Direct Democracy: the Right of the People to Make Fools of Themselves; the Use and Abuse of Initiative and Referendum, a Local Government Perspective

• Publication year: 1995
• Citation: Vol. 19 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 1FALL 1995

Direct Democracy: The Right of the People to Make Fools of Themselves; The Use and Abuse of Initiative and Referendum, A Local Government Perspective(fn**)

Daniel M. Warner(fn*)

I. Introduction

The Framers of the United States Constitution did not embrace direct, populist democracy. They rejected the Swiss model of direct legislation(fn1) and chose a system of representative-republican, not democratic-government that would, as James Madison wrote, "enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial [partisan] considerations."(fn2)

Representative democracy presumes that an informed electorate will choose wise legislators. Direct democracy, by extension, demands that citizens themselves demonstrate wisdom enough to "discern the true interest of their country"(fn3) as opposed to their self-interest, and that they love justice enough to eschew mere partisanism. One form of direct democracy is direct legislation-legislation by initiative and referendum. Today, direct legislation is increasingly popular-and increasingly destructive,(fn4) as serious proposals have been made to adopt and implement it at the federal level.(fn5)

This Article addresses the problems of direct legislation, focusing on two general themes. First, it briefly traces the history of the initiative and referendum in the United States, addressing problems with the process, particularly with the local-government exercise of the process, and proposing reforms that might improve the quality of citizen-made legislation. Second, the Article examines some fundamental causes for and difficulties with the use of direct legislation. The experience of Whatcom County, Washington, is considered throughout as an illustrative case study of the enthusiasm for and the failure of direct democracy. The experience of other jurisdictions is also considered and compared to this local experience.

II. A Brief Review of the Direct Legislation Movement

A. Revolutionary-Era Background

In the United States, the push to adopt the initiative and referendum was part of the Progressive Movement of the late nineteenth century. The philosophical underpinnings, however, came from the French Enlightenment.(fn6) Jean J. Rousseau's Social Contract was based on the concept that government existed to serve its people.(fn7) Taking the concept to its logical conclusion, the people would be the government:The sovereign having no other force but the legislative power, acts only by the laws; and the laws being only the authentic act of the general will. . . the sovereign can never act but when the people are assembled. Some will perhaps think that the idea of the people assembling is a mere chimera, but if it is so now it was not so two thousand years ago; and I should be glad to know whether men have changed in their nature.(fn8)

Rousseau damned representative government as an evil necessity, and legislatures as a mark of political degeneracy. The happiest people in the world, he said, were "a company of peasants sitting under the shade of an oak," conducting their government affairs.(fn9)

Benjamin Franklin became acquainted with Rousseau's thoughts through Thomas Paine, who Franklin met in England during the Revolutionary War. Paine's pro-democracy writings, Common Sense,(fn10) influenced developing political thought in the nascent United States, encouraging a heavy deference to popular will. Franklin was instrumental in drafting the Pennsylvania Constitution of 1776, which called for a unicameral legislature with an executive council, and a judiciary with seven-year terms removable at any time by the assembly for "misbehavior."(fn11)

By 1784, the Executive Council had thirteen members, and there was much popular and political dissatisfaction with the Pennsylvania experiment in democratic rule. A new constitution was adopted in 1789 similar to the now-traditional model.(fn12)

Oberholtzer summed up a study of direct democracy in the United States:

It would be difficult . . . to overestimate the service which Adams, Hamilton, and the fathers of the American constitutional system performed in saving us from unchecked popular rule, by leading the people away from the consequences of such teachings as Rousseau's [the excesses of the First French Republic] . . . . We did not . . . commit our political fortunes to a single body of deputies, as they soon did in France; we retained the English system of checks, balances, vetoes and negatives born not of a belief that all men were equally capable as social and political beings, but of one quite different, that they were unequal indeed, many being capricious, passionate, hasty, irrational, ambitious, egoistic.(fn13)

The Constitution of the United States, which was submitted to a rigorous ratification process by specially elected state conventions,(fn14) and which was not directly voted upon by the people, is not a heavily democratic document. Although the House of Representatives is popularly elected, as is the Senate since adoption of the Seventeenth Amendment, the President is indirectly chosen through the "Electoral College" (a term not found in the Constitution). "The Framers envisioned independent electors, beholden to no one, not even the people, in choosing the president."(fn15) Further, the judiciary is appointed, as are members of the cabinet and the federal bureaucracy in general.

B. Progressive-Era Reforms

As the history of the Constitution's adoption and its construction make clear, the Framers were wary of popular democracy. But eighty years after its adoption, social conditions of post-Civil War capitalism in the United States caused unrest and pressure for reform. Some people, like Rockefeller, Carnegie, Hill, and Hearst, had become very rich, while conditions for the urbanizing working class deteriorated.(fn16)

Deteriorating working conditions for the urban laborers and growing slums alarmed many observers of the American social scene. Frederic C. Howe described corruption, bossism, bribery, and waste in The City: The Hope of Democracy(fn17) in 1905, at the same time Upton Sinclair's The Jungle(fn18) exposed scandalous cheating of employees and shocking disregard for the consumer in the big slaughter houses and meat packing plants. For farmers in the rural areas, capitalistic abuses centered on the railroads. Where they competed, the railroads engaged in cut throat competition and bribery of local officials to get lucrative franchises. Because capital requirements precluded competition, gross abuses of price discrimination developed.(fn19)

At the same time, industrialization was causing a great social transformation characterized by the decline of farmers and the rise of the blue-collar worker. With this transformation came unsettling dislocations: urbanization over rural life, factories over farms, big business over small business.(fn20) The Progressive's solution to some of the economic problems presented by this transformation, particularly to the problem of corrupt state legislatures, was a hark back to Rousseauean democracy-a reinvigoration of the New England town meeting on a new scale. Writing in 1905, Howe observed a growing sentiment for direct legislation through the initiative and referendum. This is but a further expression of the spirit of democracy. It is a movement for government by public opinion. The referendum is being applied to an increasing extent in the matter of public borrowing; in passing upon the question of municipal ownership; in the granting of franchises; in amendments to city charters; in constitutional changes and the like. In Oregon and South Dakota the referendum has been extended to all matters of state legislation . . . . Its purpose is to democratize legislation, to enable the people to assume control of affairs, and insure responsible as well as responsive government. It provides a secure defence [sic] against corruption. For lobbyists will not buy legislation that cannot be delivered, or which is subject to veto by the people. The referendum will reestablish democratic forms, which have been lost through the complexity of our life, the great increase in population, the misuse of federal and state patronage, and the illegal combination of the boss with the privileged interests.

The initiative carries this reform one step further on. It enables the people to originate legislation and secure an expression of opinion upon it. It involves the right of the people to demand the submission of any ordinance which may have been passed by the council to the final consideration of the public.(fn21)

Thus, the general initiative and referendum were first adopted, as Howe noted, in South Dakota, in 1898. Other states soon followed.(fn22) California, the home of numerous occurrences of ballot-box legislation,(fn23) adopted direct democracy in 1911 in response to the perception that the state legislature had been corrupted by lobbyists, especially by the Southern Pacific Railroad.(fn24) Enthusiasm for direct democracy waxed during periods of major social change.(fn25)

The history of Washington State's adoption, considered next, is typical of...