Taking the initiative: may Congress reform state initiative lawmaking to guarantee a republican form of government?

• Author: Engberg, Catherine C.

1. INTRODUCTION

   Lawmaking by citizen initiative (1) is currently driving public policy in the twenty-seven states that have bestowed voters with the initiative power. Initiative sponsors span the political spectrum, ranging from liberal to conservative, pro-business to environmentalist and pro-labor. In 1998, for example, voters used the initiative process to end affirmative action, raise the minimum wage, ban billboards, decriminalize drugs, permit medical marijuana, restrict campaign spending and contributions, expand casino gambling, ban certain forms of hunting, prohibit some abortions, and allow adopted children to obtain the names of their biological parents. (2)

   Although successful ballot initiatives inevitably create winners and losers, most voters in these states continue to support the initiative as bringing power to the people. (3) Supporters typically harbor a deep distrust of state legislators and view direct democracy as a counterbalance to special interest-dominated politics. (4) However, this battle cry of support has not been universal. The initiative power creates state policy by simple majorities of eligible lay-voters. These voters are unaccountable to the public, are free to cast their ballots in secret, and are under no obligation to inform themselves on the issues. Critics commonly point to recently passed initiatives restricting gay rights, establishing English as the official language, and enhancing criminal penalties as examples of "tyranny of the majority." (5) Reformers often seek a principled way to prohibit "bad" initiatives dealing with minority group interests while permitting "good" initiatives for school or park bonds. (6) Others prefer to prohibit initiative lawmaking altogether. (7)

   Opponents of individual initiatives have sought relief from the federal government, primarily from the courts. Litigants and academics have recently given increased attention to the Guarantee Clause of Article IV, which provides: "The United States shall guarantee to every State in this Union a Republican Form of Government...." (8) Federal courts, however, have been unwilling to evaluate alleged Guarantee Clause violations by state initiative lawmaking since 1912 when the U.S. Supreme Court, in Pacific States Telephone & Telegraph Co. v. Oregon, (9) refused to grant jurisdiction based on political question grounds. One commentator refers to the judiciary's invocation of the political question doctrine as a "remarkable case of professional default." (10)

   Little attention has been paid to the role of Congress. Perhaps this inattention is not surprising. First, the Clause does not specifically designate Congress, but is silent as to the branch of the United States government with the duty to enforce the guarantee. Second, the phrase "republican form of government" is subject to various interpretations. Finally, it may be politically impossible to build a coalition in Congress sufficient to reform the states' initiative power. Indeed, twenty-seven states with the initiative power form a majority in the Senate, and the remaining twenty-three may have little interest in reforming direct democracy. Thus the Clause remains dormant as state lawmaking by initiative accelerates.

   Given the default of the courts and the inconceivable role for the President, this Note argues that the duty to enforce the Guarantee Clause has fallen on Congress. Two commentators have evaluated the role of Congress in guaranteeing a republican form of government, yet have reached differing conclusions. Professor Chemerinsky has argued that Pacific States was wrongly decided and that the Guarantee Clause should be justiciable by the courts. (11) Congress, he argues, would face pragmatic obstacles and may be barred by the Tenth Amendment from enforcing the Clause against the states. Chemerinsky recognizes the possibility, however, that the Guarantee Clause could trump Tenth Amendment concerns, given the Clause's "specific grant of power to the federal government over state government structure and processes." (12) Still, he maintains that such an exercise of congressional authority would be of "questionable constitutionality." (13)

   On the other hand, commentator Leong has argued that Congress should create judicially manageable standards for courts to evaluate whether initiatives comply with the republican form of government. (14) Leong argues that Congress should assert its power under the Guarantee Clause and the Fourteenth Amendment to invalidate any voter-initiated ballot measure that "uniquely burdens a member of an identifiable group traditionally the subject of arbitrary or invidious discrimination ... or that has been popularly enacted to avoid the protective structures of a republican form of government." (15) She cites examples of "identifiable groups" as including classifications based on illegitimacy, homosexuality, language proficiency, or military duty. (16) Leong would also have Congress invalidate initiatives that avoid a republican form of government, requiring "reflection, exposure to competing needs, and occasions for transforming preferences." (17) Such a congressional statute, Leong asserts, would leave untouched the "highest and best use of ballot initiatives." (18)

   Over the past decade, the Supreme Court has restricted Congress' power to enforce the Fourteenth Amendment and has given teeth to state sovereignty, identifying the Tenth Amendment and the Guarantee Clause itself as sources of federalism. These restraints on congressional power bolster Chemerinsky's concern about the "questionable constitutionality" of Congress' power to enforce the Guarantee Clause. Furthermore, the Court has hinted that it might be willing to reevaluate the holding of Pacific States. (19) This Note evaluates Congress' authority to enforce the Guarantee Clause in light of the current constitutional separation of powers landscape.

   This Note argues that Congress' duty to guarantee a republican form of government includes the power to restrict state lawmaking by initiative. Part II provides the historical background of state initiative lawmaking. Part III discusses Congress' authority to legislate under the Guarantee Clause and the Necessary and Proper Clause. (20) Part IV notes that Congress has limited authority to interpret the Constitution as consistent with separation of powers principles. Although its ability to interpret the Constitution sans the judiciary is unrestricted under the political question doctrine, the Supreme Court would likely hold the Guarantee Clause justiciable if Congress interpreted the Clause in a manner that infringed upon state sovereignty. Part IV argues that Congress has the authority to interpret the phrase "republican form of government" as consistent with horizontal separation of powers issues, even if the Supreme Court reverses Pacific States and holds the Guarantee Clause justiciable.

   Part V discusses the impact of state sovereignty on Congress' authority to enforce the Guarantee Clause by analogizing to Congress' authority to enforce the Civil War Amendments against the states. The barrier imposed by the Tenth Amendment is probably quite low under Garcia v. San Antonio Metropolitan Transit Authority, (21) so long as the national political process adequately addresses sovereignty concerns. However, Part V argues that, like its use of enforcement powers under the Fourteenth Amendment, Congress may only enforce remedial measures against state violations of republican government particularly since state lawmaking lies at the heart of state sovereignty. As such, Congress' reforms must pass the "congruence and proportionality" test articulated by the Supreme Court in City of Boerne v. Flores (22) for enforcement of the Civil War Amendments. Part VI evaluates three types of legislative proposals to reform initiative lawmaking for consistency with separation of powers and federalism. Part VI concludes that Congress has the authority to enact a complete ban on state initiative lawmaking. Congress may also prohibit specific subject matter from initiative lawmaking, but only such reforms that are remedial and sufficiently tailored to achieve the purposes of the Guarantee Clause.

2. BACKGROUND OF INITIATIVE LAWMAKING

   1. State Lawmaking by Initiative

      States began their grand experiment with direct democracy when South Dakota adopted the initiative as a constitutional amendment in 1898. Fueled by the Populist and Progressive movements, nineteen states adopted some form of the initiative as part of their respective state constitutions during the period 1898 to 1918. (23) The reformers believed that special interests and big business controlled state legislatures. The initiative was a means to empower the people to act directly where the legislature failed to be responsive to their will. (24)

      The initiative is deeply rooted in the democratic tradition, yet these roots appear largely inapplicable to the modern statewide practice. (25) Its history dates back to Athens, where adult male citizens met, discussed, and decided issues face-to-face. (26) More recently, the colonial New England town meeting permitted adult males to participate in community decisionmaking. (27) However, the Founders viewed direct democracy as contributing to the failure of Greek city-states. (28) Furthermore, the New England town meeting provides a weak analogy to statewide initiative lawmaking today. The homogeneous citizenry of colonial New England used direct democracy to decide local issues primarily by consensus. (29) In sharp contrast, a diverse and populous state citizenry approves modern initiatives by simple majorities in the private confines of the voter booth.

      Today, twenty-seven states have some form of the initiative or referendum. (30) Eighteen of those states permit the use of the initiative to amend the state constitution. (31) In 1911, California amended its constitution to incorporate the initiative and has...