Advisory initiatives as a cure for the ills of direct democracy? A case study of Montana Initiative 166.

• Author: Sawhney, Neil K.

TABLE OF CONTENTS INTRODUCTION I. EXPLAINING ADVISORY INITIATIVES AND EVALUATING THEIR USE II. CHARTING THE DEVELOPMENT OF MONTANA I-166 III. ADVISORY INITIATIVES--A CURE FOR THE ILLS OF DIRECT DEMOCRACY? INTRODUCTION

On November 6, 2012, Montana voters overwhelmingly approved Initiative 166, (1) the Prohibition on Corporate Contributions and Expenditures in Montana Elections Act, by an almost three-to-one margin. (2) This voter-submitted initiative, establishing a state policy against corporate campaign contributions and charging Montana's congressional delegation to work towards overturning the U.S. Supreme Court's ruling in Citizens United v. Federal Election Commission, (3) was hailed by a wide array of politicians and citizen groups. After the initiative's passage, for instance, Montana Governor Brian Schweitzer claimed that, "Montanans stood up and took the first step, sending a clear message to the nation that corporations are not people and money does not equal speech." (4) National newspapers like the New York Times joined Montana media outlets in praising the "bold" passage of I-166, stating that it "gave voters the chance to say they want to control how political campaigns are run in their state." (5) Pointing to the passage of similar voter initiatives in Colorado and many local jurisdictions, (6) good government activists argued that I-166 would have a "ripple effect" across the country, leading to a full-scale reform of the nation's campaign finance system. (7)

Despite this heaping praise, a question immediately arises after reading the text of the initiative--put simply, will I-166 have any concrete effect on state law? While the majority of ballot measures in the 2012 state elections amended or added to their respective state's existing constitutional or statutory framework, I-166 merely sets a new state "policy" for Montana by instructing its legislators to work towards national campaign finance reform, a measure with apparently no real legal or political effect. Yet if the theory underlying voter initiatives is that they are primarily used to empower the public to bypass their representatives in enacting legislation (an assumption challenged later in this Note), how then to explain the seemingly disproportionate attention aimed at 1166, at least as compared to other Montana measures on the ballot that would have a practical legislative impact? Or more succinctly, why should we--as voters or as scholars--care about a merely advisory ballot measure?

This Note seeks to grapple with I-166 within this broader question highly relevant to modern American direct democracy. As voter initiatives and legislative referenda have played an increasingly important role in state government, commentators have levied a host of criticisms against direct democracy, ranging from objections over its inefficacy to more broad-based concerns regarding the subversion of our constitutional system of republican government. (8) While comprehensively addressing such criticism is far outside the scope of this Note, I-166 provides an illuminating opening into the possibility of advisory ballot measures--whether initiative or referendum--in bridging the "gap" between direct democracy and representative government. Indeed, despite the general absence of advisory initiatives in the American democratic system outside of the hyper-local context, political scientists like Thomas Cronin have claimed that "an advisory referendum is the next logical development in American democracy, or at least that it is an idea worthy of serious debate and examination." (9)

1. EXPLAINING ADVISORY INITIATIVES AND EVALUATING THEIR USE

   The advisory initiative--sometimes denoted interchangeably as the advisory or consultative referendum by political scientists (10)--has not played a significant a role in state or national government in the United States. (11) Binding voter initiatives, on the hand, are employed in twenty-four states, (12) and are playing an increasingly important role in shaping public policy, primarily due to the "staggering" increase in the number of initiatives on state ballots. (13) The states that permit voter initiatives vary widely in terms of procedural requirements for ballot qualification and passage. (14) More substantively, while most states have adopted a "pure" or "direct" initiative process, where citizens draft and qualify ballot initiatives outside of the legislative process, some states have adopted an "indirect" initiative model that contemplates a role for the legislature to weigh in on the process. (15) Despite these differences in form, however, the various voter initiative models in the United States are all motivated by the objective to, in certain circumstances, "substitute direct popular control for representative government." (16) In these states, initiative proponents, after fulfilling the prescribed requirements, can qualify measures onto the ballot that, if approved by the voters, are enacted as laws equivalent in every sense to statutes passed by the legislature. Moreover, particularly in states that allow voters to amend the state constitution by ballot measure, voter initiatives may acquire superior force as compared to legislative actions, in that they may be less amenable to amendment or repeal. (17)

   In contrast, advisory initiatives acquire no binding legal effect after their passage by the voters. Unlike the direct democracy mechanisms commonly employed in the states, the result of an advisory initiative does not bind the legislative body; it "is free to enact a policy other than the one favored by those voting." (18) Rather than functioning as a bypass around the legislative process, the advisory initiative functions by allowing "citizens and groups ... to place pressure on legislative bodies to take a certain course of action." (19) A "large favorable vote" on an advisory initiative is thus not important for its direct legal consequences, but for its potentially persuasive effect on the legislative body to "accede to the desire of the electorate." (20) Viewed in this light, the advisory initiative is a far more flexible mechanism than other forms of direct democracy, as it allows the electorate to "decide" the policy issue but leave other matters related to the details and implementation...