Out of the bottle: the genie of direct democracy.

• Author: DuVivier, K.K.
• Position: Perspectives: Ballot Initiatives and Referenda

There is a radical difference between a democracy and a representative government. In a democracy, the citizens themselves make the law and superintend its administration; in a representative government, the citizens empower legislators and executive officers to make the law and carry it out.... In other words, democracy is direct rule by the majority, while in a representative government rule is by a succession of quasi-oligarchies, indirectly and remotely responsible to the majority. (1) In the late 1800s, the Progressives unleashed the genie of direct democracy--the citizen-initiated referendum or initiative (2)--as an alternative method of amending a state constitution or creating state-level legislation. South Dakota became the first state to allow statewide initiatives, (3) and between 1898 and 1918, (4) over half of the states in the Union at the time followed South Dakota's lead and adopted similar initiative and referendum processes. (5) Currently, every state except Delaware provides for some form of state-level direct citizen voting in addition to the election of representatives, (6) and twenty-four states offer their citizens the citizen initiative method of bypassing their legislatures completely in creating new laws. (7)

When they introduced the initiative process, the Progressives believed that representative government had failed because legislatures were controlled by special interests. (8) Through the initiative genie, citizens hoped to flex their muscle and regain control of their governments. Because the initiative process allowed citizens to register their opinions by direct votes, it promised to be a valuable alternative to representative government, which had become tainted by the influences of privileged interests and partisan politics.

Genie magic, however, tends to come with unintended consequences, and modern initiative practice has not lived up to the promise of being corruption free. Because initiatives are drafted by individuals or small groups, rather than by bodies of representatives elected by the people, they are often controlled by special interests. (9) Some examples from Colorado include gambling investors drafting initiatives legalizing "gaming" in specific locations throughout the state (10) and the religious group Focus on the Family's drafting of Amendment 2, which passed in 1992 and prohibited rights for gays. (11)

Similarly, the 2006 election could be viewed as a victory for suburban developers nationwide. (12) In Kelo v. City of New London, the United States Supreme Court upheld the authority of governments to condemn land for urban renewal projects. (13) The most common topic for initiative measures in the 2006 election was eminent domain. Nine states passed initiatives that prevented redevelopment by local governments through such condemnations, effectively transferring future growth to suburban locations. (14)

Money may also play at least as corrosive a role in initiative campaigns as it does in representative elections. (15) Well-funded individuals or organizations that do not have enough voluntary support to qualify an initiative for the ballot may pay petitioners to gather signatures. The use of paid petitioners to collect signatures dates back to the first state-level initiative in the United States in 1904. (16) Although states have tried to restrict paid signature collection, (17) the United States Supreme Court reinforced the practice when, in Meyer v. Grant, it struck down as a violation of the First Amendment a Colorado law that criminalized all payment for petition circulators. (18)

Furthermore, initiatives are susceptible to lobbyist influence. A California study showed that sixty-eight percent of all initiative campaign contributions come from lobbying interests. (19) Although there is no guarantee that the party contributing the most money will prevail in an initiative campaign, (20) additional resources play a significant role in exposure and how the public perceives an issue.

Partisan politics also have become a part of the initiative experience. Once peripheral and separate from political races, initiatives now have become a tool for influencing candidate elections. The phenomenon has been labeled "ballot proposition spillover." (21) Initiatives can "prime" the political agenda by forcing a candidate to state a position on an issue. (22) As an example in the 2006 election, Missouri Democrat Claire McCaskill's support for a stem-cell research initiative may have helped her win a U.S. Senate race against incumbent Jim Talent who opposed it. (23)

In addition, political parties now see the initiative process as a tool for boosting turnout for their candidates. Research shows that initiative propositions increase turnout. (24) Although some dispute the effectiveness of the strategy, (25) pundits believe the Republican Right placed ballot measures prohibiting gay marriage on the ballot in 2004 to increase Republican turnout and help George W. Bush retain the presidency. (26) In a similar fashion, Democrats qualified a minimum wage initiative on the ballots of ten of the seventeen most competitive candidate races in an effort to "boost turnout of Democratic-leaning voters in 2006." (27)

Although the initiative process may be tainted with some of the same shortcomings as the legislative process, there is one important distinction: unintended consequences arise from the genie master's ignorance rather than greed. In other words, unlike legislators who may gain directly from lobbyist contributions, citizen voters generally receive no direct benefit by voting one way or another. Instead, they are more likely to vote their consciences on a topic and strive for ethical government...