The original intent and current operation of direct democratic institutions.

• Author: Dinan, John J.
• Position: Perspectives: Ballot Initiatives and Referenda

1. INTRODUCTION

   It is common these days for analysts to stress the ways that the current operation of direct democratic institutions have departed from the expectations of turn-of-the-twentieth century proponents of these institutions. As is frequently argued, the initiative process was originally intended to permit the popular will to prevail over special interests, (1) but the process is now employed by special interests themselves to secure enactment of their favored policies. (2) There is, to be sure, a sense in which this is an accurate description, especially in light of the costs associated with launching and waging initiative campaigns in the modern era and the advantages possessed by well-financed individuals and groups in the current process. (3) In another sense, however, the recent use of the initiative process is characterized more by a consistency with, rather than a departure from, expectations of the original proponents. For instance, the process continues to be used, as anticipated, to secure passage of legislation blocked by powerful interests, antithetical to legislators' self-interests, and disfavored by political elites. The principal changes over the last century--and there have been important changes in the specific measures appearing on ballot propositions--are best understood as a product of shifting patterns in the particular issues blocked by dominant groups, legislators, and political elites.

   My purpose in this brief commentary is to examine the expectations of early proponents of direct democracy by focusing on a representative work, Delos F. Wilcox's Government by All the People: The Initiative, the Referendum, and the Recall as Instruments of Democracy, and to inquire into whether the recent subject matter of the initiative process has fulfilled these original expectations. (4) In focusing on this question, I necessarily leave aside other questions that could fruitfully be posed about direct democratic institutions. One might ask, for instance, whether these institutions have achieved other goals of early proponents, such as promoting citizen participation and knowledge. (5) Conversely, one might inquire into whether these institutions have brought about the harms envisioned by early critics who particularly feared the passage of measures depriving minority groups of fundamental rights. (6) These are worthy questions that have inspired ongoing scholarly analysis. For present purposes though, I focus on the subject matter of the initiative process with the intent of stressing the general continuity over time in the use of these devices, albeit allowing for expected changes due to shifts in the particular issues that have been blocked or disfavored by representative institutions.

2. EXPECTATIONS OF THE ORIGINAL PROPONENTS OF DIRECT DEMOCRACY

   By the time Delos Wilcox published Government by All the People in 1912, state-wide direct democracy had been operating for barely over a decade, with the statutory initiative and referendum first adopted in South Dakota in 1898 (7) and the constitutional initiative introduced by Oregon in 1902. (8) Wilcox was therefore in a prime position to express the hopes of early proponents of direct democracy. In fact, he made clear in the preface that he was a strong advocate of these institutions, explicitly disclaiming any pretense of "impartiality" (9) and going on to explain that he "rested [his] argument almost entirely upon a consideration of the failures of our old system of checks and balances and upon the a priori reasons for believing that the new political instruments will be more effective in establishing popular self-government." (10) He went on to compile a comprehensive list of the expected benefits of these devices--along with detailed responses to critics of these devices. In viewing Wilcox's book, one can identify three main expectations running throughout the volume.

   First, Wilcox expected that direct democratic institutions would secure passage of measures that were blocked by special interests. (11) As he explained, the initiative would help in "clearing away the artificial obstacles put in the way of legislative progress by the predatory or self-complacent interests that have captured the machinery of representative government." (12) When it came to identifying the particular interests that then held sway over representative institutions and would be combated by direct democracy, Wilcox focused, unsurprisingly, on "the numerical minority made powerful by the possession or control of wealth," (13) and...