Lawmaking by Initiative: Issues, Options, and Comparisons.

• Author: Clark, Sherman J.
• Position: 1999 Survey of Books Related to the Law

LAWMAKING BY INITIATIVE: ISSUES, OPTIONS, AND COMPARISONS. By Phillip L. Dubois and Floyd Feeney. New York: Agathon Press. 1998. Pp. xii, 268. $30.

The phrase "laboratories of democracy," as applied to the states, seems most often to mean something more like "democratic laboratories" -- democratic testing grounds for various approaches to social problems. What sort of welfare reform will be most effective? Let Wisconsin try out Plan A, while Michigan experiments with Plan B. What combination of tort liability rules will achieve desired levels of compensation and deterrence? Let the states experiment with strict liability, comparative negligence, or various no-fault schemes. It is also true, however, that the states are literally laboratories of democracy -- arenas in which democratic institutions are themselves experimented with and tested. One such experiment, an institution now being tested, is the plebiscite. Since South Dakota adopted the initiative a century ago, American states have been testing the efficacy of direct democracy.(1) Indeed, if the current array of states utilizing the initiative had been designed as an experiment to test that method of governance, one could hardly ask for a better distribution. Approximately one-half do and one-half do not allow for the initiative. Those that do are spread out from Maine to California, albeit with a somewhat greater concentration of initiative states in the West, and include both small and large states. Collectively, the states now have a great deal of experience with lawmaking sans legislatures.

Those of us hoping to learn from this experience need several distinct sorts of information. First of all, we need information about the initiative process itself. Who has used it? To what ends? How does it work? What procedural difficulties have arisen? What solutions to those difficulties have been attempted or suggested? Providing this sort of information is the aim of Philip L. Dubois(2) and Floyd Feeney(3) in Lawmaking by Initiative: Issues, Options and Comparisons. Dubois and Feeney survey the initiative process and outline the key procedural problems which have arisen in the practice of lawmaking by initiative. While they focus on the experience of California, Dubois and Feeney have collected data regarding direct lawmaking across the country and abroad. They accurately and cogently describe many of the procedural issues generated by the initiative: signature requirements, ballot complexity, voter understanding, campaign finance, and judicial review. Dubois and Feeney's valuable contribution is among the handful of books any student of direct democracy should have on his or her shelf.(4)

Information about the initiative process itself is but one piece of the puzzle. Making sense of the experience of the states requires context. It requires an understanding of the political and social circumstances under which real world initiatives are proposed, debated, and voted upon. Alongside political science, we need political and social history; and that is precisely what Peter Schrag(5) offers in Paradise Lost: California's Experience, America's Future. Schrag's book is not about direct democracy per se. It is about California. It is about the political life of the state, and the way in which that life has changed over the past two decades. As Schrag recognizes, however, to write about California politics is to write about the initiative. As a result, Schrag's book is as useful and interesting to students of the initiative generally as it is to those primarily interested in California politics. It puts meat on the bones described by Dubois and Feeney, and fleshes out the "too too sullied" political world in which the process must work.

I suggest, however, that the picture remains incomplete -- at least two additional pieces of the puzzle are needed. Not only must we understand how the initiative process works, and not only must we understand the particular political goals of those who make use of the process, but also we should try and think carefully about two closely related aspects of the initiative picture. First, we need an applied theory of direct democracy. I use the term "applied" to emphasize that what is needed is not abstract theorizing but grounded justification. On what understanding of democracy, or of politics generally, is the plebiscite a wise or legitimate way to make political decisions? What does the plebiscite accomplish that representative government does not? What are we hoping to achieve through direct, popular lawmaking? It is nether adequate nor accurate to toss out airy abstractions about "the popular will," or "giving the people a voice in government." What, precisely, is "popular will"? On what basis can one conclude that the plebiscite is a reasonable way to measure it? Why is the initiative a sensible way to hear the voice of the people?

Second, we ought to check the popular resonance of our applied theory by investigating what might be called the social meaning of direct democracy. What does the initiative process mean to those who advocate its use? Is the public understanding of the plebiscite the same as, or even consistent with, any available theoretical justification? Why do people embrace the initiative as a form of government? It is not enough to respond that people will embrace whatever processes they think will get the results they desire. For some reason, or some combination of reasons, the initiative has been seen by many as more than simply useful. As Dubois and Feeney observe, "many see the initiative as the very essence of democracy" (p. 1). Why so? One can imagine a glib response to my question. The initiative has been accepted as the very essence of democracy, one might respond, because it is the very essence of democracy. The likelihood of such a response suggests the importance of the question itself. How and why have we come to see a practice eschewed by our federal Constitution and not permitted by the states for the first century of our nation's history, as the paradigm of democratic government? What does the initiative mean to us?

1. THE INITIATIVE PROCESS

   Lawmaking by Initiative grew out of research the authors did for the California Policy Seminar, a joint program of the University of California and the California state government. The book does not contain new empirical research, but rather marshals and organizes the available data in ways designed to allow an overview of the initiative process. In this effort it succeeds. Dubois and Feeney describe the process of initiative lawmaking with admirable breadth. Lawmaking by Initiative would be among the first books I would recommend to a colleague or student interested in, but unfamiliar with, the practice of direct democracy in America. What the authors fail to provide, however, is an adequate conceptual framework in which to evaluate the description they offer.

   Lawmaking by Initiative begins with a brief discussion of the history of the plebiscite in America and an even briefer discussion of the theoretical issues surrounding direct democracy generally. These chapters are unsatisfying. For example, Dubois and Feeney gloss over the question of whether direct democracy is or is not compatible with the sort of republican government envisioned by the Founders. They offer little in the way of theoretical grounding and do not outline a view of the goals of government against which to evaluate the information they provide. Indeed, they seem uninterested in what to many might appear the fundamental question: Is the initiative process a sensible or appealing way to go about making laws? In their own words:

   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. [p. 2] At one level, this is all well and good, there being nothing wrong with a decision to inform rather than evaluate or theorize. Unfortunately, the information provided is rendered less useful, and the accompanying "suggestions for improvement" less reliable, by the absence of a clearly articulated conception of democratic government. Put simply, it is difficult to describe problems with a process, let alone suggest improvements, without some sense of what the process can or should be trying to accomplish. Imagine an architect attempting to improve a building without thinking carefully about the uses the building is capable of serving or intended to serve.

   This lacuna does not undermine the entire book. For example, the introductory chapters are followed by a comparative description of initiative procedures. There, Dubois and Feeney's "just the facts" approach is welcome and appropriate. In Chapter Four, the authors review the various forms of the initiative in use. Chapter Five briefly describes the initiative process in Switzerland and elsewhere. Chapter Six describes the processes employed by the several states in greater detail, addressing, for example, the distinction between state constitutional amendments passed through the initiative and initiative statutes. This information will, for the most part, not be new to students of the plebiscite, but it is well-organized, accurate, and above all, clearly presented. A series of charts outlining various comparative features provides a nice sense of perspective on the variety, frequency, and nature of initiative lawmaking in the United States (pp. 28-44). These descriptive chapters suffer' little, if at all, from the book's lack of a thoroughgoing theoretical grounding.

   Beginning...