Steinberg says the intent of the legislation was to ”make sure that when an initiative is presented to the people, all opportunities for compromise have been exhausted.”

The law, he says, “will allow two parallel sources of power, the initiative and representative government,” to be used together to create better solutions.

 Lawmakers in Arizona have also changed the rules governing initiatives. They passed three bills between 2008 and 2010 that cracked down on deceptive practices by petition circulators, such as describing an initiative falsely in order to obtain signatures. The laws make petition fraud a misdemeanor and a pattern of fraud a felony, and grant election officials more time to verify signatures and more leeway in discarding those that are questionable.

Other states’ rules on the time allowed for collecting signatures, the number of signatures required and the locations where they must be gathered have an obvious effect on how easily initiatives get approved as well.

Mississippi’s rules, for instance, are significantly tougher than those in some other states, restricting the subject matter an initiative may address and requiring the initiative to specify how it will be funded and implemented. Oregon, on the other hand, has virtually no restrictions on the subject matter of initiatives.

Mississippi has had five initiatives that have qualified for the ballot in the 23 years since the state re-adopted the initiative process. During the same period, Oregon has averaged more than seven every two-year election season.

The degree of regulation can’t explain the drop in initiative use in all states, though. In Montana, with no significant new regulations imposed, for instance, initiatives dropped from an average of 2.6 in elections between 1988 and 2010 to just one in 2012 and none in 2014.

And the nation’s most prolific users of the initiative, California and Oregon, have highly regulated processes. In these states and a few others—mostly west of the Mississippi—the initiative is simply a more vibrant part of the political and electoral culture than elsewhere.

Why Does It Matter?

A decline in the number of ballot initiatives may result in even fewer voters turning out to cast their ballots, lowering the nation’s already abysmal voter turnout rate. In a typical off-year election, fewer than half of voting-age Americans bother to cast a ballot, according to the U.S. Census Bureau.

Having an initiative on the ballot has been tied historically to higher voter turnout. During the ‘90s, initiatives bumped turnout by at least 7 percent in midterm elections and by at least 3 percent in presidential elections, according to a 2001 study from the University of Iowa.

Voter engagement is why: Initiatives highlight current and often controversial issues and capture the attention of voters, making them more likely to vote.

Indeed, voters showed considerably less enthusiasm leading into the 2014 elections than they did before the 2006 and 2010 midterms, according to Gallup polls, which corresponds with the drop in the number of initiatives.

Gallup measures three indicators of voter engagement—the amount of thought voters gave the upcoming election, their degree of motivation to vote and their enthusiasm about voting. Voters demonstrated less enthusiasm on all three indicators.

If ballot initiatives and voter engagement remain low, it’s reasonable to expect a continued decline in voter turnout rates.

The Will of the People

Ballot initiatives can have a turbulent, albeit unintentional, effect on state legislatures, which are tasked with carrying out the will of the people no matter how squeezed a budget may already be.

The difficulties some voter-approved initiatives have posed to legislatures are legendary. California’s Proposition 13 is usually the first example mentioned. Approved by 65 percent of the voters in 1978, it rolled back property taxes to 1976 levels and imposed a strict cap on increases. It also required a supermajority vote in the Legislature to increase taxes and fees.

While supporters praise Prop. 13 for getting a handle on out-of-control property tax increases, opponents argue it has essentially handcuffed lawmakers’ ability to thoughtfully and deliberately develop a budget.

No one, however, would argue that it hasn’t profoundly changed the California Legislature’s ability to raise revenue, and it’s doubtful that anyone would say it has made the job of being a California legislator easier.

California isn’t the only state where the legislature’s discretion in fiscal matters has been constrained by the initiative. Voters in Massachusetts approved their own version of Prop. 13 in 1980 and Arizona voters did so in 2010. Coloradoans took a different approach by approving the Taxpayers’ Bill of Rights in 1992 that requires, among other things, voter approval to raise taxes or spend revenues faster than the rate of inflation and population growth.

Tax and revenue policies rank high on the list of what voters target with the use the initiative. But citizens also often turn to the process to make changes to the legislature itself—often to policies legislators are reluctant to impose upon themselves, such as term limits and changes in campaign finance, lobbying and ethics laws.                   

For instance, initiatives have brought about legislative term limits in 21 states (although they remain in effect in just 15) and significant changes in campaign finance, lobbying and ethics laws all over the country.

And let’s not forget unfunded voter mandates, those big-ticket initiatives that don’t come with a new revenue stream and may even contradict mandates in other ballot measures.

In 2008, for example, voters in Oregon had the opportunity to approve two dueling initiatives. Measure 59 would have cut taxes, reducing the annual budget by about $1 billion, while Measure 61 would have established mandatory minimum sentences for certain crimes, costing the state more than $1 billion in prison-building debt and $800,000 in operating costs over the first five years.

Voters approved neither, but imagine the fiscal conundrum legislators would have faced if they had.

A famous (or infamous, depending on whom you ask) example of an unfunded voter mandate is Florida’s high-speed rail initiative, approved in 2000. It required construction of a monorail system to connect the state’s five largest cities, but provided no new revenue stream for the project, which was estimated to cost—for just the first of five sections—$2.4 billion. The fiscal obstacles to completing the project eventually convinced voters to repeal it via a second initiative in 2004.

More Wiggle Room—Maybe

In short, a decline in the number of initiatives may be good or bad, depending one’s view of representative democracy and the role of citizens within it.

For citizens, and their role within public policymaking, a drop in the use of initiatives could be quite a blow to their power and influence.

For lawmakers, and their role within legislatures, fewer initiatives could give them more wiggle room when it comes to revenue and spending decisions. And no matter where lawmakers stand on policy issues, that should make their jobs just a little easier.

The Citizen Initiative: A Primer

     Twenty-four states, in varying degrees, allow citizens to change state law or the state constitution by obtaining enough valid signatures to place a citizen initiative on the ballot.

     The process varies among states—from how many signatures are required for an initiative to be placed on the ballot to how many voters are needed to approve it. No legislature, however, may stop a petition with enough signatures from being placed on the ballot.

PROS

  • The initiative is an important safety valve for representative democracy because it allows the people to make policy changes that legislatures are unable or unwilling to make.
  • It keeps people engaged in the political process and knowledgable about the key issues facing their communities.
  • The process ensures the rights of citizens to have control over—not just participation in—governments’ public policymaking.

CONS

  • This form of direct democracy removes compromise, deliberation and meaningful public input from the process, offering voters an over-simplified yes-or-no choice on highly complex policy matters.
  • Citizen initiatives often mandate expensive programs or policies without creating new revenue.
  • Initiatives can present impossible mandates when they appear in tandem on a ballot but are at odds with each other.

What About Legislatures?

The citizen initiative isn’t the only route that lands measures on statewide ballots. Referrals from state legislatures typically far outnumber citizen initiatives on the ballot. That’s because legislatures in 49 states (all but Delaware) have to send any proposed constitutional amendments to voters for their approval. A few states also require votes on general obligation bonds.

Most legislative constitutional amendments and bond proposals are not controversial and tend to be approved by voters at a high rate. Only occasionally does a legislature voluntarily send a proposed statutory change to voters for their approval, and those tend to be more controversial.

Although the data for legislative referenda doesn’t go back nearly as far as the initiative data—it’s reliable only back to 1997-98—it shows that the number of legislative referenda on the ballot mirrored the decline in initiatives over this period.

Jennie Drage Bowser, a former NCSL senior fellow, is now a consultant based in Portland, Ore., specializing in ballot initiatives.

Additional Resources