Preserving republican governance: an essential government functions exception to direct democratic measures.

• Author: Leinen, William R.

TABLE OF CONTENTS INTRODUCTION I. THE FRAMERS' REJECTION OF DIRECT DEMOCRACY FOR THE FEDERAL AND STATE GOVERNMENTS A. The Constitutional Convention of 1787 and the Importance of the Guarantee Clause B. The Federalist v. Antifederalist Debates C. The Final Rejection of Direct Democracy II. CURRENT STANDARDS OF JUDICIAL REVIEW: A PERSPECTIVE FROM CALIFORNIA A. Statutory Controls and Court Restrictions on Ballot Initiatives B. Deferential Treatment of Direct Democratic Measures by the California Courts and Beyond III. AN ESSENTIAL GOVERNMENT FUNCTIONS EXCEPTION TO BALLOT INITIATIVES EMBRACES THE FRAMERS' REPUBLICAN IDEALS A. Pragmatic Consequences of Unrestricted Ballot Initiatives 1. Limiting Legislatures' Ability To Solve Fiscal Crises 2. The Increased Influence of Special Interest Groups B. Structural Consequences of Unrestricted Ballot Initiatives C. The Essential Government Functions Exception D. The Importance of the Guarantee Clause in Judicial Review of Ballot Initiatives CONCLUSION INTRODUCTION

James Madison, writing in Federalist No. 10, observed the difference between a republic and a pure democracy. (1) Whereas a republic consists of a scheme of representative governance utilizing a deliberative process to legislate, a pure democracy gives legislative power directly to the public. (2) The Constitution embraces representative governance at the federal level (3) and also guarantees it to the states. (4) Yet with the increased prevalence of direct democratic measures, such as ballot initiatives and referendums, the structural lines between a republican government and a direct democratic government are being blurred, producing both structural and pragmatic consequences for state governments.

The most telling examples of these consequences occur in California. The state has recently endured difficult fiscal times, including a $42 billion budgetary shortfall for the 2009-2010 fiscal year, the worst bond rating of any state in the nation, and an unemployment rate hovering around 11 percent. (5) California voters overwhelmingly rejected ballot measures seeking to ease the budgetary gap between spending and revenue, (6) which forced the legislature to make significant funding cuts for social programs and education. (7) The state even went so far as to enact budgetary cuts to the prison system--a reduction that could provide approximately 16,000 convicted felons with an early release date. (8)

The Chief Justice of the California Supreme Court, Ronald M. George, recently linked California's budgetary and governance problems to its constitutional structure. (9) In particular, Chief Justice George pointed out that "California's lawmakers, and the state itself, have been placed in a fiscal straitjacket" (10) by the state's reliance on the referendum and voter initiative processes. (11) The "fiscal straightjacket" to which the Chief Justice refers (12) is a combination of two state constitutional amendments that restrict the legislature's ability to raise revenue and pass a budget. (13) Although other states have similar budgetary or revenue restrictions, California is the only state to have both. (14) The current state of the California budgetary process, which is arguably the result of the institutional framework that ballot initiatives have placed on the legislature, highlights the pragmatic consequences that unrestrained direct democracy can have on the governance of a state. (15) With less prohibitive budgetary and revenue-raising restrictions, other states are able to implement a wider variety of solutions to budgetary shortfalls. California, however, is forced to solve its budgetary problems with its hands tied.

Although the effects of ballot initiatives may be most visible in California, eighteen states--predominantly western states--currently allow citizens to amend their state constitutions with a ballot initiative. (16) This delegation of legislative power from the state legislature to the unelected citizenry reflects the Populist and Progressive movements against party machines and corporate trusts, which were often associated with seemingly corrupt political officials in the West at the turn of the twentieth century. (17)

Despite their legislative function, ballot initiatives are often held to a different standard of judicial review than measures passed by state legislatures. (18) Absent constitutional violations, California and other state courts are typically extremely deferential to the will of the people as reflected in a ballot initiative. (19) Yet the highly deferential method of reviewing initiative activities seems to run contrary to the Framers' vision of the courts as a check on the legislature. (20) Indeed, given the increased use of ballot initiatives by well-financed special interests, (21) Madison's warning of the dangers that factions pose to effective governance becomes increasingly pertinent. (22)

Additionally, the substituted use of the ballot initiative process for legislative purposes presents fundamental structural problems with the republican form of government envisioned by the Framers and reflected in the Guarantee Clause of the U.S. Constitution. (23) Although it is settled law that the Guarantee Clause itself poses a nonjusticiable political question, (24) its inclusion in the Constitution was the result of a much-debated and deliberate decision on the structure of government at both the federal and state levels. (25) This Note argues that the scope of ballot initiatives should be limited in substance to matters that are not essential government functions. California's Constitution imposes similar restrictions on referendums, forbidding their use for "urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State." (26) These restrictions on referendums provide a framework by which restrictions on ballot initiatives could be framed.

First, courts could institute a heightened standard of review for ballot initiatives that deal with essential matters of governance. Such a review should be one in which the courts are cognizant of the Framers' intent to preserve a republican form of government. Although this heightened review is not a call for litigants to challenge ballot initiatives on a Guarantee Clause rationale, it is a call for courts to look for guidance from the principles of republican governance that the Framers embraced. In order to prevent direct democratic measures from usurping the republican form of government, courts should employ an "essential government functions" exception to their typically deferential standard of review of ballot initiatives. (27)

The second--and perhaps more easily implemented--way that states could limit ballot initiatives is to adopt constitutional provisions that restrict ballot initiatives in the same way that California currently restricts referendums. (28) These constitutional provisions would place important limits on the scope of ballot initiatives by restricting them to matters that are not of essential importance to the governance of the state. This type of restriction, while still allowing ballot initiatives that address social issues of concern to citizens, (29) is most consistent with the Framers' vision of a republican form of government for the states. Furthermore, it aims to prevent many of the pragmatic consequences resulting from state legislatures' inability to yield a full range of governance tools as a result of direct democratic measures. (30)

Part I of this Note traces the Framers' deliberations regarding the necessity of a republican scheme of government. By examining both the deliberations that occurred during the Constitutional Convention and the post-Convention debates between the Federalists and Antifederalists, it becomes clear that the Framers expressly rejected direct democratic measures at both the state and federal levels in favor of a representative republican government. Part II describes the current treatment of ballot initiatives in California. Because of the state's widespread use of ballot initiatives, California presents the best example of the dysfunction that these initiatives cause in government. Lastly, Part III describes a way to remedy this dysfunction: excepting essential government functions from the reach of ballot initiatives. This exception addresses both the structural and pragmatic problems that unfettered use of ballot initiatives create and provides states with a greater ability to address legislative problems through the legislative process, as the Framers intended.

1. THE FRAMERS' REJECTION OF DIRECT DEMOCRACY FOR THE FEDERAL AND STATE GOVERNMENTS

   1. The Constitutional Convention of 1787 and the Importance of the Guarantee Clause

      The members of the 1787 Constitutional Convention were articulate and adamant in their intent to create a republican form of government at both the federal and state levels. (31) This intention is reflected in the transcripts of the debates surrounding the merits of the Guarantee Clause. (32) For instance, Daniel Carroll, a delegate from Maryland, (33) argued that a guarantee to the states of a republican government was an "essential" component of the new Constitution: "[e]very State ought to wish for it." (34) His colleague Edmund Randolph, a delegate from Virginia, (35) moved the Convention to include language stating that "no State be at liberty to form any other than a Republican Gov[ernment]." (36) James Madison seconded this motion. (37)

      The Convention's debates further make clear the Framers' fear that, without a republican guarantee to the states, citizens could institute a form of government that was repugnant to the republican values the Framers hoped to institute. (38) This fear reflected their knowledge of the government of Georgia, which, in 1777, was the first state to include a constitutional provision providing citizens with the ability to modify the...