The Arguments against I&R
by Dennis Polhill
Facts do not cease to exist because they are
ignored.
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The Arguments against I&R |
DENNIS POLHILL is a Senior Fellow in Public Infrastructure with the Independence Institute. The following arguments are excerpted from his Independence Institute Issue Paper of October 26, 1996.
There are many claims about I & R that are false or exaggerated. Following are some of the assumptions, claims, and accusations with a brief summary of factual data available on each:
1 - Initiatives are a tool of special interests. This claim is false. The standard for comparison should be the legislative process. Special interests influence the Legislature. Is the initiative process influenced more or less by special interests than is the Legislature? Why do moneyed interests so aggressively take sides on initiatives? Why do special interests of all kinds band together with politicians of all philosophies to attack the initiative process? Could it be that power in the hands of the people is a threat to those who control power? Special interests fear the initiative process because it is a mechanism for expressing the public will.
2 - Initiative campaigns are influenced by money. This is true, but the real questions are "How?" and "In relation to what?"
The John S. Shockley study(5) of the 1976 election in Colorado found that total spending on ten initiative and referred measure campaigns was $205,613 "Pro", and $2,137,392 "Con." Money tends to be on the side of the opponents, not the proponents.
Big money came out in opposition to two environmental initiatives: nuclear safety (5:1), and bottle deposit (31:1). Money also opposed repeal of sales tax on food (21:1), a consumer advocate for utilities (25:1), and voter approval of tax increases (20:1).
Would it have cost these special interests more money or less money to stop these proposals in the Legislature? The obvious answer is "less." Therefore, the initiative process is clearly less corrupted by money than is the legislative process.
The tougher question is "How much?" Certain issues will always pass, while others will always fail, irrespective of the influence of money. For those issues in-between, how often is money the determinant factor in an election? "Campaign spending can be judged the decisive factor in only about 23" of 189 initiative campaigns between 1976 and 1984 or 12%.(6) Tax limitation was on the Colorado ballot nine times over a 26 year period(7) and passed in 1992 when opposition spending dropped to 4:1.
3 - Voters are incompetent to decide complex issues. "The Judgment of the American people is extraordinarily sound. The public is always ahead of its leaders,"(8) said George Gallup, Sr. in 1984 after 50 years in the public opinion polling business.
Although there was discussion of recall during the drafting of the U.S. Constitution in 1787, the formalized petition structures of I & R were unknown to the Framers. However, there can be little doubt of what their positions might have been. Thomas Jefferson said, "I know of no safe repository of the ultimate power of society but the people, and if we think them not enlightened enough, the remedy is not to take the power from them, but to inform them."
Thomas Paine was more extreme and believed that the source of innovative public policy was the people, not the rulers: "Could the straggling thoughts of individuals be collected, they would frequently form materials for wise and able men."(9) Clearly, Paine would advocate far more open government in the presence of today's more advanced communications technology and educated populace.
In 1975, the Swedish government decided to involve the voters in determining its national energy policy. It was hoped that 10,000 citizens would avail themselves of a 10-hour course on energy. Shockingly, 80,000 attended.(10) This turn-out is equivalent to 2,000,000 Americans or 30,000 Coloradans. People are responsible. They go out of their way to become informed. They share their information and conclusions with others. So it is not necessarily accurate to suggest that the 30,000 most-informed Coloradans would generate a less desirable policy on any issue than 100 generalist state legislators who must dispose of 600 bills in 120 days under the pressure of lobbyists and special interests.
In his study of the 1976 Colorado election, Shockley found that voting was higher on initiatives than it was for any candidate except President.(11) This suggests something about where the interests of voters rest. In voter awareness interviews, Shockley found a surprising correlation. People's knowledge of issues and candidates was amazingly similar to their voting practices. In other words, voters appear to be more informed about issues than they are about candidates. The notion that voters are incompetent to vote on issues suggests that they are also incompetent to vote for candidates. Such a notion is contrary to fundamental democratic principles.
Further, the fact that not all voters vote on all issues supports the "responsible voter" premise. Early studies suggested that some voters just gave up, and stopped voting towards the end of a long ballot, or just voted "no" on everything at the end of the ballot. In her 1987 book, Money, Media and Grass Roots, Betty H. Zisk contradicts the once-conventional wisdom: "long ballots do not seem to cause consistent patterns of either negative voting or a drop in participation at the end of the ballot. Nor do 'difficult' propositions (in substance or in wording) invariably evoke negative reactions."(12)
Many scholars now support the "pick-and-choose" theory. On a long ballot, voters skip the issues they do not feel informed about, and vote on the ones they do, regardless of ballot placement.
4 - Initiatives are poorly written. False. Compared to bills that move through the Legislature, initiatives are no worse, and sometimes better. In Colorado, the Legislature drafts, considers, and disposes of about 600 bills per year in its 120-day session. Each legislator is allowed to sponsor five bills (although there are procedures that allow more). Initiatives are usually drafted by a small groups of activists who are passionate and well-informed about their issues. It is not uncommon for development of a draft to take many months, even years. The procedure requires the same help that legislators get from the State Office of Legislative Legal Services (the bill drafting staff). The arduous task of getting on the ballot, the normal prospect of being substantially outspent in the campaign, the risk that any flaw is ammunition for the opposition, and the inevitability of court challenges upon passage provide important incentives for proponents to be both careful and reasonable in drafting their measure.
5 - Initiatives are often unconstitutional. False. Of 40 initiatives passed between 1980 and 1982, only two were found to be unconstitutional.(13) The percentages are even lower in Colorado. Amendment #2 passed in 1992 and is the only initiated constitutional amendment ever to be invalidated as unconstitutional.
Other proposals over the years, rejected by the voters, may have been unconstitutional. The voters' rejection of these measures is another sign of the voters' good judgment.
6 - There are too many initiatives on the ballot. False. "Too many" is subjective. Who gets to decide what the correct number is? Those who claim there are too many have yet to suggest the proper number of initiatives or a rational basis for that number. They evidently know only that there are too many.
7 - Initiatives cause ballot clutter. So what?
Besides, if ballot clutter exists, it is as much a product of the legislature as citizens. In the 1982 and 1984 elections, there were four times as many referred as initiated measures on state ballots nationwide.(14) For the entire history of the initiative in Colorado (1912-1994), the Legislature has referred 110 amendments and 106 have been initiated by voters.
There would be less clutter if there were no initiative, and less clutter still if there were no referred measures. The cleanest ballot of all would be a blank piece of paper with no candidates to select. Pre-marked ballots would also be easy for voters. Though voters may complain about deciding hard issues, most understand that participation in government is their civic duty in a democracy and they exercise it responsibly.
8 - Voters do not like long ballots. False. The data suggest the opposite. In a 1977 poll, voters were asked, "Would you be more inclined or less inclined to go to vote if you could vote on issues as well as on candidates?" The results were 74% said "More," 7% said "Less," and 13% said "No Difference."(15)
Actual voter behavior also suggests that initiatives promote turnout. Schmidt tabulated voter turn-out in initiative states and non-initiative states in 1976, 1978, 1980, 1982, and 1984:
Voter Turnout(16)
1976 1978 1980 1982 1984 Average
Initiative States 59.0 44.7 59.8 46.8 54.5 53.0
Non-initiative 56.0 39.4 55.0 39.8 53.0 48.6
Difference 3.0 5.3 4.8 7.0 1.5 4.4
The table below shows voter turnout in Presidential years, Non-Presidential years and the Drop Off difference between years and states.
Initiative States 57.8 45.8 12.0
Non-initiative States 54.7 39.6 15.1
Difference 3.1 6.2
Note: Voter turn-out is higher when initiatives are on the ballot - both in presidential and non-presidential election years. In non-presidential election years, voter turn-out drops sharply when no issues appear on the ballot. When initiatives are on the ballot, voter turnout is generally about 10 percent higher.
A 1992 study by the Public Affairs Research Institute also found that voter turn-out was higher in states with initiatives on the ballot than elsewhere (50% versus 42%).(17) More significantly, ballot initiatives tend to sustain voter interest in non-presidential election years (45% versus 34%). During presidential elections, the differential is small (57% versus 55%).
Not only is voter interest higher when initiatives are on the ballot, but there is evidence that the level of voter interest increases in proportion to the number of initiatives. More research is needed to prove this point. The data currently available suggests that voter turn-out is higher when more issues are on the ballot.
Oregon is the most active citizen initiative state with 274 initiatives over the years (nearly twice as many as Colorado). Oregon's voter turn-out is 57%, second only to North Dakota at 60%. North Dakota has the third highest number of initiatives at 160.(18)
9 - Initiatives benefit one philosophy. False. This is a claim used to divide the people so that those with power can maintain control.
"Claims that the initiative has worked for the benefit of only one political philosophy or one group of people simply are not accurate," observed a 1980 study of the Colorado initiative process, funded by the National Endowment for the Humanities.(19)
Initiative opponents list examples of initiatives offensive to the left or right (depending upon the audience) to provide the appearance of abuse of the process. This way, they trick people into voting away their petition rights as a false protection against a non-existent threat from extremists. To the extent that initiatives benefit one philosophy that one philosophy is the will of the general public.
10 - People vote selfishly. Subjective. This alarmist statement is designed to instill fear. It is another version of "the people can not be trusted."
Its meaning must be clear. First, assume that selfish means that the people will lower their taxes. Although they have the right to do so (because it is their money), voters have been very discrete and discriminating in choosing which tax initiatives to pass. Between 1978 and 1984, for example, only three of 19 tax cut initiatives passed.(20) In Colorado, tax limitation was on the ballot nine times over a 26-year period before it finally passed in 1992.
Selfish cannot mean that the majority would discriminate against minorities, because each individual enjoys constitutional protection. Besides, the general public is predisposed to a sense of fairness.
11 - Many initiatives are bad ideas. Subjective. The check against bad ideas is the vote of the people.
Tax limits failed eight times before it became a good idea. It became a good idea because it eventually became clear that the issue would not be addressed by politicians.
Even people with bad ideas have First Amendment petition rights. To suggest that the initiative should be restricted or killed because some foolish citizen may someday introduce a bad ballot proposal is an expression of elitism and distrust of the public. Such thinking is unsuited for a free people.
Generally, bad ideas cannot muster the support needed to get on the ballot. When they do, they seldom are approved. Skeptics are invited to make a list of those that are bad from the 33 citizen-initiated amendments passed.
12 - Initiatives place extraneous material in the Constitution. True, but exaggerated. This charge needs to be placed in context.
As originally written, the Colorado Constitution includes much more operational detail than the U.S. Constitution. So the Colorado Constitution is long because that is how it was originally written.
Second, if the Constitution has been over-amended, the fault is not in the initiative process. Since 1912, there have been 33 initiated amendments (from the people) and 60 referred amendments (from the legislature) added. In other words, nearly two-thirds of the amendments originated in the Legislature. Review of the approved citizen-initiated constitutional amendments shows that only few in whole or in part are candidates to be statutes.
That said, there are some provisions that have been placed into the Constitution that perhaps should not have been. The reason is that if the provisions had been added to Colorado laws as a statute, rather than as a constitutional amendment, there would have been almost no protection from the provisions being gutted by the legislature. Because initiatives often involve issues that the Legislature has ignored or rejected, fear of Legislative gutting is not unreasonable.
The petitioning task is so daunting that no rational person would consider putting an "at-risk" item into statute. The fix is to invent a system by which initiated statutes would be safe from the threat of hostile action by the Legislature. Proponents of an initiative already have the incentive to propose a statute rather than a constitutional amendment, because of the former's higher approval rate (40% for versus 31%). If protections against legislative tampering are put in place, there will be even less incentive for initiatives to be proposed as constitutional amendments.
13 - Initiatives create tyranny of the majority. Tyranny is defined by Webster's dictionary as "oppressive power" or "a government in which absolute power is vested." To apply such a label to lawmaking by popular vote where fundamental rights are protected by the United States and Colorado Constitutions is absurd. It is a play on words that is designed to elicit an emotional response. To deny or restrict the initiative would be more accurately described as oppressive and tyrannical. Those who make such claims are those whose power is threatened by determining the popular will: politicians, political parties, lobbyists, and special interests.
14 - Initiatives make the Legislature unnecessary. False. Legislatures are no less necessary, but their role is reshaped. The initiative helps the legislative process by providing a mechanism to deal with issues that the Legislature often will not approach: conflict of interest issues, issues of principle, and issue of controversy. The key to public policy success is to enlist the wisdom and resources of the people, not to shut them out.
The number of initiatives rarely reaches 1% of the number of bills considered in a legislature. Use of the initiative increases when the legislative process is broken. Thus, high usage of initiatives merely means that legislative reform is needed.
The notion that there should be less citizen involvement in their government is wrong. Therefore, the real issue for the future is the form that citizen involvement will take.
Conclusion
Citizens can count themselves fortunate in Colorado and 23 of her sister states where the people's power to make their own laws is constitutionally guaranteed.
The provision for initiating statutes or amendments by petition, and then deciding them by ballot, is a legacy of the 1898-1918 Populist Era in most of the states that now have it. In a handful of other states it was wrested from the political class by grassroots reformers in the 1959-1992 period. In Colorado today, proponents of the initiative as a valuable form of lawmaking often find themselves on the defensive against harsh criticism from that same political class. But the critics' arguments are clearly refuted by facts and logic.
Examination of fourteen commonly heard allegations against the initiative process finds none of them very persuasive. Special interests do not thrive on the initiative; they find the legislature far easier to manage. Money-power likewise gets its way more readily under the Capitol dome, not at the ballot box.
Voters are not incompetent to decide complex issues, as quantitative research has proved. Nor are ballot measures notably less well drafted than legislative bills. Constitutional invalidation of successful initiatives is not frequent, but very rare.
The number of initiatives on today's ballot is not unprecedentedly large. Indeed, the very long ballots of 1912 and 1914 have never been matched since. Such ballot clutter as there is, actually results more from legislative referenda, not from initiated measures. And voters themselves do not seem to dislike a longer ballot; turnout statistics suggest the opposite.
The initiative does not benefit merely the political right or left; partisans from both sides have used it over the years. Bad ideas do not often muster the petition support to make the ballot, and they win at the polls even less often. Lengthy constitutional provisions are not primarily the result of initiatives, rather they stem from the inherent nature of a state constitution, as amended mostly by legislative referenda.
Finally, the initiative does not imply a tyranny of the majority; the U.S. Constitution prevents that. Nor does the initiative threaten to make the legislature unnecessary, rather it supports that institution by enlisting the people to counter-balance legislative overreach and to compensate for legislative weaknesses.
Nine decades into our state's experience with the initiative process, the burden of proof for curtailing or eliminating that option rests upon its doubters. The outlook for coming decades suggests that initiatives probably will, and rightly should, continue their important contribution to "government of the people, by the people, and for the people" in Colorado.
Endnotes
1. Colorado Constitution, Article V, Section 1.
2. David B. Schmidt, "Citizen Lawmakers," Temple University Press, 1989, page 16.
3. Tommy Neal, "National Council of State Legislators - Legisbrief," vol. 1, no. 38, October 1993.
4. State of Colorado, Legislative Council, Library.
5. John S. Shockley, "The Initiative Process In Colorado Politics: An Assessment," National Endowment For the Humanities, Madison, Wisconsin, 1980, page 8.
6. David B. Schmidt, "Citizen Lawmakers," Temple University Press, 1989, page 35.
7. Dennis Polhill, "Representatives or Retributionists," Independence Institute, Opinion Editorial, April 25, 1996.
8. Thomas E. Cronin, "Direct Democracy," Harvard University Press, 1989, page 180.
9. Thomas Paine, "Common Sense," Bradford Publishing, Philadelphia, January, 1776 (reprinted 1986 by Penguin Books), page 96.
10. Alvin Toffler, "The Third Wave," Bantam Books Publishing, 1980, page 429.
11. John S. Shockley, "The Initiative Process In Colorado Politics: An Assessment," National Endowment For the Humanities, Madison, Wisconsin, 1980, page 3.
12.Betty H. Zisk, "Money, Media, and Grass Roots," Sage Publications, Newbury Park, California, 1987, page 192.
13. David B. Schmidt, "Citizen Lawmakers," Temple University Press, 1989, page 34.
14. David B. Schmidt, "Citizen Lawmakers," Temple University Press, 1989, page 38.
15. Thomas E. Cronin, "Direct Democracy," Harvard University Press, 1989, page 71.
16. David B. Schmidt, "Citizen Lawmakers," Temple University Press, 1989, page 28.
17. Public Affairs Research Institute, Initiative and Referendum Analysis, July, 1992, Princeton, New Jersey, page 1.
18. Public Affairs Research Institute, Initiative and Referendum Analysis, July, 1992, Princeton, New Jersey, page 1.
19. John S. Shockley, "The Initiative Process In Colorado Politics: An Assessment," National Endowment For the Humanities, Madison, Wisconsin, 1980, page 2.
20. David B. Schmidt, "Citizen Lawmakers," Temple University Press, 1989, page 39.
Copyright © 1996 - Independence Institute
DENNIS POLHILL is a Senior Fellow in Public Infrastructure with the Independence Institute.