Lawmaking By Initiative

LAWMAKING BY INITIATIVE: ISSUES, OPTIONS AND COMPARISONS

This is the fourth volume in the Agathon series on Representation Series Editor: Bernard Grofman Previously published: Electoral Laws and Their Political Consequences edited by Bernard Grofman and Arend Lijphart "The Federalist Papers" and the New Institutionalism edited by Bernard Grofman and Donald Wittman Political Gerrymandering and the Courts edited by Bernard Grofman

LAWMAKING

BY INITIATIVE:

ISSUES, OPTIONS AND COMPARISONS Philip L. Dubois University of Wyoming

and

Floyd Feeney University of California, Davis

AGATHON PRESS NEW YORK

@

1998 by Agathon Press 5648 Riverdale Avenue Bronx, NY 10471 All Rights Reserved

No portions of this book (beyond that permitted by Sections 107 or 108 of the United States Copyright Act of 1976) may be reproduced by any process, stored in a retrieval system, or transmitted in any from, or by any means, without written permission of the publisher. Quotations from the following works appear with the kind permission of the copyright holders: Ronald J. Allen, "The National Initiative Proposal: A Preliminary Analysis," Nebraska Law Review 58 (1979): 965. Copyright (c) 1979 by the Nebraska Law Review. Reprinted by permission. David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (1978) and Eugene Lee, "California," in David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (1978). Copyright (c) 1978 by American Enterprise Institute. Reprinted with the permission of The American Enterprise Institute for Public Policy Research, Washington, D.C. Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (1989). Copyright (c) 1989 by the Twentieth Century Fund. Reprinted by permission. Philip Dubois and Floyd Feeney, Improving the California Initiative Process: Options for Change (1992). Copyright (c) 1992 by California Policy Seminar, University of California. Reprinted by permission. v.a. Key, Jr. and Winston Crouch, The Initiative and the Referendum in California (1939). Copyright (c) 1939 by the University of California Press. Reprinted by permission. Eugene Lee, "Representative Government and the Initiative Process," in John Kirlin and Donald Windler, eds., California Policy Choices, 6 (1990): 227. Copyright (c) 1990 by University of Southern California School of Public Administration. Reprinted by permission. Daniel Lowenstein and Robert Stern, "The First Amendment and Paid Initiative Petition Circulators: A Dissenting View and a Proposal," Hastings Constitutional Law Journal 17 (1989): 200. Copyright (c) (1989) by the Hastings Constitutional Law Journal. Reprinted by permission. David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (1984). Copyright (c) 1984 by Johns Hopkins University Press. Reprinted by permission. Michael Meyers, A Study of California Initiatives, 1976-1986 (1988). Copyright( c) 1988 by Rose Institute of State and Local Government, Claremont McKenna College. Reprinted by permission. David Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution (1989). Copyright (c) 1989 by Temple University Press. Reprinted by permission of the Temple University Press. Betty Zisk, Money, Media and the Grass Roots: State Ballot Issues and the Electoral Process (1987). Copyright (c) 1987 by Sage Publications, Inc. Reprinted by permission of Sage Publications, Inc.

Lawmaking by initiative:

Data Library of Congress Cataloging-in-Publication Dubois, Philip L. issues, options, and comparisons / Philip L. Dubois and Floyd Feeney. p. cm. -- (Agathon series on representation: v. 4) Includes bibliographical references and index. ISBN 0-87586-120-2 I. Referendum--United States--States. 2. Referendum--California. 1. Feeney, Floyd. II. Title. III. Series. KF488l.D83 1997 97-27078 328.273--dc21 CIP

TABLE OF CONTENTS List of Tables

IX

Acknowledgments

XI

CHAPTER ONE: INTRODUCTION

1

The California Experience The Book

3 6

7

CHAPTER TWO: HISTORY CHAPTER THREE: THE INITIATIVE AND AMERICAN DEMOCRACY

Concepts Experience with the Initiative

15 18

CHAPTER FOUR: A COMPARATIVE ANALYSIS OF AMERICAN STATE LAWS

States That Use the Initiative Ballot Access-Signature Requirements The Indirect Initiative Pre-election Administrative Review Pre-election Legislative Review Pre-election Judicial Review CHAPTER FIVE: INITIATIVE IN SWITZERLAND OTHER COUNTRIES

Switzerland Swiss Law-Federal Level Swiss Law-Cantonal Level Swiss Experience More Detailed Description of Swiss Procedure Restrictions on Initiative Subject Matter Other Countries

15

27 27 33 35 37 42 43

AND 46 46 49

50 51

55 58 62

CONTENTS

CHAPTER SIX: THE BASIC STRUCTURE-CONSTITUTIONAL AMENDMENTS, INITIATIVE STATUTES, AND SUBJECTMATTER RESTRICTIONS The Role of the Initiative in State Constitutional Amendments Amendment Procedure Amendment and Repeal of Initiative Statutes Subject-matter Restrictions

vi

77 77 72 78 87

Calculating the Signature Thresholds

85 85 93 93 94 99 706 708 709

Changing the Requirements for Passage

777

Effective Date The Indirect Initiative CHAPTER SEVEN: SIGNATURE REQUIREMENTS Purpose of Signature Requirements Qualifying for the Ballot: Too Easy or Too Difficult? Reforming the Signature Qualification Process Restoring the Reliability of Signature Qualification Impact on the Initiative Process

CHAPTER EIGHT: REDUCING COMPLEXITY I-BETTER DRAFTING AND MORE ACCURATE VOTING

773

Better Drafting of Individual Proposals

773

More Accurate Voting: State the Effects of Yes Vote

778

CHAPTER NINE: REDUCING COMPLEXITY II-MAKING INDIVIDUAL INITIATIVES UNDERSTANDABLE The Problem

727 727

The Single Subject Rule

727

The Subject Matter Must Be Expressed in the Title

740

An Assessment: How Well Have the Rules Protected Against Trojan Horses, Log Rolling, and Complexity? Some Future Possibilities CHAPTER TEN: REDUCING COMPLEXITY III-THE OF INITIATIVES

NUMBER

Number of Initiatives Conflicting Ballot Propositions CHAPTER ELEVEN: IMPROVING

743 746 753 753 758

The Voter Information Pamphlet: Who Uses It and How?

764 764 765

Improving the Pamphlet

769

Broadcast and Nonprint Media

778

VOTER UNDERSTANDING

Quality of Voter Participation

CONTENTS

CHAPTER TWELVE: INITIATIVE CAMPAIGN FINANCE AND DISCLOSURE Campaign Spending and Initiative Outcomes Campaign Finance Rules Special Disclosure Rules for Campaign Literature and Advertisements Other Campaign Finance Related Rules CHAPTER THIRTEEN: SUMMARY

AND CONCLUSIONS

Basic Structure of The Initiative Process Qualifying for the Ballot Reducing Complexity Improving Voter Understanding: The Ballot Pamphlet Campaign Finance and Disclosure The Process of Reform APPENDIX A: Appendix Tables APPENDIX B: The Massachussetls Ballot Pamphlet APPENDIX C: California Ballot Summary

vii

787 782 789 792 279 222 223 225 226 230

237 232 235 249 254

APPENDIX 0: Swiss Initiatives: Problems of Counting, Landesgemeinde, Sources

256

INDEX ABOUT THE AUTHORS

259 268

LIST OF TABLES Table 1: Adoption of the Initiative 28 Table 2: Types of Initiatives 29 Table 3: Use ofthe Initiative from Year of Adoption through 1996 (Measures Voted On) 30 Table 4: Recent Use of the Initiative, 1978-1996 (Measures Voted On) .. 31 Table 5: Initiatives Approved by Voters from Year of Adoption through 1996 32 Table 6: Signature Requirements 34 Table 7: The Indirect Initiative 36 Table 8: Pre-signature Administrative Review for Issues Other Than Constitutionality 38 Table 9: Who Prepares Ballot Caption and Summary, and When (Pre- or Post-signature) 40 Table 10: Administrative Review of Constitutionality 41 Table 11: Pre-election Judicial Review 44 Table 12: Swiss Federal Initiatives Qualifying, 1891-1991 48 Table 13: Swiss Federal Initiatives Submitted to the Voters, 1891-1991 .48 Table 14: Swiss Federal Constitutional Amendments, 1874-1991 49 Table 15: Switzerland: Votes on Cantonal Initiatives, 1845-1994 53 Table 16: Switzerland: Number of Cantonal Initiatives Approved, (1845-1994 54 Table 17: State Constitutional Amendments, Legislative Procedure .. 72 Table 18: State Constitutional Amendments, Legislative Procedure -Initiative States Only 73 Table 19: State Constitutional Amendments, Number Proposed by Legislature, 1970-1988 74 Table 20: State Constitutional Amendments by Initiative, Degree of Difficulty 74

x

LIST OF TABLES

Table 21: State Constitutional Amendments, Number Proposed by Initiative, 1970-1988 75 Table 22: State Constitutional Amendments, Effect of Proposal Difficulty on Number ofInitiative Proposals, 1970-1988 .... 75 Table 23: Effect of 1966 Decrease in Signature Requirements for California Initiative Statutes 77 Table 24: Amendment of Initiative Statutes 79 Table 25: Restrictions on Initiative Process 81 Table 26: Effective Date 86 Table 27: Indirect Statutory Initiatives (Through 1996) 88 Table 28: Historic Qualification and Passage Rates, California Initiatives, 1912-1996 97 Table 29: California Initiatives Circulated, Qualified, and Approved, 1974-1996 98 Table 30: Voter Support of California Initiatives, 1912-1996 98 Table 31: Initiative Signature Requirements in California as a Proportion of Eligible and Registered Voters, 1950-1994 110 Table 32: YeslNo Vote Requirements 119 Table 33: Single Subject Rule 128 Table 34: Conflicting Ballot Propositions 159 Table 35: Perceived Helpfulness of Voter Pamphlet by Level of Education 169 Table 36: California Initiative Election Expenditures, 1974-1988 182 Table 37: Campaign Finance 190 Table 38: Must Initiative Ads Identify Their Sponsors? 193 Appendix Table 1: Canton Zurich Initiative Petitions, 1869-1970 235 Appendix Table 2: Subject Matter of California Initiatives, 1912-1996 236 Appendix Table 3: Number of Ballot Measures, California 1912-1996 237 Appendix Table 4: State Provisions for Voter Information and the Initiative 238 Appendix Table 5: Total Expenditures in California Initiative Campaigns, 1974-1988 243 Appendix Table 6: Proponents' Qualification Spending for California Initiatives, 1974-1988 246

ACKNOWLEDGMENTS

This book grew out of a research report that the authors wrote for the California Policy Seminar. The Seminar is a joint program of the University of California and the California state government. The authors would like to express their appreciation to Seminar directors Karen Paget, Holly Brown-Williams, and Andres Jimenez, for the financial assistance, interest, and understanding that the Seminar provided over the life of the project, and to Robyn Brode, who edited the CPS report and did much to make it clear and understandable. It would serve no purpose to try to name all of the many individuals who assisted with this book, particularly the many very helpful persons who provided information about the workings of the initiative in the various states. The authors would be remiss, however, if they did not express their thanks to former California Secretary of State Anthony Miller, Caren Daniels-Meade (California Secretary of State's Office), Floyd Shimomura and Eugene Hill (California Attorney General's Office), John Vickerman and Anna Trombetta (California Legislative Analyst's Office), Deborah Seiler (California Assembly Elections and Reapportionment Committee), Margaret Herman (California League of Women Voters), and Ruth Holton (California Common Cause). Professor Eugene Lee, director emeritus of the Institute of Governmental Studies at the University of California, Berkeley, made extensive comments on drafts of the report and the book and allowed us to draw on his deep knowledge of the initiative process and California government. John Hodgson and David Townsend gave generously of their time and expertise, while Vikram Amar, Edward Barrett, Jr., Alan Brownstein, David Magleby, and Roy Schotland made extremely helpful comments. Special thanks is due Robert Stern for his willingness to answer innumerable questions, his comments, and his invaluable expertise. Our U.C. Davis colleague, Edmond Costantini, was a co-designer of the California ballot pamphlet survey and contributed in other important ways. Adrianne Weir also provided critical assistance. Without the help of Toby Darden, Erik Kropp, Marilyn Minger, Tom Newcomb, Graham Noyes, Jill Thayer, and John Cook, our good-humored, hard-working research assistants, the book would never have been possible.

xii

ACKNOWLEDGMENTS

The authors would also like to express their apprecIatIOn to Professors Walter Kaelin and Wolf Linder of the University of Bern, Professor Luzius Wildhaber, University of Basel, Hans-Urs Wili of the Swiss Secretary of State's Office, and Swiss attorney Peter Popp for their assistance with the Swiss comparison, and to Professor Joachim Herrmann, University of Augsburg, for his encouragement and help with the international comparisons. Carmen WannerSturm, a graduate student at the University of Augsburg, assisted in the writing of the German comparison. Paula Buchignani, Ann Graham, and Berta Lewin provided invaluable secretarial assistance. We wish to thank Caren Daniels-Meade of the California Secretary of State's Office and to Jackie Ladd and Josephine Fatta of the Massachusetts Secretary of State's Office for providing us with the ballot pamphlet materials printed in the appendices. We are also greatly indebted to Professor Bernard Grofman, University of California, Irvine, for his helpful comments and wise counsel and to Burton Lasky, our ever friendly and helpful publisher, for his flexibility and his desire that we make the book the best that we could write. Needless to say it is the authors and not the contributors who are responsible for the views expressed in the book.

CHAPTER ONE

INTRODUCTION /

IN 1992, USING

THE INITIATIVE PROCESS, citizens from 13 American states voted for term limits on the members of Congress from their states. I In that same year citizens from 12 states adopted term limits for their state legislatures through the initiative process and voted on such matters as health care, the right to die, welfare reform, tax reduction, and governmental structure. Like the citizens of Oregon in 1908 who were the first to institute presidential primaries and to demand the right of popular election of U.S. senators (thus beginning the movement toward adoption of the sixteenth amendment), these citizens used the initiative to force consideration of fundamental change by the electorate. 1992 was not unusual. In 1994 California voters adopted a highly controversial initiative restricting state benefits for illegal immigrants, propelling this issue dramatically upward in the nation's domestic agenda. In 1995 the mere threat of an initiative in California concerning affirmative action did much the same to this issue, and in 1996 term limits supporters brought forth a whole flock of new proposals designed to force congressional candidates to vote for term limits. Similar topics have appeared on ballots in the District of Columbia and the 24 states that use the initiative process in every election year for many years. Many see the initiative as the very essence of democracy, an opportunity for citizens to participate directly in making the laws under which they live. At a time when many citizens have lost faith in the capacity of government and in their elected leaders, proponents argue that the initiative is vital to a well-functioning democracy. In their view, the initiative increases interest and participation in government, reduces citizen alienation, and serves as an antidote for declining voter turnout in elections. Views such as this led MisIBecause states lack full power over this issue, these initiatives forced the Congress and the Supreme Court to address the term limits question. See, e.g., U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842 (1995). 1

2

LAWMAKING

BY INITIATIVE

sissippi to reestablish the initiative in 1992 after a lapse of many years,2 and have led many other states to consider its adoption in the last several decades. There was even a brief flurry of serious consideration for a national initiative in the 1970s. Others question the wisdom of the initiative. In their view, societal problems have become much too complicated for the black and white kind of solutions they believe possible through use of the initiative process. Detractors are also appalled by the demagoguery and simple-minded campaigns that characterize many initiative elections. One of the classic debates about democracy concerns the extent to which the people themselves should exercise a direct voice in their government. James Madison and those who wrote the United States Constitution preferred a system of representative government. Believing that most important public questions were too complicated to be decided by popular vote, they designed a system calling for elected representatives who would have the time to study and understand the issues. The Populists and Progressives who fashioned and promoted the initiative, the referendum, and the recall in the late l800s and the early 1900s, saw a somewhat different picture. They believed that legislators and political party machines had become far too dependent on special interests. Trusting the populace itself to make better judgments, they thought that the cure was more democracy. While they did not want to abolish representative government, they wanted much more popular participation. This book does not seek to settle the question as to whether the initiative is a wise institution. Rather, it seeks to describe the major issues that have arisen in the use of the initiative and to discuss the policy options available for addressing these problems. By elucidating the problems that have arisen and the possible solutions to these problems, the book seeks both to inform the debate about the wisdom of the initiative and to offer suggestions for improvement to those jurisdictions that choose to use the process. The book compares the major features of the initiative in the American jurisdictions that have adopted the procedure-24 states and the District of Columbia.3 We draw particularly upon the experience of California, the most frequent American user of the initiative in the past several decades and a major battleground in the development of ideas about the initiative. The book also discusses use of the initiative in Switzerland, the country from which the original American ideas were derived and the only other major country in the world that makes extensive use of the initiative today. 2Mississippi first adopted an initiative process in 1916, but the Mississippi Supreme Court ruled the adoption unconstitutional in Power v. Robertson, 93 So. 769 (Miss. 1922). In 1991 the court refused to reconsider its earlier ruling. State ex reI. Moore v. Molpus, 578 SO.2d 624 (Miss. 1991). 3WhiJe some aspects of this book may be applicable to county or municipal initiatives, the focus is exclusively on statewide initiatives.

Introduction

5

to make an informed decision on initiatives; 86 percent thought special interests benefit from the process; 82 percent believed that one-sided campaign spending distorts election outcomes away from the will of the people and toward the interests of big campaign contributors; 63 percent agreed that campaign spending has "a great deal of effect" on the outcome of proposition elections; and 78 percent agreed that most of the ballot issues are too complicated to be decided by a simple yes or no vote.13 A 1990 poll revealed that only 21 percent of those questioned thought that the typical voter could understand most or all of the ballot propositions. 14 California voters have consequently supported a number of proposed reforms in the initiative process. A 1985 poll found that 62 percent of those questioned favored a proposal to submit proposed initiatives to the secretary of state for review and comment on conformity to law and clarity of language prior to their circulation for signatures. 15 By 1989, support for such a review procedure had climbed to 73 percent of those questioned, dipping only slightly in 1990 to 69 percent.16 Another 1985 poll found overwhelming majority support (87%) for full disclosure in initiative campaign advertisements of the sponsoring industry or interest group. 17 On the other hand, the public has been less certain about other reform proposals. In 1985 Californians were divided on proposals to limit the number of initiatives that could be on the ballot at the same time (favored 49% to 47%), to increase the number of signatures for initiatives to qualify (favored 49% to 47%), and to prohibit the use of paid signature gatherers (opposed 50% to 46%).18 Similarly, supllSuch results mirror those found among voters in many states. Opinion polls conducted in New Jersey, Minnesota, Colorado, Hawaii, and New York, and surveys conducted by national polling organizations consistently show strong public support for direct democracy devices. Majorities typically have ranged from 70 to 80 percent on the general right of citizens to vote on ballot initiatives. Voters who were queried about their support for a national initiative process were 50 to 60 percent in favor of specific proposals for a national initiative or advisory referendum. New Jersey: Magleby, Direct Legislation, p. 8, and Magleby, "Legislatures and the Initiative: The Politics of Direct Democracy," Journal of State Government 59 (Spring 1986): 31, 34; Minnesota: Daniel Lowenstein, "Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amend. ment," UCLA Law Review 29 (1982): 505,549 n.182; Colorado, Hawaii, and New York: Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass.: Harvard University Press, 1989), p. 269 n.1 0; see also Magleby, Direct Legislation, pp. 9-14, and Cronin, Direct Democracy, pp. 78-79,174-176,179,232. IZ"Voters Say Initiative Process Is Too Complex, Out of Control," Las Angeles Times, November 4,1990, pp. AI, A38, A43. 13California Opinion Index, "Digest of Views Relating to the Initiative Process," pp. 2-3. 14Field Institute, "The California Poll," October 24, 1990. IsField Institute, "The California Poll," June 5, 1985, pp. 1-2. 1673 percent: Field Institute, "The California Poll," March 10, 1989, p. 1; 69 percent: Field Institute, "The California Poll," September 13, 1990, p. I. 17Larry Berg and C. B. Holman, "The Initiative Process and Its Declining Agenda-setting Value," Law and Policy II (1989): 451-469 (reporting on poll conducted by the Institute of Politics and Government at the University of Southern California); Cronin, Direct Democracy, p. 234. 18Cronin, Direct Democracy, p. 234.

6

LAWMAKING

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port for the "indirect initiative," a variant of the initiative process that allows the legislature the opportunity to enact proposals prior to a vote, was expressed by just 46, 49, and 41 percent of those Californians polled in 1985, 1989, and 1990, respectively. 19 A 1982 poll revealed that two-thirds of the population saw the legislature as better suited than voters to make decisions about highly technical or legal policy matters. And, although 58 percent conceded that elected representatives generally give a more thorough review to each particular aspect of a proposed law, voters also perceived the legislature as more susceptible to influence by special interest groups than the voting public (by a 64% to 29% margin), far less likely than voters "to do what is right" on important governmental policies (by a 26% to 63% margin), and only slightly more likely than voters (48% to 42%) to enact coherent and well-considered governmental policies.20 In sum, Californians continue to express strong but diminishing support for the initiative process. They are realistic about its shortcomings, however, and support some but by no means all suggested reforms.

THE BOOK This book is divided into three parts. Part I (Chapters One through Five) concerns the development and use of the initiative in the United States and elsewhere. Chapters Two and Three discuss the history of the initiative and how the concept fits into the American concept of democracy. Chapter Four contains a comparative analysis of the initiative process in the District of Columbia and the 24 American states that use the initiative, and Chapter Five a discussion of the initiative in Switzerland and other countries. Part IT (Chapters Six through Twelve) contains analyses of six critical issues relating to the initiative process and suggestions for reform. These issues include the basic structure of the initiative process (Chapter Six), signature requirements (Chapter Seven), the reduction of complexity (Chapters Eight through Ten), attempts to improve voter understanding (Chapter Eleven) and initiative campaign finance and disclosure (Chapter Twelve). Part III (Chapter Thirteen) contains conclusions and a summary.

19Field Institute, "The California Poll," June 5, 1985, March 10, 1989, and September

13, 1990.

2oCalifornia Opinion Index, "Digest of Views Relating to the Initiative Process," pp. 1-2.

CHAPTER TWO

HISTORY

DIRECT

DEMOCRACY

IS NOT EXACTI., Y

a new invention. Ancient Athens, Saxon

tribes, thirteenth century Swiss cantons and numerous other peoples from earlier times all regularly made govemmental decisions through some form of face-to-face town meeting.l Many ancient societies also recognized the right of ordinary citizens to petition the government, including the right to suggest specific changes in legislation. The initiative, as that term is used in this book, however, is different from these early forms of direct democracy. With the initiative, citizens, by the collection of voter signatures, may propose legislation and bring about a vote upon their proposals by the electorate. This allows the electorate to act independently, or at least somewhat independently, of the legislature.2 Used in this way, the term "initiative" should be distinguished from "referendum," which in the United States is a device for allowing citizens, through the collection of signatures, to force a vote on legislation that has already been adopted by the legislature. (''Referendum'' is also sometimes used more generally to refer to any kind of public vote upon a policy issue. Referendums in this broader sense occur when the legislature itself decides to refer a particular issue for popular vote or when citizens vote to approve or reject a state constitutional amendment proposed by the legislaturei The "recall," another IDavid Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), pp. 31-33. 2The indirect form of the initiative requires that legislation be submitted to the legislature for possible action as a condition for submission to the people. See Chapter Six. 3David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (Washington, D.C.: American Enterprise Institute, 1978), pp. 23-24, describe four different kinds of referendum: (1) popular initiatives in which citizens may propose new legislation to be voted on by the electorate, (2) referendums by popular petition in which citizens may force a vote on legislation enacted by the legislature, (3) constitutionally required referendums in which proposals enacted by the legislature must be ratified by popula{ vote before becoming effective, and (4) government controlled referendums in which the government, although not required to do so, chooses to place an issue before the electorate. In this book "initiative" will be used to refer to the fIrst kind of referendum and "referendum" to the second kind. "The word 'plebiscite' has tended to be applied to an ad hoc reference to the people of a specific question and in particular to one involving approval for a man or a regime. But there is no agreed usage." Butler and Ranney, Referendums, p. 4.

7

8

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BY INITIATIVE

popular democracy device, allows citizens to force a vote, though the collection of signatures, as to whether a particular, named elected official shall continue in office. The closest analogue to the initiative in the ancient world was probably the Roman plebiscite. This device enabled the plebs (enfranchised commoners) to vote to enact or repeal laws over the opposition of the senate. Plebiscites or referendums were also occasionally held in medieval Europe.4 An initiative-like feature, allowing individuals to propose new laws by presenting a petition signed by 50 citizens, was included in Condorcet's 1793 draft constitution for the new French republic. Although ultimately rejected by the Jacobins in the National Convention, this draft constitution was widely known and admired throughout Europe.5 In the l830s the Swiss cantons, as discussed in Chapter Five, began to experiment with new forms of popular democracy, including some early forms of the initiative. In 1845 canton Vaud adopted the first practical initiative. The Swiss Constitution of 1848, which created the modern federal state of Switzerland, also provided for a popular constitutional initiative. Anyone who could muster at least 50,000 signatures on a petition could force the federal electorate to consider whether the constitution as a whole should be rewritten. Democratic reforms in the 1850s and 1860s led many cantons to adopt initiatives that could be used to propose ordinary legislation as well as cantonal constitutional amendments. The federal initiative was extended in 1891 to permit the proposal of constitutional amendments as well as complete revisions of the constitution, but has never been extended to ordinary legislation. Since introduction of the initiative, the Swiss have voted on more than 100 petitions at the federal level and a much larger number in the cantons. The Swiss have also made extensive use of the referendum at both the federal and the cantonal levels. In America direct legislation came with the earliest settlers. The Mayflower Compact was drawn up by the Pilgrim fathers to govern their new colony in 1620. By the 1640s freemen had begun to assemble in New England villages to make the laws by which they would be regulated.6 Gradually the idea developed that new state constitutions and amendments to existing constitutions should be ratified by the people.7 Following the Declaration 4Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum and Recall (Cambridge, Mass.: Harvard University Press, 1989), p. 160; Butler and Ranney, Referendums, p. 5. SM. Condorcet, An Authentic Copy of the New Plan of the French Constitution (London: J. Debrett, 1793), pp. xi-xiii, 37-41 (Title VIII); Keith Baker, Condorcet: From Natural Philosophy to Social Mathematics (Chicago: University of Chicago Press, 1975), pp. 320-330; Eduard His, Geschichte des neuern Schweizerischen Staatsrechts (Basel: Helbing & Lichtenhahn, 1920; reprinted Frankfurt: Sauer & Auvermann, 1968), pp. 14-21. 6Cronin, Direct Democracy, p. 41. 7Thomas Jefferson's draft for the 1775 Virginia constitution included a requirement for approval by a referendum of the voters. He was attending the Continental Congress at the time of the state constitutional convention, however, and the Virginia convention was over by the time his draft was received. David Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution (Philadelphia: Temple University Press, 1989), p. 4.

History

9

of Independence in 1776, Massachusetts decided to replace its old colonial charter with a new constitution that went into effect only when approved by the voters. In 1778, Massachusetts voters rejected a proposal put forward by the legislature, only to approve one in 1780 developed by a constitutional convention. New Hampshire voters similarly turned down a proposed new constitution in 1779. A redrafted version was approved, however, in 1783.8 Other states followed suit. After a time states seeking admission to the Union also began to submit their draft constitutions to the people-Iowa and Texas in 1845, Wisconsin in 1846, California in 1856, and all thereafter. By the end of the nineteenth century, most states were governed by constitutions that had been approved by popular vote.9 In 1818 Connecticut instituted the requirement that amendments to the state constitution had to be submitted automatically to voters for ratification following approval by the state legislature.lO All states except Delaware follow this procedure today. 11 Gradually, states also began to confer upon the people the right to vote directly upon subjects other than constitutional questions. After 1821 the Massachusetts Constitution forbade the legislature to incorporate any new town as a city without the consent of the town's majority. Maryland in 1826 made the establishment of primary schools contingent upon a positive majority vote by the people in the county affected. In its 1842 constitution, Rhode Island required popular consent to allow the state to incur debts above $50,000. A referendum was held in Texas in 1850 to resolve the location of the state capital. It became common to require popular votes on the location of state universities and charitable institutions. Eventually the role of referendums was extended in some states to include limitations of state debts, taxation, finance, and questions such as the regulation of intoxicating liquors. 12 The specific history of the initiative in the United States begins at least as early as 1885. In that year Benjamin Urner, a New Jersey newspaper publisher and unsuccessful Greenback Party congressional candidate, and Father Robert Haire, a Catholic priest and labor activist in South Dakota, each separately proposed adoption of the initiative and the referendum in their states.13 In Haire's case the idea was apparently entirely homegrown, as he seems to have had no knowledge of the Swiss experience. 14

8Austin Ranney, "The United States of America," in Butler and Ranney, Referendums, pp. 68-69; Charles Beard and Birl Schultz, Documents on the State-Wide Initiative, Referendum and Recall (New York: Macmillan, 1912; reprinted New York: Da Capo Press, 1970), p. 16. 9Beard and Schultz, Documents, pp. 16-17. lOy O. Key, Jr. and Winston Crouch, The Initiative and the Referendum in California (Berkeley: University of California Press, 1939), p. 491; Ellis Overholtzer, The Referendum in America (New York: Charles Scribner's Sons, rev. ed. 1911), p. 146.

llCouncil of State Governments, Book of the States: 1994-95 Edition (Lexington, Ky.: 1994), pp. 21-22. 12Cronin, Direct Democracy, pp. 41-42. 13Schmidt, Citizen Lawmakers, p. 5. There is as yet no full history of the development ofthe initiative idea.

10

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Others quickly picked up the idea. J.W. Sullivan, a labor leader, journalist and social reform editor, was familiar with the Swiss experience and visited there in order to observe its system first hand. Upon his return he wrote a series of articles in 1889 and the early 1890's and an influential book, Direct Legislation by the Citizenship through the Initiative and Referendum, in 1893. These articles and other writings, such as those by Nathan Cree, inspired many reformers who were searching for ways to make the political system more responsive to the popular will. 15 Sullivan also helped organize the People's Power League, which sent delegates to the 1892 conventions of several political parties, winning acceptance of the initiative idea, however, into the platform only from the Populist and the Socialist Labor parties. 16 The Populist, or People's Party, one of the key early groups to espouse the initiative and its sister measures-the referendum and the recall-was a new political grouping created largely by frontier farmers and miners. Hard pressed by low prices for their products throughout much of the period from 1875 to the early 1900s and unable to secure redress through legislatures they believed to be controlled by the banks and the railroads, these groups began to seek major changes in the system. After earlier local efforts, the Populist Party held its first national convention in 1892. Its platform called for free silver, public ownership of railroads, a graduated income tax, direct election of senators, and adoption of the initiative and the referendum. 17 The first statewide adoption came in 1898 in South Dakota. Utah followed in 1900 and Oregon in 1902. The political process that led to these adoptions is described by Cronin: Because direct democracy ... measures in the 1880s and early l890s were promoted by groups regarded as cranks-socialists and single issue groups, most notably the single-taxers-incumbent legislators tended to dismiss both the groups and measures as too radical. By the late l890s, however, converts to these measures were increasing throughout the West. A National Direct Legislation League had been formed in the early l890s. Its periodicals ... as well as other friendly journals ... heightened public interest in direct democracy .... In state after state ... the first proponents had been the leftist factions-the socialists and the People's party [Populists]. In rural states the Farmers' Alliance typically 14c.F. Taylor, ed., "Among the States," Equity 12 (No.4, October 1910): 148, 159-160; Schmidt, Citizen Lawmakers, pp. 267.268. 15J. W. Sullivan, Direct Legislation by the Citizenship through the Initiative and Referendum (New York: True Nationalist Publishing Co., 1893);Schmidt, Citizen Lawmakers, ch. I; Cronin, Direct Democracy, pp. 46-49; Nathan Cree, Direct Legislation by the People (Chicago: A. C. McClurg, 1892). Both Sullivan and Cree cite earlier well-known writers such as Sir Henry Maine and A. V. Dicey as finding the Swiss experience with the referendum and the initiative positive. Both were also familiar with books written by former British and American ambassadors about Switzerland and the Swiss experience with direct legislation. 16Schmidt, Citizen Lawmakers, p. 6. 17Cronin, Direct Democracy, p. 45. Schmidt, Citizen Lawmakers, p. 7, indicates that the principal author of the Populist Party 1892 platform was Ignatius Donnelly.

History

11

was in the forefront. Thousands of labor federations, notably the miners, joined the campaign. So did the Women's Suffrage Association.... 18 When the Populists gained control of the South Dakota legislature in 1897, they lost no time adopting the nation's first statewide initiative, doing so in 1898. In addition to Father Haire, the inventive Catholic clergyman who first proposed the idea without ever having heard of the Swiss system, ultimate adoption of the initiative owed much to Walter Kidd, publisher of the Dakota Ruralist, a populist legislator, and a believer in socialism. 19 In almost every state, where the movement was successful, a few highly dedicated individuals played key roles in promoting the initiative concept-William U'Ren in Oregon, Lars Ueland in North Dakota, and Roland Patten in Maine.20 As the initiative idea became more accepted, it was taken over by the Progressives and espoused by such individuals as Robert La Follette of Wisconsin, Theodore Roosevelt, George Norris of Nebraska, and Woodrow Wilson.21 Many states lost little time in making use of the initiative once it was adopted. In 1914 there were 90 propositions on the ballot throughout the country. U sage declined rapidly, however, and by 1918 there were only 30. Except for increases in 1920-22 and 1932-40, numbers stayed largely in the 20 to 30 range per general election year until the early 1970s when they began to rise again.22 By the late 1980s the number had risen to around 60 initiatives in each general election year. In 1996 the total was 81. Early initiatives established primary elections for the nomination of candidates, presidential primaries, direct election of U.S. Senators, recall procedures, home rule for municipalities, permanent voter registration, and led to reapportionment in some states. California.23 The forces at work in other Western states were also at work in California, and San Francisco was one of the earliest jurisdictions in the country to adopt the initiative, doing so in 1898.24 The statewide campaign for the initiative in California developed more slowly. It was spearheaded by Dr. John Haynes, a wealthy Los Angeles physician, who first came to California in 1887. Haynes believed strongly in the initia-

18Cronin, Direct Democracy, pp. 50-51. Samuel Gompers, president of the American Federation of Labor, was another highly important early supporter. Schmidt, Citizen Lawmakers, pp. 6-7. Some temperance groups also actively supported the campaign. 19Schmidt, Citizen Lawmakers, pp. 267-268. 20Schmidt, Citizen Lawmakers, pp. 237,255,26];

Cronin, Direct Democracy, pp. 45-50.

2lCronin, Direct Democracy, p. 54. 22Schmidt, Citizen Lawmakers, p. 24. 23Brief histories of the initiative in other states are given in Schmidt, Citizen Lawmakers, 285.

pp. 217-

24Key and Crouch, Initiative and Referendum, p. 428 n.14. This legislation may have been invalid, as it was contrary in some respects to the state constitution. A 1902 amendment allowed initiatives to be adopted by home-rule cities. E.R. Zion, "Direct Legis]ation in San Francisco," Transactions of the Commonwealth Club of California, XXV (1930): 548-558.

12

LAWMAKING

BY INITIATIVE

tive, the referendum, and the recall, and worked tirelessly from 1901 to 1911 to secure their adoption. He lobbied and entertained legislators, gave speeches, and sought support from citizens' organizations.25 The first statewide breakthrough came in 1902 when the legislature passed and voters ratified a constitutional amendment enabling home-rule cities to amend their charters by initiative.26 Los Angeles and San Francisco quickly added this authority to their charters (1903). By 1910, 20 home-rule cities had adopted the initiative, the referendum or both. Citizens quickly put the new measures to use, overturning the sale for $500 of a $500,000 franchise in Los Angeles, forcing the resignation of the Los Angeles mayor, and compelling the Sacramento City Council to put the issue of granting a franchise allowing the Western Pacific railroad to come into the city to a referendum vote. California at this time, like many other states, was ruled by political machines and political party bosses. The party machines were controlled largely by the Southern Pacific railroad. One of the principal aims of the initiative movement was to break out of this control. Eventually a broader political movement designed to break the Southern Pacific's domination of the state evolved. Highly publicized exposures of extensive graft and corruption in San Francisco and elsewhere provided impetus and urgency to this movement.27 By far the most influential group was the Lincoln-Roosevelt League. Organized in 1907 by two highly knowledgeable newspapermen, Chester Rowell of the Fresno Republican and Edward Dickinson of the Los Angeles Express, this state-wide, Republican movement sought to break the power of the Southern Pacific. It quickly gained prominence and was a strong force in the 1908 elections. Hiram Johnson, one of the prosecutors in a notorious San Francisco graft case and the League's candidate for governor in 1910, won the Republican primary, and the League in effect took over the Republican party. Johnson and the new Republican slate swept into office in the fall general election.28 When the legislature convened in 1911, Johnson placed his full strength behind the initiative, the referendum and the recall. In his inaugural address he argued: If we can give to The reforms as they desire, the power temporarily tionary measure which

People the means by which they may accomplish such other the means as well by which they may prevent the misuse of centralized in the Legislature and an admonitory and precauwill ever be present before weak officials, and the existence of

25Key and Crouch, Initiative and Referendum, pp. 424-429. Haynes helped found the California Direct Legislation League in 1895. Schmidt, Citizen Lawmakers, p. 222. See also Laura Tallian, Direct Democracy: An Historical Analysis of the Initiative, Referendum and Recall Process (Los Angeles: People's Lobby, 1977), pp. 22-44. 26Key and Crouch, Initiative and Referendum, p. 428. In 1893 California had adopted a statute requiring counties to allow popular referendums on county ordinances if petitions containing signatures equal to 50 percent of the previous general election were filed. Cal. Stat. (1893), p. 387. 27Key and Crouch, Initiative and Referendum, pp. 429-434. 28Richard Lower, A Bloc of One: The Political Career of Hiram W Johnson (Stanford, Ca.: Stanford University Press, 1993), pp. 16-31.

History

13

which will prevent the necessity for its use, then all that lies in our power will have been done in the direction of safeguarding the future and for the perpetuation of the theory upon which we ourselves shall conduct this govemment.. ..I recommend to you, therefore, and I most strongly urge, that the first step in our design to preserve and perpetuate popularfovemment shall be the adoption of the Initiative, the Referendum and the Recall.2 In the legislative debate that followed, opponents concentrated their fire on the amendment authorizing use of the recall, allowing the separate constitutional amendment embodying the initiative and the referendum to pass the legislature with only a single dissenting vote. A special election on October 10, 1911, placed 23 constitutional amendments before the electorate. In addition to the initiative, the referendum and the recall, there were proposals for women's suffrage, a stronger public utilities law and other similar actions. Governor Johnson stumped the state in favor of the measures in what turned out to be a bitter campaign. In the end the initiative and the referendum carried by a vote of more than three to one: 168,744 for, 52,093 against. All but one of the 23 amendments proposed by the Progressive legislature were adopted, including the hotly contested grant of women's suffrage and the recall.30 In the 85-plus years that passed between the adoption of the initiative in 1911 and 1996, the California electorate voted on 257 initiatives, adopting 85, or 33 percent, of these.31 While the proposals voted on have included many trivial measures, they have also led to the adoption of many important new laws. A 1914 initiative abolished the poll tax in California, a 1916 measure ended the practice of appointing legislators who supported the Southern Pacific machine to lucrative state offices while still serving as legislators, and a 1918 initiative created the state's first usury law. Other early initiatives were directed toward increasing the marketability of highway bonds, improving the schools, authorizing the issuance of bonds to assist World War I veterans, and a number of prohibition issues. A 1920 initiative strengthened the alien land law that restricted ownership of land by persons not eligible for naturalization, principally Japanese immigrants.32 A very important 1922 initiative, sponsored by San Francisco's Commonwealth Club, made the governor the state's chief budget officer and created a system allowing the governor to reduce or eliminate any item in the appropriation bill ("line item veto"). A 1926 initiative established the "little federal" pattern for reapportionment under which the state operated until the 1960s. The state prohi29Quoted in Key and Crouch, Initiative and Referendum, p. 435. 30Key and Crouch, Initiative and Referendum, p. 440. The legislature passed the initiative and referendum amendment on February 20, 1911 (Senate Constitutional Amendment No. 22). Beard and Schultz, Documents, pp. 184-185. 31See Table 5 (page 32). 32Key and Crouch, Initiative and Referendum; Winston Crouch, The Initiative and Referendum in California (Los Angeles: Haynes Foundation, 1943); Winston Crouch, The Initiative and Referendum in California (Pasadena, Ca.: Castle Press, 1950). Brief accounts of the initiatives that have appeared on the California ballot are given in John Allswang, California Initiatives and Referendums: 19121990 (Los Angeles: California State University, Los Angeles, 1991).

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bition act was repealed in 1932. 1934 initiatives eliminated partisan elections for the selection of judges, gave the attorney general the authority to supervise district attorneys, sheriffs and other enforcement authorities, made other changes in the criminal justice system, and constitutionalized some aspects of the state employee merit system. Initiatives in the 1940s and 1950s increased aid to the schools (1944, 1948, 1952) and made important changes in the welfare system (1948, 1949, 1952). A 1950 initiative required a vote of the people to create public housing projects, and a hotly contested 1964 initiative repealed a fair housing law previously passed by 33 the legislature. This repeal was later declared unconstitutional by the courts. In the 1970s California voters used the initiative to reinstitute the death penalty, create environmental protections for the coastal area, enact stiff new campaign finance and political ethics legislation, and reduce property taxes (Proposition 13).34

33Reitman v. Mulkey, 387 U.S. 369 (1967), affirming two decisions by the California Court. 34See Chapter One for a summary of more recent California initiatives.

Supreme

CHAPTER THREE

THE INITIATIVE AND AMERICAN DEMOCRACY CONCEPTS ALTHOUGH THE AMERICANREVOLUTIONARIES in the 1770s were familiar with popular democracy as it had been practiced in Athens and in New England town meetings, their cry at the outset was not "power to the people" but "no taxation without representation.,,1 They wanted representation in the government, not some new form of direct democracy. The Declaration of Independence voiced their view that "a just government must derive its powers from the consent of the 2 governed," but the Founders sought to accomplish this through a republic. They favored principles such as the initial consent of the governed, rule by law, and representation of the people, but were profoundly skeptical of public voting on a wide range of issues. Many Revolutionary leaders believed that this kind of pure democracy had led Athens and other ancient city-states into decline and shared the widely held view that the follies of such kinds of democracy easily outweighed their virtues. "In a large society, inhabiting an extensive country," John Adams said, "it is impossible that the whole should assemble to make laws. The first necessary step, then, is to delegate power from the many to a few of the most wise and good.,,3 James Madison, principal author of the Constitution, agreed. The consent of the people was necessary and power "flowed" from the people to those temporarily in power. Yet there was no way for people to involve themselves wisely in a regular, on-going basis in government operations. "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.,,4 But since 1Much of this section is drawn from Thomas Cronin's excellent work, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass.: Harvard University Press, 1989), pp. 7-59.

2Cronin, Direct Democracy, p. 12. 3Quoted in Cronin, Direct Democracy, p. 14. Federalist Papers (Clinton Rossiter, ed., 1961), No. 51 (James Madison), Direct Democracy, p. 18. 4The

15

p. 322; Cronin,

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neither was the case, the Framers of the Constitution had to devise a republic that could temper human imperfection and protect people from one another.5 The Framers wanted a system of checks and balances. While a one-house legislature would have been more democratic, they designed a Congress with two houses, only one of which was directly elected. And in Article IV, section 4, they required each state to have a "republican form of government.,,6 They refused to include provisions in the Constitution allowing voters to bind their representatives with instructions and were eventually successful in eliminating this direct democracy device. There were to be sure some who wanted a more direct democracy, but they were clearly a minority of those involved in creating the new system.7 The cry for adoption of the initiative, the referendum, and the recall in the late 1800s came not from theorists seeking to develop some abstract concept of better government but from citizens with major problems, particularly farmers who found it difficult to live with prices below the cost of production. By the time they paid the banks and the railroads, they had nothing left for their families. Because the railroads, the trusts, and the monopolies so often dominated both the legislatures and the two main political parties,8 farmers and other outcast groups came together to form a new party-the People's or Populist party. Although the initiative, the referendum, and the recall formed only one part of this new party's platform, these direct democracy devices were nonetheless a very important part, because they provided a means for "temporarily bypassing their legislatures and enacting needed laws on behalf of the downtrodden farmer, debtor, or laborer.,,9 Woodrow Wilson, a leading scholar of government before he became a governor and a president, explained the movement. The reformers, he said, were not bent upon any radical transformation. They had no intention of undermining legislative or representative processes, but rather sought to redeem them: SMadison argued explicitly that a republic involved representative government rather than "pure democracy". Charles Beard and Birl Shultz, Documents on the State- Wide Initiative, Referendum and Recall (New York: Macmillan Co., 1912; reprinted New York: Da Capo Press, 1970), pp. 25-29, citing The Federalist Papers Nos. 10 and 39. 6Some argue that all use of the initiative is unconstitutional because it creates a form of government that is not deliberative enough to be "republican." Others argue that particular uses of the initiative, such as those that threaten minority rights, fail to meet the standard required by the Guaranty Clause. See, e.g., Hans Linde, "When Initiative Lawmaking is Not 'Republican Government': The Campaign Against Homosexuality," Oregon Law Review 72 (1993): 19. Because it considers the issue to be a "political question" that should not be decided by the federal courts, the United States Supreme Court has refused to rule on the general question of the compatibility of the initiative and the Guarantee Clause. Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912). State courts that have ruled on the issue have found that use of the initiative is consistent with a "republican form" of government. In 1990 the Oregon Supreme Court indicated its willingness to consider the argument that some particular initiatives violate the Guaranty Clause. State v. Montez, 789 P.2d 1352 (Or. 1990). 7Cronin, Direct Democracy, pp. 21-37; Julian Eule, "Judicial Review of Direct Democracy," Law Journal 99 (1990): 1522-1530. 8Cronin, Direct Democracy, p. 44. 9Cronin, Direct Democracy, p. 45.

Yale

The Initiative and American Democracy

17

It must be remembered that we are contrasting the operation of the initiative and referendum, not with the representative government which we possess in theory and which we have long persuaded ourselves that we possessed in fact, but with the actual state of affairs, with legislative processes which are carried on in secret, responding to the impulse of subsidized machines and carried through by men whose unha;piness it is to realize that they are not their own masters, but puppets in a game.! The reformers believed that the populace as a whole could not be corrupted in the way that the legislatures had been corrupted, and that the initiative would help to make all governmental processes more honest and responsive. Around the turn of the century the torch passed from the Populists to the Progressives, a more establishment group but in many respects the spiritual heirs of the Populists. The Progressive reform agenda-representing a whole theory of politics-included home rule, nonpartisan elections, the commission plan for local government, merit systems, direct election of U.S. senators, women's suffrage, and independent regulatory commissions as well as the initiative, the referendum and the recall.! J Much of this agenda was based on the shortcomings of representative government as it then existed: They believed private interests and narrow-minded party bosses could too easily exploit the natural resources and treasuries of the state for their own purposes. Progressives were also concerned that state legislatures were not functioning as they should. Their proceedings involved too much secrecy, too little discussion, too much automatic passage of what legislative committees proposed. Too often, in the short biennial sessions ... crucial measures were rushed through at the last minute. Temptations for corruption were pervasive. Moreover, many legislators, rather than representing their constituents, seemed to represent the interests of party bosses and to be accountable only to them.... Thus voters seemed to have only a narrow choice between the appointees of one boss or those of another. 12 As Theodore Roosevelt, himself a former legislator and governor, said, "Special interests which would be powerless in a general election may be all powerful in a legislature if they enlist the services of a few skilled tacticians.,,13 The initiative and its sister measures were not a miracle cure or a "panacea for all our ills," California's Hiram Johnson said, "yet they do give to the electorate the power of action when desired, and they do place in the hands of the people the means by which they may protect themselves.,,!4

lOWoodrow Wilson, "Issues of Reform," prepared from an essay he wrote in 1910 and an address he gave in 1911, quoted in William Munro, ed., The Initiative, Referendum and Recall (New York: D. Appleton, 1912), p. 87. 11 Magleby,

Direct Legislation, p. 23.

12Cronin, Direct Democracy p. 56. 13Theodore Roosevelt, The Outlook, January 21,1911; reprinted in Munro, Initiative, Referendum and Recall, p. 60. Cronin, Direct Democracy, pp. 54-60, summarizes both the Progressives' point of view and their modern critics. 14Quoted in Eugene Lee and Larry Berg, The Challenge of California (Boston: Little, Brown, 2d ed., 1976), p. 98.

18

LAWMAKING

BY INITIATIVE " '

The theory then of the initiative and its sister measures, the referendum and the recall, was not to replace the legislature but to reform it and return it to its rightful place as the servant of the people. I 5

EXPERIENCE WITH THE INITIATIVE The National Perspective What has resulted from reformers' efforts? Perhaps the clearest result has been the adoption of a jurisdiction-wide initiative in 24 states and the District of Columbia, and consideration of adoption in almost every other state, as well as by the Congress.16 The referendum (a procedure allowing citizens to force a public vote on statutes adopted by the legislature) has also been widely adopted. Many of the jurisdictions that use this procedure (24 states and the District of Columbia) also use the initiative, but the overlap is not totalP Four recent studies, all by eminent authors, have sought to go beyond the numbers and assess the actual experience of the states that have adopted the initiative. These assessments are highly relevant to any consideration of changes that might be made in the initiative process. All four have drawn heavily, but not exclusively, on the California experience. A 1984 book by political science professor David Magleby provides a wealth of detail as to how direct democracy actually works in practice. His final assessment begins by highlighting crucial differences in the ends and values sought by direct and indirect democracy: Direct democracy values participation, open access, and political equality. It tends to deemphasize compromise, continuity, and consensus. In short, direct democracy encourages conflict and competition and attempts to expand the base of participants. Indirect democracy values stability, consensus, and compromise and seeks institutional arrangements that insulate fundamental principles from momentary passions or fluctuations in opinion. 18

Comparing the two forms of democracy on six key criteria, Magleby finds IS"[T]oo much must not be expected from direct legislation. It is to be classed, not with legislation proper but with such devices as the secret ballot, the official primary, the corrupt practices acts. Its urgency is not as a means of bringing in reforms, but as a cure for bribery, spoils, and corruption. These are indeed the pressing evils of American politics .... The referendum is the only complete and specific cure for bribery. It alone goes to the source of corruption. It deprives lawmakers and executives of their monopoly of legislation." John Commons, "Direct Legislation in Switzerland and America," The Arena 22 (1899): 725, 738-739. Switzerland also had eloquent debates about the comparative merits of representative government and direct democracy devices during the formative period of its national referendum and initiative. See, e.g., Simon Deploige, The Referendum in Switzerland (London: Longmans, Green, I 898)(C.P. Trevelyan, trans.), pp. 94-107. 16The jurisdictions (Chapter Four).

adopting the initiative and the year of adoption are listed below in Table I

17Council of State Governments, The Book of the States: 1994-95 Edition (Lexington, Ky.: Council of State Governments, 1994), p. 294; D.C. Code Ann. SI-1320 (1992). Sixteen states and the District of Columbia use the recall at the jurisdiction-wide level. Council of State Governments, Book of the States, pp. 305-306; D.C. Code Ann. SI-1321 (1992). 18David Magleby, Direct Legislation: Voting on Ballot Propositions more: Johns Hopkins University Press, 1984), p. 181.

in the United States (Balti-

The Initiative and American Democracy

19

that initiative agendas are generally set by the "capacity to hire professional signature-gathering firms or by the dedication of issue activists or single-issue groups" rather than by issues of prominent concern to the general population such as inflation, unemployment, or the economy. 19 He also finds that "less educated and poorer voters" often do not vote because many propositions are "unnecessarily complex and lengthy." "Despite the high hopes of reformers that direct legislation would increase turnout and reduce alienation," Magleby says "neither has occurred." Overall, he says, "direct legislation is prone to serious biases,,20 insofar as participation and representation are concerned. As to accommodation, accountability and authority, Magleby finds that while direct legislation sometimes makes it possible to resolve questions authoritatively, it does not permit "an assessment of the participants' intensity of opinion." While many observers believe that the initiative "stimulates the legislature to take action," this is counterbalanced to some extent by the fact that the initiative "serves as an easy way for the legislature to avoid deciding" some issues.21 As to deliberation, Magleby concludes that "the electorate as a whole cannot function as a deliberative assembly can. Voters do not develop expertise in the same way or to the same extent that legislators do." The elected legislator will weigh his personal views on the issue, his perception of his constituents' views on the issue, and his view of the long range interest of the polity. "In direct legislation, voting is more individualistic. Theoretically, the outcome of direct legislation should reflect the majority will; however, given dropoff and voter confusion, this may not be true in practice. What is true of direct legislation is that the outcome, which mayor may not reflect the majority will, is subject to fewer institutional checks and safeguards than the legislative process.,,22 Magleby acknowledges that "the legislative process is not without problems," but concludes that it is "more deliberative, substantive, and rational." Professor Magleby's overall assessment is essentially negative:

0t

The practice direct legislation has by and large fa.llen.short o~ the .reformers' expectations and is prone to abuse. The people who rule m dIrect legIslatIOn are those who have mastered the process at the petition-qualification and voting stag~s. Large numbers of citizens are effectively excluded from participation, and what Issue ~o.nce:ns they might have do not reach the direct legislative agend.a. B.e~ause of partICIpatIon biases fostered by the direct legislation process and the mabllIty of man~ voters to translate their opinions into pol~cy, the pro~~ss has fallen short of the mark m the areas of participation and representatIOn as well. . .

Political scientist Betty Zisk studied campaigns on 72 ballot questIOns III California, Massachusetts, Michigan, and Oregon in the years 1976-82. In the 19Magleby, Direct Legislation, p. 182. 20Magleby, Direct Legislation, p. 184. 21Magleby,

Direct Legislation, p. 186.

22Mag1eby, Direct Legislation, p. 187. 23Mag1eby, Direct Legislation, p. 199.

20

LAWMAKING BY INITIATIVE

conclusion to her 1987 book, she discussed had been fulfilled:

whether the hopes of the Progressives

If present-day campaigns on ballot questions are appraised by the original Progressive standards, current practice would seem to be woefully lacking on several counts. The first and most obvious is the key role played by traditional interest groups on almost all but the least controversial proposals. Far from replacing group lobbying efforts vis-a-vis the legislature, the initiative and referenda campaigns seem to provide an alternate channel for the very group activities the reformers denounced. Worse yet, the extraordinary emphasis on group-financed media campaigns, and the success of these efforts, would probably cause the likes of Hiram Johnson to tum in his grave.24

Professor Zisk's final assessment is slightly more positive. Even if it is not possible to say that the initiative satisfied the Progressives' dreams, "because those dreams overestimated the degree to which politics is, or can be, central to the lives of all of us," "I can at least assert," she says, "that some citizen-democrats flourish because of opportunities provided by that dream." "Thus, while these mechanisms for direct democracy are hardly the universal panacea that some past reformers have claimed, they have helped to open up new pathways for participation, for political communication and even for policy innovation.,,25 David Schmidt is a journalist and sometime political activist who is the publisher of Initiative and Referendum: The Power of the People!, a nonpartisan newsletter concerning the initiative process. His 1989 book provides an excellent history of the initiative in the United States and a number of fascinating case studies of particular initiative campaigners and campaigns.26 Schmidt believes that there are such serious problems with the legislative process that it is difficult to imagine the initiative being any worse. Excessive campaign spending, unequal lobbying and off-year campaign contributions, gerrymandering, practices concerning legislators' committee assignments, logrolling and pork barrel legislation, unrepresentative representatives, legislators' arrogance, and the many ways to kill bills make it undesirable in Schmidt's view for legislatures to be given the sole lawmaking authority. Schmidt also believes that there are valid answers to each of the ten most commonly cited objections to the initiative: (1) Initiatives are usually drafted more carefully than legislative bills, he argues, because they cannot be changed. 24BettyZisk, Money, Media, and the Grass Roots: State Ballot Issues and the Electoral Process (Newbury Park, Ca: Sage Publications, 1987), p. 250. Professor Zisk also measures the initiative process agamst Robert Dahl's "pluralist" theory of democracy, a theory that she describes as a "less demanding model of democracy" in that it is satisfied if each member has the opportunity for political partICipatIOnbut does not expect actual participation as the Progressives did. While finding that the ~mtlaliveproc~~s}s"problemat~;" as to pluralist concerns about equal access to information and "by Its very nature very unlIkely to satIsfy concerns about equal opportunity to "insert" alternatives mto those scheduled for voting, Professor Zisk nonetheless finds that the process is satisfactoryunder Dahl's theory. Zisk, Money, Media and the Grass Roots, p. 254. 25Zisk,Money, Media and the Grass Roots, pp. 266-269. 26DavidSchmidt, Citizen Lawmakers:. The Ballot Initiative Revolution (Philadelphia:Temple UniversItyPress, 1989).ThIs book gIves a bnef hIStOryof the initiative in each state (pp. 217-285)as well as a dISCUSSIOn of the movement for a national initiative (pp. 171-181).

The Initiative and American Democracy

2I

(2) Campaign spending is decisive in only about one-eighth of all initiative campaigns. (3) Initiatives are not a tool of the special interests because there is a rough liberal-conservative equality. (4) Participation on ballot measure issues is higher than that in candidate races. (5) Initiatives are relatively small contributors to "ballot clutter." (6) Initiatives do not create a "tyranny of the majority" because they are subject to judicial review. (7) The initiative is complementary of rather than a substitute for the legislature. (8) Voters do not always "selfishly" vote their pocketbooks. (9) Tax cut initiatives in California and Massachusetts have not been disastrous. And (10) voters do vote intelligently on initiatives.27 Overall his assessment is positive: The Initiative process is not a cure-all, but it does result in increased government responsiveness to the will of the people, greater citizen participation and a betterinformed electorate. It is a safeguard against the concentration of political power in the hands of a few, and it provides a means of putting new ideas on the political agenda.28

A fourth perspective is that of Thomas Cronin, a leading academic authority on American institutions. His 1989 book for the Twentieth Century Fund delves deeply into the theory and practice of the initiative process. He finds that: The American experience with direct democracy has fulfilled neither the dreams and expectations of its proponents nor the fears of its opponents. The initiative and referendum have not undermined or weakened representative government. The initiative, referendum, and recall have been no more of a threat to the representative principle than has judicial review or the executive veto. Tools of neither the "lunatic fringe" nor the rich, direct democracy devices have become a permanent feature of American politics, especially in the West.29

Cronin explains why he believes the direct democracy devices have not been used more often: The initiative, referendum, and recall have not been used as often as their advocates would have wished, in part because state legislatures have steadily improved. Better-educated members, more-professional staff, better media coverage of legislative proceedings, and longer sessions have transformed the legislative process at the state level, mostly for the better. Interest groups once denied access to secret sessions now regularly attend, testify, and participate in a variety of ways in the legislative process. Although individuals and some groups remain frustrated, the level and intensity of that frustration appear to be lower than the discontent that prompted the popular democracy movements around the turn of the century.30

Throughout most of their history Cronin finds that the direct democracy devices have had a number of enduring problems: issues of ballot access, signature drive deceptions, drafting confusion, voter turnout and falloffs, voter competence questions, issues concerning weakening of the legislature, and minority rights. In recent decades some new challenges have been added to this list: money (especially one-sided campaign expenditures), paid petition circulators, 27Schmidt, Citizen Lawmakers, pp. 25-40. 28Schmidt, Citizen Lawmakers, pp. 25-26. 29Cronin, Direct Democracy, p. 196. 30Cronin, Direct Democracy, p. 197.

22

LAWMAKING

BY INITIATIVE

direct mail deception, deceptive advertising campaigns, litigation and court intervention, and video- or teledemocracy.31 After assessing each of these problems in some detail, Professor Cronin concludes: In sum, direct democracy devices have not been a cure-all for most political, social, or economic ills, yet they have been an occasional remedy, and generally a moderate remedy, for legislative lethargy and the misuse and nonuse of legislative power. It was long feared that these devices would dull legislators' sense of responsibility without in fact quickening the people to the exercise of any real control in public affairs. Little evidence exists for those fears today. When popular demands for reasonable change are repeatedly ignored by elected officials and when legislators or other officials ignore valid interests and criticism, the initiative, referendum, and recall can be a means by which the people may protect themselves in the grand tradition of self-govemment.32

The California Experience Other assessments of the initiative process focus specifically on the experience in particular states.33 The most perceptive early assessment of the California experience was that made by V.O. Key, Jr., one of the most highly respected political scientists of the twentieth century, and Winston Crouch, an acute observer of the California political scene. In their 1939 assessment, Key and Crouch describe the role of the initiative: The typical state governmental structure is deliberately designed to check popular movements, but an excessive zeal in utilizing its braking power leads to the tightening of social tensions, to a general feeling of dissatisfaction, and, perhaps, to more or less precipitous modifications of public policy. Through the lhitiative, the advocates of direct legislative methods, not avowedly but in effect, sought a permanent remedy for this recurrent legislative paralysis.34

In their view, the initiators of propositions have usually been: pressure organizations representing interests--commercial, industrial, financial, reform, religious, political-which have been unable to persuade the legislature to follow a particular line of action .... It appears that. .. well-financed interest-gro~s initiate measures more frequently than do spontaneously formed reform groups.3 The initiative is almost invariably used by groups unable to gain particular ends through the action of the representative body. These groups may be either radical or reactionary .... The demand is usually rationalized in terms of the public interest.. .. [T]he groups using the initiative have not differed from the organizations lobbying before the legislature.36 3 ICronin, Direct Democracy, pp. 207, 214. 32Cronin, Direct Democracy, p. 222. For recent foreign assessments, see Andreas Auer, Le Referendum et l'initiative populaires aux Etats-Unis (Basel: Helbing & Lichtenhahn, 1989)(Switzerland); Ulrich Glaser, Direkte Demokratie als politisches Routineverjahren (diss., University of Erlangen, 1997) (Germany). 33See, e.g., Commonwealth of Massachusetts, Legislative Research Council, Report Relative to Revising Statewide Initiative and Referendum Provisions of the Massachusetts Constitution, House No. 5435 (1975); Hugh Bone and Robert Benedict, "Perspectives on Direct Legislation: Washington State's Experience 1914-1973," Western Political Quarterly 28 (1975): 330. 34v.O. Key, Jr. and Winston Crouch, The Initiative and the Referendum in California (Berkeley: University of California Press, 1939), p. 442. See also Winston Crouch, The Initiative and Referendum in California (Pasadena, Ca.: Castle Press, 1950). 3SKey and Crouch, Initiative and Referendum, pp. 565-567. 36Key and Crouch, Initiative and Referendum, p. 487.

The Initiative and American Democracy

23

Key and Crouch find the "initiative ... deficient as a legislative device in that there is no opportunity in the process of formulation of a measure for its opponents to be heard." This lack of opportunity for amendment and compromise would be a "grave" criticism in their view "if a considerable proportion of the legislative output originated through the initiative.,,37 "On the whole,~' conclude Key and Crouch, the propositions adopted by the initiative "appear to be neither more drastic nor less intelligent in intent than acts which have been adopted by the legislature.,,38 The initiative has not brought about the enactment of legislation seriously detrimental to private property rights or tyrannical toward minority interests, as was feared by its opponents. As a general rule, measures which would have had such effect have been defeated when met by organized opposition from the interests to be affected. The electorate has been no more precipitous in injuring such groups than the representative body ... .It would appear that powerful minority groups defending a politico-economic status occupy the strategic position, whether they are attacked through the legislative body or before the electorate.39 One reason the initiative has been neither as influential expected nor as terrible as its opponents feared is that:

as its supporters

The early advocates of the initiative, as well as the professional political scientists of the time, had in some respects an unrealistic conception of politics. Nor can it be said that the opponents of the initiative exhibited a superior insight into the dynamics of politics. It was thought that "The People" would circulate petitions and put measures on the ballot for the promotion of the welfare of the average man. The fight would then be over, since all measures (so ran the argument of the more enthusiastic advocates of the initiative) fell into two well-defined categories, namely, those in the public interest and those for the benefit of some special interest. It has been clearly shown that initiative measures do not originate with "The People." The moving forces in politics are relatively small groups of men animated by some "interest." Such groups have collectively come to be designated as "interest-groups" or "pressure groups.'40 Key and Crouch argue that these interest groups are not always "grossly selfish," but that they always act like "vested interests." "Occasionally," they say, "the public interest parallels the interest of some more or less selfish interestgroup, or more nearly so than the interest of the counter pressure group, and the force exerted on behalf of such interest-group redounds to the public benefit.,,41 Key and Crouch summarize their views in three propositions: First, legislation is largely the product of the activities of small groups of men leading and directing larger interest-groups. Second, the proposals of aggressively sought legislation mayor may not be in the public interest but generally tend to be primarily for the benefit of such interest-groups. Third, when such a group arises to champion a cause which is undoubtedly for the general welfare, the odds against success are great, for the opposition is strong and the support usually weak.42 37Key and Crouch, Initiative and Referendum, p. 568. 38Key and Crouch, Initiative and Referendum, p. 565. 39Key and Crouch, Initiative and Referendum, p. 488. 40Key and Crouch, Initiative and Referendum, p. 572. 41

Key and Crouch, Initiative and Referendum, p. 572.

42Key and Crouch, Initiative and Referendum, p. 573.

24

LAWMAKING

BY INITIATIVE

The principal hope, they argue, "of the great mass of individuals who are not formally represented by professional organizers of pressure groups and whose interests are not championed by paid lobbyists" is the ordinary workings of the political process. Sometimes the interests of the general mass of people run parallel with the aims of some particular vested interest. More generally, however, the mass of the people will find their interests better accommodated "in insurgent factions of political parties." "If the mass of the people, in a given situation, cannot gain their ends by supporting such a group, in all probability they could not do so through the initiative.,,43 Two recent assessments of the California experience have been made by Eugene Lee, long-time director of the University of California, Berkeley's Institute of Governmental Studies and a highly respected authority on American politics. In 1978 Professor Lee predicted many of the trends of the 1980s and the 1990s. These predictions remain highly relevant for the year 2000 and beyond: • The initiative will continue to be a permanent part of the California political scene, complementing if not supporting weak political party organizations whose leadership is dominated by personalities and issues rather than resting on formal structure. • The high costs of the initiative process both in petition-circulation and in campaigning will continue. While these high costs are identified primarily with economic special interest groups ... grass-roots organizations will continue to compete successfully in the initiative process with relatively modest financial resources . • The "new politics" ... , with its emphasis on professional campaign management, targeted direct mailings, and the sophisticated sloganeering of the sixty-second television commercial will dominate most initiative campaigns .... • Successful initiatives will generally be adopted by a vote of no more than 25 to 30 percent of the adult population of the state. Whether such a decision is more or less "democratic" than an action by a state legislature, itself the product of a limited electorate and generally safe districts, is an open question .... • The initiative process is often not "a particularly efficient means of enacting new legislation. Lawmaking requires hearings, debates, compromise and deliberation, whereas the initiative process is inherently arbitrary." ... • Despite the obvious complexities of the ballot, "California's well-educated voters [seem] far more able to cope with intricate initiatives than had been presumed by political scientists .... " • The initiative will be employed by candidates for public office as a part of their personal campaign strategy. In fact, this will be the prime motivation behind the drafting and sponsorship of some measures .... 43Key and Crouch, Initiative and Referendum, pp. 573-574.

The Initiative and American Democracy

25

• The initiative will continue to be used as an educational tool... [e]ven when the chance of success [in passing the initiative] is small .... • Most important, the initiative will remain a critical part of the politics of the legislative process. The very existence of an alternative to the legislature and the governor, whether it is used or not, influences the pattern of legislative behavior.44 How well has the initiative accomplished the goals of the 1911 reformersneutralizing special interest groups, curtailing corruption, providing a vehicle for civic education, creating pressure on state officials to act in the public interest and ultimately making "every man his own legislature"? In 1978 Professor Lee said that "the answer is assuredly mixed": We cannot isolate this one institution and attribute to it either the blessings of progress or the sins of. .. California's public life in this century. Nor can we even answer whether California would be better or worse off if the Progressives had not been successful in 1911. Special interests in the state are as active and as powerful as anywhere in the nation, but their numbers include effective grass-roots environmental protection and civic reform groups as well as dominant economic forces. Corruption is relatively rare, but the power of campaign contributions is strong and, although fully reported, unrestricted. Civic education is high, but millions of Californians do not participate politically at alJ.45

By 1990 Professor Lee was much more negative. In an article reviewing the relationship between representative government and the initiative process, he argued vigorously that the threat to responsive government in modern California is no longer the Southern Pacific railroad and the monopolies but "the initiative process itself.,,46 Instead "of serving as a safety valve," Professor Lee believes that the initiative "has become an uncontrolled political force of its own" and that it is "no longer democratic." It is a force that has produced occasional benefits but at an extraordinary cost-an erosion of responsibility in the executive and legislative branches of state government, a simultaneous overload in the judiciary, and an excessively amended state constitution alongside a body of inflexible quasi-constitutional statutory law.47 Professor Lee highlights three major problems. "Important aspects of the state's political agenda are being set, not by its elected leaders, but by unaccountable single-interest groups operating in a fragmented, uncoordinated, and frequently contradictory manner.,,48 The initiative allows the executive and the 44Eugene Lee, "California," in David Butler and Austin Ranney, eds., Referendums: tive Study of Practice and Theory (Washington, D.C.: American Enterprise Institute,

A Compara-

1978),pp. 87,

118-119. 45Lee, "California,"

in Butler and Ranney, Referendums,

p. 120.

46Eugene Lee, "Representative Government and the Initiative Process, in John Kirlin and Donald Windler, eds., California Policy Choices 6 (Los Angeles: University of Southern California School of Public Adrninistration, 1990):227-253,248. 47Lee, "Representative

Government,"

in Kirlin and Windler, California Policy Choices

48Lee, "Representative

Government,"

in Kirlin and Windler, California Policy Choices

6: 248. 6: 248-249.

26

LAWMAKING

BY INITIATIVE

legislature to escape responsibility for dealing with tough issues. And it allows all concerned to bypass the slow, frustrating, and difficult-but nonetheless essential in Lee's view-task of consensus building.49

49Lee, "Representative Government," in Kirlin and Windler, California Policy Choices 6: 248-250. Other assessments of the California experience include League of Women Voters of California, Initiative and Referendum in California: A Legacy Lost? (Sacramento, Ca.: 1984); Charles Bell and Charles Price, "Are Ballot Measures the Magic Ride to Success?," California Journal 19 (September 1988): 380; Alan Rosenthal, "An Outsider's View of the California Initiative," in The California Initiative Process: Current Controversies and Prescriptions, Summary Proceedings, Public Issue Forum (Davis, Ca.: University of California, University Extension, March 23, 1990), p. 22; Eric Pata~hnik, "California's Initiative Process in the I 990s: Laying the Groundwork for Reform" (unpublished study prepared for the League of Women Voters and for the Graduate School of Public Policy, University of California, Berkeley, May 1989).

CHAPTER FOUR

A COMPARATIVE ANALYSIS OF AMERICAN STATE LAWS STATES THAT USE THE INITIATIVE THE FIRSTAMERICANSTATETO ADOPTTHEINITIATIVE,as discussed in Chapter Two, was South Dakota in 1898. The idea proved popular in other states, particularly other Western states, and by 1918 some form of the initiative had been adopted by 18 states. There were no new adoptions until 1959 when Alaska came into the union. Since the mid-1960s numerous other states have considered adopting the initiative, and five states have done so, including Mississippi in 1992.' There was also serious discussion of a national initiative in the 1970s.2 Twenty-four states and the District of Columbia use some form of the initiative, as Table 1 shows. Fifteen of these states allow use of the initiative for both constitutional amendments and statutes, while three allow its use only for constitutional amendments and six plus the District of Columbia allow its use only for statutes. The initiative process has two basic forms: the direct initiative and the indirect initiative. In the direct initiative, a measure that qualifies for the ballot by citizen petition is submitted directly to a vote of the people. In the indirect initiative, a ballot measure must be submitted to the legislature before being voted on by the people. If the legislature decides to adopt the measure, then it is not submitted to a vote of the people. Fourteen states and the District of Columbia use only the IAs indicated in Chapter One, Mississippi first adopted an initiative process in 1916, but the Mississippi Supreme Court ruled the adoption unconstitutional in Power v. Robertson, 93 So. 769 (Miss. 1922). In 1991 the court refused to reconsider its earlier ruling. State ex rei. Moore v. Molpus, 578 SO.2d 624 (Miss. 1991).

2Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum. and Recall (Cambridge, Mass.: Harvard University Press, 1989), pp. 157-195; Hearings Before the Subcommittee on the Constitution of the Committee on the Judiciary, on S.J. Resolution 67, 95th Cong., 1sl. Sess. (Washington, D.C.: U.S. Government Printing Office, 1977).

27

28

LAWMAKING

BY INITIATIVE

direct initiative. Five states use only the indirect initiative; three states use the indirect initiative for statutes and the direct initiative for constitutional amendments; and two states use both the direct and the indirect initiative for statutes (see Table 2). TABLE 1. Adoption of the Initiative Date

State

Statute

1898

South Dakota

Yes

Constitutional Amendments In 1972

1900

Utah

Yes

No

1902

Oregon

Yes

Yes

1904

Nevada

Yes

Yes

1906

Montana

Yes

In 1972

1907

Oklahoma

Yes

Yes

1908

Maine

Yes

No

1908

Michigan

Yes

Yes

1908

Missouri

Yes

Yes

1910

Arizona

Yes

Yes

1910

Colorado

Yes

Yes

1911

Arkansas

Yes

Yes

1911

California

Yes

Yes

1912

Idaho

Yes

No

1912

Ohio

Yes

Yes

1912

Nebraska

Yes

Yes

1912

Washington

Yes

No

1914

North Dakota

Yes

Yes

1918

Massachusetts

Yes

Yesa

1959

Alaska

Yes

No

1968

Florida

No

Yes

1968

Wyoming

Yes

No

1970

Illinois

No

Yes

1977

D. of Columbia

Yes

No

1992

Mississippi

No

Yes

aMust receive at least 25 percent of the legislature's votes in two separate annual sessions to be submitted to tbe people.

A Comparative Analysis of American State Laws

29

TABLE 2. Types of Initiatives Type

Statutes

Constitutional Amendments

Indirect Only Alaska

Yes

No

Maine

Yes

No

Massachusetts

Yes

Yes.

Mississippi

No

Yes

Wyoming

Yes

No

Michigan

Yes (I)

Yes (D)

Nevada

Yes (I)

Yes (D)

Ohio

Yes (I)

Yes (D)

Utah

Yes (I); (D)

No

Washington

Yes (I); (D)

No

Mixed

Both

Direct Only Arizona

Yes

Yes

Arkansas

Yes

Yes

California

Yes

Yes

Colorado

Yes

Yes

D. of Columbia

Yes

No

Florida

No

Yes

Idaho

Yes

No

Illinois

No

Yes

Missouri

Yes

Yes

Montana

Yes

Yes

Nebraska

Yes

Yes

North Dakota

Yes

Yes

Oklahoma

Yes

Yes

Oregon

Yes

Yes

South Dakota

Yes

Yes

Key: I = Indirect; D = Direct. aMust receive at least 25 percent of the votes of the legislature in two separate annual sessions to be submitted to the people. Sources: Alaska Canst. art. XI; Ariz. Canst. art. IV, pI. I, 91(2); Ark. Canst. amend. VII; Cal. Canst. art. II, s8; Colo. Canst. art. V, 9 I; D.C. Code Ann. S 1-282 (1992); Fla. Canst. art. XI, 93; Idaho Const. art. III, 91; Ill. Canst. art. XIV, 93; Me. Canst. art. IV, pt. 3, 918; Mass. Const. amend. art. XLVIII; Mich. Canst. art. II, S9 (statutes), art. XII, S2 (canst. amend.); Miss. Const. art 15, 9273; Mo. Canst. art. III, S49; Mont. Const. art. III, S4 (statutes), art XIV, 99 (canst. amend.); Neb. Canst. art. III, SS 1,2; Nev. Const. art. XIX, S2; N.D. Const. art. III, S I; Ohio Canst. art. II, sla (canst. amend.), art. II, S Ib (statutes); Okla. Const. art. V, Sl; Or. Canst. art. IV, Sl; S.D. Const. art. III, Sl (statutes), art. XXIII, 91 (const. amend.); Utah Canst. art. VI, 91; Wash. Const. art. II, Sl; Wyo. Canst. art. 3, S52.

30

LAWMAKING

BY INITIATIVE

TABLE 3. Use of the Initiative from Year of Adoption through 1996 (Measures Voted On) Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansasc Californiad Colorado D.ofColumbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Statutes

22 35 50 NA 4

Constitutional Amendments

NA NA 3a 1

NA

Total

22 35 53 I 4

10(1)

46(D)

56

12(1)

14(D)b 53(D)

26 62

9(1) 0(1); 15 (D) 21(1); 97(D)

NA NA

83

58

20

60 113 109 NA 15 NA 1 41 10

144 44 15

NA 24 NA 21

45

15 118 141

80 257 153 15 15 24 I

62 55 37

133

25 37

29

51

166

126

80 292

37

6

43

12

170

Key: I = Indirect; D = Direct. "Must receive at least 25 percent of the votes of the legislature in two separate annual sessions to be submitted to the people. bSince 1961 constitutional amendments must be approved by the people twice. Fourteen separate proposals were on the ballot between 1961 and 1996. Twenty-one votes were required for these 14 proposals. eTotals are incomplete due to gaps in recordkeeping. See David Thomas, "The Initiative and Referendum in Arkansas Comes of Age," American Political Science Review 27 (1933): 66-75. Timothy Kennedy, "Initiated Constitutional Amendments in Arkansas: Strolling Through the Mine Field," U. Arkansas Little Rock Law Journal 9 (198687): 1,6, shows a total of71 constitutional amendments qualifying through 1986, with 28 passing. Five initiatives appeared on the ballot between 1988 and 1996, three passing and two failing. This yields a total of 76 qualifiying through 1996 and 32 passing. dSome California initiatives involve both constitutional amendments and statutes. These are counted as constitutional amendments. Includes three indirect initiatives that appeared on the ballot. Sources: All statewide initiatives through 1976 are listed in Virginia Graham, A Compilation of Statewide Initiatives Appearing on Ballots Through 1976 (Washington, D.C.: Library of Congress, 1978); statewide initiatives from 1978 through 1988 are listed in Philip Dubois and Floyd Feeney, Improving the California Initiative Process (Berkeley, Ca.: California Policy Seminar, University of California, (992), Appendix A; initiatives since 1988 were compiled by the authors.

Some states use the initiative much more than others. South Dakota and Utah, the first two states to adopt the initiative, for example, have used the pro-

A Comparative Analysis of American State Laws

31

cess sparingly, as Table 3 indicates. Alaska, Florida, Illinois, Mississippi, Wyoming, and the District of Columbia, the most recent jurisdictions to adopt the procedure, have used it sparingly as well. Oregon, California, North Dakota, and Colorado, on the other hand, have historically speaking placed the largest number of propositions on the ballot. These states and Washington have also been by far the heaviest users in recent years. From 1978 through 1996, California put 98 measures on its statewide ballot, Oregon 86, Colorado 46, Washington 39, and North Dakota 34, as Table 4 shows. TABLE 4. Recent Use of the Initiative, (Measures Voted On) Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansas Californiac Colorado D. of Columbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Statute 17 23 24

NA 4

1978-1996

Constitution NA

NA la

I NA

6(1)

12(D)

2 (1) 3 (I)

II (D)b IS (D)

0(1); 9(D) 12 (I); 27(D) 17 3 64 9 15 NA 13 NA 7 19 3 27 3

48 18

NA NA

Total 17 23 25 I 4 18 13 18 9 39

12 13 34

29

37 NA

46 IS 14 13 1 18 27 13 34 II 86

14 NA I II 8 10 7 8 38 6

16

98

24

Key: J = Indirect; D = Direct. aMust receive at least 25 percent of the votes of the legislature in two separate annual sessions to be submitted to the people. bSince J 96 J constitutional amendments must be approved by the people twice. Eleven separate proposals were on the ballot during 1978-1996. They required 18 separate votes. eSame California initiatives involve both constitutional amendments and statutes. These are counted as constitutional amendments. Source: See Table 3.

32

LAWMAKING

BY INITIATIVE

In the nearly 100-year history of the initiative in the United States, over 1,800 states wide initiatives have appeared on statewide ballots. Forty percent of the measures proposed were adopted by the voters, as indicated in Table 5. Although the percentage adopted varies enormously from state to state, the states that have used the initiative the most usually are in the 25 to 50 percent range. TABLES.

Initiatives Approved by Voters from Year of Adoption through

1996 Type

Number On Ballot

Number Adopted

Percent Adopted

Indirect Only Alaska Maine Massachusetts Mississippi Wyoming

22 35 53 1 4

14 17 25 0 3

64% 49% 47% 0% 75%

56 26 62

19 15 16

34% 58% 26%

15 118

2 56

13% 47%

141 80 257 153 15 15 24

56 45 85 60 10 10 12

40% 56% 33% 39% 67% 67% 50% 100% 35% 55% 32% 45% 29% 34% 26% 40%

Mixed Michigan Nevada" Ohio Both Utah Washington Direct Only Arizona Arkansasb Cal iforniac Colorado D. of Columbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota Total

I

62 55 37 170 80 292 43 1,817

I

22 30 12 76 23 100 11 720

"Since 1961 constitutional amendments must be approved by the people twice. They are counted here each time they appear. This method of counting differs from that in Tables 3 and 4. bTotals are incomplete due to gaps in recordkeeping. See Table 3. cSome California initiatives involve both constitutional amendments and statutes. These are counted as constitutional amendments. Includes three indirect initiatives that appeared on the ballot. Sources: See Table 3.

A Comparative Analysis of American State Laws

BALLOT ACCESS-SIGNATURE

33

REQUIREMENTS

All states that use the initiative process regulate access to the ballot by requiring initiative proponents to gather signatures from registered voters. Although this requirement allows citizens to put issues directly before the electorate, it also ensures that there is enough popular support to prevent voting on frivolous issues.3

Statutory Initiatives The number of signatures required is usually calculated as a percentage of the number of votes in the last gubernatorial election. Fifteen of the 22 jurisdictions that allow statutes to be adopted through the initiative process use this method of calculation.4 Three states use a percentage of those who voted in the last election (Alaska, Nevada, and Wyoming), one state uses the vote for the secretary of state (Colorado), and one the highest vote total for a statewide officer (Oklahoma). Another jurisdiction calculates a percentage of the registered voters (D.C.), and one uses a percentage of the total population (North Dakota).5 The patterns are relatively similar for the different types of initiative. Nine of the 13 jurisdictions that use only the direct initiative base the number of signatures required on the last gubernatorial election, as do six of the nine states that use the indirect initiative.6 Of the 13 jurisdictions using the direct initiative for statutes, six jurisdictions require signatures totaling 5 percent of the total vote, one requires 6 percent, one requires 7 percent, two require 8 percent, and two require 10 percent. Some jurisdictions thus require twice the proportion of signatures that others do, as Table 6 shows. Studies show that more initiatives qualify in states with low percentage requirements than in states with high percentage requirements.? The number of required signatures varies more widely in states that use the indirect initiative than in direct-initiative states. Two states require the legislature to consider statutory initiative proposals with only 3 percent of the total vote in 3As previously discussed, indirect initiatives go before the legislature before they go on the ballot.

4Ariz. Canst. art. IV, Pt. I, ~1(7); Ark. Canst. amend. VII; Cal. Canst. art. II, *8; Idaho Code ~341805 (1981); Me. Canst. art. IV, Pt. 3, ~18; Mass. Canst. amend. art. XLVIII, Init., Pt. 5, ~l, as amended by amend. art. LXXXI; Mich. Canst. art. II, ~9; Mo. Canst. art. III, ~53; Mont. Canst. art. III, ~7; Neb. Canst. art. III, ~4; Ohio Canst. art. II, ~Ig; Or. Canst. art. IV, ~1(2)(b); S.D. Codified Laws Ann. ~2-1-5 (1992); Utah Code Ann. ~20A-7-201 (Supp. 1994); Wash. Canst. art. II, ~I(a). sBased on: (a) last election: Alaska Canst. art. XI, ~3; Nev. Canst. art. XIX, ~2; Wyo. Canst. art. 3, 52(c); (b) vote for secretary of state: Colo. Canst. art. V, ~1(2); (c) highest vote for statewide officer: Okla. Canst. art. V, ~2; (d) registered voters: D.C. Code Ann. ~1-282 (1992); (e) resident population: N.D. Canst. art. III, ~4. 6Inc1uded within the nine indirect initiative states are five that also use some form of the direct initiative (Michigan, Nevada, Ohio, Utah, Washington). These five states use the same method for calculating the signature requirement for both types of initiative. Four of the five base the percentage on the last gubernatorial election. 7David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), p. 42.

34

LAWMAKING

BY INITIATIVE

the last election (Massachusetts and Ohio). Wyoming, on the other hand, requires signatures totaling 15 percent of the last vote to gain legislative consideration of an initiative proposal. If the legislature fails to adopt the proposal, both of the low-signature states require additional signatures to qualify for the ballot. The additional signatures required in Massachusetts, however, are only a token number (Y2 percent).8 TABLE 6. Signature Requirements (Generally in Percent of Last Statewide Vote) Type

Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utahc Washington Direct Only Arizona Arkansas California Colorado D.ofColumbiad Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Statute 10% 10% 3 +.5%

NA 15% 8%(1) 10%(1) 3+3%(1) 5+5%(1)(0) 8%(1)(0) 10% 8% 5% 5% 5% NA 10%

NA

Constitution NA

NA 3%a 12%

NA

Increment NA

NA NAb

NA NA

10% (D) 10% (D) 10% (D)

NA NA

NA NA

15% 10% 8% 5% NA 8%

5% 2% 3% 0% NA NA NA NA 3% 5% 3%

NA

5% 5% 7%

8% 8% 10% 10%

[2%]e 8% 6% 5%

[4%]e 15% 8% 10%

[2%]e 7% 2% 5%

Key: I = Indirect; D = Direct. aMust receive at least 25 percent of the votes of the legislature in two separate annnal sessions to be submitted to the people. bThe statute form of the initiative differs from the constitutional amendment form. e 10 percent of the last statewide vote is required for a direct initiative. dpercent of registered or qualified voters. epercent of resident population. Sources: Alaska Canst. art. XI, ~3; Ariz. Canst. art. IV, pt. I, ~I (2); Ark. Canst. amend. VTI; Cal. Canst art. II, ~8; Colo. Canst. art V, ~1(2); D.C. Code Ann. ~1-282 (1992); Fla. Canst. art. XI. ~3; Idaho Code ~34-1805 (1981); Ill. Canst. art. XIV, ~3; Me. Canst. art. IV, pt. 3, ~18; Mass. Canst. amend. art. XLVIII, Init., pt. 5 (statutes), pt. 4 (const. amend.); Mich. Canst. art. II, ~9 (statutes), art. XII, ~2 (canst. amend.); Miss. Canst. art. IS, ~273; Mo. Canst. art. Ill, ~50; Mont. Canst. art. m, ~4 (statutes), art. XIV, ~9 (canst. amend.); Neb. Canst. art. III, ~2; Nev. Canst. art. XIX, ~2; N.D. Canst. art. Ill, ~4 (statutes), art. III, ~9 (canst. amend.); Ohio Canst. art. TI, ~la (canst. amend.), art. II, ~Ib (statutes); Okla. Canst. art. V, ~2; Or. Canst. art. IV, ~I; S.D. Canst. art. Ill, ~l (statutes), art. XXITI, ~I (canst. amend.); Utah Code Ann. ~~20A-7-20I, -208 (Supp. 1994); Wash. Canst. art. TI, ~I; Wyo. Canst. art. 3, 52(c).

A Comparative Analysis of American State Laws

35

Constitutional Initiatives Twelve of the 18 states using the initiative for constitutional amendment calculate the signatures required as a percentage of the votes cast in the last gubernatorial election. One uses the vote for the secretary of state (Colorado), one the highest number of votes for a statewide officer (Oklahoma), one the vote in the last presidential election (Florida), and one the vote in the last general election (Nevada). One does not use the vote at all; it uses a percentage of the resident population (North Dakota).9 Again, there is considerable variation in the number of signatures required. Of the 16 states using the direct initiative for constitutional amendments, one requires signatures equaling 5 percent of the vote and two require IS percent. Five states require signatures equaling 8 percent of the vote, and seven require 10 percent of the vote. One of the two indirect-initiative states (Massachusetts) requires signatures totaling only 3 percent of the gubernatorial vote in the last general election, but this is misleading because constitutional amendments in this state do not go on the ballot unless at least one-fourth of the legislature meeting in joint session votes for the measure in two successive annual sessions. 10 The other indirect initiative state (Mississippi) requires signatures equal to 12 percent of the vote. In most of the 15 states that use the initiative for both statutes and constitutional amendments, substantially more signatures are required for constitutional amendments. Five states require about twice as many signatures for constitutional amendments, and seven others require at least one-quarter more signatures. Surprisingly, two states require no more signatures for constitutional amendments than for statutes. I I

THE INDIRECT INITIATIVE With an indirect initiative, once the requisite number of signatures is gathered, the measure goes to the legislature for consideration. Generally the legislature has a fixed period of time to adopt or reject the measure. If the measure is adopted, it becomes law.121f the measure is rejected or if the legislature fails to act within the specified time, the measure goes before the people at the next election. 8Utah also requires the collection of additional signatures if the legislature does not adopt the proposal. 9Last gubernatorial vote: Ariz. Const. art. XXI, 9 I; Ark. Const. amend. VIT; Cal. Const. art II, g8; ITI. Const. art. XIV, g3; Mass. Canst. amend. art XLVIII, Init., pt. 5, gl; Mich. Const. art. XII, g2; Miss. Canst. art. IS, g273(3); Mo. Const. art III, g53; Mont. Canst. art. XIV, 9 10; Neb. Const. art III, g4; Ohio Const. art. II, gIg; Or. Canst. art. IV, gl(2)(c); S.D. Const. art. XXIII, gl. Other: Colo. Const. art. V, gl(2); Okla. Canst. art. V, g2; Fla. Const. art. XI, g3; Nev. Const. art. XIX, g2; N.D. Const. art.m, g9. IOMass. Const. art. XLVIII, pt. IV, g4. llMontana, North Dakota, and South Dakota require twice as many signatures; Oklahoma and Ohio nearly twice as many. Arizona, Missouri, Nebraska, and California require at least 40 percent more signatures. Oregon requires 33 percent more, and Michigan 25 percent more. Colorado and Nevada require the same percentage of signatures. Massachusetts requires fewer signatures, but in that state the initiative goes on the ballot only if the proposed constitutional amendment receives at least a 25 percent affirmative vote in two successive annual legislative sessions. 12In most states laws of this kind are subject to referendum.

36

LAWMAKING

BY INITIATIVE

Indirect Initiative Statutes Nine states use some form of the indirect initiative for statutes, as shown in Table 7.13 Three of these states (Maine, Michigan, and Nevada) use a fairly straightforward version. In Maine, the legislature has the entire session in which to act and may decide to place an alternative proposal or recommendation before the people. If the legislature does this, it is directed to construct the ballot so that voters can choose between competing versions or reject both.I4 In Michigan and Nevada, the legislature has 40 days to act on a petition and may also place an alternative on the ballot. There is no authorization, however, to construct the ballot in any special way. TABLE 7. The Indirect Initiative Method

States

Straightforward

Maine, Michigan, Nevada

Sponsor's option

Utah, Washington

Legislature's option

Alaska, Wyoming

Two-step procedure

Massachusetts,

Constitutional

Ohio

Amendments

Straightforward

Mississippi

Legislature controls

Massachusetts

Sources: Alaska Canst. art. XI, 94; Me. Canst. art. IV, pt. 3, 918; Mass. Canst. amend. art. XLVIII, Inlt., pt. 5 (statutes), pt. 4 (canst. amend.); Mich. Const. art. n, 99; Miss. Canst. 9273; Nev. Canst. art. XIX, 92; Ohio Canst. art. n, 91b; Utah Code Ann. 9920A-7-201, -208 (Supp. 1994); Wash. Canst. art. II, 9 I; Wyo. Canst. art. III, 952(d).

Massachusetts and Ohio have a two-step procedure. In the first step the sponsors must obtain a fairly low number of signatures (3 percent) to have the legislature consider the proposal. If the legislature fails to adopt the proposal, the sponsors must seek additional signatures to get on the ballot. 15 Two of the states that have most recently adopted the initiative (Alaska and Wyoming) use a third form of the indirect initiative: the legislature's option. In these states initiative sponsors must submit their petitions prior to the beginning of the legislative session. The legislature is not required to consider the measure, however, and if it does not, the measure goes on the next ballot. If the legislature adopts the measure or a mea13Prior to 1966 California also allowed use of the indirect initiative. In the California version, sponsors had the option of whether to use the indirect initiative or the direct initiative for statutes. The number of signatures required was less for the indirect initiative (5 percent versus 8 percent). 14Presumably, more than one competing version can be put on the ballot. 15Utah also uses a two-step procedure for its indirect initiative. It operates much as the procedure in Massachusetts and Ohio, but the sponsor has the choice of whether to use the two-step procedure or to use the direct initiative.

A Comparative Analysis of American State Laws

37

sure that is substantially similar, the initiative does not go on the ballot. Alaska and Wyoming are the only states in which the legislature may vary indirect initiative statutory proposals without creating the possibility of a vote on the amended measure. Two states (Utah and Washington) have very different systems. Both states allow the initiative sponsor to choose whether they wish to use the direct initiative process or the indirect initiative process. Utah offers an incentive for use of the indirect initiative, allowing indirect initiatives to go before the legislature with signatures equal to 5 percent of the last vote while the direct initiative requires twice that number (10 percent). If the legislature rejects the indirect initiative, any advantage of the indirectinitiative is lost, however, because the sponsor must come up with signatures equal to another 5 percent of the vote. In Washington the number of signatures required is the same for each type of initiative, and the sponsor presumably chooses the type that seems most advantageous.

Indirect Initiative Constitutional Amendments Only two states use the indirect initiative for constitutional amendments. In Massachusetts the legislature has total control; the measure does not go before the people unless it receives a 25 percent vote in a joint session in two successive annual legislative sessions. Even if the legislature decides to place them on the ballot, it may :amend proposed initiative constitutional amendments by a threefourths vote. In Mississippi, on the other hand, initiatives always appear on the ballot, whether the legislature adopts, rejects, or proposes alternatives to them. The experience with the indirect initiative is discussed in Chapter Six.

PRE-ELECTION Pre-signature

ADMINISTRATIVE

REVIEW

Before beginning to collect signatures, initiative proponents in most jurisdictions must submit their petitions to the secretary of state or some other designated state officer for review.16 The purpose of this review is to ensure that the petition contains the proper statutory language, is printed on the proper size of paper, and is in the proper format.17 In some jurisdictions a list of sponsors must be included with the proposed initiative.18 The text of the initiative must generally be appended to the petition so that those who sign the petition may read it if they wish. In about half the initiative jurisdictions the attorney general or some other state official prepares a title or a title and summary that must be included as a part of the petition, as indicated in Table 8. In the remaining jurisdictions any initiative title included in the petition is prepared by the proponent. 16In a few states other agencies conduct this initial review. 17See, for example, Ark. Stat. Ann. 997-9-104, -107 (1993); Colo. Stat. Rev. 91-40-113 Supp. 1993). In some states the format for the petition is prescribed.

(West

18States requiring sponsors include Alaska (100), Wyoming (100), Massachusetts (10), and Utah (5 or more). In Wyoming a small number of sponsors must be designated as a committee so that state officials will have a contact point.

38

LAWMAKING

BY INITIATIVE

TABLE 8. Pre-signature Administrative Review for Issues Other Than Constitutionality State

Review for Form

Append Text

Who Prepares Presignature Title?

Alaska Arizona Arkansas California

Yes No Yes Yes

If 500 words or less Yes Yes Yes

LG Pro Pro/AG AG

Colorado D. of Columbia Florida Idaho Illinois Maine Massachusetts Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Dakota Utah Washington Wyoming Key: Pro (proponent);

Yes Yes Yes Yes No Yes Yes Limited Yes Yes Yes File File Yes Yes File Yes File Yes Yes Yes

Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

SS/AG/LLS BEE Pro/SS AG Pro SS Pro (title) Pro AG SS/AG AG Pro Pro (if any) SS/AG Pro(AG) Pro AG Pro (if any) Pro (if any) AG SS

LG (Lieutenant Governor); AG (Attorney Geneml); SS (Secretary of State); LLS (Legislative Legal Services); BEE (Board of Elections and Ethics); / (writes or approves). Sources: Alaska Canst. art. XI, **2, 3, Stat. * 15.45.090 (l988)(review, text, title); Ariz. Canst. art. IV, pt. I, *1(9) (text), Rev. Stat. Ann. **19-102, -112 (Supp. 1993)(review, text, title); Ark. Canst. amend. VII (text), Stat. Ann. *7-9-107 (l993)(review, title); Cal. Canst. art. II, **8, 10 (text, title), Elec. Code **3,501-3,504, 3,507-3,508,3,513,3,515 (West 1977 & Supp. 1993)(review); Colo. Canst. art. V, *1 (text), Rev. Stat. Ann. **1-40-105, -106 (West Supp. 1993)(review, title); D.C. Code Ann. *1-1320 (l992)(review, title); Fla. Stat. Ann. *100.371 (West 1982 & Supp. 1994)(review, text), Admin. Code Ann. r.1S-2.oo9 (l989)(title); Idaho Code **34-1801, -1804, -1805, -1809 (1981 & Supp. I 994)(review, text, title); Ill. Canst. art. XIV, *3 (text), Camp. Stat. Ann. ch. 10, *5/28-3 (West Supp. 1994)(title); Me. Canst. art. IV, pt. 3, *20 (review, text), Rev. Stat. Ann. tit. 21-A, *901 (West Supp. 1993) (review, text, title); Mass. Canst. amend. art. XLVIII, Init., pt. 2 (review, text, title); Mich. Canst. art. II, *9 (review), Stat. Ann. *6.1482 (Callaghan 1993) (text), Auto. Club of Michigan v. Secretary of State, 491 N.W.2d 269 (Mich. 1992)(pre-sig. title, review); Miss. Code Ann. **23-17-5, -9, -17 (Supp. 1994); Mo. Canst. art. III, *50 (text), Ann. Stat. **116.332-334 (Vernon Supp. I 994)(review, title); Mont. Canst. art. Ill, *4, art XIV, *9 (text), Code Ann. **13-27-201, -202, -312 (l993)(text, review, title); Neb. Canst. art. III, ~2 (text), Rev. Stat. **32-704 (Supp. 1992) (file, title); Nev. Canst. art. XIX, *3 (text), Rev. Stat. ~295.015 (file) (1993), Nev. Op. Alt'y Gen. No. 153 (1934-36) suggests that Nev. Canst. art. IV, * 17 requiring a title probably applies to initiative statutes but there is no counterpart requirement for constitutional amendments; N.D. Canst. art. III, ~2 (review, text), Cent. Code * 16.1-01-09 (l991)(title), Haugland v. Meier, 339 N.W.2d 100 (N.D. 1983)(review); Ohio Canst. art. II, *la, *lb (text), Rev. Code Ann. *3519.01 (Baldwin 1989) (review, title); Okla. Canst. art. V, *2 (text), Stat. Ann. tit. 34, **2, 8 (West Supp. 1994)(title, file); Or. Canst. art. IV, *1 (text), Rev. Stat. **250.045, -.065 (1993) (review, title); S.D. Codified Laws Ann. *2-1-6.2 (I 992)(filing required but no review for form, text) (Secretary of State's Office will accept petition without a title); Utah Code Ann. **20A-7-202, -203, -204 (Supp. 1994)(review, text); Wash. Canst. art. II, *1 (text), Rev. Code Ann. **29.79.010, -.040, -.070, -.150 (West 1993 & Supp. 1994)(review, title); Wyo. Stat. ~*22-24-108 to -110 (1992) (review, text, title).

A Comparative Analysis of American State Laws

39

Post-signature After signatures are collected, they are usually given to the same official who reviewed the petition initially. That official counts and verifies the signatures to determine whether the initiative qualifies for the ballot. If the initiative qualifies and if the attorney general or some other official has previously prepared a title or a title and summary for inclusion on the petition, that title and summary are generally used as the ballot language for the initiative.19 If no title was previously prepared, most jurisdictions require the attorney general or some other official to prepare one after the qualification decision for listing on the ballot has been made, as shown in Table 9.

Character of the Review In most jurisdictions the reviews made by the secretary of state's office or by other officials concern the format of the initiative and the regularity of the signaturegathering process, as shown in Table 10. These officials are usually not authorized to assess the legality of the initiative under either state or federal law. Indeed in numerous states the courts have specifically held that the secretary of state or the attorney general have no authority to review the constitutionality of initiatives and that their function is simply to count the signatures or prepare the title and summary.20 Since even the courts in most of these states will not review the legality of an initiative prior to a vote of the people, this refusal to give administrators the authority to review the legality of the proposals is not too surprising.21 Seven jurisdictions authorize reviews with more regulatory bite. The broadest review authority would appear to be in the District of Columbia. An administrative hearing may be held before the Board of Elections and Ethics to determine whether the petition complies with the district's charter or the Human Rights Act. Massachusetts also provides for a careful pre-election administrative review. Before signatures may be gathered in Massachusetts, the attorney general must certify that no matters excluded from the initiative process by the Massachusetts constitution are included in the petition.22 The Nebraska statutes direct the secre-

19The terms used for describing the ballot language vary considerably from state to state. Some states term the short version of the title the ballot "caption" and the longer version the ballot "title." Others call the short version the "title" and the longer version the "summary." Not all jurisdictions have both versions, and both must be distinguished from the ballot analysis that some states have. 20States that have clearly held this include: Arizona, California, Florida, Michigan, Nevada, Ohio, Oklahoma, South Dakota, and Washington. See Table 10 sources.

Missouri,

21One of the reasons given for the lack of court authority to review proposals prior to a vote is that the courts have no authority to review legislative bills prior to the time that they have been enacted. See the discussion on "Pre-election Judicial Review" in this chapter. An additional reason for denying administrative agencies the authority to review constitutionality questions is that this is not their area of expertise. This widely applied principle of administrative law has been used to deny review authority to administrative agencies in many areas of the law. Kenneth Davis, Administrative Law Treatise I (St. Paul, Minn.: West, 1st ed. 1958): 92.12, at n.22. 22Alexander Gray, Jr. and Thomas Kiley, "The Initiative and Referendum in Massachusetts," England Law Journal 26 (1991): 27.

New

40

LAWMAKING

BY INITIATIVE

tary of state to reject petitions that interfere with the legislative prerogative that necessary revenue be raised as the legislature directs. Alaska and Arkansas require pre-election administrative review to ensure that initiatives fall within the subject matter allowed under their state constitutions, while Missouri and Oregon courts authorize administrative review for compliance with their single-subject rules. Utah allows a very narrow review to determine whether the proposal is so ambiguous that it could not become law.23 TABLE 9. Who Prepares Ballot Caption and Summary, and When (Pre- or Post-signature) State Alaska Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Maine Massachusetts Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Dakota Utah Washington Wyoming

Ballot Caption Lt. Gov.lAG (post) SS/AG (post) Pro/AG (pre) AG (post) SS/AG/LLS (pre) BEE (pre) Pro/SS (pre) AG (pre)

DE/BSC (post) AG (pre) SS/AG (pre) AG (pre) AG (post) SS/AG (post) SS/AG (post)

AG (pre) AG (post) AG (pre)

Summary Lt. Gov.lAG (post) SS/AG (post) Pro/AG (pre) AG (post) SS/AG/LLS (pre) BEE (pre) Pro/SS (pre) AG (pre) Pro/AG (post) SS (pre) AG (pre) DE/BSC (post) AG (pre) SS/AG (pre) AG (pre) AG (post) SS/AG (post) SS/AG (post) SS (post) Pro/AG (post) AG (pre) AG (post) OLR (post) AG (pre) SS/AG (post)

Key; Pro (Proponent); AG (Attorney General); SS (Secretary of State); Lt. Gov. (LIeutenant Governor); LLS (LegISlative Legal Services); BEE (Board of Elections and Ethics); DE (Director of Elections); BSC (Board of State Canvassers); OLR (Office of Legislative Research and General Counsel); / (writes, approves, or consults with). Sources; Alaska Stat. ~15.45.180 (1988); Ariz. Rev. Stat. Ann. ~19-125 (Supp. 1993); Ark. Stat. Ann. ~7-9-107 (1993), Gaines v. McCuen. 758 S.W.2d 403 (Ark. 1988); Cal. Elec. Code ~~3,530-3,533 (West 1977); Colo. Rev. Stat. Ann. ~1-4O-lO6 (West Supp. 1993); D.C. Code Ann. ~1-1320 (1992 & Supp. 1994); Fla. Stat. Ann. ~lOl.l61 (West Supp. 1994), Admin. Code Ann. r.IS-2.009 (1989); Idaho Code ~~34-1809, -18lO (Supp. 1994); Ill. Compo Stat. Ann. ch. 10, ~ 5/16-6 (West 1993); Me. Rev. Stat. Ann. tit. 21-A, ~~901, 906 (West 1993 & Supp. 1993); Mass. Const. amend. art. XLVIII, Ioit., pt. II, ~3; Mich. Const. art. XII, ~2, Stat. Ann. ~6.1474 (Callaghan 1993); Miss. Code Ann. ~~23-17-9, -II, -13 (Supp. 1994); Mo. Ann. Stat. ~ 116.334 (Vernon Supp. 1994); Mont. Code Ann. ~1327-312 (1993); Neb. Rev. Stat. ~32-707 (Supp. 1992); Nev. Rev. Stat. ~293.250 (1993); N.D. Cent. Code ~16.1-0609 (1991) (Secretary of State also prepares the petition title but there does not appear to be any requirement that the two be the same); Ohio Rev. Code Ann. ~3519.21 (Baldwin 1989), State ex rei. Williams v. Brown, 368 N.E.2d 838 (Ohio 1977); Okla. Stat. Ann. tit. 34, ~9 (West Supp. 1995); Or. Rev. Stat. ~~250.045, -.065 (1993); S.D.Codified Laws Ann. ~~12-13-8.1, -9 (1982) (also has statement and title by proponent); Utah Code Ann. ~~20A-7-209 (Supp. 1994); Wash. Rev. Code Ann. ~29.79.040 (West Supp. 1994); Wyo. Stat. ~22-24-1 17 (1992).

A Comparative Analysis of American State Laws

TABLE 10. Administrative State Alaska Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Maine Massachusetts Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Dakota Utah Washington Wyoming

41

Review of Constitutionality

Review Authorized Proper subject matter Possibly single subject (constitutional amendments only) Proper subject matter No Drafting review D.C. Self-Gov't Act; Human Rights Act; drafting review No Drafting review Probably no Probably no State constitutionality No Drafting review Single-subject rule Drafting review Legislative revenue prerogative; state constitutionality on face No Probably no No No Single-subject rule No Extreme ambiguity Drafting review Drafting review

Sources: States with some review or apparent review authority: McAlpine v. Univ. of Alaska, 762 P.2d 81 (Alaska 1988); Hodges v. Dawdy, 149 S.w. 656 (Ark. 1912); Proctor v. Hammons, 640 S.W.2d 800 (Ark. 1982); Timothy Kennedy, "Initiated Constitutional Amendments in Arkansas: Strolling Through the Mine Field," U. Arkansas Little Rock Law Journal 19 (1986-87): 1,48-49; Tilson v. Mofford, 737 P.2d 1367, 1371 n.2 (Ariz. 1987); Colo. Rev. Stat. ~1-4O-105 (West Supp. 1993); D.C. Code Ann. ~1-1320 (1992 & Supp. 1994); Idaho Code ~34-1810 (Supp. 1990); Mass. Const. Amend. art. XLVlll, Init., pt. II, ~3], Yankee Atomic Electric Co. v. Secretary, 526 N.E.2d 1246 (Mass. 1988); Miss. Code Ann. ~23-17-5 (Supp. 1994); Mo. Ann. Stat. *116.120 (Vernon Supp. 1994), as interpreted in Ketcham v. Blunt, 847 S.W.2d 824 (Mo. App. 1992); Mont. Code Ann. *13-27-202 (1993); Neb. Rev. Stat. *32-704.01 (1988), Nebraska ex reI. Brant v. Beermann, 350 N.W.2d 18 (Neb. 1984) (on face); N.D. Const. art. III, ~2, Larkin v. GrOll1la, 285 N.W. 59 (N.D. 1939); Oregon Educ. Ass'" v. Phillips, 727 P.2d 602 (Or. 1986); White v. Welling, 57 P.2d 703 (Utah 1936) (Secretary of State not required to submit constitutional amendments or proposals that are so ambiguous that they would not become law). States without or apparently without review authority: Schmitz v. Younger, 577 P.2d 652 (Cal. 1978); Fla. Admin. Code Ann. r.IS-2.009 (1989) prohibits pre-signature substantive review by the Secretary of State but Fla. Const. art. IV, *10 and Stat. Ann. *16.061 (West 1988) direct the Attorney General to seek an advisory opinion from the state Supreme Court concerning compliance with the single-subject and titling rules; Lausin v. State Bd. of Elections, 438 N.E.2d 1241 (Ill. App. 1982); Me. Rev. Stat. Ann. tit. 21-A *905 (West 1993 & Supp. I 993)(unclear whether Secretary of State's review is more limited than court review); Beechnau v. Secretary of State, 201 N.W.2d 699 (Mich. App. 1972), Newsome v. Bd. of State Canvassers, 245 N.W.2d 374 (Mich. 1976) (no administrative review of constitutionality); Nev. Op. Att'y Gen. No. 379 (1929-30); Preckel v. Byrne, 244 N.W. 781 (N.D. 1932); State ex reI. Williams v. Brown, 368 N.E.2d 838 (Ohio 1977); I" re lnitiative State Question No. 10, 110 P. 647 (Okla. 1910); State ex reI. Evans v. Riif, 42 N.W.2d 887 (S.D. 1950); State ex reI. O'Connell v. Kramer, 436 P.2d 786 (Wash. 1968); Wyo. Stat. *22-24105 (Supp. 1996).

23The issues involved can be complicated. Where a statute appears to grant or deny review authority, the statute itself may be challenged as to whether it complies with constitutiottal provisions governing the initiative.

42

LAWMAKING BY INITIATIVE

Seven jurisdictions-Colorado, Idaho, Mississippi, Montana, Washington, Wyoming, and the District of Columbia-provide for some form of drafting review. Discussed more fully in Chapter Eight, these reviews are a form of preelection administrative review. In states using the direct initiative, some observers have long argued that it is wasteful to force the public to vote on initiatives that may be unconstitutional and that may therefore not go into effect even if adopted. These observers have frequently argued that there should be some mechanism for reviewing initiatives prior to the election to ensure their constitutionality. In states using the indirect initiative, pre-election review of constitutionality has been discussed less often because the legislature must consider initiatives before proposals go on the ballot. Since the legislature is not usually empowered to change the initiative proposals presented to it, however, constitutionality issues exist even in the indirect states. The legislature can call attention to issues related to constitutionality and usually has the option of presenting alternative proposals, but it has no power to prevent initiatives from being presented to a vote of the people because it believes that they are unconstitutional. One possible solution to the constitutionality problem is pre-election administrative review of initiatives. As discussed earlier, however, most states have rejected this solution. Two other possible solutions to the unconstitutionality problem-pre-election review by the legislature and the courts-are discussed in the two following sections.

PRE-ELECTION

LEGISLATIVE REVIEW

In the indirect-initiative states the legislature generally holds hearings on initiative measures as part of its consideration of whether to adopt them. This serves to educate the legislature, the public, and even proponents and opponents about the measures. It has sometimes been argued that legislative hearings, even in states that use the direct initiative, would be useful because of their educational value. Only California has a formal requirement for such a procedure; legislative committees have been required since 1980 to hold hearings on forthcoming initiatives, even though the legislature has no power to change the initiatives themselves.24 These hearings and the reports that result are frequently quite informative. Generally, however, they attract little public or media attention. There are no studies of the extent to which the hearings and reports are later used by journalists and others interested in information about initiatives, but such use does not appear to be extensive. Prior to 1988 South Dakota also required legislative consideration of initiatives before submission to the people. While South Dakota has always been considered a direct-initiative state, the pre-1988 state law required that initiative 24Cal. Elec. Code {l9034 (West Sp. Pamphlet 1995), added in 1980, makes hearings mandatory after an initiative qualifies for the ballot. Cal. Elec. Code {l9007 (West Sp. Pamphlet 1995), added in 1973, allows for optional legislative hearings before qualification.

A Comparative Analysis of American State Laws

43

petitions be formally presented to the legislature, which was directed to "enact and submit" initiative measures to a vote of the people. Legislators disliked this provision because it required them to vote for measures whether they personally approved of them or not. In 1988 South Dakota amended its law to permit initiative measures to be submitted directly to the people without the formality of enactment by the legislature.25

PRE-ELECTION

JUDICIAL REVIEW

The courts play an important role in the initiative process. In addition to interpreting and enforcing initiatives that are validly adopted, courts are frequently asked to review initiatives to determine: (1) whether the procedural requirements for submission to the voters or for adoption have been complied with, (2) whether the initiative falls within the subject matter for which the initiative process is available, and (3) whether the provision is valid under federal and state constitutional standards. An important issue is whether the courts should review an initiative prior to a vote on the initiative or afterward. Early determinations of validity conserve the energies and resources of all concerned: proponents, opponents, election officials, and the public. On the other hand, such reviews may delay the political process and throw the courts into the middle of heated political campaigns. Most jurisdictions allow pre-election review by the courts of issues concerning procedural compliance with the rules on the initiative process. Reviews of this kind typically concern the form of the petition, signature verification, deadlines, and the content of the title and summary of the proposition. Sixteen jurisdictions require that objections concerning procedural matters be raised prior to the election. These jurisdictions generally do not allow objections of this kind to be raised after the election. Even the nine states that do not formally require objections to be raised prior to the election generally allow them to be raised before the election, as shown in Table II. At least half of the initiative jurisdictions allow pre-election review of questions relating to whether initiatives fall within the proper subject matter for the initiative process. Reviews of this kind typically deal with such issues as whether the initiative involves an appropriation or some other topic excluded from the initiative process, whether it involves more than one subject under the single-subject rule, or whether it amounts to an advisory opinion rather than a law. The courts are much more reluctant to review questions of constitutionality before an election, generally preferring to wait to see if an initiative is adopted. This allows the voters to make the basic determinations, avoids the problem of advisory opinions, provides more contextual material and a fuller record for adjudication, and allows time for a full review by the courts. Many observers believe, however, that delaying judicial review until after the election distorts the process 25S.D. Canst. art. III, ~ 1.

44

LAWMAKING

BY INITIATIVE

TABLE 11. Pre-election Judicial Review Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Procedural Compliance

Proper Subject Matter

Constitutionality

Mandatory Mandatory Yes Yes Mandatory

Yes Yes Yes Probably No cases

No No cases

Yes Yes Mandatory

Depends (not for SS) On face Possibly

No On face No

Mandatory Mandatory

Yes Probably

On face No

Mandatory Yes Yes Yes Yes Automatic Mandatory Mandatory Mandatory Mandatory Mandatory Mandatory Mandatory Mandatory No cases

Yes On face Generally not Probably Yes Automatic Yes Yes Probably not No (for SS) On face No cases Yes Yes No cases

No Probably No Probably not On face Yes No No cases On face On face On face No On face No No cases

No" No cases No cases

Key: SS = smgle subject rule. aBecause of the restricted subject matter allowed, "proper subject matter" review in Massachusetts covers many topics thar would be included in constitutional review in other states. Yankee Atomic Elec. Co. v. Secretary of Commonwealth, 526N.E.2d 1246 (Mass. 1988).

Sources: Alaska Stat. *15.45.240 (1988) (procedural), McAlpine v. Univ. of Ala,ka, 762 P.2d 81 (Alaska 1988) (subject matter, const.); Ariz. Rev. Stat. Ann. *19-122(C) (Supp. 1993) (procedural), 1ilson v. Mofford, 737 P.2d 1367 (Ariz. 1987) (subject matter, const.); Ark. Const amend. vn (procedural), Plugge v. McCuen, 841 SW.2d 139 (Ark. 1992) (const.), Timothy Kennedy, "Initiated Constitutional Amendments in Arkansas: Strolling Through the Mine Field," U. Arkansa, Little Rock Law Journal 19 (1986-87): 1,48-49 (subject matter); Brosnahan v. Eu, 641 P.2d 200 (Cal. 1982), Cal. Trial Lawyer's Ass'n v. Eu, 245 Cal. Rptr.916 (Ct. App. 1988) (procedural, subject matter, const.); Colo. Rev. Stat. Ann. *1-40107 and -118 (West Supp. 1993) (procedural), City of Idaho Springs v. Blackwell, 731 P.2d 1250 (Colo. 1987) (subject malter, const.); D.C. Code Ann. *1-1320(b) (1992) (procedural, subject matter), Hessey v. Burden, 615 A.2d 562 (D.C. 1992) (const.); Aa. Const. art. IV, * 10 (procedural, subject malter), Floridians Against Casino Takeover v. Let's Help Florida, 363 SO.2d 337 (Aa. 1978), Carroll v. Firestone, 497 SO.2d 1204 (Fla. 1986) (const.); Idaho Code **34-1808 and1809 (Supp. 1993) (procedural), Associated Taxpayers of Idaho, Inc. v. Cenarru,m, 725 P.2d 526 (Idaho 1986) (subject malter, const), Weldon v. Bonner County Coalition, 855 P.2d 868 (Ida. 1993); Il1. Compo Stat Ann. ch. 10, ** 5/28-4, 5/ 28-10 (West 1993) (procedural), Chicago Bar Ass'n V. State Bd. of Elections, 561 N.E.2d 50 (Ill. 1990) (subject malter); Me. Rev. Stat Ann. tit. 21-A, *905 (West 1993 & Supp. 1993) (procedural), Opinion of the Justices, 191 A.2d 357 (Me. 1963) (subject matter); Ma". Gen. Laws Ann. ch. 55B, **1-12 (West 1991 & Supp. 1994) (procedural), Yankee Atomic Elec. CO. V. Secretary of the Commonwealth, 525 N.E.2d 369 (Mass. 1988) (subject matter, const.); Mich. Stat. Ann. *6.1479 (Callaghan 1993) (procedural), Beechnau v. Secretary of State, 201 N.W.2d 699 (Mich. ApI'.. 1972), Auto Club v. Secretary of State, 491 NW.2d 269 (Mich. Ct. ApI'.. 1992) (subject malter, const.); Miss. Code Ann. **23-17-]3, -25 (Supp. 1994); Mo. Ann. Stat. **116.190-200 (Vernon Supp. 1994) (procedural), Union Elec. Co. v. Kirkpatrick 1,606 S.w. 658 (Mo. 1980) (subject matter), Union Elec. CO. V. Kirkpatrick II, 678 S.W.2d 402 (Mo. 1984) (const., other); Mont. Const. art. III, *4(3), Mont. Code Ann. * 13-27-316 (1993) (procedural), State a rel. Montana Citizens V. Waltennire, 729 P.2d 1283 (Mont. 1986) (subject malter, const.); Neb. Rev. Stat. **32-706 to -707 (Supp. 1992) (procedural), Nebraska a reI. Brant V. Beennann, 350 N.W.2d 18 (Neb. 1984) (subject matter, const.); Lundberg V. Koontz, 418 P.2d 808 (Nev. 1966) (procedural); Stumpfv. Lau, 839 P.2d 120 (Nev. 1992) (subject malter, cons!.); N.D. Const. art. III, *7 (procedural), Anderson V. Byrne, 242 N.W. 687 (N .0. 1932) (const.); Ohio Const. art. XVI, *1 and art. n, * 19 (procedural), State ex rel. Roahrig v. Brown, 282 N.E.2d 584 (Ohio 1972) (subject malter, legislative const. amendment), Weinland V. Fulton, 121 N.E. 816 (Ohio 1918) (const.); Okla. Stat. Ann. tit. 34, **8-10 (West 1990) (procedural, subject malter); In re Initiative Petition No. 349, 838 P.2d 1 (Okla. 1992) (const.); Or. Rev. Stat. *250.085 (1993) (procedural), Oregon Educ. Ass'n V. Phillips, 727 P.2d 602 (Ore. 1986) (subject matter), State ex rel. Carson v. Kozer, 270 P.513 (Ore. 1928) (const.); Utah Code Ann. *20A-7-209 (Supp. 1994) (procedural), White v. Welling, 57 P.2d 703 (Utah 1936) (subject matter, const.); Wash. Rev. Code Ann. **29.79.060, -.160, -.170, -.210 (West 1993) (procedural), Seattle Bldg. & Constr. Trades Council v. City of Seattle, 620 P.2d 82 (Wash. 1980) (subject matter, county initiative), Washington ex rei. O'Connell V. Kramer, 436 P.2d 786 (Wash. 1968) (const.); Wyo. Stat. *P2-24-121 to -122 (1992) (procedural).

A Comparative Analysis of American State Laws

45

of review, particularly in states with elected judges. Judges, according to this view, are reluctant to overturn measures recently approved by the voters, and therefore strain to find such measures constitutional. 26 There is no easy solution to this problem. Some commentators agree that the better course is for the courts to continue to avoid pre-election review.27 Others argue that pre-election review is the lesser evil.28 A few states have opted for a pre-election review, at least in part. They will, before an election, review straightforward constitutionality issues that are apparent on the face of the proposition.29 One state, Florida, requires its Attorney General to request the opinion of its Supreme Court on the "validity" of any initiative petition to be submitted to the voters in that state.30 Whether it occurs early or late, it is clear that judicial review is an important aspect of the initiative process. One analysis indicates that at least 18 of the 41 constitutional and statutory initiatives adopted in California during the 19641996 period were ruled wholly or partially unconstitutional by the courts.31

26In a book written after he lost a retention election and left the bench, former California Supreme Court Justice Joseph Grodin explained the problem. "It is one thing," he said, "for a court to tell a legislature that a statute it has adopted is unconstitutional; to tell that to the people of a state who indicated their direct support for the measure through the ballot is another." Joseph Grodin, In Pursuit of Justice (Berkeley: University of California Press, 1989), p. 105.

27James Gordon and David Magleby, "Pre-Election Judicial Review of Initiatives and Referendums," Notre Dame Law Review 64 (1989): 298; Michael Farrell, "Note, The Judiciary and Popular Democracy: Should Courts Review Ballot Measures Prior to Elections?," Fordham Law Review 53 (1985): 919. 28Douglas Michael, "Preelection Judicial Review: Taking the Initiative in Voter Protection," fornia Law Review 71 (1983): 1216.

Cali-

29District of Columbia, Missouri, Montana, Nebraska, Nevada, Oklahoma, and Utah. See Table II. 30Fla. Const. art IV,

S 10.

31Charlene Simmons, California's Statewide Initiative Process (Sacramento: California Research Bureau, California State Library, 1997), p. 6. Charles Price, "Shadow Government: Getting Voters to Approve an Initiative Idea Isn't Enough Anymore," California Journal 28 (October 1997): 32, reports that three fourths of the California initiatives that are adopted are challenged in court.

CHAPTER FIVE

INITIATIVE IN SWITZERLAND AND OTHER COUNTRIES SWITZERLAND DEMOCRACY HAS LONG BEEN a feature of Swiss government. The mountain cantons that formed the original Swiss confederacy in 1291 made their .laws through the landesgemeinden, a form of town or valley meeting. I In the later middle ages the referendum was also used for a time in some cantons such as Bern. The fIrst national referendum came in 1802 when the Swiss approved a short-lived constitution arising out of the country's conquest by Napoleon.2 After the defeat of Napoleon the country reverted to a loose confederacy. The overthrow in France in 1830 of the restored monarchy, however, released new energy in Switzerland as in other European countries and triggered an intense period of constitutional and political development. Fired by such ideas as equality and sovereignty of the people (drawn from Rousseau and the French Revolution, as well as the American Revolution and the older Swiss traditions), the cantons adopted a wide array of new constitutions, seeming to compete with each other in the elimination of the last vestiges of aristocracy and the development of new direct democracy procedures.3 While the idea that basic charters should be subject to a vote by the people appears to have developed among the POPULAR

IThis is still in use in five small cantons. See Table IS; Kris Kobach, The Referendum: Democracy in Switzerland (Aldershot: Dartmouth, 1993), pp. 16-30.

Direct

2Jean-Francois Aubert, "Switzerland," in David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (Washington, D.C.: American Enterprise Institute, 1978), pp. 39-66; Joseph Voyame, "Introduction," in F Dessemontet and T. Ansay, eds., Introduction to Swiss Law (Deventer, The Netherlands: Kluwer, 1981), pp. 1,4-5. 3Simon Deploige, The Referendum in Switzerland (London: Longmans, Green, I 898)(C.P. Trevelyan, trans.), pp. 68-90; Eduard His, Geschichte des neuern Schweizerischen Staatsrechts (Basle: Helbing & Lichtenhahn, 1920; reprinted Frankfurt: Sauer & Auvermann, 1968). Some of the methods used involved violence and revolutionary tactics.

46

Initiative in Switzerland and Other Countries

47

citizens of Massachusetts and New Hampshire before it became a regular part of Swiss law,4 the modern concept of the initiative is clearly a Swiss invention. In 1831 two cantons gave their citizens the right, through the collection of signatures, to force a vote of the electorate on whether the cantonal constitution as a whole should be rewritten.5 In 1832 a third canton not only adopted this system, but also allowed its citizens to use the collection of signatures to propose amendments to the cantonal constitution. Although establishing the principle of the initiative, these and similar provisions adopted in other cantons were extremely limited. They required signatures from a majority of the citizens, had significant time limits as to when they could be used, or both. Indeed, the first really practical initiative for either constitutional amendments or ordinary legislation did not appear until 1845 when canton Vaud allowed 8,000 citizens (around 13 percent of the eligible voters)6 to propose such changes.7 In 1848 Switzerland itself adopted a new constitution, transforming the old Swiss confederacy into the modern federal state. Not surprisingly, this new constitution included a popular constitutional initiative, the first regular modern initiative at the national level. Anyone who could muster at least 50,000 signatures on a petition could force the national electorate to consider whether the constitution as a whole should be rewritten. The 1848 constitution also gave citizens the right to vote on constitutional amendments proposed by the parliament, and in 1874 citizens acquired the right to use the referendum to review ordinary legislation.8 Citizens were not, however, allowed to propose initiatives for either ordinary legislation or for amendments of the federal constitution that were less than total revisions. 4The American usage also predated the submission of the new French constitution to the people in 1793. See, e.g., Deploige, Referendum in Switzerland, p. 57 n.2. sThe two cantons were Aargau and Lucerne. Dian Schefo1d, Volkssouveriinitiit und repriisentative Demokratie in der schweizerishen Regeneration 1830-1848 (Helbing & Lichtenhahn: Basle, 1966), p. 143. This work describes the development of the initiative and other direct democracy devices during this period. See also Andreas Auer, Les origines de la democratie directe en Suisse (Basel: Helbing & Lichtenhahn, 1996). 6Compare Switzerland Statistics Bureau, Statistisches His, Geschichte, vol. 3, p. 309.

Jahrbuch der Schweiz 1891, pp. 7, 10-11;

7The 1845 Vaud constitution made significant use of the 1792 Condorcet draft of the French constitution. His, Schweizerischen Staatsrechts, 2: 242,272-273. The idea of proposing legislation by the collection of voter signatures had an even earlier origin in Switzerland. In canton Uri, one of the town meeting (landesgemeinde) cantons that formed the original Swiss confederation, legislative proposals from the earliest days ("time immemorial") could be made only when supported by seven separate families (Siebengeschlecht-begehren). Influenced by the ideas of the French revolution, Geneva changed its constitution in 1796 to allow 700 citizens to propose changes in ordinary laws and 1,000 to propose constitutional amendments. These rights were eliminated a few years later, however, when revolutionary France took over the republic itself. Deploige, Referendum in Switzerland, pp. 15-16, 21, SO n.2. In 1838, St. Gallen adopted a constitutional amendment allowing 10,000 voters to propose a total constitutional revision. Martin Huser, Stimmrechtsgrundsiitze und Urnenabstimmungsverfahren (diss., University of St. Gallen, 1983), p. 104. Total constitutional revision is, however, a much less practical tool than the ability to make constitutional amendments.

8"Referendum" is used here to refer to the procedure by which citizens through the collection of signatures are entitled to demand review of legislation. In the more complicated Swiss terminology, this is called a "facultative referendum."

48

LAWMAKING

BY INITIATIVE

Democratic reforms in the 1850s and 1860s led many additional cantons to adopt initiative procedures that could be used to propose ordinary legislation as well as cantonal constitutional amendments. A typical campaign in this development was that in Zurich, where Karl Buerkli, a socialist labor leader, played a prominent role in securing adoption of the initiative for both constitutional amendments and ordinary legislation.9 In 1891 the federal initiative was extended to permit the proposal of constitutional amendments ("partial revision") as well as complete revisions of the constitution ("total revision"). The federal initiative has never been extended, however, to ordinary legislation.lO TABLE 12. Swiss Federal Initiatives 1891-1991 Status

Exact Text

Agreed to by parliament

Qualifying

General Suggestion

Total 2a

2

Submitted to people

98

6

104

Withdrawn by sponsor

58

2

60

Declared invalid

'2

2

IS

IS

Declared redundant Pending Total

176

8

184

aBoth were ultimately rejected by the voters. Note: Three other initiatives that appeared to have qualified were later found not to have enough valid signatures. Sources: Hans-Drs Wili, "lux Populi? VoxDei?," Zeitschr(ftjiir Schweizerishes Recht 110(11)(1991): 486, 502; id., Schaubild R (special printing); Luzius Wildhaber, "Art. 121/122," in Jean-Francois Aubert, Kurt Eichenberger, lorg Muller. Rene Rhinow, and Dietrich Schindler, eds., Kommentar zu Bundesverfassung der Schweizerischen Eidgenossenscha(t vom 29. Mai 1874 (Bask: Helbing und Lichtenhahn Verlag, 1990). pp. 1-45.

TABLE 13. Swiss Federal Initiatives 1891-1991 Status

Submitted

to the Voters

Exact Text

General Suggestion

Total.

Approved

10

0

10

Disapproved

88

6

94

Total

98

6

104

Sources: See Table 12.

9Andreas Gross, Die direkte Gesetzgebung durch das Volk: Die Utopie des Karl Biirkli (18231901) (diss., University of Lausanne, 1983)(cited in David Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution (Philadelphia: Temple University Press, 1989), p. 313 n.lO. According to his pamphlet, Direkte Gesetzgebung durch das Volk (Zurich and Geneva: 1869), Buerkli himself was influenced by the German Martin Rittinghausen, an early socialist writer, who began to promote direct legislation in Paris around 1850. Amazingly, Buerkli's pamphlet was translated into English in the same year it appeared in Switzerland. (London: Cherry & Fletcher, 1869; Eugene Oswald, trans.).

Initiative in Switzerland and Other Countries

49

TABLE 14. Swiss Federal Constitutional Amendments 1874-1991 Who Proposed

Number Voted On

Number Yes

Percent Yes

Initiative -Full text -General concept

104 (98) (6)

10 (10) (0)

10 (10) (0)

Parliament/Government

118

90

76

26

17

65

248

117

47

Counterproposals Total

Note: Not included in this table are II extraconstitutional proposals and 3 treaty proposals put forward by the government. All of these proposals were approved except one of the treaty proposals. Sources: See Table 12.

The Swiss experience played a powerful role in the development of the initiative in the United States. J. W. Sullivan's book and articles about the Swiss experience circulated widely in the United States and had a profound impact.1I Other writers of the day also drew heavily on the Swiss experience. From the perspective of today it appears that many of these writers overstated the role of the initiative in Switzerland.12 The Swiss model remains, however, a matter of great interest in the United States .

SWISS LAW-FEDERAL LEVEL Swiss law permits initiative proponents at the federal level to submit either the exact text of a change to the constitution or to present only the general concept they want adopted. 13 After preliminary processing by the Federal Chancery, proponents have 18 months within which to collect signatures. Since 1978, the number of signatures required is 100,000.14 If the necessary signatures are collected, the measure is then considered by the IOThe 1977 draft of a revised constitution proposed a rather complicated extension to ordinary laws. Committee of Experts for the Preparation of a Total Revision of the Federal Constitution, Draft Constitution arl. 64 (Siegenthaler trans., 1977). II See Chapter Two. Sullivan knew Karl Buerkli personally and was influenced by Buerkli's ideas. J. W. Sullivan, Direct Legislation by the Citizenship through the Initiative and Referendum (New York: True Nationalist Publishing Co., 1893), pp. 15-17. 12 A more balanced account was given by the Belgian attorney Simon Deploige. He reported that after inventing the procedure in 1845, canton Vaud had by 1892 used the procedure only once (in 1883). He concluded that the initiative was "the least studied of the Swiss democratic institutions." Referendum in Switzerland, pp. 263, 189.

13The earliest of the cantonal initiatives that preceded the federal initiative required the vote to be on the general idea rather than on a text of the proposed law. Most cantons do now, however, allow use of exact texts. His, Geschichte, vol. 3.1, pp. 309-310. 14Switzerland Const. art. 121 and 122. This section draws heavily on Luzius Wildhaber, "Art. 1211 122," in Jean-Francois Aubert, Kurt Eichenberger, Jtirg Miiller, Rene Rhinow, and Dietrich Schindler, eds., Kommentar zu Bundesverfassung der Schweizerischen Eidgenossenschaft vom 29. Mai 1874 (Basle: Helbing und Lichtenhahn, 1990), pp. 1-45. This commentary also describes the historical development of the Swiss federal initiative.

50

LAWMAKING

BY INITIATIVE

Federal Assembly, the Swiss parliament. If proposed as an exact text and approved by the Assembly, the initiative is then presented to the voters with an indication that it has been endorsed by the Assembly. If the Assembly rejects the initiative, the initiative goes before the people for consideration. The Assembly may place its own counterproposal before the people at the same time, may present arguments as to why the initiative should be rejected, or, if it chooses, may simply reject the initiative without commenting or presenting negative arguments. If the Assembly puts forward a counterproposal, voters are asked to answer three questions: (1) whether they favor the initiative, (2) whether they favor the counterproposal, and (3) which they favor if both are adopted. If both the initiative and the counterproposal pass, the third question controls. Adoption requires two different majorities: first, a majority of those voting throughout the country; and second, approval in a majority of the cantons. If the initiative is submitted as a general concept and the Federal Assembly approves, the Assembly prepares a text giving effect to the concept. This text is then submitted to the people and must be approved by the double majority required for approval of exact texts. If the general concept is not approved by the Assembly, the people must vote preliminarily to determine whether the Assembly is required to develop a text giving effect to the concept.I5 Swiss citizens may also use the initiative process to request a total revision of the federal constitution instead of an amendment. If the request is of this kind, the issue is put directly to the citizenry. If the voters approve, the Federal Assembly is dissolved and a new Assembly elected. This new Assembly then begins work on the revision.

SWISS LAW-CANTONAL

LEVEL

The Swiss constitution requires cantons to make the initiative available for constitutional revisions. All cantons, however, go well beyond this minimum requirement. All allow use of the initiative for constitutional amendments and statutes, and some allow the initiative to be used to command or revoke administrative acts as well.16 (This is prohibited in some American states.) There are not only many more varieties of the initiative than in the U.S., but the number is still growing. The new Bern constitution (1990), for example, adds four new types. 17 Like the federal initiative,

15The preliminary vote on general concept initiatives does not require a majority of the cantons. 16A1fred Kolz, "Die kantonale Volksinitiative in der Rechtsprechung des Bundesgerichts," Sehweizerisehes Zentralblatt fUr Staats-und Gemeindeverwaltung 83 (1982): 1. No canton allows the .initiative to be used to change executive acts. 17Walter Killin and Drs Bolz, Handbueh des bernishen Veifassungsreehts (Bern: Stampfli and Cie, 1995), pp. 117-119. A partial list of the types of initiative includes: (1) total revision of the constitution, (2) partial revision of the constitution, (3) adoption of ordinary statutes, (4) administrative initiatives, (5) dissolution of the parliament, (5) initiatives proposed by a single individual (usually requires some measure of support in the legislative body), and (6) initiatives proposed by subordinate governmental units or designated private groups. The number of initiative varieties and the way they interact with other Swiss direct democracy devices creates considerable difficulty with terminology.

Initiative in Switzerland and Other Countries

51

the cantonal initiatives are indirect, going to the cantonal parliament for review and action rather than directly to the voters as in many American states.18 The cantons also make wide use of the referendum. Contrary to American practice, some cantons subject all laws, including fiscal measures, to the referendum ("the financial referendum"). In some cantons all important laws are automatically voted on by the people (without the necessity of signature collection). Initiative and referendum powers are also widely available at the local level.

SWISS EXPERIENCE Federal. The Swiss experience with the initiative is extensive. Between 1891 and 1991, proponents submitted 187 initiatives for partial revision of the federal constitution, 184 of which were found to have sufficient signatures to qualify.19 Ninety-five percent of the qualifying initiatives were in the form of an exact text. Only 5 percent were in the form of a general suggestion. The reasons that most proponents choose to present an exact text seem obvious. They are able to present the exact proposal that they want and do not have to worry about how their proposal will be formulated by the Federal Assembly. They also do not face the possibility of having to campaign twice before the people for their proposal. Over half of the proposals that obtained enough signatures were eventually submitted to a vote of the people, as shown in Table 12 (page 48). A third, however, were withdrawn by the proponents-in 13 instances in favor of a counterproposal developed by the Swiss parliament.20 Two initiatives were declared invalid and one redundant and were therefore not submitted to a vote of the people. Two general suggestion initiatives were adopted by the parliament and formulated into specific proposals. Both were eventually rejected by the voters, however. Fifteen initiatives were still pending at the end of 1991. Of the 104 initiatives proposing amendments to the federal constitution that came to a vote between 1891 and 1991, only 10 were approved by the voters (see Table 13). This is about 10 percent of the total voted upon, and, if the number withdrawn is taken into account, around 5 percent of those that qualified. This result contrasts sharply with voting record for constitutional amendments proposed by the Swiss parliament. Between 1874 and 1991 the parliament proposed 118 amendments. Seventy six percent of these were approved by a majority of both voters and cantons (the so-called "double majority"), as shown in Table 14. In 26 instances the Swiss parliament put forward a counterproposal to a people's initiative. Seventeen of these counterproposals were adopted by the

18The process of review and the actions required are discussed in Zaccaria Giacometti, Das Staatsrecht der schweizerischen Kantone (Zurich: Polygraphischer, 1941),pp. 426-429. 19At least 66 efforts to collect signatures resulted in failure during this period. Hans-Drs Wili, "lux Populi? Vox Dei?," Zeitshriftfii.r Schweizerisches Recht 110(1)(1991):486,501. 20Swiss law requires initiative proponents to name a committee of at least seven persons authorized to act for the proponents. A majority of this committee is by law authorized to withdraw the initiative.

52

LAWMAKING

BY INITIATIVE

voters. These high rates of approval indicate the considerable level of trust that the Swiss electorate places in its parliament. 21 The Swiss results also reflect the consensus character of Swiss politics. Three major parties (Radicals, Christian Democrats, and Social Democrats) have dominated Swiss politics since 1919. Since 1959 these three parties and the smaller Swiss People's Party have governed Switzerland through a stable multiparty coalition.22 Proportional representation minimizes change. Initiatives are normally put forward by minority groups, and generally only after they have been rejected by the Federal Assembly. Initiatives have frequently involved progressive issues such as reduction of the work week, lowering the age of retirement, taxes on wealth, rights of conscientious objectors, bans on the export of arms, and ecological safeguards. Often the populace is even more conservative than the Federal Assembly. "That is why so many initiatives ... get only minority support" in the final vote, according to Jean-Francois Aubert, a leading constitutional scholar.23 "Although they sometimes get respectable support (40 to 45 percent), they are nevertheless almost always rejected. But that does not mean that they have no effect. Often they provoke counterproposals or legislative reforms which at least partially satisfy their authors.,,24 A leading commentary suggests that perhaps 40 percent of all initiatives result in some kind of legislative or other effect.25 Because these indirect effects are generally compromises, it is rare that proponents secure adoption of their whole program. Some initiatives are proposed more with the hope of eventually influencing the decision process or articulating fundamental policy aims than with any realistic expectation of passage.26 Swiss initiatives tend to be much shorter and more understandable than their American counterparts. This is in part because the Swiss authorities take their single subject rule more seriously than most American states. It is also a result of the fact that Swiss voters tend to distrust long proposals and to vote against them.27 Cantons. Although cantonal initiatives can legally be used in many situations where the federal initiative cannot, use in the individual cantons is generally less than in the federal system. In cantons with large cities such as Basel, Zurich, and Geneva, there are many votes on initiatives, as shown in Table IS. In other cantons there are very few 21In 13 instances there were direct confrontations between initiatives and counterproposals. In six of these confrontations the voters approved the counterproposal, in two the initiative, and in five the voters rejected both. 22Wolf Linder, Swiss Democracy: Possible Solutions to Conflict in Multicultural Societies (New York: St. Martin's Press, 1994),pp. 11-12,22-23,44-45. 23Aubert, "Switzerland,"

p. 46.

24Aubert, "Switzerland," p. 46. In 13 instances initiatives were withdrawn favor of a legislative counterproposal. 25Wildhaber, "Art.

by their sponsors in

121/122,"p. 14.

26Linder, Swiss Democracy, pp. 118-130. 27Interview with Professor Luzius Wildbaber, University of Basel, January

1993.

Initiative in Switzerland and Other Countries

53

TABLE 15. Switzerland: Votes on Cantonal Initiatives 1845-1994 Canton Aargau Appenzell Outer Appenzell Inner Basle-City Basle-Land Bern Fribourg Geneva Glarus Graubunden Jura Luzern Neuchatel Nidwa1den Obwalden St. Gallen Schaffhausen Schwyz So loth urn Thurgau Ticino Uri Valais Vaud Zug Zurich Total

Cantonal Population 507,508 52,229 13,870 199,411 233,488 958,192 213,571 379,190 38,508 173,890 66,163 326,268 163,985 33,044 29,025 427,501 72,160 111,964 231,746 209,362 282,181 34,208 249,817 601,816 85,546 I 179044 6,873,687

Year Initiati ve AdoptedO

Adoption to 1931

1932-1994

Total

1852

10 NA NA 33 9 13 0 18 NA 8 NAc

23 NA NA 91 37 34 7 47 NA 8 3 18

33 NA NA 124 46 47 7 65 NA 16 3 35

NA NA 10 5 1 13 6 25 Oe 0 4 9

17d NA NA 21 31 11 23 11 18 18 5 49 26

22d NA NA 31 36 12 36 17 43 18 5 53 35

-.3..8.

~

ill

224

574

798

Land.b Landb 1875 1863 1893 1857,1921 1905,1891 Landb 1880 1979 1863, 1906 1858, 1882 Land.b Land.b 1861, 1869 1876 1848, 1876 1851,1869 1869 1892 1928e 1875, 1907 1845 1873 1869

17 5

"When two dates are given, the first is the date the initiative was adopted for constitutional amendments and the second the date adopted for ordinary laws. When one date is given, the dates for both are the same. In some instances cantons adopted initiative procedures for total constitutional revisions before the dates indicated. The dates indicated are the first when the cantonal constitution clearly allowed use of the initiative to make constitutional amendments in a practical way. Procedures requiring a majority of the citizens or percentages higher than 30 percent are not indicated. bSee Appendix 0 for discussion of landesgemeinde cantons. CCanton Jura was created in 1979. Previously it was a part of canton Bern. dOoes not include 1994. eCanton Uri was a landesgemeinde until 1928. Although canton Uri allowed the initiative during its days as a landesgemeinde, no attempt was made to include this time period in the table. Sources: Population: Switzerland Bundesamt fiir Statistik, Statistisches Jahrbuch der Schweiz, 1996 (using 1990 figures). Dates of adoption: Dian Schefold, Volkssouveriinitiit und repriisentative Demokratie in der schweizerish en Regeneration 1830-1848 (Helbing & Lichenhahn: Basle, 1966), pp. 142-152; Eduard His, Geschichte des neuem Schweizerischen Staatsrechts (Basel: Helbing & Lichtenhahn, 1929), vols. 2, 3.1 (particularly p. 309 n.37); Sammlung der Bundes- und Kantonsverfassungen (1850,1860,1880,1910, I 937)(Many commentaries do not distinguish clearly between use of the initiative to make constitutional amendments and use to bring about a total constitutional revision. The dates indicated are those when the cantonal constitution clearly authorized use of the initiative to make constitutional amendments and ordinary laws.) Number of initiatives: The most complete early study of the initiative in the cantons is Wilhelm Ruppert, Die Unterscheidung von Verfassunginitiative und Gesetzinitiative in den schweizerischen Kantonen (diss., University of Zurich, 1933). See also Zaccaria Giacometti, Das Staatsrecht der schweizerischen Kantone (Zurich: Polygraphischer, 1941), pp. 467-468. Ruppert himself indicates that his data is undercounted. In the table, data from more specific studies of individual cantons have been used in place of the Ruppert data or as a supplement to the Ruppert data when the newer studies appeared to be superior. Corrections were also made in the process of collecting data on voting outcomes for Table 16. (Ruppert listed the initiatives but did not indicate whether initiatives were approved or voted down. Because of time constraints, checking was limited to about three fourths of Ruppert's original sources.) For a list of sources by canton and a discussion of some of the problems of counting Swiss initiatives. see Appendix D.

54

LAWMAKING

BY INITIATIVE

TABLE 16. Switzerland: Number of Cantonal Initiatives Approved

1845-1994 Year Initiative

Number of

Number

Percent

Population

Cantonal

Adopteda

Initiatives

Approved

Approved!

Aargau Appenzell Outer Appenzell Inner Basle-City

507,508 52,229 13,870 199,411

1852 Land.b Land.b 1875

33 NA NA 124

10 NA NA 43f

30 NA NA 37

Basle-Land Bern Fribourg Geneva

233,488 958,192 213,571 379,190

1863 1893 1857,1921 1905,1891

46 47 7 65

20 llf 2 16f

43 24 29 32

Glarus Graubunden Jura Luzern

38,508 173,890 66,163 326,268

Land.b 1880 1979 1863, 1906

NA 16 3 35

NA 5 2 3f

NA 31 67 9

Neuchatel

163,985

Nidwalden

33,044

1858,1882 Land.b

NA

NA

NA

Canton

5f

22d

26

Obwalden St. Gallen Schaffhausen Schwyz Solothurn

29,025 427,501 72,160 lll,964 231,746

Land.b 1861,1869 1876 1848, 1876 1851,1869

NA 31 36 12 36

NA 5 13f 4 7f

NA 16 42 33 25

Thurgau Ticino

209,362 282,181

1869 1892 1928e

17 43

3 9f

18 50

18 5 53 35

5 0 20 7f

28 0 38 21 26 30

Uri Valais Vaud Zug Zurich Total

34,208 249,817 601,816 85,546 1 179 044 6,873,687

1875,1907 1845 1873 1869

ill

:ill

798

220

JResults not available for 63 of the 224 initiatives through 1931. Percentage the number of results available, not the total number of initiatives. Notes a-e and Sources: See Table 15.

approved is calculated on the basis of

The number of votes on initiative petitions is not the whole story, however. In virtually every canton there are many more initiative petitions than votes. Cantonal parliaments themselves approve some initiative proposals and declare others to be legally invalid.28 Even more frequently, they and the initiative proponents agree on a compromise proposal, and the initiative petition is eventually withdrawn. Proponents in canton Zurich, for example, withdrew 31 of the 104 initiative petitions filed between 1869 and 1970 in favor of a parliamentary alternative. (Appendix Table 1.) Ultimately only 61 of the 104 Zurich petitions were submitted to a vote of the people. Of these 61, only 15 (25 percent) were approved by the voters. If the

28Even when approved by the cantonal parliament, petitions for constitutional many cantons statutes as well, must go before the voters.

amendments,

and in

Initiative in Switzerland and Other Countries

55

parliamentary counterproposals approved by the voters are counted as partial successes, however, 48 percent of the petitions can be credited with either full or partial success.29 In some cantons the percentage of initiatives approved at the polls is higher thim that in Zurich and in some cantons lower, as shown in Table 16. Overall, however, the results at the polls are comparable. The information available suggests that the patterns of compromise that exist at the federal level and in Zurich exist in at least some other cantons as well.30 Both the types of legislation sought in the cantonal initiatives and their timing is remarkably similar to that sought in state initiatives in the United States.31 In the 1930s, 1940s, and 1950s, there were relatively few initiatives in both countries, while in the 1970s, 1980s, and 1990s, there have been many more.

MORE DETAILED DESCRIPTION OF SWISS PROCEDURE32 Administrative Review Swiss federal initiatives must initially be filed with the Federal Chancery (the Swiss secretary of state's office). This office approves the title, translates the text into the other Swiss languages, publishes the text, and establishes dates for the collection of signatures. This office does not review initiatives for substance.

Signature Gathering The Swiss federal initiative, which may be used only for constitutional amendments, requires 100,000 signatures to qualify.33 This is about 2.2 percent of the 4.5 million citizens qualified to vote, and about 4.8 percent of the 2 million plus who typically vote in national candidate elections. Signatures may be gathered from any qualified voter without regard to canton. Signatures are typically collected on the street, house to house, near polling places on election day, and through ads in newspapers. In recent years some signatures have also been col-

29This result includes both counterproposals the original petition.

following a withdrawal and those that competed with

30See, e.g., Ivo Caviezel, Die Volksinitiative im allgemeinen und under besonderer Berucksichitigung des Kantons Graubunden (Institut du Federalisme Fribourg Suisse, 1990),pp. 70-76;"Der Kanton St. Gallen heute und morgen Nr. 8" (Schriftenreihe Staatskanzlei St. Gallen, 1982)(1953-1980); Friedrich Huwyler, Gesetz und Verordnung im Kanton Schwyz (diss., University of Zurich, 1970),p. 70, indicates that 10 initiatives were filed between 1848and 1969;Marie-Claire Pont Veuthey, Le pouvoir legislatif dans Ie canton du Valais (diss., University of Geneva, 1992),pp. 139-141. 3IThe topics of initiatives voted on in canton Zurich between 1869and 1970were: social matters (29), taxes (19), medical matters (16), voting laws (10), economic matters (9), law (7), government organization (4), agriculture (3), schools (3), political parties (3), traffic (3), and government finances (2). Kurt Biitikofer-Johanni, Die Initiative im Kanton Zurich 1869-1969, Entstehung, Wirkung (diss., University of Zurich, 1982),pp. 202-203.

Funktion und

32Much of this section is based on an interview with Hans-Urs Wili (Office of the Swiss Federal Chancery), January 1993. 33The number was raised from Dei?," p. 490.

50,000to 100,000signatures

in

1977.Wili,

"Jux Populi? Vox

56

LAWMAKING

BY INITIATIVE

lected through the mails. Cantons are allowed to regulate the gathering of signatures to a limited extent. Some, for example, prohibit collection within 50 meters of the polls. Some signature gatherers are paid, but in the past most have not been. Payment is not illegal, but is generally regarded as politically damaging. Some knowledgeable observers believe that most who sign petitions believe in the positions espoused, and that voters are generally unwilling to sign initiative petitions simply to allow the matter to appear on the ballot. There were some paid signature gatherers in Switzerland at least as early as the 1890s, however, and it seems 34 clear that appeals for signatures are not always on the merits of the proposal.

Executive Review If the Federal Chancery finds that sufficient valid signatures have been collected, the initiative goes to the Federal Council. This body, which is roughly the equivalent of the Swiss cabinet, reviews both the policy and the legality of the initiative and makes a report to the Federal Assembly.

Legislative Review The Swiss federal initiative is indirect. Whether submitted in the form of an exact text or a general concept, all initiatives must be considered by the Swiss parliament. Proponents have no option as to whether the proposal will be submitted to the Swiss parliament, and there is no requirement for additional signatures following the action of the parliament. The Swiss form of indirect initiative is closest to the mandatory type used in Maine, Michigan, and Nevada in the United States. The Swiss parliament plays a much more extensive role in the initiative process than any American legislature. American legislatures, even in the indirect initiative states, often take no stand on proposed initiatives. The Swiss parliament, however, almost always takes a stand, and that stand is almost always against the proposal. It recommended acceptance of only three of the 98 full-text initiatives voted on between 1891 and 1991: the absinthe prohibition initiative of 1908, the cantonal treaty referendum initiative of 1921, and the gambling house initiative of 1928.35 The Swiss parliament also adopted as its own two general concept initiatives.36 In only two instances, however, has it taken no position at all. In 1977 the two houses of the Swiss parliament were unable to agree on a position regarding a term-limit initiative, and in 1982 excessive delays prevented the development of a position on an initiative concerning excessive foodstuff production and animal factories. In 26 instances, about a quarter of the 104 initiatives that went to a vote of

34Deploige, Referendum in Switzerland, pp. 158 n.l, 157-158, 202. 35Wili, "lux Populi? Vox Dei?," p. 491. 36Wildhaber, "Art. 121/122," p. 16.

Initiative in Switzerland and Other Countries

57

the people between 1891 and 1991, the Swiss parliament developed its own counterproposal for submission to the voters. Seventeen of the counterproposals were adopted by the voters. Even when the counterproposal was rejected by the voters, the initiative was also generally rejected. In only two instances did the voters reject a parliamentary counterproposal and approve an initiative. Cantonal parliaments also take a very active role in dealing with cantonal initiatives. Like the federal parliament, they generally take stands on initiative proposals. They also frequently present their own counterproposal. For at least 11 percent of the cantonal initiatives going to a vote, there was a parliamentary counterproposal. Over half of these counterproposals were approved by the voters. Generally when the parliamentary counterproposal lost, the initiative lost as well. Only 14 percent of the cantonal initiatives that faced parliamentary counterproposals succeeded at the polls.

Timing Although the 18 months allowed for signature gathering in Switzerland is comparable to that in many American jurisdictions, the processing time allowed after signature collection is much longer than the typical American process. The parliament may take as long as four years to act on an exact text initiative, and as long as five years if the parliament is submitting a counterproposal. The Federal Council also has considerable discretion in setting the time of the vote.37

Judicial Review The major legal questions concerning the Swiss federal initiative are determined by the Swiss parliament rather than by the courts. Thus, the parliament must determine whether an initiative meets the constitutional requirements for unity of subject matter and unity of form, and possibly for other matters as well. If the two houses cannot agree over the question of validity, the initiative is treated as valid. While the courts have no authority to review federal initiatives, they are empowered to review cantonal initiatives.38 The doctrines developed by the Federal Tribunal (the Swiss Supreme Court) in reviewing cantonal initiatives are often used by members of the parliament in reviewing federal initiatives. Overall both at the federal level and in the cantons there is a much greater effort to resolve legal questions prior to the vote of the people than in the United States. 37Parliament must act on general concept initiatives within three years. The actual time to a final decision, however, can be longer than that allowed for the exact text initiatives. Some proponents and others have criticized the long period required for processing initiatives in Switzerland. Kobach, The Referendum, pp. 43,106-107. Because good legislation often requires time, however, other observers believe that it is this relatively relaxed schedule that has made it possible for the parliament to develop so many counterproposals. 38Between 1912 and 1976 the Federal Tribunal reviewed 25 cantonal initiatives. Andreas Auer, Les droits politiques dans les cantons suisses (Geneva: 1978), p. 93.

58

LAWMAKING

BY INITIATIVE

RESTRICTIONS

ON INITIATIVE SUBJECT MATTER

Single Subject Like the law of most American states Swiss law places a number of subject matter restrictions on use of the initiative. The most important is that the initiative must have "unity of matter.,,39 This limitation is very similar to the single subject rule in use in American states. The Swiss take the rule more seriously than most American states, however, viewing it as a protection of the people's democratic right to vote. A 1977 federal initiative was rejected, and a 1920 federal initiative was divided into two proposals because of this principle. A number of cantonal initiatives have also been found in violation of this rule.

Unity of Form While Swiss law allows initiatives to be proposed either as a specific text or as a general concept, it does not allow these two forms to be mixed in a single initiative.

Amendment or Total Revision Eighteen American states permit use ofthe initiative to amend their constitutions. Some of these states prohibit changes that are so extensive that they are more properly called "revisions.,,40 Swiss law draws a similar distinction. It allows the initiative to be used to begin the process of a total revision of the Swiss federal constitution but does not permit use of a particular initiative to make a specific total revision or to make so-called "packet-revisions," revisions that go beyond a single article or topic. Packet-revisions can be made only through a series of individual amendments or through the total revision process.

Ordinary Legislation Because the federal initiative may be used only to amend the constitution and not to adopt ordinary legislation, proponents who wish to propose legislative changes must propose these as changes to the Swiss constitution. Although it is generally agreed that the Swiss constitution today is a bloated document containing much that is not a matter of fundamental law, the initiative does not appear to be the major cause of this problem.41

Other Restrictions Swiss law imposes a number of restrictions on legislatively proposed constitutional amendments. Among these restrictions are those relating to resource barriers, impossibility, infeasibility, and purposelessness. The Swiss constitution does 39Switzerland Canst. art. 121(3);Wildhaber, "Art. See Chapter Nine, "Switzerland."

1211122,"pp. 26-39 ("Einheit

4oCalifornia, Florida, Montana, and Oregon. See Table 25. 41Wili, "lux Populi? Vox Dei?," pp.

502-504.

der Materie").

Initiative in Switzerland and Other Countries

59

not clearly indicate whether these limitations apply to initiative constitutional amendments. While finding this omission intentional, a leading commentary suggests that initiatives failing to meet these criteria could be held invalid.42

Other Issues Restrictions on Number of Initiatives. Switzerland has no restrictions on the number of initiatives appearing on a single ballot. As a practical matter, however, very -'W initiatives appear on any single ballot. Because Swiss voters generally vote lhree times each year on issues, the number of matters appearing on anyone ballot is almost always small.43 Another major difference between Swiss and American elections is that there is no mixing of issue and candidate elections. When candidate elections are on the ballot, no federal initiatives appear. Drafting. Proponents of constitutional amendments in Switzerland who propose exact texts do not have to follow any specific drafting procedures. As in the United States, however, drafting can be a problem. In some instances drafting defects are cited by the Federal Assembly as reasons for rejecting a proposal or for the development of a legislative counterproposal. Because Switzerland has three official languages, all texts must be translated from the language of submission into the other two official languages. Because it is difficult to translate concepts that are not written clearly, the translation process may expose drafting defects. The Federal Assembly rather than the proponents drafts general concept initiatives. This solves many of the technical drafting questions, but allows the Federal Assembly to undercut the proponents' intent through the actual language employed, if it chooses to do so. Conflicting Ballot Propositions. In Switzerland it is rare to have more than one initiative concerning the same subject on the ballot at the same time. It is not at all rare, however, for the Federal Assembly to put forward a counterproposal to an initiative. When this occurs, the voters are asked to say: (l) whether they favor the initiative, (2) whether they favor the counterproposal, and (3) which they favor if both are adopted. California and most American states faced with more than one measure dealing with the same subject simply give priority to the proposal which receives the higher number of affirmative votes, in effect omitting the third question. While more complicated, the Swiss system is more precise. It was adopted in 1988.44 42Wildhaber, "Art. 121/122," pp. 31-32. Because the Federal Tribunal must rule on questions concerning the initiative at the cantonal level, the cantonal law is much more developed than the federal law. The cantonal law concerning unity of subject matter, political actions of the authorities, and preemption questions is particularly rich. Interview with Professor Walter Kalin, University of Bern, January 1993. 43Kobach, The Referendum, p. 44. 44See Chapter Ten.

60

LAWMAKING

BY INITIATIVE

Amendment and Repeal of Initiatives. Constitutional amendments made through the initiative process have exactly the same status as constitutional amendments proposed by the Federal Assembly. Both can be amended or repealed by using one of the two normal amendment procedures. As the initiative process cannot be used for legislating statutes at the federal level, the question of amending or repealing federal statutes enacted through the initiative process does not arise.

Campaign Finance and Special Disclosure Rules Switzerland prohibits the buying and selling of votes, but has no campaign finance law regulating the use of money in elections. Proponents and opponents may therefore collect and spend what they choose in initiative campaigns. There is also no requirement for disclosure of campaign contributions and expenditures. Campaign advertising is also unregulated except for directives of the Swiss national television corporation. These directives give equal amounts of free television time to both proponents and opponents, but also allow additional television time to be purchased. The government distributes a ballot pamphlet, which must be "objective," at least three weeks before the election.

Assessment Although Swiss voters have approved only 10 initiatives in the first 100 years since the initiative was introduced at the federal level, at least three of these have been of fundamental importance. A 1909 initiative required treaties to be voted on by the people, a 1918 initiative introduced proportional voting, and a 1946 initiative eliminated the parliament's ability to bypass the referendum.45 Voter turnout for initiative elections in Switzerland has been declining. From a high of over 70 percent in 1935, the percentage of voters participating has dropped to about 40 percent,46 Given the fact that Swiss voters generally vote three times a year on issues and that issue elections do not occur at the same time as candidate elections, however, this turnout is still quite high by American standards. Perhaps more importantly, the evidence available indicates that the Swiss electorate, whether they vote in a particular election or not, continues to value the initiative and other direct democracy devices very highly.47 A recent comparison by Swiss political scientist Wolf Linder of Swiss direct democracy devices with those in the United States found many similarities.48 Swiss voters, like their American counterparts, often have relatively little knowledge about the specifics of the proposals voted. Many rely heavily on brief cam45The required vote on treaties made it possible for opponents in a 1992 vote to defeat the government's decision to enter into negotiations with the European Community with a view toward membership. 46Switzerland Statistics Bureau, Statistisches Jahrbuch der Schweiz 1993, p. 376. Kris Kobach, "Switzerland," in David Butler and Austin Ranney, eds., Referendums Around the World: The Growing Use of Direct Democracy (Washington, D.C.: American Enterprise Institute, 1994), pp. 134-139, shows that votes on particular issues often run considerably higher than the average and that polls indicate that the results usually track Swiss general opinion.

paign

slogans

opposing

or

on

cues

the proposal.

to playa

major

unequal.

There

campaigns,

role in determining is also

including

In Switzerland,

as in the common

rather

than

political

parties

less

well

unwise

differences

than

land

has

been

much

the

with

States, and

larger,

interests that

major

parties

supporting

spending

is perceived

and is often the

dramatically

professionalization

of

49 firms. direct

tends

democracy

to strengthen

general

in opening it consistently

States, endum.

significant

political factor since

scene.

At the in

society,

on the

the two

however.

considerably

more

a major

conflict

between

similarities,

grown

Switzerland cal

of votes toward

relations

United

or

campaign

interest

has single

programs.

up the political produces

not

brought

issue

groups

Initiatives agenda,

unsound

can

however,

legislation

or

policy.50

The

was

organized

figures

States,

of a trend

people

is no indication

tant

the

or

public

the use of public

by the

there

by

the outcome

something

rule

and

61

As in the United

about

assist

given

Initiative in Switzerland and Other Countries

other

parties

since than

countries Although 1970,51

the initiative.

to reach

agreement

are use the

perhaps of the

referendum

but hand,

Its winner-take-all

level,

it tends

in advance

to promote

is conservative

in its

overall

the initiative

is much

more

qualities

arguably

increase

47Linder, Swiss Democracy, p. 134. The fact that voter turnouts in United States that use the initiative heavily are all low in comparison gests that the initiative may be less of a draw for voter participation See, e.g., Alois Riklin and Roland Kley, Stimmabstinez und direkte 1981), pp. 71-80 (suggesting that a more intensive direct democracy Swiss voter participation).

more

impor-

in Switzer-

has

Its availability

in the creation of the party coalition 1919.52 The referendum is a dominant national

even initiative

historically

generally on that

feature

forces

legislation has

and

governed

of the

politi-

and

reduce

the

United

compromise 53 effect.

In

important

than

the refer-

societal

conflict,

and

its

Switzerland and the states in the with many other countries sugthan some proponents believe. Demokratie (Bern: Paul Haupt, is one reason for the decline in

48Linder, Swiss Democracy, pp. 111-114, 118-130, 141-146. 49Interviews with Hans Urs Wili (Office of the Swiss Federal Chancery) and Professors Walter Kalin and Wolf Linder, University of Bern, January 1993; Kobach, "Switzerland," pp. 107-108. 50In discussing the Swiss political system of the future, two leading political scientists give considerable attention to the citizenry's ambivalence to direct democracy. On the one hand the public continues to be proud of its right to vote on virtually everything, but on the other hand the percentage of the public that actually exercises this right continues to decrease. Particularly problematic in the authors opinion is the low rate of participation by workers and women. Wolf Lindner and Thanh-Huyen Ballmer-Cao, "Das politische System in der Schweiz von morgen," in Direkte Demokratie (Bern: Paul Haupt, 1991), pp. 337-361. 5l0ver half (98) of the 187 initiatives during the first century of the Swiss federal initiative came during the 1970s and 1980s. See Kobach, "Switzerland," pp. 98-100. Thirty eight percent of the cantonal initiatives through 1994 came during the 1970s and 1980s and 48 percent since 1969. 52Linder, Swiss Democracy, pp. 118-130; Kobach, "Switzerland,"

pp. 101-102, 108-132.

53From 1874 to 1991 the Swiss electorate voted on 104 referendums concerning laws adopted by the federal parliament. Fifty six percent of these referendums succeeded, and the law in question was defeated. By contrast only 10 percent of the federal initiatives during this same period succeeded. The raw numbers, however, greatly understate the influence of the referendum on Swiss national political life. In many cantons the numbers are much greater, and the influence, if anything, even more pervasive.

62

LAWMAKING

BY INITIATIVE

overall effect tends to be innovative rather than conservative. Although the significance of the initiative has been increasing in the United States, the initiative clearly has much less overall importance in American political life than the referendum in Switzerland.

OTHER COUNTRIES Referendums have often been used throughout the world by governments seeking popular approval of their actions. From the French annexation of Metz in 1552, to the various constitutional revisions and annexations by the French revolutionaries and the Bonapartists, to the more recent votes on the Maastricht treaty by Denmark, France, and Ireland, the referendum has been a popular and sometimes a nefarious institution.54 Many fewer countries have sought to use the initiative, a procedure that springs from the people. Other than Switzerland and the United States, it has had limited use, principally in Germany, and more recently Austria and Italy.

Germany The Weimar Republic and 16 German states adopted the initiative after the fIrst World War. 55 After the second World War, the authors of the West German Constitution chose not to create a national initiative, partly because of a widespread belief that the Weimar initiative had proved useful to the Nazi party and regime. Nine of the 11 West German states, however, adopted the initiative. 56 Six of the 54Plebiscites used by the League of Nations after World War I proved to be an effective and peaceful way of letting ordinary citizens settle territorial claims. High pressure referendums put forward by the Nazis and other totalitarian governments to justify their actions, however, gave the device a negative image. See Butler and Ranney, Referendums, pp. 3-16. David Butler and Austin Ranney, eds., Referendums Around the World: The Growing Use of Direct Democracy (Washington, D.C.: American Enterprise Institute, 1994) discusses more recent developments concerning use of the referendum. 550tmar Jung, Direkte Demokratie in der Weimarer Republik (Frankfurt: Campus, 1989). Reinhard Schiffers, Elemente direkter Demokratie im Weimarer Regierungssystem (Dusseldorf: 1971), pp. 243244, lists 32 announced efforts to file a national initiative during 1919-1932. According to his table, 19 of these efforts never got beyond the planning stage. Of the 13 that were filed, 2 went to a vote, 1 failed to get the necessary signatures (l0 percent of qualified voters), 5 were disqualified (mostly because they involved financial matters that were not permitted under the Weimar constitution), and 5 were filed with the government but signatures were never sought. Wolfgang Berger, Die Unmittelbare Teilnahme Des Volkes An Staatlichen Entscheidungen Durch Volksbegehren und Volksentscheid (diss., University of Freiburg i. Br., 1978), pp. 246-281, lists only 8 efforts that went beyond the planning stage. Although both the initiatives that went to a vote got over half the votes cast, both lost. Because the Weimar legislation allowed initiatives to pass only if a majority of all eligible voters actually voted, initiative opponents urged the opposing voters not to vote, thus making it difficult for the proponents to achieve the necessary quorum. Gunther Jurgens, Direkte Demokratie in den Bundeslandern (Stuttgart: Richard Boorberg, 1993), p. 250, lists the German states that adopted the initiative after World War 1. Schiffers, Elemente direkte Demokratie lists 25 efforts to adopt initiatives at the state level during 1919-1932. Two of these efforts were successful, 7 others went to a vote but lost, 4 achieved the necessary signatures but never went to a vote, 7 failed to obtain the necessary signatures, 2 were filed but signatures were never sought, and 3 never got beyond the planning stage. 56A tenth state, Berlin, also authorized use of the initiative until 1974. Jurgens, Direkte Demokratie, p. 59. Its constitution still allows a fifth of the voters to call for dissolution of the state parliament. Berlin Const. art. 39(2).

Initiative in Switzerland and Other Countries

63

nine allow use of the procedure for both ordinary laws and constitutional amendments.57 Initiatives concerning budgets, taxes, and government salaries are generally not allowed. Most West German states require a large number of signatures. Statutes require signatures from 20 percent of all citizens eligible to vote in four states; 17 percent in one state; 10 percent in three states; and 5 percent in one state. Constitutional amendments require the same number of signatures in all states but one: this state requires 20 percent for constitutional amendments, but only 10 percent for statutes.58 The voting requirements for initiative constitutional amendments are generally very restrictive, a number of states require an absolute majority of all citizens eligible to vote, an extraordinarily high minimum standard. One state requires both an absolute majority of all citizens and a positive vote in the parliament. Procedures for the collection of signatures in most West German states are also extremely restrictive. Petitions must be signed in designated governmental offices within a relatively short time-in most states two weeks or less. Because of the large number of signatures required and the restrictions concerning the collection of signatures, there were only 29 attempts to use the initiative in West Germany between 1946 and 1996.59 Fourteen of these attempts were in Bavaria, by far the most frequent user of the German states and until 1990 the state with the lowest signature requirement. In addition to the 29 attempts to use the initiative, citizens twice sought to use a special initiative-like procedure for dissolving the state parliament. A 1971 Baden- Wurttemburg proposal received a majority of the votes, but failed because participation in the election was too low. A 1981 Berlin proposal succeeded, however, when the parliament dissolved itself because of the strong support for the proposal. The German states that use the initiative generally review legality prior to a vote.60 The executive branch reviews proposed initiatives for deficiencies of form 57Baden-Wurtt. Const. arts. 59, 60, 64(3); Bayern Const. 72(2); Niedersachsen arts. 47-49; Rheinland-Pfalz Const. arts. 42, 42. Hesse, Nordrhein- Westfalen, and the Saarland allow use sen Const. art. 124; Nordrh.-Westf. Const. arts. 68, 69(2); Saar.

arts. 73-75; Bremen Const. arts. 70, 109, 129; Schl.-Holstein Const. arts. of the initiative only for statutes. HesConst. arts. 99,100.

58The state with a lower percentage for statutes is Bremen. Because it is based on the number of eligible voters (virtually all adult citizens), the German signature requirement is much greater than the American requirement, which is generally based on the number of voters at the last election. In addition, most West German states require proponents to submit a sizeable number of signatures at the time of initial filing. Unless these signatures are submitted, the authorities will not institute the procedures necessary for collection of the larger number of signatures necessary for qualification of an initiative. Bavaria, for example, requires 25,000 signatures to be submitted at the time of initial filing. 59Jiirgens, Direkte Demokratie, pp. 162-198, discusses 23 proposals through 1992. Two of these were proposals to dissolve parliaments under a special initiative-like procedure, and are not counted here. Two initiatives were proposed in Bavaria during the period 1992-1996. Information supplied to the authors from the states indicates that one proposal not listed by JUrgens was submitted in the Saarland in 1982, but withdrawn by the sponsors. Several abortive attempts to use the initiative in Nordrhein- Westfalen are not listed by JUrgens and not included in the count made by the authors. Five initiatives were proposed in Schleswig-Holstein between 1990 and 1996. 60In some states, including Bavaria, the courts may be asked to review the proposal before signatures are collected.

64

LAWMAKING

BY INITIATIVE

and for constitutional and other legal violations. The parliament can also review proposals for legal violations. When either the executive branch or the parliament determines that the proposal violates some provision of law, proponents may, and generally do, take the issue to the courts. Forty percent of the post-World War II attempts to use the initiative in West German states (12 of 29) failed because the courts agreed that there were constitutional or other legal defects in the proposals.61 Frequently the problem was that the proposal conflicted with federal law or was not within the competence of the states.62 Five proposals did not secure enough signatures, and one was withdrawn by the sponsors. Like the Swiss initiative, the initiative in the German states is indirect, requiring consideration by the parliament before going to a vote of the people. In ten instances West German proponents were successful in having their proposal considered by the parliament. In three, the parliament adopted the proposal,63 and in three instances, the proponents reached a compromise agreement with the parliament;64 In three other instances-all in the 1990s--citizens in Schleswig-Holstein made use of a procedure that allows a relatively small number of citizens to propose legislation for parliamentary action but requires the collection of many more signatures to force a vote of the people. In all three cases, the legislature declined to adopt the proposal, but there was no vote of the people. In only four instances have citizens in West Germany voted on an initiative proposal.65 All four instances were in Bavaria. In 1967 citizens voted in favor of a parliamentary compromise agreement concerning non-denominational schools and rejected two initiative proposals. In 1991, citizens rejected an initiative concerning solid waste and voted in favor of a parliamentary counterproposal. In 1995, however, the proponents of a proposal 61The Gennan courts, particularly the Bavarian courts, are more willing to review initiatives prior to a vote than are the American courts. 62JUrgens, Direkte Demokratie, pp. 162-198. 63In Nordrhein- Westfalen in 1977 the government sought to combine the previously separate vocational and academic high schools into a new type of "cooperative high schools." A citizens group filed an initiative to block this change. Because the number of signatures collected was so great (primarily because of the massive support of the Christian Democratic Party), the legislature adopted the initiative. JUrgens, Direkte Demokratie, pp. 194-195. In the I 990s, the Schleswig-Holstein parliament adopted an initiative proposal to abolish certain licenses and taxes for bars and substantially adopted a proposal for direct election of mayors and chief county executives. 64(1 and 2) In Bavaria the Free Democratic Party and Social Democratic Party each proposed initiatives in 1967 to create non-denominational schools alongside the existing denominational schools. The ruling party (Christian Social Union) responded with a proposed initiative of its own. The FOP proposal failed to get enough signatures, but both the SDP and the CSU proposals qualified. The SDP and the CSU then reached a compromise agreement. The two original initiatives then appeared on the ballot, alongside a constitutional amendment recommended by the legislature embodying the compromise. The two initiatives failed, but the compromise passed. (3) In 1972 the Bavarian legislature passed a law giving the government greater control over what was said by government-funded radio and television stations. A citizens group responded with an initiative proposing greater freedom of speech. The legislature rejected the proposal as unconstitutional, but reached a compromise with the proponents. The initiative died because the legislative detennination of unconstitutionality was not appealed. The compromise was approved by the voters. JUrgens, Direkte Demokratie, pp. 174-179. 65These two initiatives are discussed in the previous footnote.

Initiative in Switzerland and Other Countries

65

for the creation of an initiative at the city-county level defeated a parliamentary counterproposal. Although this was not the first initiative to gain its objective, it was the first initiative since World War II to succeed at the polls. Political parties are much more involved in initiative campaigns in Germany than in the United States. Partly because of this, German initiative campaigns, like those in the United States, are expensive. It is estimated, for example, that the 1991 Bavarian campaign over solid waste cost around $15 million-$I million spent by the proponents (who lost) and $14 million by those who favored the legislative alternative (who won).66 Bavaria has neither contribution limits, nor a financial disclosure law. It distributes ballot pamphlets in advance of initiative elections. Poll results, however, suggest that the populace is generally not well-informed about the proposals.67 As in Switzerland, initiative elections take place on a different day from candidate elections. Voter turnout is as a consequence generally much lower than that for candidate elections (about 20 percent less in Bavaria). While the initiative procedure has not been used very often in the German states, it has achieved some important successes, particularly in Bavaria.68 During the 1990s, there has been renewed interest in the procedure at both the state and national levels. In addition to the 1995 initiative that succeeded in creating an initiative procedure for cities and counties in Bavaria, two West German states adopted the procedure for the first time in the 1990s (Niedersachsen and Schleswig-Holstein), one lowered the signature requirements for statutes (Bremen), and all five former East German states adopted the initiative. All five allow use of the initiative for both laws and constitutional amendments. Although the five former East German states require absolute majorities of all eligible voters for constitutional amendments, they have established easier procedures for proposing statutes.69 By the end of 1996, proponents had sought to use these procedures 21 times. Half of these efforts involved simplified procedures that allow 15,000 to 35,000 citizens to present an issue to the legislature for action but do not require a vote of the people if the legislature fails to adopt the proposal.70 Nine of the efforts failed to collect enough signatures, four were declared invalid, and one was withdrawn. In only one instance did the parliament agree with a proposal, and there were no instances in which a proposal was put to a vote of the people. There has also been considerable discussion about the initiative. Former 66Jiirgens, Direkte Demokratie, p. 170. 67Jiirgens, Direkte Demokratie, p. 231. 68Jiirgens, Direkte Demokratie, pp.199-233. Hartmann,Volksinitiativen, p.83,in 1974calledtheschool initiatives"themostimportantpoliticaldecisionin Bavariasincethe war."See alsoReinholdBock1et, "Volksbegehren undVolksentscheid inBayern,"in ReinholdBock1et, ed.,Das Regierungssystem des FreofBavarianinitiatives). istaates Bayem (Munich:ErnstVoegel,1979),pp.334-406(discussion 69Brandenburg Const.arts.76ff,79;Meck.-Vorpommern art.60;SachsenConst.arts.71 ff, 74 III; Sachsen-AnhaltConst.arts.81,81V;ThuringenConst.arts.82,83. 70lnsome statesthis procedureis calleda "Volksinitiative." Becausethe proceduresvary,some petitionsarecountedin severalcategoriesinthis analysis.

66

LAWMAKING

BY INITIATIVE

Gennan President Richard von Weizacker, for example, has spoken out strongly for the development of more direct democracy at all levels of government, including the national level.

Austria Like the Weimar Republic, Austria adopted a national initiative after the first World War. Included in its 1920 constitution was a provision allowing 200,000 voters to propose draft laws.71 This provision was extremely limited, however, as it did not require a vote of the people if the Nationalrat, the Austrian parliament, chose not to adopt the draft. A similar provision was included in the 1955 constitution, adopted after World War 11.72In 1981 the number of signatures required was reduced to 100,000.73 Implementing statutes were adopted in 1921, 1931, 1973, and 1982.74 In theory the Austrian national initiative may be used to propose both statutes and constitutional amendments. All nine Austrian states also authorize use of the initiative; the three states closest to Switzerland since around 1920, most others since the 1970s. Most use a restricted form like that at the national level. Three states, however, provide for a vote of the people. Salzburg requires a vote of the people anytime the parliament rejects the initiative proposal. Steirmark and Vorarlberg also provide for a vote of the people, but only if the proposal has received many more signatures than are necessary for the initial consideration by the parliament. In Steinnark the requirement increases from 2 to 10 percent; in Vorarlberg from 2.7 to 20 percent.75 Some states restrict the initiative even further-requiring a waiting period before new laws can be changed through the initiative process.76 As in the German states, signature collection is generally arranged in a twostep procedure. The proponent first presents a petition with a sizeable number of signatures (10,000 for the federal initiative) to the authorities. If the petition is in good form, the authorities then set a brief time period for supporters to register their support in an election office. The federal initiative requires 100,000 registrants, all to be registered within a one week period.?7 This is about 2 percent of 71Sylvia Greiderer, "Volksbegehren in Osterreich als ein Instrument direkten Demokratie" (unpublished Diplomarbeit, University of Innsbruck, 1994), p. 31. One half the voters of each of three states were also authorized to propose draft laws. See also John Hawgood, Modern Constitutions Sinee 1787 (New York: Van Nostrand, 1939), pp. 263-265. 72Austria Const. art. 41. 73William Brauneder, Osterreiehisehe Veifassungsgesehiehte (Vienna: Manzsche, 6th ed. 1992), p. 274; Robert Walter and Heinz Mayer, Grundriss des osterreiehisehen Bundesveifassungsreehts (Vienna: Manzsche, 7th ed. 1992), pp. I 65ff. 74Greiderer, Volksbegehren in Osterreieh, pp. 30-47. 75Priedrich Koja, Das Veifassungsreeht der osterreiehisehen Bundeslander (Vienna: Springer- Verlag, 2d ed. 1988), pp. 172-173; Franz Merli, "Rechtsprobleme des Volksbegehrens in Bundes- und Landesgesetzgebung," Juristisehe Blatter 110 (1988): 85,98. 76Merli, "Rechtsprobleme,"

Juristisehe Blatter 110: 85, 87.

77Initiative Law (Volksbegehrengesetz),

1973, as amended.

Initiative in Switzerland and Other Countries

67

the Austrian electorate.78 The percentage of registrants required in the states varies from 2 to about 7 percent of the electorate. Two states allow the private collection of signatures.?9 The first federal initiative to collect sufficient signatures to require parliamentary consideration was in 1964. It sought to make radio and television more independent from the political parties. Two others followed in 1969, one seeking to reduce the work week to 40 hours and the other seeking to overturn a then newly enacted requirement for a 13th school year. Of the 15 initiatives that had been presented to the parliament by 1993, only the first three resulted in successful parliamentary action.80 Although all nine Austrian states have the initiative in their law books, they have used the procedure sparingly. Because the states that allow the people to vote have not used the procedure often, the first popular vote on a question raised by initiative was in Salzburg in 1993.81 Although the initiative has not played a major role in Austrian political life, there is a great deal of interest in the procedure. Six states have adopted the procedure since 1971, the number of signatures required for the federal initiative was reduced in 1981, arrangements for federal signature registration were improved and proponents were relieved of some costs in 1982, and there has been some liberalization in the states as well. 82 Further expansion of the initiative has also been discussed.83

Italy Italy adopted a limited form of the initiative in its 1948, post-World War II constitution. A petition from 50,000 voters forces the parliament to consider a law, but as with the Austrian federal initiative there is no required vote of the people if the parliament rejects the proposal. 84 More important is a second provision in the 1948 constitution. Although labeled as a "referendum," this provision is in reality a kind of initiative. It calls for a popular vote if 500,000 voters request the total or partial repeal of a law.85 This provision is like a classic referendum in that it can be used to allow the elec78Prior to 1982 the number required was 200,000. 79Merli, "Rechtsprobleme,"

Juristische Blatter 110: 85, 88-89.

80Rainer Nick and Anton Pelinka, Osterreichs politische Landschaft (Innsbruck: Haymon, 1993), p. 52; Greiderer, Volksbegehren in Osterreich, pp. 48-74. 81Greiderer, "Volksbegehren in Osterreich," pp. 101-103, lists the number of initiatives for some states as of 1994: Niederosterreich (3), Salzburg (I), Steiermark (3), Tirol (2) and Vorarlberg (I). Based on information supplied to the authors in 1992 by the state governments, Oberosterreich had never used the initiative, Vienna had used the procedure seven times, and Karnten three times. 82Greiderer, "Volksbegehren

in Osterreich," pp. 45-47.

83Walter and Mayer, Grundriss, p. 48; Greiderer, Volksbegehren in Osterreich, pp. 78-81. 84Italy Const. art. 71. 85Italy Const. art. 75. This procedure cannot be used for budgetary or fiscal legislation, granting of pardons or amnesties or for the authorization to ratify international treaties.

for the

70

LAWMAKING

BY INITIATIVE

but no vote of the people is required if the parliament fails to act. Matters concerning "organic laws, taxation, international affairs or the prerogative of granting pardons" are excluded.96 Guatemala and Liberia also have initiative procedures somewhat like that in Austria.97 Liechtenstein has an initiative procedure for both constitutional amendments and laws. Both procedures are indirect, requiring consideration by the parliament. Both, however, allow a vote of the people if the parliament fails to act.98 The Philippine initiative adopted in its 1987 constitution is one of the newer initiatives,99 as is the Hungarian initiative adopted in 1989. The Hungarian initiative allows 100,000 voters to put matters directly on the ballot.lOO

96Spain Const. art. 87. 97Markku Suksi, Bringing in the People: A Comparison of Constitutional the Referendum (Dordrecht: Nijhoff, 1993), p. 143.

Forms and Practices of

98Si1vano M6ck1i, Direkte Demokratie: Ein internationaler Vergleich (Bern: Paul Haupt, 1994), pp. 136-138,394-397. Between 1919 and 1990, Liechtenstein had 20 votes on initiatives. Ten initiatives were successful at the polls. In four instances there were parliamentary counterproposals. In one instance the counterproposal won; in one instance the initiative won, and in two instances both lost. 99Anna Abad and Evalyn Ursua, "Initiative and Referendum: Empowerment," Philippine Law Journal 63 (1988): 375. looSuksi, Bringing in the People, pp. 112-117.

An Experimentation

at People

CHAPTER SIX

THE BASIC STRUCTURE: CONsrmn10NALAMENDMENTS,INmAlMSfATUTES, AND SUBJECT-MATTER RESTRICTIONS THE ROLE OF THE INITIATIVE IN STATE CONSTITUTIONAL AMENDMENTS Constitutions are fundamental laws. They establish the rules by which ordinary laws are created. They define the powers of government, establish the basic permanent institutions of government, such as the executive, legislative, and judicial branches, protect the people in the exercise of their civil liberties, and provide a method for changing the fundamental law. I In the United States the classic model is the federal constitution. Hammered out in Philadelphia in the summer of 1787, this constitution is one of the most respected governmental documents ever devised. Even with the addition of the Bill of Rights, it is a brief document that limits itself primarily to establishing the framework of government. Amendments were deliberately made difficult in order to discourage changes that were not themselves fundamental. In over 200 years there have been only 27 amendments, and only 17 since the adoption of the Bill of Rights in 1791. The early state constitutions tended to follow the federal model. As a group they focused on fundamental questions of government, were short, and were difficult to amend. Some state constitutions continue to be in this mold. Other states have taken a different view of their constitutions. Rather than limit themselves to questions concerning the framework of government, they have sought to regulate more of the details of everyday life through constitutional rules. No American jurisdiction has gone as far in creating detailed economic and social entitlements in their constitutions as such countries as Brazil, Mexico, the former Soviet ISee, for example, John Wheeler, ed., Salient Issues of Constitutional National Municipal League, 1961). p. xii.

71

Revision (New York:

72

LAWMAKING

BY INITIATIVE

Union, or Haiti. But some state constitutions are nearly as lengthy. Like their counterparts in other areas of the world, these longer, more detailed constitutions have frequently overregulated. As a consequence, they have been far less permanent and subject to more frequent change than the federal model. Collectively, the states have approved 146 different state charters, have convened over 230 constitutional conventions, and have approved over 5,000 amendments to their constitutions.2 South Carolina and Alabama have each adopted over 450 amendments. Nineteen states, on the other hand, retain their original constitutions. Like James Madison and Alexander Hamilton, the principal authors of the Federalist Papers, most modem commentators tend to favor a shorter, more basic constitution. Sixteen new state constitutions have been adopted since 1940, and virtually all are noticeably shorter and more basic than their predecessors. When the California Constitution Revision Commission completed its work in 1971, for example, it had reduced the California constitution from 75,000 to 45,000 words.3 Even so, the new constitution was still more than double the 20,000 words of the original California constitution and about six times the 7,500 words of the federal constitution.4 TABLE 17. State Constitutional Amendments Legislative Procedure Degree of Difficulty Difficult

Number of States

2/3 vote by legislature (2 sessions)

4

Majority vote by legislature (2 sessions)

IO

2/3 vote by legislature

16

Moderate 3/5 vote by legislature

10

Easy Majority vote by legislature

lQ

Total

50

Source: The Council on State Governments. The Book of the States: 1994-95 Edition (Lexington. Ky.: 1994), pp. 21-22.

AMENDMENT

PROCEDURE

Just as states differ sharply in the extent to which they view their constitutions as fundamental documents, so they also differ sharply in the extent to which they 2Jamce May, "Constitutional alism 17 (1987): 153,164.

Amendment and Revision Revisited," Publius: The Journal of Feder-

3Cal. Constitution Revision Commission, 4See, for example, "California's 279.

Proposed Revision Part 1 (1970): 7; Part 6 (1971): 3.

Constitutional

Amendomama,"

Stanford Law Review 1 (1949):

The Basic Structure: Constitutional Amendments, Initiative Statutes, and Subject Matter Restrictions

73

make constitutional amendments difficult. While all 50 states allow their legislatures to initiate constitutional amendments, 49 states require ratification by the people as well. (Delaware is the exception.) Thirty-two of these states require a two-thirds vote by the legislature, a positive vote in two consecutive legislatures, or both, as shown in Table 17. While these procedures are less rigorous than those required to amend the federal constitution, they are relatively difficult nonetheless. Ten states, on the other hand, require only a majority vote by the legislature to initiate a constitutional amendment, a relatively easy procedure. The 17 states with some experience in use of the initiative as an alternative method for bringing about constitutional amendments in 1990 are analyzed in Table 18. Six of these states require their legislatures to use relatively difficult methods of amendment, while seven require only a majority vote in the legislature for legislatively initiated amendments. TABLE 18. State Constitutional Amendments Legislative Procedure-Initiative States Only

---------"'--Degree of Difficulty

Number of States

Difficult Majority vote by legislature (2 sessions)

2

2/3 vote by legislature

4

Moderate 3/5 vote by legislature

4

Easy Majority vote by legislature Total

1 17

Sources: See Table 17. Mississippi authorizes initiative constitutional amendments but is omitted from

Tables 18-22. because the authorization is new.

As might be expected, the states with easy procedures for amendment tend to have the larger number of amendments. The major exception is California, which has a relatively difficult legislative amendment procedure but a large number of legislatively proposed constitutional amendments, as Table 19 indicates. A partial explanation of this anomaly is that California legislators introduce an exceptionally large number of constitutional amendments (1,249 between 1971 and 1984). While only about 8 percent secured the approval needed to appear on the ballot, the total on the ballot is larger than that for most states. The total may also have some connection with the work of the California Constitution Revision Commission in the late 1960s and early 1970s.5 50nly a few (6 or 7) of the 140 legislatively sponsored constitutional amendments can be clearly traced to the Constitution Revision Commission. The number of legislative constitutional amendments was much higher from 1970 to 1974, however, than in later years. It seems likely that at least some of these amendments are attributable to constitutional revision or inspired by it. (The total number for 1970-1979 was 93; for 1980-1988 it was 46). Ten legislative amendments in the 1980s concerned the Jarvis-Gann tax limitation that was adopted by initiative in 1978.

74

LAWMAKING

BY INITIATIVE

States also vary considerably in the ease with which they allow their constitutions to be amended through the initiative process. Four states require signatures equal to 15 percent of the last vote or some similarly onerous hurdle, as shown in Table 20. Eight states, on the other hand, require only half or less that number of signatures. Again, as might be expected, the states with the easier procedures tend to have the larger number of initiatives, as shown in Table 21. More striking are the results in states that have difficult legislative procedures for amending their constitutions but relatively easy initiative procedures. The only two states that meet this condition, Colorado and California, rank first TABLE 19. State Constitutional Amendments Number Proposed by Legislature 1970-1988 Rank I

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

State California Nebraska

Easy

Oklahoma

Easy

Arizona

Easy Easy

North Dakota Florida

Moderate

Nevada

Difficult Easy

Missouri

Moderate

South Dakota

Easy

Colorado

Difficult

Massachusetts

Difficult

Michigan

Difficult

Montana

Difficult Easy

Arkansas Illinois

aSome California initiatives involve both constitutional constitutional amendments.

Moderate amendments

and statutes. These are counted as

TABLE 20. State Constitutional Amendments Degree of Difficulty Degree of Difficulty Difficult 15% signatures Other Moderate 10% signatures Easy 5-8% signatures Total

140a 92 92 90 68 65 58 58 57 52 38 33 31 22 20 17 10

Difficult Moderate

Oregon

Ohio

Number Proposed

Degree of Difficulty

by Initiative Number of States 2 3

6 6. 17

The Basic Structure: Constitutional Amendments, Initiative Statutes, and Subject Matter Restrictions

75

TABLE 21. State Constitutional Amendments Number Proposed by Initiative, 1970-1988 Rank

State

I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17

Colorado California Ohio Michigan Oregon Arkansas Missouri Florida Arizona Montana South Dakota North Dakota Nevada Oklahoma Nebraska llIinois Massachusetts

Degree of Difficulty

Number Proposed

Easy Easy Moderate Moderate Easy Moderate Easy Easy Difficult Moderate Moderate Easy Difficult Difficult Moderate Difficult Difficult

22 17 17 16 16 12 9 9 6 5 5 5 5 4 2 I I

TABLE 22. State Constitutional Amendments Effect of Proposal Difficulty on Number oflnitiative Proposals, 1970-1988 Degree of Difficulty State Colorado California Ohio Michigan Oregon Arkansas Missouri Florida Arizona Montana North Dakota Nevada South Dakota Oklahoma Nebraska Massachusetts Illinois

Rank by Number

Legislative Proposals

Initiatives

of Initiatives

Difficult Difficult Moderate Difficult Easy Easy Easy Moderate Easy Difficult Easy Difficult Easy Moderate Moderate Difficult Moderate

Easy Easy Moderate Moderate Moderate Moderate Easy Easy Difficult Moderate Easy Difficult Moderate Difficult Moderate Difficult Difficult

I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16

17

and second in the number of constitutional amendments proposed by initiative during the period 1970 to 1988, as Table 22 shows. Conversely, the states with easy legislative but difficult initiative methods for amendment rank far down the list.

76

LAWMAKING

BY INITIATIVE

In California it is harder for the legislature to propose a constitutional amendment than for many initiative proponents to do so. The legislature must achieve a two-thirds vote, a difficult, if not impossible, task on any hotly disputed matter. Initiative sponsors, however, can propose constitutional amendments by obtaining signatures equal to 8 percent of the last gubernatorial vote, a task that sponsors who have enough money to pay signature gatherers generally have no trouble accomplishing.6 To be sure, proponents who must rely on volunteers to gather signatures find this number of signatures very hard to obtain. As very few proponents today even attempt to rely on volunteer signature gatherers, however, most initiative proponents are able to meet the threshold needed for constitutional amendments. There is nothing to indicate that either the authors of the California initiative or the California Constitution Revision Commission intended to make it easier to propose constitutional amendments through the initiative than by the legislature. Indeed it is difficult to understand why any state would want to have a policy of this kind. Because legislative proposals are subject to public hearings and can be amended during the legislative process, constitutional amendments proposed by the legislature tend to be better drafted and more thoroughly debated and understood than those proposed by initiative. A good case can be made for making the legislative process easier, but it is hard to justify making the initiative process the easier of the two. Although it is not easy to structure the process in ways that encourage initiative proponents to take their proposals first to the legislature, it is important to take advantage of the legislative machinery for honing proposals to the extent possible. There is much to be said for the view that the state constitution should include only those things that are fundamental and that amendments both through the legislature and through the initiative should be difficult.7 At a minimum, however, it seems clear that the initiative amendment process should be at least as hard as the legislative amendment process.8

6Signature-gathering finns charge 60 cents or more per signature gathered. To calculate the cost of qualifying an initiative, this figure must be multiplied by the required number of signatures. See, for example, Charles Price, "The Mercenaries Who Gather Signatures for Ballot Measures," California Journal (October 1981): 357-358. 7 According to the California Constitution Revision Commission, the state constitution should be a "reasonably short, concise and readable statement establishing (I) basic political concepts; (2) an outline of the organizational framework of government; and (3) a set of limitations on governmental powers." Proposed Revision of the California Constitution (San Francisco: 1966), p. 7.

8The California Policy Seminar Report recommended that California increase the number of signatures required for constitutional amendments from 8 to 10 percent. Philip Dubois and Floyd Feeney, Improving the California Initiative Process: Options for Change (Berkeley: California Policy Seminar, University of California, 1992), p. 162. The California Commission on Campaign Financing, Democracy by Initiative: Shaping California's Fourth Branch of Government (Los Angeles: 1992), p. 25, recommended that California require voter approval at two separate elections for constitutional amendments unless 60 percent or more of those voting at the first election approve the proposal.

The Basic Structure: Constitutinnal Amendments, Initiative Statutes, and Subject Matter RestrictiJJns

77

Constitutional Amendments and Statutes by Initiative Compared In order to maintain the fundamental character of state constitutions, it should be more difficult to amend a constitution than to adopt a statute. The added difficulty encourages proponents to enact their proposals as statutes rather than as constitutional amendments. In California this distinction is fully honored in the legislative process. There is a big difference between securing passage of a statute (majority vote) and proposing a constitutional amendment (two-thirds vote of the legislature plus a vote of the people). The differential between ordinary statutes and constitutional amendments is much smaller in California for initiatives, however. It is almost as easy for proponents with money to pay for gathering signatures to propose constitutional amendments through the initiative process as to propose statutes.9 The only difference is that initiative constitutional amendments require gathering signatures equal to 8 percent of the previous vote, whereas initiative statutes require 5 percent. Prior to 1966 the California Constitution failed to include even this limited incentive in favor of statutory proposals. At that time there was no difference between the number of signatures required for initiative constitutional amendments and that required for direct initiative statutes-8 percent of the last gubernatorial vote was required for both. (Only 5 percent was required for indirect initiative statutes.) Upon the recommendation of the Constitution Revision Commission, the indirect initiative was eliminated and the number of signatures for direct-initiative statutes was decreased to 5 percent. The purpose of the decrease was to encourage proponents to propose initiative statutes rather than initiative constitutional amendments, so as not to clutter the state constitution. This change appears to have worked as the Constitution Revision Commission expected it would. Between 1948 and 1966, the year in which the change recommended by the commission was adopted, 30 initiatives qualified for the ballot-16 constitutional amendments and 14 statutes. Between 1968 (the first year of the change) and 1996, 120 initiatives qualified--41 constitutional amendments and 79 statutes, as shown in Table 23. These figures show that the number TABLE 23. Effect of 1966 Decrease in Signature Requirements for California Initiative Statutes Number of Initiative Constitutional Amendments Qualifyinga Period Prior to 1966 1948-1966 Period After 1966 1968-1996

Number of Initiative Statutes Qualifying

47%

16

41

Percent Statutes

79C

66%

alnitiatives that contain both a constitutional amendment and a statute are counted as constitutional amendments. bTwo indirect initiatives are included. blncludes two initiatives that qualified but that were taken off the ballot by the California Supreme Court in 1984.

9See the discussion of signature gathering in Chapter Seven.

78

LAWMAKING BY INITIATIVE

of signatures required can be manipulated to encourage initiative proponents to seek statutory change instead of constitutional amendments. Since 1966, initiative statutes have increased from 43 to 64 percent of all initiatives qualifying for the ballot. This shift represents a significant step toward limiting the use of initiative constitutional amendments to fundamental governmental issues. Because the initiative process continues to provide an easier method for amending the state constitution than the legislative process, however, the number of initiative constitutional amendments remains high. The experience in other states tends to confirm these results. Most of the states with little or no difference in the percentage of signatures required for initiative statutes and that required for initiative constitutional amendments have more initiative constitutional amendments than average. Conversely two of the three states with large differences have considerably fewer constitutional amendments than average, as a comparison of Tables 3 and 5 (pages "Use of the Initiative from Year of Adoption through 1996 (Measures Voted On)" on page 30 and "Initiatives Approved by Voters from Year of Adoption through 1996" on page 32) shows. On principle, an easy initiative process in comparison to the legislative process for constitutional amendments seems likely to have greater effect than an easy initiative constitutional amendment process in comparison with the initiative statute process. It seems clear, however, that both the initiative/legislative differential and the initiative statute/initiative constitutional amendment differential profoundly affect proponents' decisions.

AMENDMENT AND REPEAL OF INITIATIVE STATUTES Twenty-one states and the District of Columbia allow statutes to be adopted through the initiative process. Twelve states and the District of Columbia allow the legislature to amend or repeal initiative statutes at any time after their adoption, as shown in Table 24. Five states place relatively minor limits on the power of the legislature to amend or repeal. Alaska and Wyoming allow amendment at any time but prohibit repeal until two years have passed. Washington also allows amendment at any time, but restricts repeal during the first two years by requiring a two-thirds vote of the legislature.lO Nevada prohibits both legislative amendment and repeal for three years. Arizona allows an easy change procedure for the normal case (amendment or repeal at any time); it uses a very strict procedure, however, for those rare cases when an initiative statute is approved by a majority of the registered voters, allowing such statutes to be amended or repealed only by another initiative. 11

1000e original Washington initiative prohibited both amendment and repeal for two years. This provision was relaxed in 1952. Philip Trautman, "Initiative and Referendum in Washington: A Survey," Washington Law Review 49 (1973): 55, 67-70. llAdams v. Bolin, 247 P.2d 617 (Ariz. 1952); Randall Hodgkinson, "Executive, Legislative, and Judicial Power Over Direct Legislation in Arizona," Ariz. State Law Journal 23 (1991): 1111, 11171129.

The Basic Strurture: Constitutionnl Amendments, Initiative Statutes, and Subject Matter Restrictions

79

Four states place major limits on the power of the legislature to amend or repeal. Michigan requires a three-fourths vote of the legislature to amend or repeal, Arkansas a two-thirds vote of the legislature. Michigan allows amendment and repeal by a lesser vote only if the initiative so provides. North Dakota requires a two-thirds vote for the first seven years but thereafter allows the normal legislative process to work. The most restrictive state is California. TABLE 24. Amendment of Initiative Statutes Number of States 13

Amend or Repeal at Any Time Colorado

Nebraska

D. of Columbia

Ohio

Idaho

Oklahoma

Maine

Oregon

Massachusetts

South Dakota

Missouri

Utah

Montana Minor Limits

5

Alaska: Amend anytime; no repeal for 2 years Arizona: Amend or repeal anytime (unless approved by majority of electorate; then only by another initiative) Wyoming: Amend anytime; no repeal for 2 years Washington:

No repeal for 2 years, amend within 2 years by 2/3 vote of legislature Nevada: No amendment or repeal for 3 years Major Limits

4

Arkansas: Amend or repeal by 2/3 vote of legislature North Dakota: No amendment or repeal for 7 years Michigan:

Amend or repeal by 3/4 vote of legislature unless initiative makes easier) California: Amend or repeal by vote of the people (unless initiative makes easier) Total states

22

Sources: Alaska Const. art. XI, ~6; Ariz. Const. art. IV, pt. I, ~I(6); Ark. amend. VII: Cal. Const. art. II, ~ 10(e); Mich. Const. art. II, ~9; Nev. Const. art. XIX, ~2; N.D. Const. art. III, ~8; Wash. Const. art. II, ~l(e); Wyo. Const. art. III, ~52(f).

In California a statute adopted by initiative can be changed only by submitting it to another vote of the people-unless the initiative itself allows the legislature to adopt changes. Generally when initiatives allow the legislature to make changes, they require supermajorities. One initiative on the June 1990 ballot required a four-fifths vote of the legislature.I2 This kind of provision makes initiative statutes very much like constitutional amendments.I3

80

LAWMAKING

BY INITIATIVE

An important policy question is whether initiative statutes should be treated any differently than statutes adopted by the legislature. While it may be reasonable to protect statutes enacted by the people through the initiative process from immediate change by the legislature, it seems highly undesirable to have a category of "super statutes" that are very difficult to change without a vote of the people.14 As the circumstances upon which statutes are based change, the legislature should have the power to make changes. 15 Aside from the improvement that such power would bring in the legislature's ability to manage the affairs of the state, giving the legislature this kind of authority would reduce the number of ballot measures by eliminating the need to have trivial changes in old initiatives approved by the people.16 In the early 1900s when the initiative was first adopted, there were reasons to fear that legislatures might do all they could to sabotage measures adopted through the initiative process. In actual practice, however, legislative sabotage has not proved to be a major problem, even in the states where the legislature can easily amend or repeal initiative measures.17 To be sure there have been a few instances in which legislatures have quickly sought to dismantle initiative measures.18 More frequently, however, legislatures have sought to jump on bandwagons created through the initiative process. Once an initiative has established the popularity of an idea, legislatures have often responded by passing additional legislation of the same character. i2Proposition 117, Wildlife Protection. See Cal. Secretary of State, California Ballot Pamphlet, June 5, 1990, p. 76, g8. Another common provision is to allow amendment by a two-thirds vote of the legislature "if the amendment is consistent with and furthers the purposes of the initiative." See, for example, Proposition 16, Rail Transportation, California Ballot Pamphlet, June 5, 1990, p. 74, g5. While no published opinions concerning this kind of provision have been discovered, the potential for misunderstanding and litigation appears great. The history of initiative grants of authority to the legislature is discussed in California Commission on Campaign Financing, Democracy by Initiative, pp. 94-95. 13Repeal of initiative statutes is generally governed by the same rules as amendment. art. II, g 10.

Cal. Const.

14In Switzerland, the initiative and legislative processes are considered to be equal. Initiative statutes are given no preference, and can be changed through normal legislative procedures. Zaccaria Giacometti, Das Staatsrecht der schweizerischen Cantone (Zurich: Polygraphischer, 1941), pp. 440441. i5The California Policy Seminar Report recommended against any special protection for initiative statutes. Dubois and Feeney, Improving the California Initiative Process, p. 162. The Commission on Campaign Financing, Democracy by Initiative, p. 24, recommended that the legislature, with a 60 percent vote, be allowed to amend any initiative. 16Relatively minor changes in a 1923 California initiative concerning chiropractors have thus far resulted in four ballot propositions, including Proposition 113 on the June 1990 ballot. Cal. Bus. & Prof. Code, gglOOO-1 to 1000-20 annot. (West 1990 and Supp. 1995). 17Discussions with officials in most initiative states. 18In the early 1900s the South Dakota legislature repealed two proportional representation initiatives adopted by the voters. Interview with S.D. Legislative Research Council, 1995. News accounts indicate that some members of the Wyoming legislature thought about seeking repeal of the term limits adopted in that state in 1992 but were dissuaded from doing so by large numbers of letters and telephone calls from citizens in favor of term limits.

The Basic Structure: Constitutionnl

Amendments,

Initiative Statutes, and Subject Matter Restrictions

81

A possible downside to giving the legislature the authority to amend or repeal initiative statutes without a vote of the people is that this may lead some proponents to propose initiative constitutional amendments rather than initiative statutes. The remedy for this problem is to make initiative constitutional amendments properly difficult. ________

T""1\.~B!ALE 25. Restrictions

on Initiative

Process

Restriction

Number

Single subject or similar rule

17

No statutes that the legislature could not legally adopt

12

Restrictions on taxes or appropriations

10

Waiting period for failed proposals

5

No local or special legislation

4

No constitutional

4

revision

No creation of courts or changing jurisdiction

of States

of courts

3

No changes in the initiative process

2

No changes affecting freedom of speech, press, elections, assembly, just compensation, or right of access to courts Other

2 3

Sources: Single subject rule: See Table 33. Restricted to statutes the legislature could adopt: Alaska Canst. art. XII, 911; Ariz. Canst. art. XXII, 914; Convention Center Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889 (D.C. 1981) (en banc); Luker v. Curtis, 136 P.2d 978 (Idaho 1943); Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Mich. Canst. art. II, 99; Neb. Canst. art. III, 92; Nev. Op. All'y Gen. No. 153 (1934-36); State ex reI. Eckroth v. Borge, 283 N.W. 521 (N.D. 1939); Ohio Canst. art. II 91; State ex rei. Jones v. Charboneau's, 615 P.2d 1321 (Wash. App. 1980); Wyo. Canst. art. lll, 952(g). Waiting period for failed proposals: Mass. Canst. amend. art. XLVlIl, Init., pt. 2, 93; Miss. Canst. art. 15, 9273; Neb, Canst. art III, 92; aida. Canst. art. v, 96; Wyo. Canst. art. Ill, 952(d), Restrictions on taxes or appropriations: Alaska Canst. art. XI, 97; D.C. Code Ann, 91-281(a) (1992); Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Miss. Canst. art. 15, 9 273; Mo, Canst. art. III, 951; Mont. Canst. art. III. 94; Neb. Rev. Stat. 932-704.01 (1988); Nev. Canst. art. XIX, 96; Ohio Canst. art. II, 9 Ie; Wyo. Canst. art. III, 952(g). No local or special legislation: Alaska Canst. art. XI, 97; Mass. Canst. amend. art. XLVIII, luit., pt. 2, 92; Mont. Canst. art. III, 94; Wyo. Canst. art. III, 952(g). No constitutional revision: McFadden v. Jordan, 196 P.2d 787 (Cal. 1948); Adams v. Gunter, 238 SO.2d 824 (Fla. 1970); Holmes v. Appling, 392 P.2d 636 (are. 1964); Mont. Canst. art. XIV. No creation of courts or changing jurisdiction of courts: Alaska Canst. art. XI, 97; Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Wyo. Canst. art. Ill, 952(g). No changes in the initiative process: Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Miss. Canst. art. 15, 9273. No changes affecting freedom of speech, press, elections, assembly, just compensation, right of access to courts: Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Miss. Canst. art. 15,9273. Other: Ill. Canst. art. XIV, 93 (restricted to constitutional amendments affecting state legislature); Miss. Canst. art. 15, 9 273 (no changes affecting right to work law or state pensions); Nev. Canst. art XIX (constitutional amendments must be passed twice),

SUBJECT-MATTER RESTRICTIONS General Subject-Matter Restrictions Most states that use the initiative process have at least some restrictions on its use. The single-subject rule, which generally limits initiatives to a single area of constitutional or statutory change (discussed in Chapter Nine), is the most frequent restriction, as Table 25 shows. The second most frequent restriction is to prohibit the adoption of statutes through the initiative that the legislature could not legally adopt. At least 12 of the 22 jurisdictions that authorize ini-

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tiative statutes have limitations of this kind. Four states limit the reintroduction for a time of initiative proposals that have previously failed. Four states prohibit the adoption of local or special legislation through the use of statewide initiatives. Four states, including California, distinguish between constitutional amendments, which are permitted, and constitutional revisions, which are prohibited. This kind of restriction has usually been imposed by the courts, but Montana develops the distinction in its constitution.19 Alaska, Massachusetts, and Wyoming have sought to protect the integrity of their judiciary by prohibiting the creation of courts, defining the jurisdiction of courts, or prescribing court rules through the initiative process. Two states have interpreted federal law as prohibiting the use of the initiative to ratify amendments to the United States Constitution or to call for a national constitutional convention.20 Massachusetts and Mississippi go considerably further in protecting the basic outline of their existing constitutions. Both states prohibit initiatives that change the initiative process itself. In addition in Massachusetts all measures relating to religion or religious practices or institutions are excluded, as are propositions limiting individual rights, including the right to free speech, to trial by jury, to just compensation for takings of property, and access to the courts.21 Mississippi also protects critical parts of its constitution from change through the initiative-its Bill of Rights, its constitutional right to work guarantee, and the initiative process itself. But by far the most restrictive provisions are those in lllinois. Here the initiative may only be used to amend the portions of the Illinois Constitution concerning the structure and procedures of the legislature.22 This safety-valve authority was created because it was thought that the legislature would be unlikely to propose changes in its own basic structure. Among the many policy questions that these restrictions suggest, three seem particularly important: • To what extent should the budget process be controlled by, the initiative process?

19Although Montana voters may not use the initiative to propose specific constitutional they may use the initiative to call a constitutional convention. Mont. Const. art. XIV, 92.

revisions,

2oAFL-CIO v. Eu, 36 Cal.3d 687 (1984); State ex rei. Harper v. Waltermire, 691 P.2d 826 (Mont. 1984). Both cases rely on the language of U.S. Const. art. V, which requires ratification of U.S. constitutional amendments by "legislatures" or "conventions." Relying on this same language, the U.S. Supreme Court in Hawke v. Smith, 253 U.S. 221 (1920), held that ratification of the eighteenth amendment by Ohio was not subject to referendum. Massachusetts avoids this problem by allowing a nonbinding advisory vote by the electorate on proposed amendments to the U.S. Constitution. Mass. Gen. Laws Ann. ch. 53, 918 (West 1991). 21Good discussions of these restrictions are contained in Alexander Gray, Jr. and Thomas Kiley, "The Initiative and Referendum in Massachusetts," New England Law Review 26 (1991): 27; Robert Stewart, "The Law ofInitiative Referendum in Massachusetts," New England Law Review 12 (1977): 455. 22m. Const. art. XIV, 93. Legislative salaries and conflicts of interest are not considered "structural and procedural." Coalition for Political Honesty v. State Ed. of Elections. 359 N.E.2d 138 (Ill. 1976).

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• Should initiative sponsors be allowed to change the rules about how the initiative process itself works? • If so, should initiative sponsors be allowed to change the rules so as to make adoption or effectuation of their particular initiative easier?

Budget Matters Nine states place restrictions on the extent to which taxes can be levied or appropriations made through the initiative process. Even more states prohibit the use of the referendum to block or alter tax and appropriation measures.23 The new Mississippi initiative does not restrict the levying of taxes or the making of appropriations. It does, however, require proponents to identify in the text of the initiative itself the amount and source of revenue required to implement the initiative. If the initiative requires a reduction in any revenue source or a reallocation of funding, the text must identify the programs to be reduced or eliminated. Nevada forbids any appropriation through the initiative process unless the initiative includes a tax sufficient to cover it. California is one of the states that does not impose restrictions on the use of the initiative to raise revenue or spend money. One consequence is that a large proportion of the state's budget is now permanently subject to control by initiatives adopted in the past.24 Some believe that this not only creates annual budgeting problems but also encourages interest groups that lack the protected status conferred by the prior initiatives to seek protection for themselves. Concerns about this have been expressed by former Governor Deukmejian and many legislators. California, like other states, subjects its normal appropriations to a number of important processes. The budget must be balanced. Appropriations, except those for the public schools, must be passed by two-thirds of the membership of each house, and all appropriations are subject to an item veto by the governor. No bill except the budget bill may contain more than one item of appropriation, "and that for one certain, expressed purpose.,,25 Appropriations contained in initiative measures are subject to none of these processes. This seems unduly lax, making it easier in some instances to secure appropriations through the initiative than through the legislative process. Because the appropriations process necessarily involves comparisons among programs, it also seems unwise and ultimately unworkable to allow a great proportion of a state's resources to be appropriated through the initiative process.26 23Eleven of the 20-plus states using the referendum procedure have some kind of subject matter limitation. The majority of these restrictions relate to the "dedication of state revenues and appropriations." Council of State Governments, The Book of the States 1994-95 Edition (Lexington, Ky.: Council of State Governments, 1994), p. 301 fn. (d). See also "Comment, Limitations on Initiative and Referendum," Stanford Law Review 3 (1951): 497. 24Appendix Table 2 shows the number of initiatives titled, voted on, and approved in California by their subject matter category. Fiscal matters and taxation are large categories. 25Cal. Const. art. IV, ~12.

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LAWMAKING

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Rules About the Initiative Process The initiative is just one of many governmental processes and many believe that it should, like other governmental processes, be subject to change through the initiative.27 The initiative process should not be used, however, to change the rules in the middle of the game. It is one thing to use the initiative to change the general initiative rules to improve the initiative process. It is a different matter altogether to subvert the existing rules by including changes designed to cure an otherwise unlawful initiative. If an initiative proponent, for example, proposed a measure prohibiting the sale of cigarettes and abolishing the Labor Day holiday, this proposal would clearly violate the rule limiting initiatives to a single subject. Suppose, however, that the proponent added a third prong to the initiative, one that retroactively modified the single subject rule so that it would not apply to the proposed initiative. If the courts gave effect to this third prong, the proponent would have been able to bypass the single subject rule entirely.28 Some California initiative proponents have already tried to use their own initiatives to make changes in the rules governing initiatives in order to strengthen their position. Proposition 136 on the November 1990 ballot, for example, sought to make tax increases more difficult. This proposition sought to give itself an effective date earlier than the other tax measures on the same ballot. Because the measure was defeated, the courts were never required to rule on the measure. Its intent, however, was clear enough. By giving itself an earlier effective date, it sought to invalidate all the other tax measures on the ballot, thus totally bypassing the normal constitutional rules for deciding which of various conflicting initiatives should be given priority.29 Both Massachusetts and Mississippi address this problem by refusing to allow the initiative to be used to make any changes in the initiative process. A less drastic solution would be to prohibit initiatives from changing the normal rules governing their own operation and effect. If a propo,nent wants to propose an initiative that violates the single subject rule, the proponent would be forbidden from including a clause exempting the proponent's proposal from the single subject rule. The proponent would be forced to develop a separate, more general initiative in order to change the single subject rule. 26Among the appropriations protected by their initiative-created status in California are: the Fair Political Practices Commission, the entity that enforces the state's campaign finance laws; the proportion of the state budget devoted to primary and secondary schools; and the state's advertising program against smoking, These programs have all fared much better in the hard budget years of the early 1990s than they would have if they had lacked the protection of their initiative status. In addition many observers believe that the permanent appropriation for the Fair Political Practice Commission has greatly enhanced that agency's independence and ability to do its job. 27In California a 1974 initiative greatly improved the state's ballot pamphlet. Two earlier initiatives (1920, 1922), seeking to increase the number of signatures required for initiatives, failed, 28The courts might find that the three-pronged initiative itself violated the single subject rule, but as discussed in Chapter Nine the courts have taken a very loose approach to the single subject rule. 29proposition osition 136.

126, placed on the same ballot by the legislature, sought to exempt itself from Prop-

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85

Another issue which frequently arises in initiative elections is the extent to which the initiative may be used to create supermajority requirements for the passage or repeal of legislation in the future. Because normal constitutional procedures allow legislatures to create supermajority requirements of this kind, many states allow this kind of requirement to be created by the initiative process as well. The California Commission on Campaign Financing argued that any kind of supermajority requirement is undemocratic if imposed by a simple majority vote. It recommended that ad hoc supermajority votes be allowed only if approved by a supermajority of the people at least as large as that called for in the proposal.30

EFFECTIVE DATE To give citizens and government agencies time to prepare for changes in the law, legislative statutes in most states have delayed effective dates, unless adopted by a supermajority as urgency statutes. A 90-day delay is not uncommon, and some have a longer delay. Initiative statutes generally take effect much more quickly, as shown in Table 26. In many states they take effect immediately upon adoption. No strong reasons have been put forward for this difference in treatment, and it seems difficult to justify. It would seem better to use a standard delayed effective date for all, treating all statutes uniformly. While citizens and government agencies also generally need time to adapt to constitutional amendments, most states put constitutional amendments-both legislative and initiative-into effect at the time of passage.

THE INDIRECT INITIATIVE Nine states use some form of the indirect initiative for statutes. Five states (Maine, Massachusetts, Michigan, Nevada, and Ohio) require proponents to submit all proposals to the legislature for consideration, as shown in Table 7 (page 36). Two other states, Alaska and Wyoming, formally provide only the direct initiative but allow their legislatures to void the initiative petition if it adopts the proposal. This is functionally the same as an indirect initiative. The remaining two states, Utah and Washington, allow proponents to choose whether they wish to submit their proposals to the legislature or go directly to the people. The indirect initiative is obviously a compromise, an attempt to have the virtues of both the legislative and the initiative systems. Citizens are given the opportunity to put proposals forward, but these proposals are then subject to normal legislative consideration. If there are flaws or defects or better ways to accomplish the same objectives, these can be discovered and dealt with in the normal manner. The flaws can be described and debated, or alternatives that present fewer difficulties can be developed. 30Democracy by Initiative, pp. 25-26.

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LAWMAKING

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TABLE 26. Effective Date (Generally Days from When Passed) Statutes Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Constitutional Amendments Initiative Legislative

Initiative

Legislative

90

90 90 90 60 90

NA

30

NA WP 30

WP WP

NA

WP

90

45 WP 30

WP WP

30 30

NA 90

WP

45

10 WP 30

Oct. I

5 30

60 90

NA

WP

NA

GP

GP 30 WP GP 30 NA GP NA WP Oct. I GP 30 WP 30 WP

90 90 Jan. I WP 30 60 60 July I 90 Oct. 1 3 months Aug. I 90 90 July I

GP 30 WP GP NA Jan. NA WP 30 July I GP 30 WP 30 WP

GP 30 WP WP 35 Jan. WP WP 30 July I WP WP WP GP WP

90

Key: GP (Governor's Proclamation); WP (When passed). Many states allow laws to vary the standard effective date. Many states count the time for legislative statutes from the adjournment date rather than the date passed. Sources: Effective Dates-Initiative: Alaska Const. art. XI, ~6; Ariz. Const. art. IV, pt. I, ~1(5); Ark. Const. amend. VII; Cal. Const. art. II, ~1O(a) (statutes), art. XVIII, ~4 (const. amend.); Colo. Const. art. V, ~1(4); D.C. Code Ann. ~]-J320(r)(I) (1992); Fla. Const. art. XI, ~5(c)(first Tuesday after first Monday); Idaho Code ~34-1813 (1981); Ill. Const. art. XIV, ~3; Me. Const. art. IV, pt. 3, ~19; Mass. Const. amend. art. XLVIII, Init., pt. 5, ~1 (statutes), pt. 4, ~5 (const. amend.); Mich. Const. art. II, ~9 (statutes), art. XII, ~2 (canst. amend.); Miss. Const. art. 15, ~273 (const. amend.); Mo. Canst. art. III, ~51 (statutes), art. XII, ~2(b) (canst. amend.); Mont. Code Ann. ~13-27-105 (1993) (statutes), Const. art. XIV, ~9 (const. amend.); Neb. Const. art. III, ~4; Nev. Const. art. XIX, ~2; N.D. Const. art. III, ~8; Ohio Const. art. II, ~Ib; Okla. Const. art. V, ~3; Or. Const. art. IV, ~1(4)(d); S.D. Codified Laws Ann. ~2-1-12 (1992); Utah Code Ann. ~20A-7-212 (Supp. 1994); Wash. Const. art. II, ~I(d); Wyo. Const. art. 111,52(1). Effective Dates-Legislative: Alaska Stat. ~01.1O.070 (1990) (statutes), Canst. art. XIII, ~I (const. amend.); Ariz. Const. art. IV, pt. I, ~J(3) (statutes), art. XXI, ~I (const. amend.); Ark. Const. amend. VII (statutes) [Fulkerson v. Refunding Board, 147 S.W.2d 980 (Ark. 1941)], art. XIX, ~22 (const. amend.); Cal. Const. art. IV, ~8(c) (statutes), art. XVIII, ~4 (const. amend.); Colo. Const. art. V, ~19 (statutes), art. XIX, ~2 (canst. amend.); D.C. Code Ann. ~1-233 (statutes), ~I- 205 (1992) (charter amend.); Fla. Const. art. III, ~9 (statutes), art. XI, ~5 (const. amend.); Idaho Const. art. Ill, ~22 (statutes), art. XX, ~I (const. amend.); Ill. Const. art. IV, ~10 (statutes), art. XIV, ~2 (const. amend.), Compo Stat. Ann. ch. 5, ~~75/l, 75/2 (West 1993) (canst. amend.); Me. Const. art. IV, pt. 3, ~16 (statutes), art. X, ~4 (const. amend.); Mass. Const. amend. art. XLVIIl, Ref., pt. I (statutes), pt. 4, ~5 (const. amend.); Mich. Const. art. IV, ~27 (statutes), art. XII, ~I (const. amend.); Miss. Const. art. 4, ~75 (statutes), art. 15, ~273 (const. amend.); Mo. Const. art. III, ~29 (statutes), art. XII, ~2(b) (const. amend.); Mont. Code Ann. ~1-2-201 (1993) (statutes), Const. art. XIV, ~8 (const. amend.); Neb. Const. art. III, ~27 (statutes), art. XVI, ~I (const. amend.); Nev. Rev. Stat. ~218.530 (1993) (statutes), Const. art. XVI, ~I (const. amend.); N.D. Const. art. IV, ~13 (statutes), ~16 (const. amend.); Ohio Const. art. II, ~I c (statutes), art. XVI, ~I (const. amend.); Okla. Canst. art. V, ~58 (statutes), art. XXIV, ~I (const. amend.); Or. Const. art. IV, ~28 (statutes), art. XVII, ~I (const. amend.); S.D. Codified Laws Ann. ~2-J4-16 (1992) (statutes), Const. art. XXIII, ~3 (const. amend.); Utah Const. art. VI, ~25 (statutes), art. XXIII, ~I (const. amend.); Wash. Const. art. II, ~41 (statutes), art. XXIlI ~I (const. amend.); Wyo. Stat. ~8-J-108 (1989) (statutes) Const. art. XX & I (const. amend.).

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Proponents generally dislike the indirect initiative and whenever given a choice generally choose not to use it. As they frequently have already failed to persuade the legislature of the merits of their proposal before beginning the initiative process, many see little point in one more rerun in the legislative body. Proponents also tend to find going back to the legislature disruptive of their political efforts. Having created the organization and made the effort necessary to collect the signatures required to qualify for the ballot, they generally prefer to carry these efforts straight on through to an election.31 Many argue that the stops and starts required by the indirect initiative process are particularly hard on grass roots groups. Aside from the drawbacks of the indirect initiative, one of the most important reasons that proponents prefer the direct initiative is that it does not require compromise and allows them to put exactly what they want before the voters. Utah and Washington allow proponents to choose whether they wish to use the direct or the indirect initiative. In both states the number of signatures required for the indirect initiative is less than that required for the direct initiative. In both states, however, proponents overwhelmingly choose the direct initiative. In Utah all 14 proponents who collected enough signatures to qualify an initiative through 1992 chose to file direct initiatives.32 In Washington over 80 percent of the proponents who submitted enough signatures to qualify an initiative statute (107 of 129) chose to file direct initiatives.33 In the period between 1912 and 1966 when California had an indirect initiative for statutes, over 94 percent of the proponents who collected enough signatures to qualify a statutory initiative filed direct initiatives (66 of 70). In three other states proponents must use the indirect initiative for statutes but are allowed to use the direct initiative for constitutional amendments. In Michigan and Ohio 85 percent of the proponents who have been successful in getting on the ballot have chosen the direct initiative (Tables 3 and 4, pages "Use of the Initiative from Year of Adoption through 1996 (Measures Voted On)" on page 30 and "Recent Use of the Initiative, 1978-1996" on page 31), despite the fact that the direct initiative requires more signatures.34 Undoubtedly one reason for selecting the direct initiative in these states is the greater immunity to legislative change that constitutional amendments provide for the proponents' proposals. It seems likely, however, that the choice to use the direct initiative also reflects a strong preference for the direct initiative.35 31The staff of the California Constitution Revision Commission found that one of the most serious complaints about the indirect initiative was the 23 months it took to complete the process. The staff suggested that if the delay could be reduced to II months that the indirect initiative might be more competitive with the direct initiative. Nick Brestoff, "Note, The California Initiative Process: A Suggestion for Reform," Southern California Law Review 48 (1975): 922,953 n,140. 32Utah legislative records through 1992 indicate that no indirect initiative was ever presented to the legislature. 331nformation supplied to the authors by the Washington Secretary of State's Office. 341n states where there is no indirect initiative, the number of statutory initiatives usually exceeds the number of constitutional amendment initiatives.

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LAWMAKING

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TABLE 27. Indirect Statutory Initiatives (Through 1996) Number Adopted by State

Number on Ballot

Alaska

19 3

4b 3

35 50 10 12 9 0 21

13e 4 2 4 0 5

Californiac Maine Massachusetts Michigan Nevada Ohio Utah Washington Wyoming Total

Legislaturea

~ 163

Number of Alternatives Legislature

by

o o

3

-l 39

aLegislature adopted initiative verbatim or adopted a close substitute. bLegislative action preempted the filing of 3 or 4 other petitions. cCalifornia used the indirect initiative for statutes from 1912 to 1966. dIn 1996 there were two legislative alternatives for one proposal. eEstimated on the basis of 1918-1933 figures from "Report of the Special Commission on the Initiative and Referendum Amendment to the Constitution," Massachusetts Law Quarterly 17 (Feb. 1932 Supplement): 9-12, and number of petitions begun (from the Massachusetts State Archives). See also Robert Stewart, "The Law of Initiative and Referendum in Massachusetts," New England Law Review 12 (1977): 455, 489 n.168. Legislature attempted to place an alternative on the ballot in 1976, but the alternative was fThe Massachusetts stricken from the ballot by the Massachusetts Supreme Judicial Court. Stewart, "The Law of the Initiative and Referendum," pp. 489-498. Sources: Nevada Legislative Counsel Bureau, The Initiative and Referendum in Nevada (January 1989): 15; Information from secretary of state or comparable office in Alaska, California, Maine, Massachusetts, Michigan, Utah, Washington and Wyoming; Jefferson Fordham and Russell Leach, 'The Initiative and Referendum in Ohio," Ohio State Law Journal I I (1950): 495, 497.

Legislative Response In 19 percent of the instances in which American legislatures have been presented with indirect statutory initiatives, the legislature has responded by adopting the initiative or a close substitute. In another 4 percent of the instances in which legislatures have been presented with indirect statutory initiatives, the legislatures have placed an alternative of their own on the ballot in opposition to the initiative presented, as shown in Table 27. Because the existing records of legislative action on indirect initiatives have many gaps, it is possible that legislatures have in reality responded even more frequently than these figures indicate. Massachusetts is by far the largest user of the indirect initiative. Between 1919 and 1932, 12 statutory initiatives were submitted to the Massachusetts legislature. In two instances the legislature adopted substitutes that were satisfactory 351n Nevada, the third state in which the indirect initiative is used for statutes but the direct initiative for constitutional amendments, proponents preferred the indirect initiative from 1908 to 1978 (10 to 3). Since 1978, however, proponents have preferred the direct initiative (5 to 2), despite the fact that constitutional amendments (the direct initiative) must be approved by the people at two separate elections. Nevada Legislative Counsel Bureau, The Initiative and Referendum in Nevada (January 1989), p. 15. Barbara Grossman, "The Initiative and Referendum Process: The Michigan Experience," Wayne Law Review 28 (1981): 77, 107, lists some of the reasons Michigan proponents prefer the direct initiative.

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to the proponents and no proposition was put before the people. The remaining 10 proposals were rejected by the legislature. The proponents of five of these 10 proposals collected the additional signatures required in Massachusetts to put their measure on the ballot. The other five apparently lapsed.36 Data are not available for subsequent years, but it is clear that the legislature sometimes acts on proposals presented to it.3? Based on the number of petitions circulated and the number of propositions appearing on the ballot, it seems likely that the legislature has adopted another 10-15 proposals.38 In its only attempt to use its authority to place an alternative measure on the ballot, the Massachusetts legislature was overruled by the Massachusetts Supreme Court.39 Maine is the second largest user of the indirect initiative. The Maine legislature has on three occasions adopted proposals put before it, and has on three occasions placed an alternative measure on the ballot. Generally the Maine legislature has taken the approach that initiative proposals should be placed before the people. In Michigan the legislature adopted four of the 14 indirect initiatives presented between 1913 and 1996: a 1948 proposal to repeal a ban on the use of colored margarine, a 1964 proposal on tenure for teachers, a 1987 proposal to prohibit the use of public funds for abortion, and a 1990 proposal requiring parental consent for abortion.40 In 1982 the legislature placed an alternative on the ballot to an initiative concerning utility rates. In Ohio the legislature adopted three of the 17 statutory initiatives presented between 1912 and 1950. The proponents of at least three or four others secured the necessary votes to appear on the ballot. The proponents of the remaining 10 propositions, however, did not. The information available since 1950 is scanty. In 1995, the legislature adopted an initiative proposal concerning campaign finance. In Nevada the legislature does not appear ever to have adopted verbatim a statutory initiative proposal. In 1955, however, the legislature adopted the key features of a school financing proposal.41 In addition in 1922 and 1982 the legislature placed alternative proposals on the ballot. The Washington legislature has adopted five of the 26 indirect initiatives 36"Report of the Special Commission on the Initiative and Referendum tution," Massachusetts Law Quarterly 17 (Feb. 1932 Supplement): 9-12.

Amendment to the Consti-

371n J 994, after consideration of a campaign finance proposal put forward by Common Cause, the legislature adopted a substitute that was satisfactory to the proponents. 38The Massachusetts State Archives list 217 initiative petitions on file through 1992. One hundred ninety-three of these are for the period 1933-1992. 39Robert Stewart, "The Law of Initiative Referendum in Massachusetts," New England Law Journal 12 (1977): 455, 489-502. The Massachusetts legislature has not sought to use its authority to group measures on the ballot. 40Grossman, "The Initiative and Referendum Process; The Michigan Experience," pp. 77, 79 n.1 I (1981). After adoption by the legislature both initiatives were subjected to a referendum. The colored margarine statute was defeated in the referendum, but a new initiative succeeded in 1950. 41Because the approval of the original initiative wa~ not verbatim, Nevada law required that it appear on the ballot.

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LAWMAKING BY INITIATIVE

presented to it. The most recent concerned the creation of a Presidential preference primary in 1989, penalties for armed crime in 1994, and property taxes in 1994. In three other instances the legislature has enacted an alternative proposal, which has then gone on the ballot along with the original initiative.42 More frequently the Washington legislature has taken no action, and has sometimes even refused to hold a hearing. Knowledgeable observers indicate that Washington proponents choose the indirect initiative for a variety of motives. Sometimes they are trying to embarrass a political party; occasionally they want to get the issue before the legislature. Legislative hearings on the initiative sometimes help to frame the ballot issues, but frequently add little to the debate. Timing is a major concern, as using the indirect initiative means skipping at least one whole general election.43 The Alaska legislature has taken action on at least four of the 23 initiatives presented to it. In 1979 it placed a question on the ballot similar to the petition; in the same year it passed a tax law that was substantially the same as another initiative; in 1985 it passed a legislative pay bill substantially similar to an initiative petition; and in 1996 it adopted a campaign finance bill that was substantially similar to an initiative proposal. In several other instances the legislature adopted legislation that preempted the filing of initiative petitions. The Wyoming legislature has adopted one of the five initiative proposals that have been presented to it. Although the indirect initiative exists in Utah, through 1996 none had ever been presented to the legislature.

Indirect Constitutional Amendments Only two states use the indirect il1itiative for constitutional amendments. The Massachusetts procedure for constitutional amendments is the most indirect of any American initiative procedure, as the proponents have no right to a vote of the people unless the legislature places the measure on the ballot. Between its inception in 1918 and 1992, 47 proponents sought to use this procedure. Only 12 of these obtained enough signatures, however, to have their petitions certified to the legislature. Although the petitions only need to receive approval from one fourth of the legislators to go on the ballot, they must secure this approval in two successive legislative terms. Only two of the 12 petitions that have gone to the legislature received the necessary legislative votes. Both were ultimately approved by the people. Four petitions failed to receive the necessary votes in the legislature and died. Two other petitions died because of decisions by the Massachusetts Supreme Court, and the remaining four petitions never received a definitive vote from the legislature.44 Only one initiative proposal has been presented to the Mississippi legislature 421n two instances the voters preferred the legislative alternative; in one the original initiative. 43See also Hugh Bone and Robert Benedict, "Perspectives on Direct Legislation: State's Experience 1914-1973," Western Political Quarterly 28 (1975): 330.

Washington

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under the Mississippi procedure adopted in 1995. This term limits initiative was not adopted by the legislature, appeared on the ballot in 1995, and was rejected by the voters. Nevada used an indirect procedure for initiative constitutional amendments until 1962. Since then, Nevada has required that initiative constitutional amendments be approved at two separate elections but has allowed the amendments to go directly on the ballot. Because of the two separate elections requirement, the legislature still has an opportunity to deal with any matter proposed before a final ballot. As a result, some observers characterize the state's new procedure as an "indirect" procedure.45

Swiss System By far the most extensive use of the indirect initiative has been in Switzerland. All initiatives-both federal and cantonal-must be submitted to the legislature. The legislature may approve the proposal, formulate an alternative, or simply take a formal position against the initiative. If the legislature approves of the proposal, it is submitted to the people with an indication that the proposal has been approved by the legislature. If the legislature formulates an alternative proposal, the two are submitted at the same time for a vote by the people. If the legislature takes a formal position against the proposal, the proposal is submitted to the people with an indication of the legislature's objection. The federal executive branch also takes positions on initiatives. Unlike some American legislatures the Swiss parliament routinely considers each initiative submitted. Generally it takes a negative position, but in many instances it seeks to work out a satisfactory alternative. Between 1892 and 1991 final action was completed on 169 initiatives. Only two of these initiatives were approved by the Swiss parliament, as shown in Table 12. Sixty were withdrawn by their sponsors, however, with at least 13 being withdrawn because a satisfactory compromise had been worked out with the parliament. One hundred four were submitted for a vote with parliament in opposition. In 13 of these 104 votes there was a parliamentary alternative.46

California From 1911 to 1966 California law allowed use of the indirect initiative for statutes. This indirect initiative was similar to that in Utah and Washington in that it 44ln five instances the legislature itself proposed, and the people approved, constitutional amendments similar to petitions that failed to secure sufficient signatures. Robert Millar, "Legislative History of Petitions for Initiative Amendments to the Ma,sachusetts Constitution" (unpublished paper on file with the Massachusetts State Archives, 1993). The legislative leadership can often prevent a petition from receiving a definitive vote, thus killing the petition. Alexander Gray and Thomas Kiley, "Initiative and Referendum in Massachusetts," New England Law Journal 26 (1991): 27, 95-102. 45Nevada Legislative Counsel Bureau, The Initiative and Referendum in Nevada (January 1989): IS. 46In total the Swiss parliament formulated 26 alternative measures. withdrew their proposal in favor of the parliamentary alternative.

In 13 instances proponents

92

LAWMAKING

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gave proponents of statutory initiatives the option of choosing between the direct and the indirect initiative. Although proponents of indirect initiatives needed signatures for only 5 percent of the last gubernatorial vote as compared to 8 percent for direct initiatives, only four of 70 statutory initiatives that secured the necessary number of signatures during this period were submitted as indirect initiatives. The legislature adopted only one of the four indirect initiatives. The other three were voted on by the people, but alI were rejected. Because it had been used so rarely, the indirect initiative was deleted from the state constitution in 1966 on recommendation of the Constitution Revision Commission. In 1984 the California League of Women Voters recommended reinstatement of the previous option for an indirect initiative.47 The League report gave no reason to believe that the option would be more widely used than before, and bills seeking to reinstate the option were not successful in the legislature. In 1992 both the California Commission on Campaign Financing and the California Policy Seminar reports recommended that all initiatives be submitted to the legislature for consideration, that the legislature be required to act on an expedited basis, and that the legislature be granted a limited authority to amend the initiative proposal.48 The reports argued that submitting proposals to the legislature would improve drafting, increase the accountability of the legislature, save the electorate from voting on matters unnecessarily, and provide some practical reinforcement for the principle that the initiative should primarily be used when normal legislative channels are blocked.

47League of Women Voters of California, Initiative and Referendum in California: A Legacy Lost (Sacramento, Ca.: 1984), pp. 72-74; Consensus Position, June 1984. 48Dubois and Feeney, Improving the California Initiative Process, p. 163; California Commission on Campaign Financing, Democracy by Initiative, pp. 21-23. For an earlier suggestion along the same lines, see Brestoff, "Note, The California Initiative Process," pp. 922,953-957.

CHAPTER SEVEN

SIGNATURE REQUIREMENTS PURPOSE OF SIGNATURE REQUIREMENTS SiNCE ITS INCEPTION,THE INITIATIVEHAS BEEN governed by a process that depends on the gathering of signatures of concerned voters to qualify a measure for a place on the ballot. States have typically expressed these signature requirements in terms of a percentage of registered voters having participated in a previous gubernatorial election, usually around 8 percent, as Table 6 (page 34) shows. States have also placed limitations on the amount of time permitted for the circulation of signature petitions, imposed regulations governing the form and content of petitions, provided sanctions to govern the behavior of those who gather signatures, and occasionally required that the signatures gathered represent a geographic as well as a numerical base of support within the state before a measure may qualify. 1 The somewhat paradoxical purpose of signature requirements has been understood by proponents of the initiative from the beginning. By permitting a relatively small proportion of voters to qualify an issue for the ballot, the initiative is supposed to serve as a "safety valve for groups experiencing intense discontent with the legislature.,,2 At the same time, it is argued, since even a small proportion of voters in any state may amount to thousands or even hundreds of thousands of individuals, signature qualification requirements are intended to keep the number of issues submitted to a public vote reasonable, both over time and in any single election where the public's ability to make intelligent decisions would be tested by a large number of ballot issues. Although a few states have supplemented signature requirements by prohibiting a defeated measure from being resubmitted within a certain period of time, most states have used signatures alone (combined with modest filing-fee require'David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), pp. 36-44. 2Daniel Lowenstein and Robert Stern, "The First Amendment and Paid Initiative Petition Circulators: A Dissenting View and a Proposal," Hastings Constitutional Law Quarterly 17 (1989): 175,200.

93

94

LAWMAKING

BY INITIATIVE

ments) to control the number of qualifying initiatives. Previous empirical research and the authors' own assessment confirm that "the relationship between signature threshold levels and the number of measures qualifying for the ballot is strong and statistically significant.,,3 The experience in other countries also strongly confirms this relationship. There are many fewer initiatives in the German states with their highly restrictive requirements for a large number of signatures that can only be given in a public office during a very short time period than there are in Switzerland where the number of signatures required and the methods of collection are similar to the United States.4

QUALIFYING FOR THE BALLOT: TOO EASY OR TOO DIFFICULT? Reflecting perhaps the paradoxical purposes of signature qualification requirements, it is not unusual in many states to hear arguments claiming that the state's signature requirements are either too lenient, too stringent or both. For some critics, access to the ballot is too easy. They point to the increasing number of qualified ballot measures and the emergence of an industry built around paid signature gatherers who, it is claimed, can "buy a place on the ballot" for "anyone willing to put up the funds," without regard to the depth or breadth of popular support for the substantive issue advanced in the initiative.5 Armed with social science studies and anecdotal accounts concerning voters' willingness to sign petitions without fully reading or understanding them, these critics argue that the initiative qualification system today measures more the abil6 ity of sponsors to circulate their proposal than it does popular support for it. To be sure, none of the more than a dozen research studies published in the last 25 years by either social psychologists or political scientists on petition signing deal specifically with citizen responses to actual statewide initiative petitions of the sort presented to voters across America in recent years. Much of what is known about citizen responses to petition circulators is based on social psychologists' studies of undergraduate students asked to consider such weighty matters as the desirability of lights on the campus fountain,? the threatened removal of soft drink machines from the student union,8 the color of the school seal,9 and the establishment of ROTC programs.lO Similarly, studies of petitions aimed at citi3Magleby, Direct Legislation, p. 42. 4See Chapter Five. 5Lowenstein and Stem, "The First Amendment and Paid Initiative Petition Circulators," 6Lowenstein

and Stern, "The First Amendment

and Paid Initiative Petition Circulators,"

p.

199. 194-

pp.

200,203. 7Robert Blake, Jane Mouton, and Jack Hain, "Social Forces in Petition-Signing," Southwestern Social Science Quarterly 36 (December 1955):385-390. 8Harry Helson, Robert Blake, and Jane Srygley Mouton, "Petition-Signing as Adjustment to Situational and Personal Factors," Journal of Social Psychology 48 (August 1958):3-10. 9John Phillips, "Conformity in Petition-Signing Social Psychology 87(1972):287-291. IOPhillips, "Conformity

in Petition-Signing."

as a Function of Issue Ambiguity,"

Journal of

Signature Requirements

zens

and

shoppers

Street,l1

creating 13

altogether.

Indeed,

sial political

issues

bodian

invasion),

petition

circulators'

agreement

with

have

dotal tion

accounts process

picture,,16 mation.,,17 tive initiative

when have

although

"the

Indeed,

have

War,

they

emphasis

trees

petitions assess

have

voters'

the

Main

content

on controver-

impeachment, to

on

of substantive

or the Caminfluence

agreement

of

or dis-

15 and quasi-experimental overwhelmingly

in and observers academic

planting

involved

more

than

is not

as devoid

Nixon's

designed

of the petition.

studies

self-styled

rather

evidence

persuasive,

of the initiative to "present

is on efficiency

as one prominent

sponsors

been

the experimental

by participants

that

been

to petitions

with

matters

the studies

l4 or behavior

the substance

combine

such or have

as the Vietnam

dress

responses

with

path,12

even (such they

Nevertheless, individuals'

dealt

a bicycle

95

signature

a consistent than

"campaign

the

solicita-

and plausible

on disseminating manual"

of

anec-

infor-

for prospec-

counsels:

Volunteers should not converse at length with signers or attempt to answer lengthy questions. While such a conversation is in progress, a hundred people may walk by unsolicited. The goal of the table operation is to get petition signatures, not educate voters. All efforts to educate voters will be futile if the initiative does not qualify for . the ballot. 18

1 1 Harry

Reis, Barbara Earing, Alan Kent, and John Nezlek, "The Tyranny of Numbers: Does Group Size Affect Petition Signing?," Journal of Applied Social Psychology 6 (July-September 1976): 228234. 12Edward Walsh, "Petition Signing in Town and on Campus," Journal of Social Psychology (August 1977): 323-324.

102

13John Darley and Joel Cooper, "The 'Clean for Gene' Phenomenon: The Effect of Students' Appearance on Political Campaigning," Journal of Applied Social Psychology 2 (January-March 1972): 24-33. 14Peter Suedfeld, Stephen Bochner, and Carol Matas, "Petitioner's Attire and Petition Signing by Peace Demonstrators: A Field Experiment," Journal of Applied Social Psychology I (July-September 1971): 278-283; Charles Keasey and Carol Tomlinson-Keasey, "Petition Signing in a Naturalistic Setting," Journal of Social Psychology 89 (1973): 313-314. 15See also, in general, Allen Wilcox and Leonard Weinberg, "Petition-Signing in the 1968 Election," Western Political Quarterly 24 (December 1971): 731-739; James Garrett and Benjamin Wallace, "Effect of Communicator-Communicatee Similarity in Political Affiliation upon Petition Signing Compliance," Journal of Psychology 90 (May 1975): 95-98; Nigel Bryant, "Petitioning: Dress Congruence Versus Belief Congruence," Journal of Applied Social Psychology 5 (April-June): 144-149; Richard Bingham, John Frendreis, and James Rhodes, "The Nominating Process in Nonpartisan Elections: Petition Signing as an Act of Support," Journal of Politics 40 (November 1978): 1044-1053; John Pierce and Nicholas Lovrich, "Survey Measurement of Political Participation: Selective Effects of Recall in Petition Signing," Social Science Quarterly 63 (March 1982): 164-171; Max Neiman and M. Gottdiener, "The Relevance of the Qualifying Stage of Initiative Politics: The Case of Petition Signing," Social Science Quarterly 63 (September 1982): 582-588. 16Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators,"

p. 199.

J7Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass.: Harvard University Press, 1989), p. 62; see also Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," pp. 196-199. 18David Schmidt, Citizen Lawmakers: versity Press, 1989), p. 199.

The Ballot Initiative Revolution (Philadelphia:

Temple Uni-

96

LAWMAKING

BY INITIATIVE

When confronted in shopping malls or on their doorsteps, only a fraction of the citizens who sign petitions attempt to read or understand what they are signing. Still others may sign to escape a personal confrontation with the circulator, while others may be convinced that any proposed ballot measure deserves its opportunity before the voters.19 Even when a group plays by the rules, an incentive exists to get as many people to sign as fast as possible. The circulation of petitions seldom educates voters; rather, it is a marathon of endurance.... No law says the petition gatherer must read and explain the proposed initiative to the signer, and most people take the solicitor's word for what an initiative would do.20 There is some fragmentary evidence that compensating circulators for their work further attenuates the relationship between the number of signatures collected and the extent of voters' substantive support for the issue addressed by the initiative.21 It is highly doubtful, however, that the signature qualification process has ever reflected careful voter deliberation.22 Even when initiative sponsors have sought to collect signatures (and campaign contributions) by direct-mail solicitations, criticisms of the signature qualification process are to be heard. Although a direct-mail solicitation removes the social pressure attending face-to-face interactions and gives voters an opportunity for private reflection on a petition's merits, this method is said to place voters at the mercy of deceptive literature, further enhances the advantages of well-funded special-interest groups, and subverts the underlying assumption of the initiative signature qualification requirement that voter interest in a particular policy issue is measured by the direct participation of a corps of volunteer signature gatherers. 23 In contrast to those who see that access to the ballot is too easy for wellfunded special-interest groups, others argue that the existing signature requirements are too stringent and that the growing number of initiatives in a number of states is simply a reflection of widespread popular discontent with the legislative process. The California experience in this connection is instructive. Although the signature threshold for constitutional initiatives has remained constant at 8 percent since 1911 and was actually reduced from 8 to 5 percent for statutory initiatives in 1966 (accompanying the abolition of the indirect initiative), the raw number of signatures required has grown in response to the expanding base of voters that has accompanied the state's dramatic population growth.24 The num19Cronin, Direct Democracy, p. 64. 2oCronin, Direct Democracy, p. 62 21See generally Lowenstein and Stem, "The First Amendment and Paid Initiative Petition Circulators," pp. 188-194. 22Cronin, Direct Democracy, p. 62; Charles Beard and Birl Shultz, Documents on the State- Wide initiative, Referendum and Recall (New York: Macmillan, 1912; reprinted New York: DaCapo Press, 1970), p. 36. 23Cronin, Direct Democracy, pp. 216-217; Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," pp. 205-209. 24Magleby, Direct Legislation, pp. 66-70.

Signature Requirements

97

ber of signatures required to qualify a constitutional initiative in California has doubled since 1950, from slightly over 300,000 to nearly 700,000 today, apparently leaving the initiative process available only to those who can mount the kind of highly organized petition circulation effort needed to gather such a large number of signatures in the 150 days allowed by law. TABLE 28. Historic Qualification California Yeari

Number Titled

Initiatives,

Number Qualified

and Passage Rates, 1912-19963

Percent Qualified

Number AdoptedC

Percent AdoptedC

1912-1919

46

31

67

8

26

1920-1929

5]

34

67

10

29

1930-1939

68

38

56

IOc

27c

1940-1949

42

20

48

7

35

1950-1959

16

II

69

I

9

1960-1969

47

10

21

3

30

1970-1979

180

24

13

7

29

1980-1989

261

54d

21

25c

48c

1990-1996

240e

40e

17

14c

37c

"Adapted from A History of the Califomia Initiative Process, prepared by the California Secretary of State (Oec.1996): 10-13. bEn tries are based upon the year in which each measure was titled as reported by the Secretary of State. cBased on the number of measures appearing on the ballot. Excludes one indirect initiative adopted by the legislature (1936), two measures removed from the ballot by California Supreme Court (1984), and two to be voted upon in 1998. dThis number includes two measures that were subsequently removed from the ballot by the California Supreme Court (1984). cExdudes four measures from the Secretary of State's report due to missing data and includes two qualified measures to be voted upon in 1998.

The objective empirical evidence from California both supports and yet also calls into question each of these opposing characterizations of the signature qualification process. As Table 28 shows,25 when considered in historical terms, the proportion of circulating initiatives that have actually qualified for the ballot has been lower in recent years than it was in the first five decades of the initiative. In the 1980s, just 21 percent of the titled initiatives earned a place on the ballot. Because the number of titled measures reached an all-time high in the 1980s at 261, however, the absolute number of qualified initiatives also reached a record number of 54.26 The 1990s showed no change in this trend, with 240 measures titled from 1990-1996, only 40 of which (17%) qualified for the ballot. As shown in Table 29, there was a general upward trend in the rate of qualification from the 25See also Magleby, Direct Legislation, p. 66. 26This number includes two measures that qualified but were removed from the ballot by the California Supreme Court.

98

LAWMAKING

BY INITIATIVE

mid-1970s through the late-1980s (peaking at 26% in 1986-1987), but it remains true that proposed initiatives are far less likely to qualify for a place on the balIot than was the case in the years prior to 1960. TABLE 29. California

Initiatives

Circulated,

Qualified, and Approved

1974-19963 Yeari

Number Titled

Number Qualified

Percent Qualified

Number

Percent

Adopted" 0

Adopted" 0

1974-1975

43

3

7

1976-1977

40

5

13

2

40

1978-1979

61

4

7

1

25

1980-1981

59

8

14

5

63

1982-1983

48

8d

17c

1984-1985

34

7

21

2 3

43

1986-1987

57

15

26

9

60

1988-1989

63

16

25

6

38 36

33

c

1990-1991

65

11

17

4

1992-1993

60

6

10

2

33

1994-1995

75

16

21

7

44

1996-

40