Democracy by Initiative: Shaping California’s Fourth Branch of Government
Robert M. Stern, President, Center for Governmental Studies
The idea of “direct democracy” by vote of the people is an ancient one, predating even the Greek city-states. Today’s forms of direct democracy—the ballot initiative, referendum, and recall—all provide ways to bypass the normal institutions of representative government and place legislative power directly in the hands of the voters.
The initiative process, in particular, is widely used across the United States, with about half the states providing access to it. But only in a few states is the initiative route applied as rigorously and with such sweeping results as in California. The number of ballot measures circulated, qualified, and adopted in this state has jumped five-fold since the 1960s.
A brief history: Escaping “The Octopus”
The ballot initiative has a long and colorful history in this state. In the 1800s, only one kind of politics took place in California: corrupt politics, according to the Sacramento Bee, the leading newspaper of the time. The Southern Pacific Railroad, often called “The Octopus,” controlled almost everything in the state—the legislature, the courts, even the press.
The initiative process evolved out of an attempt to wrest control of the state’s political process away from the special interests, especially Southern Pacific. The initiative, referendum, and recall were first enacted at the local level in California when John Randolph Haynes, M.D., convinced the voters of Los Angeles in 1903 to adopt a reform package.
The initiative process evolved out of an attempt to
wrest control of the state’s political process away
from the special interests.
Statewide, the reform movement got a boost when corruption and bribery trials of several prominent labor leaders and corporate executives began in 1906. Five years later, after many futile attempts to persuade the legislature to adopt the initiative process, direct democracy became part of a package sponsored by newly elected Governor Hiram Johnson. In 1911, his first year in office, the legislature placed the three components of direct democracy—initiative, referendum, and recall—on the ballot. They were overwhelmingly approved by the voters.
Since Proposition 13 passed in 1978, triggering a national movement toward property tax relief, voters have used ballot initiatives to change almost every aspect of California life. Subject areas have included tobacco taxes, toxic materials, medical marijuana, term limits, guaranteed school funds, gift and inheritance taxes, three strikes, gaming, and wildlife protection.
Health care-related initiatives have appeared on the ballot 45 times since 1914. Four dealt with chiropractic medicine, three with HIV/AIDS, three with tobacco, two with prescription drug discounts, and two with parental notification for minors’ abortions.
Today, many coalitions and special interest groups use the initiative process to achieve goals they cannot obtain through the legislature. Somewhat ironically, Southern Pacific itself took advantage of the initiative process in 1990 by contributing significantly to the ballot qualification of Proposition 116, which provided $2 billion in bond financing to support rapid rail transit.
More and more initiatives
Californians have seen a growing number of initiatives on the ballot over the past few decades. In November 2004, voters considered 16 measures (ten of which were initiatives and one a referendum), the most ballot measures in any election since 1996. The November 1990 ballot was the record-breaker, with 28 measures, of which 13 were initiatives.
The large number of initiatives on the ballot is a recent phenomenon. For the California ballot initiative’s first three decades (1911 to 1939), the number of initiatives reached a high of 35 per decade and then fell to a low of nine in the 1960s. In the 1970s, however, the number began to rise. Ten initiatives qualified for the June and November 1972 ballots, and a total of 22 appeared in the entire decade. Forty-six then qualified in the 1980s (two were removed by the courts), and 61 qualified in the 1990s. With at least two elections yet to come in the 2000s, 46 initiatives have already qualified for the ballot between 2000 and 2006.
Over the past 95 years, 33 percent of the initiatives on the ballot have been successful. Voters adopted 32 percent of the initiatives on the ballot in the 1970s, 48 percent in the 1980s, and 39 percent in the 1990s. Between 2000 and 2006, the approval rate dipped even lower to 30 percent.
Of the 45 health care-related initiatives in California,
only 11 were approved by the voters.
By contrast, voters have only approved 11 (24 percent) of the 45 health care-related initiatives that have appeared on the ballot over the last 95 years.
An emerging culture
When Progressives designed the direct democracy laws almost 100 years ago, they envisioned a process that would act as a safety valve, enabling citizens to supplement the work of the legislature when it failed to act. Today’s initiative process, however, has outstripped the authors’ vision. An emerging culture of democracy-by-initiative is transforming the electorate into a fourth and new branch of state government. Voters now exercise many of the legislative and executive powers traditionally reserved for the first and second branches of government.
Voters now exercise many of the legislative and
executive powers traditionally reserved for the first and
second branches of government.
The emergence of a support industry to qualify and campaign for initiatives has also increased their use. For about $1 million, political consultants plus a small army of paid circulators can “guarantee” the qualification of almost any initiative. For a few million more, they will conduct a vigorous campaign for or against any initiative. The easy availability of these powerful resources has encouraged many individuals and organizations to promote initiatives and bypass the legislative process altogether.
Spending on initiatives has dramatically increased over the years, rising over 1,200 percent since 1974. This year Californians will see high-spending campaigns, with millions of dollars being spent for and against the tobacco tax and parental notification initiatives.
Some observers worry that ballot initiatives are undermining political party responsibility and the traditional forms of representative government in California. They say the initiative route discards checks and balances and its deliberateness in favor of ill-conceived, rash, and poorly drafted schemes. Initiatives, they fear, have shifted the policymaking burden to the voters, leaving them overwhelmed by the growing number of measures on the ballot. The problem, they maintain, is exacerbated by poor drafting, misleading campaigns, bewildering counter-initiatives, and by court rulings declaring initiatives unconstitutional or partially unconstitutional.
Problems with California’s initiative process
A number of important problems confront the initiative process in California:
1) Initiatives are frequently too long and complex. Many voters lack the education, reading skills, or time to fully understand ballot initiatives. This is particularly true when contradictory or overlapping measures appear on the same ballot. Nevertheless, over the last 40 years, California voters have shown an uncanny ability to avoid being fooled into passing initiatives. While they may be gulled into voting against initiatives, they have enacted very few that they would likely overturn today.
2) Initiative language is too inflexible. Proponents cannot correct errors or omissions once circulation of a signature petition begins unless the initiative specifically allows legislative amendment. This is important because many problems stem from poor initial drafting. Initiatives are often ambiguous, vague, overreaching, under-inclusive, contradictory, and sometimes unconstitutional. These defects cause unexpected interpretations, unforeseen consequences, misleading electoral campaigns, litigation, legislative inaction, judicial invalidation, and voter confusion and resentment.
Initiatives are often ambiguous, vague,
overreaching, under-inclusive, contradictory and
sometimes unconstitutional
Examples abound. In one case, the proponents of a 1996 initiative on campaign finance reform inadvertently repealed a restriction on gifts to elected officials. Instead of admitting their mistake, they claimed they were repealing the limit in anticipation of the legislature enacting tougher restrictions if the initiative passed. The measure was defeated. Also unsuccessful were two AIDS initiatives in 1986 and 1988 that were so poorly drafted they would not have changed public policy.
Two initiatives that did pass, one in 1984 and one in 1986, declared English the state’s “official language” but failed to specify the consequences of that declaration. Their impact has been nominal at best.
In some cases, complicated initiative wording has confused voters and caused them to vote “No” instead of “Yes,” defeating measures that otherwise would have won. Poor drafting has also caused invalidation by the courts on statutory or constitutional grounds.
3) The legislature plays an insignificant role in the process. Proponents with take-it-or-leave-it initiatives discourage the legislature from negotiating compromises or improvements that might obviate the need for expensive elections.
Unlike many states, California requires no formal review of the wording, substance, legality, or constitutionality of ballot initiatives prior to signature circulation. Proponents can draft an initiative, circulate it, place it on the ballot, and campaign for it—all without any meaningful public hearing.
California’s constitution designates the legislature as the state’s principal policy body. The legislature has access to expert staff, outside consultants, extensive research capabilities, testimony from interested parties, and its own experience. Yet none of this expertise is applied to ballot initiatives. Although the legislature must hold public hearings on initiatives that qualify for the ballot, the hearings typically have no useful effect. Even if they enact legislation that is comparable or identical to the initiative, the measure cannot be removed from the ballot. And if the initiative passes, it cannot be amended without another vote of the people.
Proponents can draft an initiative, circulate it, place it on
the ballot, and campaign for it—all without any
meaningful public hearing.
One encouraging trend has emerged. In two recent instances—charter schools and workers compensation—the proponents came to the legislature before submitting their initiative petitions for verification. They indicated that if the legislature passed bills acceptable to the proponents, they would not submit their petitions. In both cases, the legislature, under pressure from the proponents, enacted meaningful legislation that kept the initiatives off the ballot.
4) The circulation and qualification process is outmoded. Initiatives (as well as referendums) are too easy to qualify with paid circulators and too difficult to qualify with volunteers in the time available. With so many signatures needed to qualify a measure, volunteers find it almost impossible to do so unless some of the circulators are paid.
The architects of the initiative process assumed that volunteers and grass roots organizations would circulate petitions, explain measures to potential signatories, and obtain signatures backed by thoughtful consent. Today, however, petition circulation has become so professionalized and dependent on financial resources that it is difficult to defend as a true test of popular support. In an era in which virtually any initiative can be qualified if the backer has enough money to pay circulators, signature collection has become an antiquated method of qualification.
Virtually any initiative can be qualified if the
backer has enough money to pay circulators.
Although some states have tried to prohibit the use of paid signature gatherers, the U.S. Supreme Court has deemed these efforts unconstitutional.
5) Initiatives are too easily used to amend the state constitution. Once enacted, constitutional amendments impair legislative flexibility and are extremely difficult to repeal. The trend toward constitutional initiatives is troubling. Constitutional amendments prevail over conflicting statutory amendments at the same election, allowing supporters to “trump” competing measures on the same ballot.
6) Counter-initiatives are used as a tactic to confuse voters. Counter-initiatives are measures put on the ballot by the legislature that may conflict with and supersede ballot initiatives. This is an increasingly frequent tactic that complicates the process. In the November 2004 election, voters were faced with three subject areas that had counter-measures: gaming, primary election, and local government funding. The November 2005 ballot also included a counter-measure concerning prescription drug discounts.
7) Media campaigns disseminate incorrect or deceptive information. Misleading slate mailers and broadcast advertising are widespread. Voters have few sources of objective information available to them during initiative campaigns. Ballot measures frequently lack the voting “cues” associated with political candidates—party affiliations, personality traits, incumbents’ records, or candidates’ personal histories. Initiatives are often more difficult to comprehend than candidates.
Initiative voters are particularly dependent on television advertising. A huge percentage of the population cites TV as its principal source of news and information. But TV rarely devotes any of its news coverage to ballot measure campaigns, so viewers are left with paid ads.
Many campaigns use deceptive advertising
simply because they can get away with it.
Slate mailers are another potent source of voter information. But instead of allowing like-minded groups to inform voters of initiatives that fit their pre-existing political philosophy, slate mailers “sell” endorsements to the highest bidder or give free endorsements to popular candidates in order to reap a benefit from the association. Many mailers mislead voters who believe they represent official party endorsements.
8) Money plays too important a role. High-spending, one-sided campaigns dominate and distort the electoral process. Money often influences the initiative process even more than it does the legislative process. California’s initiative process has now become a costly battleground, besieged by sophisticated and expensive media weaponry. Provided in sufficient quantities, money can qualify almost anything, but money can also defeat these same ballot measures. When a lot of money is spent against an initiative, or massive amounts are spent by both sides, the initiative is more likely to lose. When voters are not sure or are confused, they tend to vote No to keep the status quo.
9) The courts have become involved. Opponents of initiatives often use the courts as both their first line of defense and last resort in defeating initiatives. Opponents will occasionally sue to remove an initiative from the ballot for constitutional or other reasons. While such lawsuits are rarely successful, they divert attention from the actual campaigns. After the election, opponents of a successful measure often ask the courts to invalidate initiatives on constitutional or statutory grounds. Despite all this litigation, courts have left over 60 percent of ballot initiatives fully intact and generally have shown deference to the process. Recent decisions have invalidated some popularly enacted initiatives but left other equally complex measures in place.
A valued exercise of voter power
In a perfect system of representative democracy, ballot initiatives would not be needed. Elected officials would be closely attuned to the public’s needs and desires. Voters would be well informed on the issues of the day, and legislators would be open to arguments about how to resolve them. Government would respond appropriately to public needs, temper rashness with deliberation, and accommodate legitimate desires for change.
A perfect legislative system has never existed in California or in any other state. The financial demands of elected office force candidates and officeholders to raise ever-increasing sums of money from special interest contributors, leaving them susceptible to pressure and influence. The desire of incumbents for reelection has made them reluctant to develop bold new policy initiatives. And the complexity of governmental issues, together with the need of many officials to shape or “control the spin” of media information, have left many voters without the ability to critically review the records of officeholders at election time.
Nevertheless, Californians remain firmly committed to the process. A strong 62 percent of the voting public holds a favorable view of the initiative process, according to an August 2005 poll by the Public Policy Institute of California (PPIC). The ballot initiative, proponents contend, represents a rare and precious flowering of democracy—a remedy of last resort for a public frustrated by an unresponsive government. Ballot initiatives allow the public to circumvent a legislature blockaded by special interests, to enact needed reforms ignored by the government, and even to limit the basic powers of government itself.
But the process needs to be changed, voters acknowledge. Earlier PPIC polls showed that 70 percent of voters think the initiative process has “gotten out of control in California elections.” Voters believe it needs to be updated and modernized. Nevertheless they are firmly committed to keeping the initiative process, and the power it gives them in the voting booth.
