Lawmaking By Initiative

LAWMAKING BY INITIATIVE: ISSUES, OPTIONS AND COMPARISONS

This is the fourth volume in the Agathon series on Representation Series Editor: Bernard Grofman Previously published: Electoral Laws and Their Political Consequences edited by Bernard Grofman and Arend Lijphart "The Federalist Papers" and the New Institutionalism edited by Bernard Grofman and Donald Wittman Political Gerrymandering and the Courts edited by Bernard Grofman

LAWMAKING

BY INITIATIVE:

ISSUES, OPTIONS AND COMPARISONS Philip L. Dubois University of Wyoming

and

Floyd Feeney University of California, Davis

AGATHON PRESS NEW YORK

@

1998 by Agathon Press 5648 Riverdale Avenue Bronx, NY 10471 All Rights Reserved

No portions of this book (beyond that permitted by Sections 107 or 108 of the United States Copyright Act of 1976) may be reproduced by any process, stored in a retrieval system, or transmitted in any from, or by any means, without written permission of the publisher. Quotations from the following works appear with the kind permission of the copyright holders: Ronald J. Allen, "The National Initiative Proposal: A Preliminary Analysis," Nebraska Law Review 58 (1979): 965. Copyright (c) 1979 by the Nebraska Law Review. Reprinted by permission. David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (1978) and Eugene Lee, "California," in David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (1978). Copyright (c) 1978 by American Enterprise Institute. Reprinted with the permission of The American Enterprise Institute for Public Policy Research, Washington, D.C. Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (1989). Copyright (c) 1989 by the Twentieth Century Fund. Reprinted by permission. Philip Dubois and Floyd Feeney, Improving the California Initiative Process: Options for Change (1992). Copyright (c) 1992 by California Policy Seminar, University of California. Reprinted by permission. v.a. Key, Jr. and Winston Crouch, The Initiative and the Referendum in California (1939). Copyright (c) 1939 by the University of California Press. Reprinted by permission. Eugene Lee, "Representative Government and the Initiative Process," in John Kirlin and Donald Windler, eds., California Policy Choices, 6 (1990): 227. Copyright (c) 1990 by University of Southern California School of Public Administration. Reprinted by permission. Daniel Lowenstein and Robert Stern, "The First Amendment and Paid Initiative Petition Circulators: A Dissenting View and a Proposal," Hastings Constitutional Law Journal 17 (1989): 200. Copyright (c) (1989) by the Hastings Constitutional Law Journal. Reprinted by permission. David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (1984). Copyright (c) 1984 by Johns Hopkins University Press. Reprinted by permission. Michael Meyers, A Study of California Initiatives, 1976-1986 (1988). Copyright( c) 1988 by Rose Institute of State and Local Government, Claremont McKenna College. Reprinted by permission. David Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution (1989). Copyright (c) 1989 by Temple University Press. Reprinted by permission of the Temple University Press. Betty Zisk, Money, Media and the Grass Roots: State Ballot Issues and the Electoral Process (1987). Copyright (c) 1987 by Sage Publications, Inc. Reprinted by permission of Sage Publications, Inc.

Lawmaking by initiative:

Data Library of Congress Cataloging-in-Publication Dubois, Philip L. issues, options, and comparisons / Philip L. Dubois and Floyd Feeney. p. cm. -- (Agathon series on representation: v. 4) Includes bibliographical references and index. ISBN 0-87586-120-2 I. Referendum--United States--States. 2. Referendum--California. 1. Feeney, Floyd. II. Title. III. Series. KF488l.D83 1997 97-27078 328.273--dc21 CIP

TABLE OF CONTENTS List of Tables

IX

Acknowledgments

XI

CHAPTER ONE: INTRODUCTION

1

The California Experience The Book

3 6

7

CHAPTER TWO: HISTORY CHAPTER THREE: THE INITIATIVE AND AMERICAN DEMOCRACY

Concepts Experience with the Initiative

15 18

CHAPTER FOUR: A COMPARATIVE ANALYSIS OF AMERICAN STATE LAWS

States That Use the Initiative Ballot Access-Signature Requirements The Indirect Initiative Pre-election Administrative Review Pre-election Legislative Review Pre-election Judicial Review CHAPTER FIVE: INITIATIVE IN SWITZERLAND OTHER COUNTRIES

Switzerland Swiss Law-Federal Level Swiss Law-Cantonal Level Swiss Experience More Detailed Description of Swiss Procedure Restrictions on Initiative Subject Matter Other Countries

15

27 27 33 35 37 42 43

AND 46 46 49

50 51

55 58 62

CONTENTS

CHAPTER SIX: THE BASIC STRUCTURE-CONSTITUTIONAL AMENDMENTS, INITIATIVE STATUTES, AND SUBJECTMATTER RESTRICTIONS The Role of the Initiative in State Constitutional Amendments Amendment Procedure Amendment and Repeal of Initiative Statutes Subject-matter Restrictions

vi

77 77 72 78 87

Calculating the Signature Thresholds

85 85 93 93 94 99 706 708 709

Changing the Requirements for Passage

777

Effective Date The Indirect Initiative CHAPTER SEVEN: SIGNATURE REQUIREMENTS Purpose of Signature Requirements Qualifying for the Ballot: Too Easy or Too Difficult? Reforming the Signature Qualification Process Restoring the Reliability of Signature Qualification Impact on the Initiative Process

CHAPTER EIGHT: REDUCING COMPLEXITY I-BETTER DRAFTING AND MORE ACCURATE VOTING

773

Better Drafting of Individual Proposals

773

More Accurate Voting: State the Effects of Yes Vote

778

CHAPTER NINE: REDUCING COMPLEXITY II-MAKING INDIVIDUAL INITIATIVES UNDERSTANDABLE The Problem

727 727

The Single Subject Rule

727

The Subject Matter Must Be Expressed in the Title

740

An Assessment: How Well Have the Rules Protected Against Trojan Horses, Log Rolling, and Complexity? Some Future Possibilities CHAPTER TEN: REDUCING COMPLEXITY III-THE OF INITIATIVES

NUMBER

Number of Initiatives Conflicting Ballot Propositions CHAPTER ELEVEN: IMPROVING

743 746 753 753 758

The Voter Information Pamphlet: Who Uses It and How?

764 764 765

Improving the Pamphlet

769

Broadcast and Nonprint Media

778

VOTER UNDERSTANDING

Quality of Voter Participation

CONTENTS

CHAPTER TWELVE: INITIATIVE CAMPAIGN FINANCE AND DISCLOSURE Campaign Spending and Initiative Outcomes Campaign Finance Rules Special Disclosure Rules for Campaign Literature and Advertisements Other Campaign Finance Related Rules CHAPTER THIRTEEN: SUMMARY

AND CONCLUSIONS

Basic Structure of The Initiative Process Qualifying for the Ballot Reducing Complexity Improving Voter Understanding: The Ballot Pamphlet Campaign Finance and Disclosure The Process of Reform APPENDIX A: Appendix Tables APPENDIX B: The Massachussetls Ballot Pamphlet APPENDIX C: California Ballot Summary

vii

787 782 789 792 279 222 223 225 226 230

237 232 235 249 254

APPENDIX 0: Swiss Initiatives: Problems of Counting, Landesgemeinde, Sources

256

INDEX ABOUT THE AUTHORS

259 268

LIST OF TABLES Table 1: Adoption of the Initiative 28 Table 2: Types of Initiatives 29 Table 3: Use ofthe Initiative from Year of Adoption through 1996 (Measures Voted On) 30 Table 4: Recent Use of the Initiative, 1978-1996 (Measures Voted On) .. 31 Table 5: Initiatives Approved by Voters from Year of Adoption through 1996 32 Table 6: Signature Requirements 34 Table 7: The Indirect Initiative 36 Table 8: Pre-signature Administrative Review for Issues Other Than Constitutionality 38 Table 9: Who Prepares Ballot Caption and Summary, and When (Pre- or Post-signature) 40 Table 10: Administrative Review of Constitutionality 41 Table 11: Pre-election Judicial Review 44 Table 12: Swiss Federal Initiatives Qualifying, 1891-1991 48 Table 13: Swiss Federal Initiatives Submitted to the Voters, 1891-1991 .48 Table 14: Swiss Federal Constitutional Amendments, 1874-1991 49 Table 15: Switzerland: Votes on Cantonal Initiatives, 1845-1994 53 Table 16: Switzerland: Number of Cantonal Initiatives Approved, (1845-1994 54 Table 17: State Constitutional Amendments, Legislative Procedure .. 72 Table 18: State Constitutional Amendments, Legislative Procedure -Initiative States Only 73 Table 19: State Constitutional Amendments, Number Proposed by Legislature, 1970-1988 74 Table 20: State Constitutional Amendments by Initiative, Degree of Difficulty 74

x

LIST OF TABLES

Table 21: State Constitutional Amendments, Number Proposed by Initiative, 1970-1988 75 Table 22: State Constitutional Amendments, Effect of Proposal Difficulty on Number ofInitiative Proposals, 1970-1988 .... 75 Table 23: Effect of 1966 Decrease in Signature Requirements for California Initiative Statutes 77 Table 24: Amendment of Initiative Statutes 79 Table 25: Restrictions on Initiative Process 81 Table 26: Effective Date 86 Table 27: Indirect Statutory Initiatives (Through 1996) 88 Table 28: Historic Qualification and Passage Rates, California Initiatives, 1912-1996 97 Table 29: California Initiatives Circulated, Qualified, and Approved, 1974-1996 98 Table 30: Voter Support of California Initiatives, 1912-1996 98 Table 31: Initiative Signature Requirements in California as a Proportion of Eligible and Registered Voters, 1950-1994 110 Table 32: YeslNo Vote Requirements 119 Table 33: Single Subject Rule 128 Table 34: Conflicting Ballot Propositions 159 Table 35: Perceived Helpfulness of Voter Pamphlet by Level of Education 169 Table 36: California Initiative Election Expenditures, 1974-1988 182 Table 37: Campaign Finance 190 Table 38: Must Initiative Ads Identify Their Sponsors? 193 Appendix Table 1: Canton Zurich Initiative Petitions, 1869-1970 235 Appendix Table 2: Subject Matter of California Initiatives, 1912-1996 236 Appendix Table 3: Number of Ballot Measures, California 1912-1996 237 Appendix Table 4: State Provisions for Voter Information and the Initiative 238 Appendix Table 5: Total Expenditures in California Initiative Campaigns, 1974-1988 243 Appendix Table 6: Proponents' Qualification Spending for California Initiatives, 1974-1988 246

ACKNOWLEDGMENTS

This book grew out of a research report that the authors wrote for the California Policy Seminar. The Seminar is a joint program of the University of California and the California state government. The authors would like to express their appreciation to Seminar directors Karen Paget, Holly Brown-Williams, and Andres Jimenez, for the financial assistance, interest, and understanding that the Seminar provided over the life of the project, and to Robyn Brode, who edited the CPS report and did much to make it clear and understandable. It would serve no purpose to try to name all of the many individuals who assisted with this book, particularly the many very helpful persons who provided information about the workings of the initiative in the various states. The authors would be remiss, however, if they did not express their thanks to former California Secretary of State Anthony Miller, Caren Daniels-Meade (California Secretary of State's Office), Floyd Shimomura and Eugene Hill (California Attorney General's Office), John Vickerman and Anna Trombetta (California Legislative Analyst's Office), Deborah Seiler (California Assembly Elections and Reapportionment Committee), Margaret Herman (California League of Women Voters), and Ruth Holton (California Common Cause). Professor Eugene Lee, director emeritus of the Institute of Governmental Studies at the University of California, Berkeley, made extensive comments on drafts of the report and the book and allowed us to draw on his deep knowledge of the initiative process and California government. John Hodgson and David Townsend gave generously of their time and expertise, while Vikram Amar, Edward Barrett, Jr., Alan Brownstein, David Magleby, and Roy Schotland made extremely helpful comments. Special thanks is due Robert Stern for his willingness to answer innumerable questions, his comments, and his invaluable expertise. Our U.C. Davis colleague, Edmond Costantini, was a co-designer of the California ballot pamphlet survey and contributed in other important ways. Adrianne Weir also provided critical assistance. Without the help of Toby Darden, Erik Kropp, Marilyn Minger, Tom Newcomb, Graham Noyes, Jill Thayer, and John Cook, our good-humored, hard-working research assistants, the book would never have been possible.

xii

ACKNOWLEDGMENTS

The authors would also like to express their apprecIatIOn to Professors Walter Kaelin and Wolf Linder of the University of Bern, Professor Luzius Wildhaber, University of Basel, Hans-Urs Wili of the Swiss Secretary of State's Office, and Swiss attorney Peter Popp for their assistance with the Swiss comparison, and to Professor Joachim Herrmann, University of Augsburg, for his encouragement and help with the international comparisons. Carmen WannerSturm, a graduate student at the University of Augsburg, assisted in the writing of the German comparison. Paula Buchignani, Ann Graham, and Berta Lewin provided invaluable secretarial assistance. We wish to thank Caren Daniels-Meade of the California Secretary of State's Office and to Jackie Ladd and Josephine Fatta of the Massachusetts Secretary of State's Office for providing us with the ballot pamphlet materials printed in the appendices. We are also greatly indebted to Professor Bernard Grofman, University of California, Irvine, for his helpful comments and wise counsel and to Burton Lasky, our ever friendly and helpful publisher, for his flexibility and his desire that we make the book the best that we could write. Needless to say it is the authors and not the contributors who are responsible for the views expressed in the book.

CHAPTER ONE

INTRODUCTION /

IN 1992, USING

THE INITIATIVE PROCESS, citizens from 13 American states voted for term limits on the members of Congress from their states. I In that same year citizens from 12 states adopted term limits for their state legislatures through the initiative process and voted on such matters as health care, the right to die, welfare reform, tax reduction, and governmental structure. Like the citizens of Oregon in 1908 who were the first to institute presidential primaries and to demand the right of popular election of U.S. senators (thus beginning the movement toward adoption of the sixteenth amendment), these citizens used the initiative to force consideration of fundamental change by the electorate. 1992 was not unusual. In 1994 California voters adopted a highly controversial initiative restricting state benefits for illegal immigrants, propelling this issue dramatically upward in the nation's domestic agenda. In 1995 the mere threat of an initiative in California concerning affirmative action did much the same to this issue, and in 1996 term limits supporters brought forth a whole flock of new proposals designed to force congressional candidates to vote for term limits. Similar topics have appeared on ballots in the District of Columbia and the 24 states that use the initiative process in every election year for many years. Many see the initiative as the very essence of democracy, an opportunity for citizens to participate directly in making the laws under which they live. At a time when many citizens have lost faith in the capacity of government and in their elected leaders, proponents argue that the initiative is vital to a well-functioning democracy. In their view, the initiative increases interest and participation in government, reduces citizen alienation, and serves as an antidote for declining voter turnout in elections. Views such as this led MisIBecause states lack full power over this issue, these initiatives forced the Congress and the Supreme Court to address the term limits question. See, e.g., U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842 (1995). 1

2

LAWMAKING

BY INITIATIVE

sissippi to reestablish the initiative in 1992 after a lapse of many years,2 and have led many other states to consider its adoption in the last several decades. There was even a brief flurry of serious consideration for a national initiative in the 1970s. Others question the wisdom of the initiative. In their view, societal problems have become much too complicated for the black and white kind of solutions they believe possible through use of the initiative process. Detractors are also appalled by the demagoguery and simple-minded campaigns that characterize many initiative elections. One of the classic debates about democracy concerns the extent to which the people themselves should exercise a direct voice in their government. James Madison and those who wrote the United States Constitution preferred a system of representative government. Believing that most important public questions were too complicated to be decided by popular vote, they designed a system calling for elected representatives who would have the time to study and understand the issues. The Populists and Progressives who fashioned and promoted the initiative, the referendum, and the recall in the late l800s and the early 1900s, saw a somewhat different picture. They believed that legislators and political party machines had become far too dependent on special interests. Trusting the populace itself to make better judgments, they thought that the cure was more democracy. While they did not want to abolish representative government, they wanted much more popular participation. 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. The book compares the major features of the initiative in the American jurisdictions that have adopted the procedure-24 states and the District of Columbia.3 We draw particularly upon the experience of California, the most frequent American user of the initiative in the past several decades and a major battleground in the development of ideas about the initiative. The book also discusses use of the initiative in Switzerland, the country from which the original American ideas were derived and the only other major country in the world that makes extensive use of the initiative today. 2Mississippi first adopted an initiative process in 1916, but the Mississippi Supreme Court ruled the adoption unconstitutional in Power v. Robertson, 93 So. 769 (Miss. 1922). In 1991 the court refused to reconsider its earlier ruling. State ex reI. Moore v. Molpus, 578 SO.2d 624 (Miss. 1991). 3WhiJe some aspects of this book may be applicable to county or municipal initiatives, the focus is exclusively on statewide initiatives.

Introduction

5

to make an informed decision on initiatives; 86 percent thought special interests benefit from the process; 82 percent believed that one-sided campaign spending distorts election outcomes away from the will of the people and toward the interests of big campaign contributors; 63 percent agreed that campaign spending has "a great deal of effect" on the outcome of proposition elections; and 78 percent agreed that most of the ballot issues are too complicated to be decided by a simple yes or no vote.13 A 1990 poll revealed that only 21 percent of those questioned thought that the typical voter could understand most or all of the ballot propositions. 14 California voters have consequently supported a number of proposed reforms in the initiative process. A 1985 poll found that 62 percent of those questioned favored a proposal to submit proposed initiatives to the secretary of state for review and comment on conformity to law and clarity of language prior to their circulation for signatures. 15 By 1989, support for such a review procedure had climbed to 73 percent of those questioned, dipping only slightly in 1990 to 69 percent.16 Another 1985 poll found overwhelming majority support (87%) for full disclosure in initiative campaign advertisements of the sponsoring industry or interest group. 17 On the other hand, the public has been less certain about other reform proposals. In 1985 Californians were divided on proposals to limit the number of initiatives that could be on the ballot at the same time (favored 49% to 47%), to increase the number of signatures for initiatives to qualify (favored 49% to 47%), and to prohibit the use of paid signature gatherers (opposed 50% to 46%).18 Similarly, supllSuch results mirror those found among voters in many states. Opinion polls conducted in New Jersey, Minnesota, Colorado, Hawaii, and New York, and surveys conducted by national polling organizations consistently show strong public support for direct democracy devices. Majorities typically have ranged from 70 to 80 percent on the general right of citizens to vote on ballot initiatives. Voters who were queried about their support for a national initiative process were 50 to 60 percent in favor of specific proposals for a national initiative or advisory referendum. New Jersey: Magleby, Direct Legislation, p. 8, and Magleby, "Legislatures and the Initiative: The Politics of Direct Democracy," Journal of State Government 59 (Spring 1986): 31, 34; Minnesota: Daniel Lowenstein, "Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amend. ment," UCLA Law Review 29 (1982): 505,549 n.182; Colorado, Hawaii, and New York: Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass.: Harvard University Press, 1989), p. 269 n.1 0; see also Magleby, Direct Legislation, pp. 9-14, and Cronin, Direct Democracy, pp. 78-79,174-176,179,232. IZ"Voters Say Initiative Process Is Too Complex, Out of Control," Las Angeles Times, November 4,1990, pp. AI, A38, A43. 13California Opinion Index, "Digest of Views Relating to the Initiative Process," pp. 2-3. 14Field Institute, "The California Poll," October 24, 1990. IsField Institute, "The California Poll," June 5, 1985, pp. 1-2. 1673 percent: Field Institute, "The California Poll," March 10, 1989, p. 1; 69 percent: Field Institute, "The California Poll," September 13, 1990, p. I. 17Larry Berg and C. B. Holman, "The Initiative Process and Its Declining Agenda-setting Value," Law and Policy II (1989): 451-469 (reporting on poll conducted by the Institute of Politics and Government at the University of Southern California); Cronin, Direct Democracy, p. 234. 18Cronin, Direct Democracy, p. 234.

6

LAWMAKING

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port for the "indirect initiative," a variant of the initiative process that allows the legislature the opportunity to enact proposals prior to a vote, was expressed by just 46, 49, and 41 percent of those Californians polled in 1985, 1989, and 1990, respectively. 19 A 1982 poll revealed that two-thirds of the population saw the legislature as better suited than voters to make decisions about highly technical or legal policy matters. And, although 58 percent conceded that elected representatives generally give a more thorough review to each particular aspect of a proposed law, voters also perceived the legislature as more susceptible to influence by special interest groups than the voting public (by a 64% to 29% margin), far less likely than voters "to do what is right" on important governmental policies (by a 26% to 63% margin), and only slightly more likely than voters (48% to 42%) to enact coherent and well-considered governmental policies.20 In sum, Californians continue to express strong but diminishing support for the initiative process. They are realistic about its shortcomings, however, and support some but by no means all suggested reforms.

THE BOOK This book is divided into three parts. Part I (Chapters One through Five) concerns the development and use of the initiative in the United States and elsewhere. Chapters Two and Three discuss the history of the initiative and how the concept fits into the American concept of democracy. Chapter Four contains a comparative analysis of the initiative process in the District of Columbia and the 24 American states that use the initiative, and Chapter Five a discussion of the initiative in Switzerland and other countries. Part IT (Chapters Six through Twelve) contains analyses of six critical issues relating to the initiative process and suggestions for reform. These issues include the basic structure of the initiative process (Chapter Six), signature requirements (Chapter Seven), the reduction of complexity (Chapters Eight through Ten), attempts to improve voter understanding (Chapter Eleven) and initiative campaign finance and disclosure (Chapter Twelve). Part III (Chapter Thirteen) contains conclusions and a summary.

19Field Institute, "The California Poll," June 5, 1985, March 10, 1989, and September

13, 1990.

2oCalifornia Opinion Index, "Digest of Views Relating to the Initiative Process," pp. 1-2.

CHAPTER TWO

HISTORY

DIRECT

DEMOCRACY

IS NOT EXACTI., Y

a new invention. Ancient Athens, Saxon

tribes, thirteenth century Swiss cantons and numerous other peoples from earlier times all regularly made govemmental decisions through some form of face-to-face town meeting.l Many ancient societies also recognized the right of ordinary citizens to petition the government, including the right to suggest specific changes in legislation. The initiative, as that term is used in this book, however, is different from these early forms of direct democracy. With the initiative, citizens, by the collection of voter signatures, may propose legislation and bring about a vote upon their proposals by the electorate. This allows the electorate to act independently, or at least somewhat independently, of the legislature.2 Used in this way, the term "initiative" should be distinguished from "referendum," which in the United States is a device for allowing citizens, through the collection of signatures, to force a vote on legislation that has already been adopted by the legislature. (''Referendum'' is also sometimes used more generally to refer to any kind of public vote upon a policy issue. Referendums in this broader sense occur when the legislature itself decides to refer a particular issue for popular vote or when citizens vote to approve or reject a state constitutional amendment proposed by the legislaturei The "recall," another IDavid Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), pp. 31-33. 2The indirect form of the initiative requires that legislation be submitted to the legislature for possible action as a condition for submission to the people. See Chapter Six. 3David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (Washington, D.C.: American Enterprise Institute, 1978), pp. 23-24, describe four different kinds of referendum: (1) popular initiatives in which citizens may propose new legislation to be voted on by the electorate, (2) referendums by popular petition in which citizens may force a vote on legislation enacted by the legislature, (3) constitutionally required referendums in which proposals enacted by the legislature must be ratified by popula{ vote before becoming effective, and (4) government controlled referendums in which the government, although not required to do so, chooses to place an issue before the electorate. In this book "initiative" will be used to refer to the fIrst kind of referendum and "referendum" to the second kind. "The word 'plebiscite' has tended to be applied to an ad hoc reference to the people of a specific question and in particular to one involving approval for a man or a regime. But there is no agreed usage." Butler and Ranney, Referendums, p. 4.

7

8

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BY INITIATIVE

popular democracy device, allows citizens to force a vote, though the collection of signatures, as to whether a particular, named elected official shall continue in office. The closest analogue to the initiative in the ancient world was probably the Roman plebiscite. This device enabled the plebs (enfranchised commoners) to vote to enact or repeal laws over the opposition of the senate. Plebiscites or referendums were also occasionally held in medieval Europe.4 An initiative-like feature, allowing individuals to propose new laws by presenting a petition signed by 50 citizens, was included in Condorcet's 1793 draft constitution for the new French republic. Although ultimately rejected by the Jacobins in the National Convention, this draft constitution was widely known and admired throughout Europe.5 In the l830s the Swiss cantons, as discussed in Chapter Five, began to experiment with new forms of popular democracy, including some early forms of the initiative. In 1845 canton Vaud adopted the first practical initiative. The Swiss Constitution of 1848, which created the modern federal state of Switzerland, also provided for a popular constitutional initiative. Anyone who could muster at least 50,000 signatures on a petition could force the federal electorate to consider whether the constitution as a whole should be rewritten. Democratic reforms in the 1850s and 1860s led many cantons to adopt initiatives that could be used to propose ordinary legislation as well as cantonal constitutional amendments. The federal initiative was extended in 1891 to permit the proposal of constitutional amendments as well as complete revisions of the constitution, but has never been extended to ordinary legislation. Since introduction of the initiative, the Swiss have voted on more than 100 petitions at the federal level and a much larger number in the cantons. The Swiss have also made extensive use of the referendum at both the federal and the cantonal levels. In America direct legislation came with the earliest settlers. The Mayflower Compact was drawn up by the Pilgrim fathers to govern their new colony in 1620. By the 1640s freemen had begun to assemble in New England villages to make the laws by which they would be regulated.6 Gradually the idea developed that new state constitutions and amendments to existing constitutions should be ratified by the people.7 Following the Declaration 4Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum and Recall (Cambridge, Mass.: Harvard University Press, 1989), p. 160; Butler and Ranney, Referendums, p. 5. SM. Condorcet, An Authentic Copy of the New Plan of the French Constitution (London: J. Debrett, 1793), pp. xi-xiii, 37-41 (Title VIII); Keith Baker, Condorcet: From Natural Philosophy to Social Mathematics (Chicago: University of Chicago Press, 1975), pp. 320-330; Eduard His, Geschichte des neuern Schweizerischen Staatsrechts (Basel: Helbing & Lichtenhahn, 1920; reprinted Frankfurt: Sauer & Auvermann, 1968), pp. 14-21. 6Cronin, Direct Democracy, p. 41. 7Thomas Jefferson's draft for the 1775 Virginia constitution included a requirement for approval by a referendum of the voters. He was attending the Continental Congress at the time of the state constitutional convention, however, and the Virginia convention was over by the time his draft was received. David Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution (Philadelphia: Temple University Press, 1989), p. 4.

History

9

of Independence in 1776, Massachusetts decided to replace its old colonial charter with a new constitution that went into effect only when approved by the voters. In 1778, Massachusetts voters rejected a proposal put forward by the legislature, only to approve one in 1780 developed by a constitutional convention. New Hampshire voters similarly turned down a proposed new constitution in 1779. A redrafted version was approved, however, in 1783.8 Other states followed suit. After a time states seeking admission to the Union also began to submit their draft constitutions to the people-Iowa and Texas in 1845, Wisconsin in 1846, California in 1856, and all thereafter. By the end of the nineteenth century, most states were governed by constitutions that had been approved by popular vote.9 In 1818 Connecticut instituted the requirement that amendments to the state constitution had to be submitted automatically to voters for ratification following approval by the state legislature.lO All states except Delaware follow this procedure today. 11 Gradually, states also began to confer upon the people the right to vote directly upon subjects other than constitutional questions. After 1821 the Massachusetts Constitution forbade the legislature to incorporate any new town as a city without the consent of the town's majority. Maryland in 1826 made the establishment of primary schools contingent upon a positive majority vote by the people in the county affected. In its 1842 constitution, Rhode Island required popular consent to allow the state to incur debts above $50,000. A referendum was held in Texas in 1850 to resolve the location of the state capital. It became common to require popular votes on the location of state universities and charitable institutions. Eventually the role of referendums was extended in some states to include limitations of state debts, taxation, finance, and questions such as the regulation of intoxicating liquors. 12 The specific history of the initiative in the United States begins at least as early as 1885. In that year Benjamin Urner, a New Jersey newspaper publisher and unsuccessful Greenback Party congressional candidate, and Father Robert Haire, a Catholic priest and labor activist in South Dakota, each separately proposed adoption of the initiative and the referendum in their states.13 In Haire's case the idea was apparently entirely homegrown, as he seems to have had no knowledge of the Swiss experience. 14

8Austin Ranney, "The United States of America," in Butler and Ranney, Referendums, pp. 68-69; Charles Beard and Birl Schultz, Documents on the State-Wide Initiative, Referendum and Recall (New York: Macmillan, 1912; reprinted New York: Da Capo Press, 1970), p. 16. 9Beard and Schultz, Documents, pp. 16-17. lOy O. Key, Jr. and Winston Crouch, The Initiative and the Referendum in California (Berkeley: University of California Press, 1939), p. 491; Ellis Overholtzer, The Referendum in America (New York: Charles Scribner's Sons, rev. ed. 1911), p. 146.

llCouncil of State Governments, Book of the States: 1994-95 Edition (Lexington, Ky.: 1994), pp. 21-22. 12Cronin, Direct Democracy, pp. 41-42. 13Schmidt, Citizen Lawmakers, p. 5. There is as yet no full history of the development ofthe initiative idea.

10

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Others quickly picked up the idea. J.W. Sullivan, a labor leader, journalist and social reform editor, was familiar with the Swiss experience and visited there in order to observe its system first hand. Upon his return he wrote a series of articles in 1889 and the early 1890's and an influential book, Direct Legislation by the Citizenship through the Initiative and Referendum, in 1893. These articles and other writings, such as those by Nathan Cree, inspired many reformers who were searching for ways to make the political system more responsive to the popular will. 15 Sullivan also helped organize the People's Power League, which sent delegates to the 1892 conventions of several political parties, winning acceptance of the initiative idea, however, into the platform only from the Populist and the Socialist Labor parties. 16 The Populist, or People's Party, one of the key early groups to espouse the initiative and its sister measures-the referendum and the recall-was a new political grouping created largely by frontier farmers and miners. Hard pressed by low prices for their products throughout much of the period from 1875 to the early 1900s and unable to secure redress through legislatures they believed to be controlled by the banks and the railroads, these groups began to seek major changes in the system. After earlier local efforts, the Populist Party held its first national convention in 1892. Its platform called for free silver, public ownership of railroads, a graduated income tax, direct election of senators, and adoption of the initiative and the referendum. 17 The first statewide adoption came in 1898 in South Dakota. Utah followed in 1900 and Oregon in 1902. The political process that led to these adoptions is described by Cronin: Because direct democracy ... measures in the 1880s and early l890s were promoted by groups regarded as cranks-socialists and single issue groups, most notably the single-taxers-incumbent legislators tended to dismiss both the groups and measures as too radical. By the late l890s, however, converts to these measures were increasing throughout the West. A National Direct Legislation League had been formed in the early l890s. Its periodicals ... as well as other friendly journals ... heightened public interest in direct democracy .... In state after state ... the first proponents had been the leftist factions-the socialists and the People's party [Populists]. In rural states the Farmers' Alliance typically 14c.F. Taylor, ed., "Among the States," Equity 12 (No.4, October 1910): 148, 159-160; Schmidt, Citizen Lawmakers, pp. 267.268. 15J. W. Sullivan, Direct Legislation by the Citizenship through the Initiative and Referendum (New York: True Nationalist Publishing Co., 1893);Schmidt, Citizen Lawmakers, ch. I; Cronin, Direct Democracy, pp. 46-49; Nathan Cree, Direct Legislation by the People (Chicago: A. C. McClurg, 1892). Both Sullivan and Cree cite earlier well-known writers such as Sir Henry Maine and A. V. Dicey as finding the Swiss experience with the referendum and the initiative positive. Both were also familiar with books written by former British and American ambassadors about Switzerland and the Swiss experience with direct legislation. 16Schmidt, Citizen Lawmakers, p. 6. 17Cronin, Direct Democracy, p. 45. Schmidt, Citizen Lawmakers, p. 7, indicates that the principal author of the Populist Party 1892 platform was Ignatius Donnelly.

History

11

was in the forefront. Thousands of labor federations, notably the miners, joined the campaign. So did the Women's Suffrage Association.... 18 When the Populists gained control of the South Dakota legislature in 1897, they lost no time adopting the nation's first statewide initiative, doing so in 1898. In addition to Father Haire, the inventive Catholic clergyman who first proposed the idea without ever having heard of the Swiss system, ultimate adoption of the initiative owed much to Walter Kidd, publisher of the Dakota Ruralist, a populist legislator, and a believer in socialism. 19 In almost every state, where the movement was successful, a few highly dedicated individuals played key roles in promoting the initiative concept-William U'Ren in Oregon, Lars Ueland in North Dakota, and Roland Patten in Maine.20 As the initiative idea became more accepted, it was taken over by the Progressives and espoused by such individuals as Robert La Follette of Wisconsin, Theodore Roosevelt, George Norris of Nebraska, and Woodrow Wilson.21 Many states lost little time in making use of the initiative once it was adopted. In 1914 there were 90 propositions on the ballot throughout the country. U sage declined rapidly, however, and by 1918 there were only 30. Except for increases in 1920-22 and 1932-40, numbers stayed largely in the 20 to 30 range per general election year until the early 1970s when they began to rise again.22 By the late 1980s the number had risen to around 60 initiatives in each general election year. In 1996 the total was 81. Early initiatives established primary elections for the nomination of candidates, presidential primaries, direct election of U.S. Senators, recall procedures, home rule for municipalities, permanent voter registration, and led to reapportionment in some states. California.23 The forces at work in other Western states were also at work in California, and San Francisco was one of the earliest jurisdictions in the country to adopt the initiative, doing so in 1898.24 The statewide campaign for the initiative in California developed more slowly. It was spearheaded by Dr. John Haynes, a wealthy Los Angeles physician, who first came to California in 1887. Haynes believed strongly in the initia-

18Cronin, Direct Democracy, pp. 50-51. Samuel Gompers, president of the American Federation of Labor, was another highly important early supporter. Schmidt, Citizen Lawmakers, pp. 6-7. Some temperance groups also actively supported the campaign. 19Schmidt, Citizen Lawmakers, pp. 267-268. 20Schmidt, Citizen Lawmakers, pp. 237,255,26];

Cronin, Direct Democracy, pp. 45-50.

2lCronin, Direct Democracy, p. 54. 22Schmidt, Citizen Lawmakers, p. 24. 23Brief histories of the initiative in other states are given in Schmidt, Citizen Lawmakers, 285.

pp. 217-

24Key and Crouch, Initiative and Referendum, p. 428 n.14. This legislation may have been invalid, as it was contrary in some respects to the state constitution. A 1902 amendment allowed initiatives to be adopted by home-rule cities. E.R. Zion, "Direct Legis]ation in San Francisco," Transactions of the Commonwealth Club of California, XXV (1930): 548-558.

12

LAWMAKING

BY INITIATIVE

tive, the referendum, and the recall, and worked tirelessly from 1901 to 1911 to secure their adoption. He lobbied and entertained legislators, gave speeches, and sought support from citizens' organizations.25 The first statewide breakthrough came in 1902 when the legislature passed and voters ratified a constitutional amendment enabling home-rule cities to amend their charters by initiative.26 Los Angeles and San Francisco quickly added this authority to their charters (1903). By 1910, 20 home-rule cities had adopted the initiative, the referendum or both. Citizens quickly put the new measures to use, overturning the sale for $500 of a $500,000 franchise in Los Angeles, forcing the resignation of the Los Angeles mayor, and compelling the Sacramento City Council to put the issue of granting a franchise allowing the Western Pacific railroad to come into the city to a referendum vote. California at this time, like many other states, was ruled by political machines and political party bosses. The party machines were controlled largely by the Southern Pacific railroad. One of the principal aims of the initiative movement was to break out of this control. Eventually a broader political movement designed to break the Southern Pacific's domination of the state evolved. Highly publicized exposures of extensive graft and corruption in San Francisco and elsewhere provided impetus and urgency to this movement.27 By far the most influential group was the Lincoln-Roosevelt League. Organized in 1907 by two highly knowledgeable newspapermen, Chester Rowell of the Fresno Republican and Edward Dickinson of the Los Angeles Express, this state-wide, Republican movement sought to break the power of the Southern Pacific. It quickly gained prominence and was a strong force in the 1908 elections. Hiram Johnson, one of the prosecutors in a notorious San Francisco graft case and the League's candidate for governor in 1910, won the Republican primary, and the League in effect took over the Republican party. Johnson and the new Republican slate swept into office in the fall general election.28 When the legislature convened in 1911, Johnson placed his full strength behind the initiative, the referendum and the recall. In his inaugural address he argued: If we can give to The reforms as they desire, the power temporarily tionary measure which

People the means by which they may accomplish such other the means as well by which they may prevent the misuse of centralized in the Legislature and an admonitory and precauwill ever be present before weak officials, and the existence of

25Key and Crouch, Initiative and Referendum, pp. 424-429. Haynes helped found the California Direct Legislation League in 1895. Schmidt, Citizen Lawmakers, p. 222. See also Laura Tallian, Direct Democracy: An Historical Analysis of the Initiative, Referendum and Recall Process (Los Angeles: People's Lobby, 1977), pp. 22-44. 26Key and Crouch, Initiative and Referendum, p. 428. In 1893 California had adopted a statute requiring counties to allow popular referendums on county ordinances if petitions containing signatures equal to 50 percent of the previous general election were filed. Cal. Stat. (1893), p. 387. 27Key and Crouch, Initiative and Referendum, pp. 429-434. 28Richard Lower, A Bloc of One: The Political Career of Hiram W Johnson (Stanford, Ca.: Stanford University Press, 1993), pp. 16-31.

History

13

which will prevent the necessity for its use, then all that lies in our power will have been done in the direction of safeguarding the future and for the perpetuation of the theory upon which we ourselves shall conduct this govemment.. ..I recommend to you, therefore, and I most strongly urge, that the first step in our design to preserve and perpetuate popularfovemment shall be the adoption of the Initiative, the Referendum and the Recall.2 In the legislative debate that followed, opponents concentrated their fire on the amendment authorizing use of the recall, allowing the separate constitutional amendment embodying the initiative and the referendum to pass the legislature with only a single dissenting vote. A special election on October 10, 1911, placed 23 constitutional amendments before the electorate. In addition to the initiative, the referendum and the recall, there were proposals for women's suffrage, a stronger public utilities law and other similar actions. Governor Johnson stumped the state in favor of the measures in what turned out to be a bitter campaign. In the end the initiative and the referendum carried by a vote of more than three to one: 168,744 for, 52,093 against. All but one of the 23 amendments proposed by the Progressive legislature were adopted, including the hotly contested grant of women's suffrage and the recall.30 In the 85-plus years that passed between the adoption of the initiative in 1911 and 1996, the California electorate voted on 257 initiatives, adopting 85, or 33 percent, of these.31 While the proposals voted on have included many trivial measures, they have also led to the adoption of many important new laws. A 1914 initiative abolished the poll tax in California, a 1916 measure ended the practice of appointing legislators who supported the Southern Pacific machine to lucrative state offices while still serving as legislators, and a 1918 initiative created the state's first usury law. Other early initiatives were directed toward increasing the marketability of highway bonds, improving the schools, authorizing the issuance of bonds to assist World War I veterans, and a number of prohibition issues. A 1920 initiative strengthened the alien land law that restricted ownership of land by persons not eligible for naturalization, principally Japanese immigrants.32 A very important 1922 initiative, sponsored by San Francisco's Commonwealth Club, made the governor the state's chief budget officer and created a system allowing the governor to reduce or eliminate any item in the appropriation bill ("line item veto"). A 1926 initiative established the "little federal" pattern for reapportionment under which the state operated until the 1960s. The state prohi29Quoted in Key and Crouch, Initiative and Referendum, p. 435. 30Key and Crouch, Initiative and Referendum, p. 440. The legislature passed the initiative and referendum amendment on February 20, 1911 (Senate Constitutional Amendment No. 22). Beard and Schultz, Documents, pp. 184-185. 31See Table 5 (page 32). 32Key and Crouch, Initiative and Referendum; Winston Crouch, The Initiative and Referendum in California (Los Angeles: Haynes Foundation, 1943); Winston Crouch, The Initiative and Referendum in California (Pasadena, Ca.: Castle Press, 1950). Brief accounts of the initiatives that have appeared on the California ballot are given in John Allswang, California Initiatives and Referendums: 19121990 (Los Angeles: California State University, Los Angeles, 1991).

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bition act was repealed in 1932. 1934 initiatives eliminated partisan elections for the selection of judges, gave the attorney general the authority to supervise district attorneys, sheriffs and other enforcement authorities, made other changes in the criminal justice system, and constitutionalized some aspects of the state employee merit system. Initiatives in the 1940s and 1950s increased aid to the schools (1944, 1948, 1952) and made important changes in the welfare system (1948, 1949, 1952). A 1950 initiative required a vote of the people to create public housing projects, and a hotly contested 1964 initiative repealed a fair housing law previously passed by 33 the legislature. This repeal was later declared unconstitutional by the courts. In the 1970s California voters used the initiative to reinstitute the death penalty, create environmental protections for the coastal area, enact stiff new campaign finance and political ethics legislation, and reduce property taxes (Proposition 13).34

33Reitman v. Mulkey, 387 U.S. 369 (1967), affirming two decisions by the California Court. 34See Chapter One for a summary of more recent California initiatives.

Supreme

CHAPTER THREE

THE INITIATIVE AND AMERICAN DEMOCRACY CONCEPTS ALTHOUGH THE AMERICANREVOLUTIONARIES in the 1770s were familiar with popular democracy as it had been practiced in Athens and in New England town meetings, their cry at the outset was not "power to the people" but "no taxation without representation.,,1 They wanted representation in the government, not some new form of direct democracy. The Declaration of Independence voiced their view that "a just government must derive its powers from the consent of the 2 governed," but the Founders sought to accomplish this through a republic. They favored principles such as the initial consent of the governed, rule by law, and representation of the people, but were profoundly skeptical of public voting on a wide range of issues. Many Revolutionary leaders believed that this kind of pure democracy had led Athens and other ancient city-states into decline and shared the widely held view that the follies of such kinds of democracy easily outweighed their virtues. "In a large society, inhabiting an extensive country," John Adams said, "it is impossible that the whole should assemble to make laws. The first necessary step, then, is to delegate power from the many to a few of the most wise and good.,,3 James Madison, principal author of the Constitution, agreed. The consent of the people was necessary and power "flowed" from the people to those temporarily in power. Yet there was no way for people to involve themselves wisely in a regular, on-going basis in government operations. "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.,,4 But since 1Much of this section is drawn from Thomas Cronin's excellent work, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass.: Harvard University Press, 1989), pp. 7-59.

2Cronin, Direct Democracy, p. 12. 3Quoted in Cronin, Direct Democracy, p. 14. Federalist Papers (Clinton Rossiter, ed., 1961), No. 51 (James Madison), Direct Democracy, p. 18. 4The

15

p. 322; Cronin,

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neither was the case, the Framers of the Constitution had to devise a republic that could temper human imperfection and protect people from one another.5 The Framers wanted a system of checks and balances. While a one-house legislature would have been more democratic, they designed a Congress with two houses, only one of which was directly elected. And in Article IV, section 4, they required each state to have a "republican form of government.,,6 They refused to include provisions in the Constitution allowing voters to bind their representatives with instructions and were eventually successful in eliminating this direct democracy device. There were to be sure some who wanted a more direct democracy, but they were clearly a minority of those involved in creating the new system.7 The cry for adoption of the initiative, the referendum, and the recall in the late 1800s came not from theorists seeking to develop some abstract concept of better government but from citizens with major problems, particularly farmers who found it difficult to live with prices below the cost of production. By the time they paid the banks and the railroads, they had nothing left for their families. Because the railroads, the trusts, and the monopolies so often dominated both the legislatures and the two main political parties,8 farmers and other outcast groups came together to form a new party-the People's or Populist party. Although the initiative, the referendum, and the recall formed only one part of this new party's platform, these direct democracy devices were nonetheless a very important part, because they provided a means for "temporarily bypassing their legislatures and enacting needed laws on behalf of the downtrodden farmer, debtor, or laborer.,,9 Woodrow Wilson, a leading scholar of government before he became a governor and a president, explained the movement. The reformers, he said, were not bent upon any radical transformation. They had no intention of undermining legislative or representative processes, but rather sought to redeem them: SMadison argued explicitly that a republic involved representative government rather than "pure democracy". Charles Beard and Birl Shultz, Documents on the State- Wide Initiative, Referendum and Recall (New York: Macmillan Co., 1912; reprinted New York: Da Capo Press, 1970), pp. 25-29, citing The Federalist Papers Nos. 10 and 39. 6Some argue that all use of the initiative is unconstitutional because it creates a form of government that is not deliberative enough to be "republican." Others argue that particular uses of the initiative, such as those that threaten minority rights, fail to meet the standard required by the Guaranty Clause. See, e.g., Hans Linde, "When Initiative Lawmaking is Not 'Republican Government': The Campaign Against Homosexuality," Oregon Law Review 72 (1993): 19. Because it considers the issue to be a "political question" that should not be decided by the federal courts, the United States Supreme Court has refused to rule on the general question of the compatibility of the initiative and the Guarantee Clause. Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912). State courts that have ruled on the issue have found that use of the initiative is consistent with a "republican form" of government. In 1990 the Oregon Supreme Court indicated its willingness to consider the argument that some particular initiatives violate the Guaranty Clause. State v. Montez, 789 P.2d 1352 (Or. 1990). 7Cronin, Direct Democracy, pp. 21-37; Julian Eule, "Judicial Review of Direct Democracy," Law Journal 99 (1990): 1522-1530. 8Cronin, Direct Democracy, p. 44. 9Cronin, Direct Democracy, p. 45.

Yale

The Initiative and American Democracy

17

It must be remembered that we are contrasting the operation of the initiative and referendum, not with the representative government which we possess in theory and which we have long persuaded ourselves that we possessed in fact, but with the actual state of affairs, with legislative processes which are carried on in secret, responding to the impulse of subsidized machines and carried through by men whose unha;piness it is to realize that they are not their own masters, but puppets in a game.! The reformers believed that the populace as a whole could not be corrupted in the way that the legislatures had been corrupted, and that the initiative would help to make all governmental processes more honest and responsive. Around the turn of the century the torch passed from the Populists to the Progressives, a more establishment group but in many respects the spiritual heirs of the Populists. The Progressive reform agenda-representing a whole theory of politics-included home rule, nonpartisan elections, the commission plan for local government, merit systems, direct election of U.S. senators, women's suffrage, and independent regulatory commissions as well as the initiative, the referendum and the recall.! J Much of this agenda was based on the shortcomings of representative government as it then existed: They believed private interests and narrow-minded party bosses could too easily exploit the natural resources and treasuries of the state for their own purposes. Progressives were also concerned that state legislatures were not functioning as they should. Their proceedings involved too much secrecy, too little discussion, too much automatic passage of what legislative committees proposed. Too often, in the short biennial sessions ... crucial measures were rushed through at the last minute. Temptations for corruption were pervasive. Moreover, many legislators, rather than representing their constituents, seemed to represent the interests of party bosses and to be accountable only to them.... Thus voters seemed to have only a narrow choice between the appointees of one boss or those of another. 12 As Theodore Roosevelt, himself a former legislator and governor, said, "Special interests which would be powerless in a general election may be all powerful in a legislature if they enlist the services of a few skilled tacticians.,,13 The initiative and its sister measures were not a miracle cure or a "panacea for all our ills," California's Hiram Johnson said, "yet they do give to the electorate the power of action when desired, and they do place in the hands of the people the means by which they may protect themselves.,,!4

lOWoodrow Wilson, "Issues of Reform," prepared from an essay he wrote in 1910 and an address he gave in 1911, quoted in William Munro, ed., The Initiative, Referendum and Recall (New York: D. Appleton, 1912), p. 87. 11 Magleby,

Direct Legislation, p. 23.

12Cronin, Direct Democracy p. 56. 13Theodore Roosevelt, The Outlook, January 21,1911; reprinted in Munro, Initiative, Referendum and Recall, p. 60. Cronin, Direct Democracy, pp. 54-60, summarizes both the Progressives' point of view and their modern critics. 14Quoted in Eugene Lee and Larry Berg, The Challenge of California (Boston: Little, Brown, 2d ed., 1976), p. 98.

18

LAWMAKING

BY INITIATIVE " '

The theory then of the initiative and its sister measures, the referendum and the recall, was not to replace the legislature but to reform it and return it to its rightful place as the servant of the people. I 5

EXPERIENCE WITH THE INITIATIVE The National Perspective What has resulted from reformers' efforts? Perhaps the clearest result has been the adoption of a jurisdiction-wide initiative in 24 states and the District of Columbia, and consideration of adoption in almost every other state, as well as by the Congress.16 The referendum (a procedure allowing citizens to force a public vote on statutes adopted by the legislature) has also been widely adopted. Many of the jurisdictions that use this procedure (24 states and the District of Columbia) also use the initiative, but the overlap is not totalP Four recent studies, all by eminent authors, have sought to go beyond the numbers and assess the actual experience of the states that have adopted the initiative. These assessments are highly relevant to any consideration of changes that might be made in the initiative process. All four have drawn heavily, but not exclusively, on the California experience. A 1984 book by political science professor David Magleby provides a wealth of detail as to how direct democracy actually works in practice. His final assessment begins by highlighting crucial differences in the ends and values sought by direct and indirect democracy: Direct democracy values participation, open access, and political equality. It tends to deemphasize compromise, continuity, and consensus. In short, direct democracy encourages conflict and competition and attempts to expand the base of participants. Indirect democracy values stability, consensus, and compromise and seeks institutional arrangements that insulate fundamental principles from momentary passions or fluctuations in opinion. 18

Comparing the two forms of democracy on six key criteria, Magleby finds IS"[T]oo much must not be expected from direct legislation. It is to be classed, not with legislation proper but with such devices as the secret ballot, the official primary, the corrupt practices acts. Its urgency is not as a means of bringing in reforms, but as a cure for bribery, spoils, and corruption. These are indeed the pressing evils of American politics .... The referendum is the only complete and specific cure for bribery. It alone goes to the source of corruption. It deprives lawmakers and executives of their monopoly of legislation." John Commons, "Direct Legislation in Switzerland and America," The Arena 22 (1899): 725, 738-739. Switzerland also had eloquent debates about the comparative merits of representative government and direct democracy devices during the formative period of its national referendum and initiative. See, e.g., Simon Deploige, The Referendum in Switzerland (London: Longmans, Green, I 898)(C.P. Trevelyan, trans.), pp. 94-107. 16The jurisdictions (Chapter Four).

adopting the initiative and the year of adoption are listed below in Table I

17Council of State Governments, The Book of the States: 1994-95 Edition (Lexington, Ky.: Council of State Governments, 1994), p. 294; D.C. Code Ann. SI-1320 (1992). Sixteen states and the District of Columbia use the recall at the jurisdiction-wide level. Council of State Governments, Book of the States, pp. 305-306; D.C. Code Ann. SI-1321 (1992). 18David Magleby, Direct Legislation: Voting on Ballot Propositions more: Johns Hopkins University Press, 1984), p. 181.

in the United States (Balti-

The Initiative and American Democracy

19

that initiative agendas are generally set by the "capacity to hire professional signature-gathering firms or by the dedication of issue activists or single-issue groups" rather than by issues of prominent concern to the general population such as inflation, unemployment, or the economy. 19 He also finds that "less educated and poorer voters" often do not vote because many propositions are "unnecessarily complex and lengthy." "Despite the high hopes of reformers that direct legislation would increase turnout and reduce alienation," Magleby says "neither has occurred." Overall, he says, "direct legislation is prone to serious biases,,20 insofar as participation and representation are concerned. As to accommodation, accountability and authority, Magleby finds that while direct legislation sometimes makes it possible to resolve questions authoritatively, it does not permit "an assessment of the participants' intensity of opinion." While many observers believe that the initiative "stimulates the legislature to take action," this is counterbalanced to some extent by the fact that the initiative "serves as an easy way for the legislature to avoid deciding" some issues.21 As to deliberation, Magleby concludes that "the electorate as a whole cannot function as a deliberative assembly can. Voters do not develop expertise in the same way or to the same extent that legislators do." The elected legislator will weigh his personal views on the issue, his perception of his constituents' views on the issue, and his view of the long range interest of the polity. "In direct legislation, voting is more individualistic. Theoretically, the outcome of direct legislation should reflect the majority will; however, given dropoff and voter confusion, this may not be true in practice. What is true of direct legislation is that the outcome, which mayor may not reflect the majority will, is subject to fewer institutional checks and safeguards than the legislative process.,,22 Magleby acknowledges that "the legislative process is not without problems," but concludes that it is "more deliberative, substantive, and rational." Professor Magleby's overall assessment is essentially negative:

0t

The practice direct legislation has by and large fa.llen.short o~ the .reformers' expectations and is prone to abuse. The people who rule m dIrect legIslatIOn are those who have mastered the process at the petition-qualification and voting stag~s. Large numbers of citizens are effectively excluded from participation, and what Issue ~o.nce:ns they might have do not reach the direct legislative agend.a. B.e~ause of partICIpatIon biases fostered by the direct legislation process and the mabllIty of man~ voters to translate their opinions into pol~cy, the pro~~ss has fallen short of the mark m the areas of participation and representatIOn as well. . .

Political scientist Betty Zisk studied campaigns on 72 ballot questIOns III California, Massachusetts, Michigan, and Oregon in the years 1976-82. In the 19Magleby, Direct Legislation, p. 182. 20Magleby, Direct Legislation, p. 184. 21Magleby,

Direct Legislation, p. 186.

22Mag1eby, Direct Legislation, p. 187. 23Mag1eby, Direct Legislation, p. 199.

20

LAWMAKING BY INITIATIVE

conclusion to her 1987 book, she discussed had been fulfilled:

whether the hopes of the Progressives

If present-day campaigns on ballot questions are appraised by the original Progressive standards, current practice would seem to be woefully lacking on several counts. The first and most obvious is the key role played by traditional interest groups on almost all but the least controversial proposals. Far from replacing group lobbying efforts vis-a-vis the legislature, the initiative and referenda campaigns seem to provide an alternate channel for the very group activities the reformers denounced. Worse yet, the extraordinary emphasis on group-financed media campaigns, and the success of these efforts, would probably cause the likes of Hiram Johnson to tum in his grave.24

Professor Zisk's final assessment is slightly more positive. Even if it is not possible to say that the initiative satisfied the Progressives' dreams, "because those dreams overestimated the degree to which politics is, or can be, central to the lives of all of us," "I can at least assert," she says, "that some citizen-democrats flourish because of opportunities provided by that dream." "Thus, while these mechanisms for direct democracy are hardly the universal panacea that some past reformers have claimed, they have helped to open up new pathways for participation, for political communication and even for policy innovation.,,25 David Schmidt is a journalist and sometime political activist who is the publisher of Initiative and Referendum: The Power of the People!, a nonpartisan newsletter concerning the initiative process. His 1989 book provides an excellent history of the initiative in the United States and a number of fascinating case studies of particular initiative campaigners and campaigns.26 Schmidt believes that there are such serious problems with the legislative process that it is difficult to imagine the initiative being any worse. Excessive campaign spending, unequal lobbying and off-year campaign contributions, gerrymandering, practices concerning legislators' committee assignments, logrolling and pork barrel legislation, unrepresentative representatives, legislators' arrogance, and the many ways to kill bills make it undesirable in Schmidt's view for legislatures to be given the sole lawmaking authority. Schmidt also believes that there are valid answers to each of the ten most commonly cited objections to the initiative: (1) Initiatives are usually drafted more carefully than legislative bills, he argues, because they cannot be changed. 24BettyZisk, Money, Media, and the Grass Roots: State Ballot Issues and the Electoral Process (Newbury Park, Ca: Sage Publications, 1987), p. 250. Professor Zisk also measures the initiative process agamst Robert Dahl's "pluralist" theory of democracy, a theory that she describes as a "less demanding model of democracy" in that it is satisfied if each member has the opportunity for political partICipatIOnbut does not expect actual participation as the Progressives did. While finding that the ~mtlaliveproc~~s}s"problemat~;" as to pluralist concerns about equal access to information and "by Its very nature very unlIkely to satIsfy concerns about equal opportunity to "insert" alternatives mto those scheduled for voting, Professor Zisk nonetheless finds that the process is satisfactoryunder Dahl's theory. Zisk, Money, Media and the Grass Roots, p. 254. 25Zisk,Money, Media and the Grass Roots, pp. 266-269. 26DavidSchmidt, Citizen Lawmakers:. The Ballot Initiative Revolution (Philadelphia:Temple UniversItyPress, 1989).ThIs book gIves a bnef hIStOryof the initiative in each state (pp. 217-285)as well as a dISCUSSIOn of the movement for a national initiative (pp. 171-181).

The Initiative and American Democracy

2I

(2) Campaign spending is decisive in only about one-eighth of all initiative campaigns. (3) Initiatives are not a tool of the special interests because there is a rough liberal-conservative equality. (4) Participation on ballot measure issues is higher than that in candidate races. (5) Initiatives are relatively small contributors to "ballot clutter." (6) Initiatives do not create a "tyranny of the majority" because they are subject to judicial review. (7) The initiative is complementary of rather than a substitute for the legislature. (8) Voters do not always "selfishly" vote their pocketbooks. (9) Tax cut initiatives in California and Massachusetts have not been disastrous. And (10) voters do vote intelligently on initiatives.27 Overall his assessment is positive: The Initiative process is not a cure-all, but it does result in increased government responsiveness to the will of the people, greater citizen participation and a betterinformed electorate. It is a safeguard against the concentration of political power in the hands of a few, and it provides a means of putting new ideas on the political agenda.28

A fourth perspective is that of Thomas Cronin, a leading academic authority on American institutions. His 1989 book for the Twentieth Century Fund delves deeply into the theory and practice of the initiative process. He finds that: The American experience with direct democracy has fulfilled neither the dreams and expectations of its proponents nor the fears of its opponents. The initiative and referendum have not undermined or weakened representative government. The initiative, referendum, and recall have been no more of a threat to the representative principle than has judicial review or the executive veto. Tools of neither the "lunatic fringe" nor the rich, direct democracy devices have become a permanent feature of American politics, especially in the West.29

Cronin explains why he believes the direct democracy devices have not been used more often: The initiative, referendum, and recall have not been used as often as their advocates would have wished, in part because state legislatures have steadily improved. Better-educated members, more-professional staff, better media coverage of legislative proceedings, and longer sessions have transformed the legislative process at the state level, mostly for the better. Interest groups once denied access to secret sessions now regularly attend, testify, and participate in a variety of ways in the legislative process. Although individuals and some groups remain frustrated, the level and intensity of that frustration appear to be lower than the discontent that prompted the popular democracy movements around the turn of the century.30

Throughout most of their history Cronin finds that the direct democracy devices have had a number of enduring problems: issues of ballot access, signature drive deceptions, drafting confusion, voter turnout and falloffs, voter competence questions, issues concerning weakening of the legislature, and minority rights. In recent decades some new challenges have been added to this list: money (especially one-sided campaign expenditures), paid petition circulators, 27Schmidt, Citizen Lawmakers, pp. 25-40. 28Schmidt, Citizen Lawmakers, pp. 25-26. 29Cronin, Direct Democracy, p. 196. 30Cronin, Direct Democracy, p. 197.

22

LAWMAKING

BY INITIATIVE

direct mail deception, deceptive advertising campaigns, litigation and court intervention, and video- or teledemocracy.31 After assessing each of these problems in some detail, Professor Cronin concludes: In sum, direct democracy devices have not been a cure-all for most political, social, or economic ills, yet they have been an occasional remedy, and generally a moderate remedy, for legislative lethargy and the misuse and nonuse of legislative power. It was long feared that these devices would dull legislators' sense of responsibility without in fact quickening the people to the exercise of any real control in public affairs. Little evidence exists for those fears today. When popular demands for reasonable change are repeatedly ignored by elected officials and when legislators or other officials ignore valid interests and criticism, the initiative, referendum, and recall can be a means by which the people may protect themselves in the grand tradition of self-govemment.32

The California Experience Other assessments of the initiative process focus specifically on the experience in particular states.33 The most perceptive early assessment of the California experience was that made by V.O. Key, Jr., one of the most highly respected political scientists of the twentieth century, and Winston Crouch, an acute observer of the California political scene. In their 1939 assessment, Key and Crouch describe the role of the initiative: The typical state governmental structure is deliberately designed to check popular movements, but an excessive zeal in utilizing its braking power leads to the tightening of social tensions, to a general feeling of dissatisfaction, and, perhaps, to more or less precipitous modifications of public policy. Through the lhitiative, the advocates of direct legislative methods, not avowedly but in effect, sought a permanent remedy for this recurrent legislative paralysis.34

In their view, the initiators of propositions have usually been: pressure organizations representing interests--commercial, industrial, financial, reform, religious, political-which have been unable to persuade the legislature to follow a particular line of action .... It appears that. .. well-financed interest-gro~s initiate measures more frequently than do spontaneously formed reform groups.3 The initiative is almost invariably used by groups unable to gain particular ends through the action of the representative body. These groups may be either radical or reactionary .... The demand is usually rationalized in terms of the public interest.. .. [T]he groups using the initiative have not differed from the organizations lobbying before the legislature.36 3 ICronin, Direct Democracy, pp. 207, 214. 32Cronin, Direct Democracy, p. 222. For recent foreign assessments, see Andreas Auer, Le Referendum et l'initiative populaires aux Etats-Unis (Basel: Helbing & Lichtenhahn, 1989)(Switzerland); Ulrich Glaser, Direkte Demokratie als politisches Routineverjahren (diss., University of Erlangen, 1997) (Germany). 33See, e.g., Commonwealth of Massachusetts, Legislative Research Council, Report Relative to Revising Statewide Initiative and Referendum Provisions of the Massachusetts Constitution, House No. 5435 (1975); Hugh Bone and Robert Benedict, "Perspectives on Direct Legislation: Washington State's Experience 1914-1973," Western Political Quarterly 28 (1975): 330. 34v.O. Key, Jr. and Winston Crouch, The Initiative and the Referendum in California (Berkeley: University of California Press, 1939), p. 442. See also Winston Crouch, The Initiative and Referendum in California (Pasadena, Ca.: Castle Press, 1950). 3SKey and Crouch, Initiative and Referendum, pp. 565-567. 36Key and Crouch, Initiative and Referendum, p. 487.

The Initiative and American Democracy

23

Key and Crouch find the "initiative ... deficient as a legislative device in that there is no opportunity in the process of formulation of a measure for its opponents to be heard." This lack of opportunity for amendment and compromise would be a "grave" criticism in their view "if a considerable proportion of the legislative output originated through the initiative.,,37 "On the whole,~' conclude Key and Crouch, the propositions adopted by the initiative "appear to be neither more drastic nor less intelligent in intent than acts which have been adopted by the legislature.,,38 The initiative has not brought about the enactment of legislation seriously detrimental to private property rights or tyrannical toward minority interests, as was feared by its opponents. As a general rule, measures which would have had such effect have been defeated when met by organized opposition from the interests to be affected. The electorate has been no more precipitous in injuring such groups than the representative body ... .It would appear that powerful minority groups defending a politico-economic status occupy the strategic position, whether they are attacked through the legislative body or before the electorate.39 One reason the initiative has been neither as influential expected nor as terrible as its opponents feared is that:

as its supporters

The early advocates of the initiative, as well as the professional political scientists of the time, had in some respects an unrealistic conception of politics. Nor can it be said that the opponents of the initiative exhibited a superior insight into the dynamics of politics. It was thought that "The People" would circulate petitions and put measures on the ballot for the promotion of the welfare of the average man. The fight would then be over, since all measures (so ran the argument of the more enthusiastic advocates of the initiative) fell into two well-defined categories, namely, those in the public interest and those for the benefit of some special interest. It has been clearly shown that initiative measures do not originate with "The People." The moving forces in politics are relatively small groups of men animated by some "interest." Such groups have collectively come to be designated as "interest-groups" or "pressure groups.'40 Key and Crouch argue that these interest groups are not always "grossly selfish," but that they always act like "vested interests." "Occasionally," they say, "the public interest parallels the interest of some more or less selfish interestgroup, or more nearly so than the interest of the counter pressure group, and the force exerted on behalf of such interest-group redounds to the public benefit.,,41 Key and Crouch summarize their views in three propositions: First, legislation is largely the product of the activities of small groups of men leading and directing larger interest-groups. Second, the proposals of aggressively sought legislation mayor may not be in the public interest but generally tend to be primarily for the benefit of such interest-groups. Third, when such a group arises to champion a cause which is undoubtedly for the general welfare, the odds against success are great, for the opposition is strong and the support usually weak.42 37Key and Crouch, Initiative and Referendum, p. 568. 38Key and Crouch, Initiative and Referendum, p. 565. 39Key and Crouch, Initiative and Referendum, p. 488. 40Key and Crouch, Initiative and Referendum, p. 572. 41

Key and Crouch, Initiative and Referendum, p. 572.

42Key and Crouch, Initiative and Referendum, p. 573.

24

LAWMAKING

BY INITIATIVE

The principal hope, they argue, "of the great mass of individuals who are not formally represented by professional organizers of pressure groups and whose interests are not championed by paid lobbyists" is the ordinary workings of the political process. Sometimes the interests of the general mass of people run parallel with the aims of some particular vested interest. More generally, however, the mass of the people will find their interests better accommodated "in insurgent factions of political parties." "If the mass of the people, in a given situation, cannot gain their ends by supporting such a group, in all probability they could not do so through the initiative.,,43 Two recent assessments of the California experience have been made by Eugene Lee, long-time director of the University of California, Berkeley's Institute of Governmental Studies and a highly respected authority on American politics. In 1978 Professor Lee predicted many of the trends of the 1980s and the 1990s. These predictions remain highly relevant for the year 2000 and beyond: • The initiative will continue to be a permanent part of the California political scene, complementing if not supporting weak political party organizations whose leadership is dominated by personalities and issues rather than resting on formal structure. • The high costs of the initiative process both in petition-circulation and in campaigning will continue. While these high costs are identified primarily with economic special interest groups ... grass-roots organizations will continue to compete successfully in the initiative process with relatively modest financial resources . • The "new politics" ... , with its emphasis on professional campaign management, targeted direct mailings, and the sophisticated sloganeering of the sixty-second television commercial will dominate most initiative campaigns .... • Successful initiatives will generally be adopted by a vote of no more than 25 to 30 percent of the adult population of the state. Whether such a decision is more or less "democratic" than an action by a state legislature, itself the product of a limited electorate and generally safe districts, is an open question .... • The initiative process is often not "a particularly efficient means of enacting new legislation. Lawmaking requires hearings, debates, compromise and deliberation, whereas the initiative process is inherently arbitrary." ... • Despite the obvious complexities of the ballot, "California's well-educated voters [seem] far more able to cope with intricate initiatives than had been presumed by political scientists .... " • The initiative will be employed by candidates for public office as a part of their personal campaign strategy. In fact, this will be the prime motivation behind the drafting and sponsorship of some measures .... 43Key and Crouch, Initiative and Referendum, pp. 573-574.

The Initiative and American Democracy

25

• The initiative will continue to be used as an educational tool... [e]ven when the chance of success [in passing the initiative] is small .... • Most important, the initiative will remain a critical part of the politics of the legislative process. The very existence of an alternative to the legislature and the governor, whether it is used or not, influences the pattern of legislative behavior.44 How well has the initiative accomplished the goals of the 1911 reformersneutralizing special interest groups, curtailing corruption, providing a vehicle for civic education, creating pressure on state officials to act in the public interest and ultimately making "every man his own legislature"? In 1978 Professor Lee said that "the answer is assuredly mixed": We cannot isolate this one institution and attribute to it either the blessings of progress or the sins of. .. California's public life in this century. Nor can we even answer whether California would be better or worse off if the Progressives had not been successful in 1911. Special interests in the state are as active and as powerful as anywhere in the nation, but their numbers include effective grass-roots environmental protection and civic reform groups as well as dominant economic forces. Corruption is relatively rare, but the power of campaign contributions is strong and, although fully reported, unrestricted. Civic education is high, but millions of Californians do not participate politically at alJ.45

By 1990 Professor Lee was much more negative. In an article reviewing the relationship between representative government and the initiative process, he argued vigorously that the threat to responsive government in modern California is no longer the Southern Pacific railroad and the monopolies but "the initiative process itself.,,46 Instead "of serving as a safety valve," Professor Lee believes that the initiative "has become an uncontrolled political force of its own" and that it is "no longer democratic." It is a force that has produced occasional benefits but at an extraordinary cost-an erosion of responsibility in the executive and legislative branches of state government, a simultaneous overload in the judiciary, and an excessively amended state constitution alongside a body of inflexible quasi-constitutional statutory law.47 Professor Lee highlights three major problems. "Important aspects of the state's political agenda are being set, not by its elected leaders, but by unaccountable single-interest groups operating in a fragmented, uncoordinated, and frequently contradictory manner.,,48 The initiative allows the executive and the 44Eugene Lee, "California," in David Butler and Austin Ranney, eds., Referendums: tive Study of Practice and Theory (Washington, D.C.: American Enterprise Institute,

A Compara-

1978),pp. 87,

118-119. 45Lee, "California,"

in Butler and Ranney, Referendums,

p. 120.

46Eugene Lee, "Representative Government and the Initiative Process, in John Kirlin and Donald Windler, eds., California Policy Choices 6 (Los Angeles: University of Southern California School of Public Adrninistration, 1990):227-253,248. 47Lee, "Representative

Government,"

in Kirlin and Windler, California Policy Choices

48Lee, "Representative

Government,"

in Kirlin and Windler, California Policy Choices

6: 248. 6: 248-249.

26

LAWMAKING

BY INITIATIVE

legislature to escape responsibility for dealing with tough issues. And it allows all concerned to bypass the slow, frustrating, and difficult-but nonetheless essential in Lee's view-task of consensus building.49

49Lee, "Representative Government," in Kirlin and Windler, California Policy Choices 6: 248-250. Other assessments of the California experience include League of Women Voters of California, Initiative and Referendum in California: A Legacy Lost? (Sacramento, Ca.: 1984); Charles Bell and Charles Price, "Are Ballot Measures the Magic Ride to Success?," California Journal 19 (September 1988): 380; Alan Rosenthal, "An Outsider's View of the California Initiative," in The California Initiative Process: Current Controversies and Prescriptions, Summary Proceedings, Public Issue Forum (Davis, Ca.: University of California, University Extension, March 23, 1990), p. 22; Eric Pata~hnik, "California's Initiative Process in the I 990s: Laying the Groundwork for Reform" (unpublished study prepared for the League of Women Voters and for the Graduate School of Public Policy, University of California, Berkeley, May 1989).

CHAPTER FOUR

A COMPARATIVE ANALYSIS OF AMERICAN STATE LAWS STATES THAT USE THE INITIATIVE THE FIRSTAMERICANSTATETO ADOPTTHEINITIATIVE,as discussed in Chapter Two, was South Dakota in 1898. The idea proved popular in other states, particularly other Western states, and by 1918 some form of the initiative had been adopted by 18 states. There were no new adoptions until 1959 when Alaska came into the union. Since the mid-1960s numerous other states have considered adopting the initiative, and five states have done so, including Mississippi in 1992.' There was also serious discussion of a national initiative in the 1970s.2 Twenty-four states and the District of Columbia use some form of the initiative, as Table 1 shows. Fifteen of these states allow use of the initiative for both constitutional amendments and statutes, while three allow its use only for constitutional amendments and six plus the District of Columbia allow its use only for statutes. The initiative process has two basic forms: the direct initiative and the indirect initiative. In the direct initiative, a measure that qualifies for the ballot by citizen petition is submitted directly to a vote of the people. In the indirect initiative, a ballot measure must be submitted to the legislature before being voted on by the people. If the legislature decides to adopt the measure, then it is not submitted to a vote of the people. Fourteen states and the District of Columbia use only the IAs indicated in Chapter One, Mississippi first adopted an initiative process in 1916, but the Mississippi Supreme Court ruled the adoption unconstitutional in Power v. Robertson, 93 So. 769 (Miss. 1922). In 1991 the court refused to reconsider its earlier ruling. State ex rei. Moore v. Molpus, 578 SO.2d 624 (Miss. 1991).

2Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum. and Recall (Cambridge, Mass.: Harvard University Press, 1989), pp. 157-195; Hearings Before the Subcommittee on the Constitution of the Committee on the Judiciary, on S.J. Resolution 67, 95th Cong., 1sl. Sess. (Washington, D.C.: U.S. Government Printing Office, 1977).

27

28

LAWMAKING

BY INITIATIVE

direct initiative. Five states use only the indirect initiative; three states use the indirect initiative for statutes and the direct initiative for constitutional amendments; and two states use both the direct and the indirect initiative for statutes (see Table 2). TABLE 1. Adoption of the Initiative Date

State

Statute

1898

South Dakota

Yes

Constitutional Amendments In 1972

1900

Utah

Yes

No

1902

Oregon

Yes

Yes

1904

Nevada

Yes

Yes

1906

Montana

Yes

In 1972

1907

Oklahoma

Yes

Yes

1908

Maine

Yes

No

1908

Michigan

Yes

Yes

1908

Missouri

Yes

Yes

1910

Arizona

Yes

Yes

1910

Colorado

Yes

Yes

1911

Arkansas

Yes

Yes

1911

California

Yes

Yes

1912

Idaho

Yes

No

1912

Ohio

Yes

Yes

1912

Nebraska

Yes

Yes

1912

Washington

Yes

No

1914

North Dakota

Yes

Yes

1918

Massachusetts

Yes

Yesa

1959

Alaska

Yes

No

1968

Florida

No

Yes

1968

Wyoming

Yes

No

1970

Illinois

No

Yes

1977

D. of Columbia

Yes

No

1992

Mississippi

No

Yes

aMust receive at least 25 percent of the legislature's votes in two separate annual sessions to be submitted to tbe people.

A Comparative Analysis of American State Laws

29

TABLE 2. Types of Initiatives Type

Statutes

Constitutional Amendments

Indirect Only Alaska

Yes

No

Maine

Yes

No

Massachusetts

Yes

Yes.

Mississippi

No

Yes

Wyoming

Yes

No

Michigan

Yes (I)

Yes (D)

Nevada

Yes (I)

Yes (D)

Ohio

Yes (I)

Yes (D)

Utah

Yes (I); (D)

No

Washington

Yes (I); (D)

No

Mixed

Both

Direct Only Arizona

Yes

Yes

Arkansas

Yes

Yes

California

Yes

Yes

Colorado

Yes

Yes

D. of Columbia

Yes

No

Florida

No

Yes

Idaho

Yes

No

Illinois

No

Yes

Missouri

Yes

Yes

Montana

Yes

Yes

Nebraska

Yes

Yes

North Dakota

Yes

Yes

Oklahoma

Yes

Yes

Oregon

Yes

Yes

South Dakota

Yes

Yes

Key: I = Indirect; D = Direct. aMust receive at least 25 percent of the votes of the legislature in two separate annual sessions to be submitted to the people. Sources: Alaska Canst. art. XI; Ariz. Canst. art. IV, pI. I, 91(2); Ark. Canst. amend. VII; Cal. Canst. art. II, s8; Colo. Canst. art. V, 9 I; D.C. Code Ann. S 1-282 (1992); Fla. Canst. art. XI, 93; Idaho Const. art. III, 91; Ill. Canst. art. XIV, 93; Me. Canst. art. IV, pt. 3, 918; Mass. Const. amend. art. XLVIII; Mich. Canst. art. II, S9 (statutes), art. XII, S2 (canst. amend.); Miss. Const. art 15, 9273; Mo. Canst. art. III, S49; Mont. Const. art. III, S4 (statutes), art XIV, 99 (canst. amend.); Neb. Canst. art. III, SS 1,2; Nev. Const. art. XIX, S2; N.D. Const. art. III, S I; Ohio Canst. art. II, sla (canst. amend.), art. II, S Ib (statutes); Okla. Const. art. V, Sl; Or. Canst. art. IV, Sl; S.D. Const. art. III, Sl (statutes), art. XXIII, 91 (const. amend.); Utah Canst. art. VI, 91; Wash. Const. art. II, Sl; Wyo. Canst. art. 3, S52.

30

LAWMAKING

BY INITIATIVE

TABLE 3. Use of the Initiative from Year of Adoption through 1996 (Measures Voted On) Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansasc Californiad Colorado D.ofColumbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Statutes

22 35 50 NA 4

Constitutional Amendments

NA NA 3a 1

NA

Total

22 35 53 I 4

10(1)

46(D)

56

12(1)

14(D)b 53(D)

26 62

9(1) 0(1); 15 (D) 21(1); 97(D)

NA NA

83

58

20

60 113 109 NA 15 NA 1 41 10

144 44 15

NA 24 NA 21

45

15 118 141

80 257 153 15 15 24 I

62 55 37

133

25 37

29

51

166

126

80 292

37

6

43

12

170

Key: I = Indirect; D = Direct. "Must receive at least 25 percent of the votes of the legislature in two separate annual sessions to be submitted to the people. bSince 1961 constitutional amendments must be approved by the people twice. Fourteen separate proposals were on the ballot between 1961 and 1996. Twenty-one votes were required for these 14 proposals. eTotals are incomplete due to gaps in recordkeeping. See David Thomas, "The Initiative and Referendum in Arkansas Comes of Age," American Political Science Review 27 (1933): 66-75. Timothy Kennedy, "Initiated Constitutional Amendments in Arkansas: Strolling Through the Mine Field," U. Arkansas Little Rock Law Journal 9 (198687): 1,6, shows a total of71 constitutional amendments qualifying through 1986, with 28 passing. Five initiatives appeared on the ballot between 1988 and 1996, three passing and two failing. This yields a total of 76 qualifiying through 1996 and 32 passing. dSome California initiatives involve both constitutional amendments and statutes. These are counted as constitutional amendments. Includes three indirect initiatives that appeared on the ballot. Sources: All statewide initiatives through 1976 are listed in Virginia Graham, A Compilation of Statewide Initiatives Appearing on Ballots Through 1976 (Washington, D.C.: Library of Congress, 1978); statewide initiatives from 1978 through 1988 are listed in Philip Dubois and Floyd Feeney, Improving the California Initiative Process (Berkeley, Ca.: California Policy Seminar, University of California, (992), Appendix A; initiatives since 1988 were compiled by the authors.

Some states use the initiative much more than others. South Dakota and Utah, the first two states to adopt the initiative, for example, have used the pro-

A Comparative Analysis of American State Laws

31

cess sparingly, as Table 3 indicates. Alaska, Florida, Illinois, Mississippi, Wyoming, and the District of Columbia, the most recent jurisdictions to adopt the procedure, have used it sparingly as well. Oregon, California, North Dakota, and Colorado, on the other hand, have historically speaking placed the largest number of propositions on the ballot. These states and Washington have also been by far the heaviest users in recent years. From 1978 through 1996, California put 98 measures on its statewide ballot, Oregon 86, Colorado 46, Washington 39, and North Dakota 34, as Table 4 shows. TABLE 4. Recent Use of the Initiative, (Measures Voted On) Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansas Californiac Colorado D. of Columbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Statute 17 23 24

NA 4

1978-1996

Constitution NA

NA la

I NA

6(1)

12(D)

2 (1) 3 (I)

II (D)b IS (D)

0(1); 9(D) 12 (I); 27(D) 17 3 64 9 15 NA 13 NA 7 19 3 27 3

48 18

NA NA

Total 17 23 25 I 4 18 13 18 9 39

12 13 34

29

37 NA

46 IS 14 13 1 18 27 13 34 II 86

14 NA I II 8 10 7 8 38 6

16

98

24

Key: J = Indirect; D = Direct. aMust receive at least 25 percent of the votes of the legislature in two separate annual sessions to be submitted to the people. bSince J 96 J constitutional amendments must be approved by the people twice. Eleven separate proposals were on the ballot during 1978-1996. They required 18 separate votes. eSame California initiatives involve both constitutional amendments and statutes. These are counted as constitutional amendments. Source: See Table 3.

32

LAWMAKING

BY INITIATIVE

In the nearly 100-year history of the initiative in the United States, over 1,800 states wide initiatives have appeared on statewide ballots. Forty percent of the measures proposed were adopted by the voters, as indicated in Table 5. Although the percentage adopted varies enormously from state to state, the states that have used the initiative the most usually are in the 25 to 50 percent range. TABLES.

Initiatives Approved by Voters from Year of Adoption through

1996 Type

Number On Ballot

Number Adopted

Percent Adopted

Indirect Only Alaska Maine Massachusetts Mississippi Wyoming

22 35 53 1 4

14 17 25 0 3

64% 49% 47% 0% 75%

56 26 62

19 15 16

34% 58% 26%

15 118

2 56

13% 47%

141 80 257 153 15 15 24

56 45 85 60 10 10 12

40% 56% 33% 39% 67% 67% 50% 100% 35% 55% 32% 45% 29% 34% 26% 40%

Mixed Michigan Nevada" Ohio Both Utah Washington Direct Only Arizona Arkansasb Cal iforniac Colorado D. of Columbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota Total

I

62 55 37 170 80 292 43 1,817

I

22 30 12 76 23 100 11 720

"Since 1961 constitutional amendments must be approved by the people twice. They are counted here each time they appear. This method of counting differs from that in Tables 3 and 4. bTotals are incomplete due to gaps in recordkeeping. See Table 3. cSome California initiatives involve both constitutional amendments and statutes. These are counted as constitutional amendments. Includes three indirect initiatives that appeared on the ballot. Sources: See Table 3.

A Comparative Analysis of American State Laws

BALLOT ACCESS-SIGNATURE

33

REQUIREMENTS

All states that use the initiative process regulate access to the ballot by requiring initiative proponents to gather signatures from registered voters. Although this requirement allows citizens to put issues directly before the electorate, it also ensures that there is enough popular support to prevent voting on frivolous issues.3

Statutory Initiatives The number of signatures required is usually calculated as a percentage of the number of votes in the last gubernatorial election. Fifteen of the 22 jurisdictions that allow statutes to be adopted through the initiative process use this method of calculation.4 Three states use a percentage of those who voted in the last election (Alaska, Nevada, and Wyoming), one state uses the vote for the secretary of state (Colorado), and one the highest vote total for a statewide officer (Oklahoma). Another jurisdiction calculates a percentage of the registered voters (D.C.), and one uses a percentage of the total population (North Dakota).5 The patterns are relatively similar for the different types of initiative. Nine of the 13 jurisdictions that use only the direct initiative base the number of signatures required on the last gubernatorial election, as do six of the nine states that use the indirect initiative.6 Of the 13 jurisdictions using the direct initiative for statutes, six jurisdictions require signatures totaling 5 percent of the total vote, one requires 6 percent, one requires 7 percent, two require 8 percent, and two require 10 percent. Some jurisdictions thus require twice the proportion of signatures that others do, as Table 6 shows. Studies show that more initiatives qualify in states with low percentage requirements than in states with high percentage requirements.? The number of required signatures varies more widely in states that use the indirect initiative than in direct-initiative states. Two states require the legislature to consider statutory initiative proposals with only 3 percent of the total vote in 3As previously discussed, indirect initiatives go before the legislature before they go on the ballot.

4Ariz. Canst. art. IV, Pt. I, ~1(7); Ark. Canst. amend. VII; Cal. Canst. art. II, *8; Idaho Code ~341805 (1981); Me. Canst. art. IV, Pt. 3, ~18; Mass. Canst. amend. art. XLVIII, Init., Pt. 5, ~l, as amended by amend. art. LXXXI; Mich. Canst. art. II, ~9; Mo. Canst. art. III, ~53; Mont. Canst. art. III, ~7; Neb. Canst. art. III, ~4; Ohio Canst. art. II, ~Ig; Or. Canst. art. IV, ~1(2)(b); S.D. Codified Laws Ann. ~2-1-5 (1992); Utah Code Ann. ~20A-7-201 (Supp. 1994); Wash. Canst. art. II, ~I(a). sBased on: (a) last election: Alaska Canst. art. XI, ~3; Nev. Canst. art. XIX, ~2; Wyo. Canst. art. 3, 52(c); (b) vote for secretary of state: Colo. Canst. art. V, ~1(2); (c) highest vote for statewide officer: Okla. Canst. art. V, ~2; (d) registered voters: D.C. Code Ann. ~1-282 (1992); (e) resident population: N.D. Canst. art. III, ~4. 6Inc1uded within the nine indirect initiative states are five that also use some form of the direct initiative (Michigan, Nevada, Ohio, Utah, Washington). These five states use the same method for calculating the signature requirement for both types of initiative. Four of the five base the percentage on the last gubernatorial election. 7David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), p. 42.

34

LAWMAKING

BY INITIATIVE

the last election (Massachusetts and Ohio). Wyoming, on the other hand, requires signatures totaling 15 percent of the last vote to gain legislative consideration of an initiative proposal. If the legislature fails to adopt the proposal, both of the low-signature states require additional signatures to qualify for the ballot. The additional signatures required in Massachusetts, however, are only a token number (Y2 percent).8 TABLE 6. Signature Requirements (Generally in Percent of Last Statewide Vote) Type

Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utahc Washington Direct Only Arizona Arkansas California Colorado D.ofColumbiad Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Statute 10% 10% 3 +.5%

NA 15% 8%(1) 10%(1) 3+3%(1) 5+5%(1)(0) 8%(1)(0) 10% 8% 5% 5% 5% NA 10%

NA

Constitution NA

NA 3%a 12%

NA

Increment NA

NA NAb

NA NA

10% (D) 10% (D) 10% (D)

NA NA

NA NA

15% 10% 8% 5% NA 8%

5% 2% 3% 0% NA NA NA NA 3% 5% 3%

NA

5% 5% 7%

8% 8% 10% 10%

[2%]e 8% 6% 5%

[4%]e 15% 8% 10%

[2%]e 7% 2% 5%

Key: I = Indirect; D = Direct. aMust receive at least 25 percent of the votes of the legislature in two separate annnal sessions to be submitted to the people. bThe statute form of the initiative differs from the constitutional amendment form. e 10 percent of the last statewide vote is required for a direct initiative. dpercent of registered or qualified voters. epercent of resident population. Sources: Alaska Canst. art. XI, ~3; Ariz. Canst. art. IV, pt. I, ~I (2); Ark. Canst. amend. VTI; Cal. Canst art. II, ~8; Colo. Canst. art V, ~1(2); D.C. Code Ann. ~1-282 (1992); Fla. Canst. art. XI. ~3; Idaho Code ~34-1805 (1981); Ill. Canst. art. XIV, ~3; Me. Canst. art. IV, pt. 3, ~18; Mass. Canst. amend. art. XLVIII, Init., pt. 5 (statutes), pt. 4 (const. amend.); Mich. Canst. art. II, ~9 (statutes), art. XII, ~2 (canst. amend.); Miss. Canst. art. IS, ~273; Mo. Canst. art. Ill, ~50; Mont. Canst. art. m, ~4 (statutes), art. XIV, ~9 (canst. amend.); Neb. Canst. art. III, ~2; Nev. Canst. art. XIX, ~2; N.D. Canst. art. Ill, ~4 (statutes), art. III, ~9 (canst. amend.); Ohio Canst. art. TI, ~la (canst. amend.), art. II, ~Ib (statutes); Okla. Canst. art. V, ~2; Or. Canst. art. IV, ~I; S.D. Canst. art. Ill, ~l (statutes), art. XXITI, ~I (canst. amend.); Utah Code Ann. ~~20A-7-20I, -208 (Supp. 1994); Wash. Canst. art. TI, ~I; Wyo. Canst. art. 3, 52(c).

A Comparative Analysis of American State Laws

35

Constitutional Initiatives Twelve of the 18 states using the initiative for constitutional amendment calculate the signatures required as a percentage of the votes cast in the last gubernatorial election. One uses the vote for the secretary of state (Colorado), one the highest number of votes for a statewide officer (Oklahoma), one the vote in the last presidential election (Florida), and one the vote in the last general election (Nevada). One does not use the vote at all; it uses a percentage of the resident population (North Dakota).9 Again, there is considerable variation in the number of signatures required. Of the 16 states using the direct initiative for constitutional amendments, one requires signatures equaling 5 percent of the vote and two require IS percent. Five states require signatures equaling 8 percent of the vote, and seven require 10 percent of the vote. One of the two indirect-initiative states (Massachusetts) requires signatures totaling only 3 percent of the gubernatorial vote in the last general election, but this is misleading because constitutional amendments in this state do not go on the ballot unless at least one-fourth of the legislature meeting in joint session votes for the measure in two successive annual sessions. 10 The other indirect initiative state (Mississippi) requires signatures equal to 12 percent of the vote. In most of the 15 states that use the initiative for both statutes and constitutional amendments, substantially more signatures are required for constitutional amendments. Five states require about twice as many signatures for constitutional amendments, and seven others require at least one-quarter more signatures. Surprisingly, two states require no more signatures for constitutional amendments than for statutes. I I

THE INDIRECT INITIATIVE With an indirect initiative, once the requisite number of signatures is gathered, the measure goes to the legislature for consideration. Generally the legislature has a fixed period of time to adopt or reject the measure. If the measure is adopted, it becomes law.121f the measure is rejected or if the legislature fails to act within the specified time, the measure goes before the people at the next election. 8Utah also requires the collection of additional signatures if the legislature does not adopt the proposal. 9Last gubernatorial vote: Ariz. Const. art. XXI, 9 I; Ark. Const. amend. VIT; Cal. Const. art II, g8; ITI. Const. art. XIV, g3; Mass. Canst. amend. art XLVIII, Init., pt. 5, gl; Mich. Const. art. XII, g2; Miss. Canst. art. IS, g273(3); Mo. Const. art III, g53; Mont. Canst. art. XIV, 9 10; Neb. Const. art III, g4; Ohio Const. art. II, gIg; Or. Canst. art. IV, gl(2)(c); S.D. Const. art. XXIII, gl. Other: Colo. Const. art. V, gl(2); Okla. Canst. art. V, g2; Fla. Const. art. XI, g3; Nev. Const. art. XIX, g2; N.D. Const. art.m, g9. IOMass. Const. art. XLVIII, pt. IV, g4. llMontana, North Dakota, and South Dakota require twice as many signatures; Oklahoma and Ohio nearly twice as many. Arizona, Missouri, Nebraska, and California require at least 40 percent more signatures. Oregon requires 33 percent more, and Michigan 25 percent more. Colorado and Nevada require the same percentage of signatures. Massachusetts requires fewer signatures, but in that state the initiative goes on the ballot only if the proposed constitutional amendment receives at least a 25 percent affirmative vote in two successive annual legislative sessions. 12In most states laws of this kind are subject to referendum.

36

LAWMAKING

BY INITIATIVE

Indirect Initiative Statutes Nine states use some form of the indirect initiative for statutes, as shown in Table 7.13 Three of these states (Maine, Michigan, and Nevada) use a fairly straightforward version. In Maine, the legislature has the entire session in which to act and may decide to place an alternative proposal or recommendation before the people. If the legislature does this, it is directed to construct the ballot so that voters can choose between competing versions or reject both.I4 In Michigan and Nevada, the legislature has 40 days to act on a petition and may also place an alternative on the ballot. There is no authorization, however, to construct the ballot in any special way. TABLE 7. The Indirect Initiative Method

States

Straightforward

Maine, Michigan, Nevada

Sponsor's option

Utah, Washington

Legislature's option

Alaska, Wyoming

Two-step procedure

Massachusetts,

Constitutional

Ohio

Amendments

Straightforward

Mississippi

Legislature controls

Massachusetts

Sources: Alaska Canst. art. XI, 94; Me. Canst. art. IV, pt. 3, 918; Mass. Canst. amend. art. XLVIII, Inlt., pt. 5 (statutes), pt. 4 (canst. amend.); Mich. Const. art. n, 99; Miss. Canst. 9273; Nev. Canst. art. XIX, 92; Ohio Canst. art. n, 91b; Utah Code Ann. 9920A-7-201, -208 (Supp. 1994); Wash. Canst. art. II, 9 I; Wyo. Canst. art. III, 952(d).

Massachusetts and Ohio have a two-step procedure. In the first step the sponsors must obtain a fairly low number of signatures (3 percent) to have the legislature consider the proposal. If the legislature fails to adopt the proposal, the sponsors must seek additional signatures to get on the ballot. 15 Two of the states that have most recently adopted the initiative (Alaska and Wyoming) use a third form of the indirect initiative: the legislature's option. In these states initiative sponsors must submit their petitions prior to the beginning of the legislative session. The legislature is not required to consider the measure, however, and if it does not, the measure goes on the next ballot. If the legislature adopts the measure or a mea13Prior to 1966 California also allowed use of the indirect initiative. In the California version, sponsors had the option of whether to use the indirect initiative or the direct initiative for statutes. The number of signatures required was less for the indirect initiative (5 percent versus 8 percent). 14Presumably, more than one competing version can be put on the ballot. 15Utah also uses a two-step procedure for its indirect initiative. It operates much as the procedure in Massachusetts and Ohio, but the sponsor has the choice of whether to use the two-step procedure or to use the direct initiative.

A Comparative Analysis of American State Laws

37

sure that is substantially similar, the initiative does not go on the ballot. Alaska and Wyoming are the only states in which the legislature may vary indirect initiative statutory proposals without creating the possibility of a vote on the amended measure. Two states (Utah and Washington) have very different systems. Both states allow the initiative sponsor to choose whether they wish to use the direct initiative process or the indirect initiative process. Utah offers an incentive for use of the indirect initiative, allowing indirect initiatives to go before the legislature with signatures equal to 5 percent of the last vote while the direct initiative requires twice that number (10 percent). If the legislature rejects the indirect initiative, any advantage of the indirectinitiative is lost, however, because the sponsor must come up with signatures equal to another 5 percent of the vote. In Washington the number of signatures required is the same for each type of initiative, and the sponsor presumably chooses the type that seems most advantageous.

Indirect Initiative Constitutional Amendments Only two states use the indirect initiative for constitutional amendments. In Massachusetts the legislature has total control; the measure does not go before the people unless it receives a 25 percent vote in a joint session in two successive annual legislative sessions. Even if the legislature decides to place them on the ballot, it may :amend proposed initiative constitutional amendments by a threefourths vote. In Mississippi, on the other hand, initiatives always appear on the ballot, whether the legislature adopts, rejects, or proposes alternatives to them. The experience with the indirect initiative is discussed in Chapter Six.

PRE-ELECTION Pre-signature

ADMINISTRATIVE

REVIEW

Before beginning to collect signatures, initiative proponents in most jurisdictions must submit their petitions to the secretary of state or some other designated state officer for review.16 The purpose of this review is to ensure that the petition contains the proper statutory language, is printed on the proper size of paper, and is in the proper format.17 In some jurisdictions a list of sponsors must be included with the proposed initiative.18 The text of the initiative must generally be appended to the petition so that those who sign the petition may read it if they wish. In about half the initiative jurisdictions the attorney general or some other state official prepares a title or a title and summary that must be included as a part of the petition, as indicated in Table 8. In the remaining jurisdictions any initiative title included in the petition is prepared by the proponent. 16In a few states other agencies conduct this initial review. 17See, for example, Ark. Stat. Ann. 997-9-104, -107 (1993); Colo. Stat. Rev. 91-40-113 Supp. 1993). In some states the format for the petition is prescribed.

(West

18States requiring sponsors include Alaska (100), Wyoming (100), Massachusetts (10), and Utah (5 or more). In Wyoming a small number of sponsors must be designated as a committee so that state officials will have a contact point.

38

LAWMAKING

BY INITIATIVE

TABLE 8. Pre-signature Administrative Review for Issues Other Than Constitutionality State

Review for Form

Append Text

Who Prepares Presignature Title?

Alaska Arizona Arkansas California

Yes No Yes Yes

If 500 words or less Yes Yes Yes

LG Pro Pro/AG AG

Colorado D. of Columbia Florida Idaho Illinois Maine Massachusetts Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Dakota Utah Washington Wyoming Key: Pro (proponent);

Yes Yes Yes Yes No Yes Yes Limited Yes Yes Yes File File Yes Yes File Yes File Yes Yes Yes

Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

SS/AG/LLS BEE Pro/SS AG Pro SS Pro (title) Pro AG SS/AG AG Pro Pro (if any) SS/AG Pro(AG) Pro AG Pro (if any) Pro (if any) AG SS

LG (Lieutenant Governor); AG (Attorney Geneml); SS (Secretary of State); LLS (Legislative Legal Services); BEE (Board of Elections and Ethics); / (writes or approves). Sources: Alaska Canst. art. XI, **2, 3, Stat. * 15.45.090 (l988)(review, text, title); Ariz. Canst. art. IV, pt. I, *1(9) (text), Rev. Stat. Ann. **19-102, -112 (Supp. 1993)(review, text, title); Ark. Canst. amend. VII (text), Stat. Ann. *7-9-107 (l993)(review, title); Cal. Canst. art. II, **8, 10 (text, title), Elec. Code **3,501-3,504, 3,507-3,508,3,513,3,515 (West 1977 & Supp. 1993)(review); Colo. Canst. art. V, *1 (text), Rev. Stat. Ann. **1-40-105, -106 (West Supp. 1993)(review, title); D.C. Code Ann. *1-1320 (l992)(review, title); Fla. Stat. Ann. *100.371 (West 1982 & Supp. 1994)(review, text), Admin. Code Ann. r.1S-2.oo9 (l989)(title); Idaho Code **34-1801, -1804, -1805, -1809 (1981 & Supp. I 994)(review, text, title); Ill. Canst. art. XIV, *3 (text), Camp. Stat. Ann. ch. 10, *5/28-3 (West Supp. 1994)(title); Me. Canst. art. IV, pt. 3, *20 (review, text), Rev. Stat. Ann. tit. 21-A, *901 (West Supp. 1993) (review, text, title); Mass. Canst. amend. art. XLVIII, Init., pt. 2 (review, text, title); Mich. Canst. art. II, *9 (review), Stat. Ann. *6.1482 (Callaghan 1993) (text), Auto. Club of Michigan v. Secretary of State, 491 N.W.2d 269 (Mich. 1992)(pre-sig. title, review); Miss. Code Ann. **23-17-5, -9, -17 (Supp. 1994); Mo. Canst. art. III, *50 (text), Ann. Stat. **116.332-334 (Vernon Supp. I 994)(review, title); Mont. Canst. art. Ill, *4, art XIV, *9 (text), Code Ann. **13-27-201, -202, -312 (l993)(text, review, title); Neb. Canst. art. III, ~2 (text), Rev. Stat. **32-704 (Supp. 1992) (file, title); Nev. Canst. art. XIX, *3 (text), Rev. Stat. ~295.015 (file) (1993), Nev. Op. Alt'y Gen. No. 153 (1934-36) suggests that Nev. Canst. art. IV, * 17 requiring a title probably applies to initiative statutes but there is no counterpart requirement for constitutional amendments; N.D. Canst. art. III, ~2 (review, text), Cent. Code * 16.1-01-09 (l991)(title), Haugland v. Meier, 339 N.W.2d 100 (N.D. 1983)(review); Ohio Canst. art. II, *la, *lb (text), Rev. Code Ann. *3519.01 (Baldwin 1989) (review, title); Okla. Canst. art. V, *2 (text), Stat. Ann. tit. 34, **2, 8 (West Supp. 1994)(title, file); Or. Canst. art. IV, *1 (text), Rev. Stat. **250.045, -.065 (1993) (review, title); S.D. Codified Laws Ann. *2-1-6.2 (I 992)(filing required but no review for form, text) (Secretary of State's Office will accept petition without a title); Utah Code Ann. **20A-7-202, -203, -204 (Supp. 1994)(review, text); Wash. Canst. art. II, *1 (text), Rev. Code Ann. **29.79.010, -.040, -.070, -.150 (West 1993 & Supp. 1994)(review, title); Wyo. Stat. ~*22-24-108 to -110 (1992) (review, text, title).

A Comparative Analysis of American State Laws

39

Post-signature After signatures are collected, they are usually given to the same official who reviewed the petition initially. That official counts and verifies the signatures to determine whether the initiative qualifies for the ballot. If the initiative qualifies and if the attorney general or some other official has previously prepared a title or a title and summary for inclusion on the petition, that title and summary are generally used as the ballot language for the initiative.19 If no title was previously prepared, most jurisdictions require the attorney general or some other official to prepare one after the qualification decision for listing on the ballot has been made, as shown in Table 9.

Character of the Review In most jurisdictions the reviews made by the secretary of state's office or by other officials concern the format of the initiative and the regularity of the signaturegathering process, as shown in Table 10. These officials are usually not authorized to assess the legality of the initiative under either state or federal law. Indeed in numerous states the courts have specifically held that the secretary of state or the attorney general have no authority to review the constitutionality of initiatives and that their function is simply to count the signatures or prepare the title and summary.20 Since even the courts in most of these states will not review the legality of an initiative prior to a vote of the people, this refusal to give administrators the authority to review the legality of the proposals is not too surprising.21 Seven jurisdictions authorize reviews with more regulatory bite. The broadest review authority would appear to be in the District of Columbia. An administrative hearing may be held before the Board of Elections and Ethics to determine whether the petition complies with the district's charter or the Human Rights Act. Massachusetts also provides for a careful pre-election administrative review. Before signatures may be gathered in Massachusetts, the attorney general must certify that no matters excluded from the initiative process by the Massachusetts constitution are included in the petition.22 The Nebraska statutes direct the secre-

19The terms used for describing the ballot language vary considerably from state to state. Some states term the short version of the title the ballot "caption" and the longer version the ballot "title." Others call the short version the "title" and the longer version the "summary." Not all jurisdictions have both versions, and both must be distinguished from the ballot analysis that some states have. 20States that have clearly held this include: Arizona, California, Florida, Michigan, Nevada, Ohio, Oklahoma, South Dakota, and Washington. See Table 10 sources.

Missouri,

21One of the reasons given for the lack of court authority to review proposals prior to a vote is that the courts have no authority to review legislative bills prior to the time that they have been enacted. See the discussion on "Pre-election Judicial Review" in this chapter. An additional reason for denying administrative agencies the authority to review constitutionality questions is that this is not their area of expertise. This widely applied principle of administrative law has been used to deny review authority to administrative agencies in many areas of the law. Kenneth Davis, Administrative Law Treatise I (St. Paul, Minn.: West, 1st ed. 1958): 92.12, at n.22. 22Alexander Gray, Jr. and Thomas Kiley, "The Initiative and Referendum in Massachusetts," England Law Journal 26 (1991): 27.

New

40

LAWMAKING

BY INITIATIVE

tary of state to reject petitions that interfere with the legislative prerogative that necessary revenue be raised as the legislature directs. Alaska and Arkansas require pre-election administrative review to ensure that initiatives fall within the subject matter allowed under their state constitutions, while Missouri and Oregon courts authorize administrative review for compliance with their single-subject rules. Utah allows a very narrow review to determine whether the proposal is so ambiguous that it could not become law.23 TABLE 9. Who Prepares Ballot Caption and Summary, and When (Pre- or Post-signature) State Alaska Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Maine Massachusetts Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Dakota Utah Washington Wyoming

Ballot Caption Lt. Gov.lAG (post) SS/AG (post) Pro/AG (pre) AG (post) SS/AG/LLS (pre) BEE (pre) Pro/SS (pre) AG (pre)

DE/BSC (post) AG (pre) SS/AG (pre) AG (pre) AG (post) SS/AG (post) SS/AG (post)

AG (pre) AG (post) AG (pre)

Summary Lt. Gov.lAG (post) SS/AG (post) Pro/AG (pre) AG (post) SS/AG/LLS (pre) BEE (pre) Pro/SS (pre) AG (pre) Pro/AG (post) SS (pre) AG (pre) DE/BSC (post) AG (pre) SS/AG (pre) AG (pre) AG (post) SS/AG (post) SS/AG (post) SS (post) Pro/AG (post) AG (pre) AG (post) OLR (post) AG (pre) SS/AG (post)

Key; Pro (Proponent); AG (Attorney General); SS (Secretary of State); Lt. Gov. (LIeutenant Governor); LLS (LegISlative Legal Services); BEE (Board of Elections and Ethics); DE (Director of Elections); BSC (Board of State Canvassers); OLR (Office of Legislative Research and General Counsel); / (writes, approves, or consults with). Sources; Alaska Stat. ~15.45.180 (1988); Ariz. Rev. Stat. Ann. ~19-125 (Supp. 1993); Ark. Stat. Ann. ~7-9-107 (1993), Gaines v. McCuen. 758 S.W.2d 403 (Ark. 1988); Cal. Elec. Code ~~3,530-3,533 (West 1977); Colo. Rev. Stat. Ann. ~1-4O-lO6 (West Supp. 1993); D.C. Code Ann. ~1-1320 (1992 & Supp. 1994); Fla. Stat. Ann. ~lOl.l61 (West Supp. 1994), Admin. Code Ann. r.IS-2.009 (1989); Idaho Code ~~34-1809, -18lO (Supp. 1994); Ill. Compo Stat. Ann. ch. 10, ~ 5/16-6 (West 1993); Me. Rev. Stat. Ann. tit. 21-A, ~~901, 906 (West 1993 & Supp. 1993); Mass. Const. amend. art. XLVIII, Ioit., pt. II, ~3; Mich. Const. art. XII, ~2, Stat. Ann. ~6.1474 (Callaghan 1993); Miss. Code Ann. ~~23-17-9, -II, -13 (Supp. 1994); Mo. Ann. Stat. ~ 116.334 (Vernon Supp. 1994); Mont. Code Ann. ~1327-312 (1993); Neb. Rev. Stat. ~32-707 (Supp. 1992); Nev. Rev. Stat. ~293.250 (1993); N.D. Cent. Code ~16.1-0609 (1991) (Secretary of State also prepares the petition title but there does not appear to be any requirement that the two be the same); Ohio Rev. Code Ann. ~3519.21 (Baldwin 1989), State ex rei. Williams v. Brown, 368 N.E.2d 838 (Ohio 1977); Okla. Stat. Ann. tit. 34, ~9 (West Supp. 1995); Or. Rev. Stat. ~~250.045, -.065 (1993); S.D.Codified Laws Ann. ~~12-13-8.1, -9 (1982) (also has statement and title by proponent); Utah Code Ann. ~~20A-7-209 (Supp. 1994); Wash. Rev. Code Ann. ~29.79.040 (West Supp. 1994); Wyo. Stat. ~22-24-1 17 (1992).

A Comparative Analysis of American State Laws

TABLE 10. Administrative State Alaska Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Maine Massachusetts Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Dakota Utah Washington Wyoming

41

Review of Constitutionality

Review Authorized Proper subject matter Possibly single subject (constitutional amendments only) Proper subject matter No Drafting review D.C. Self-Gov't Act; Human Rights Act; drafting review No Drafting review Probably no Probably no State constitutionality No Drafting review Single-subject rule Drafting review Legislative revenue prerogative; state constitutionality on face No Probably no No No Single-subject rule No Extreme ambiguity Drafting review Drafting review

Sources: States with some review or apparent review authority: McAlpine v. Univ. of Alaska, 762 P.2d 81 (Alaska 1988); Hodges v. Dawdy, 149 S.w. 656 (Ark. 1912); Proctor v. Hammons, 640 S.W.2d 800 (Ark. 1982); Timothy Kennedy, "Initiated Constitutional Amendments in Arkansas: Strolling Through the Mine Field," U. Arkansas Little Rock Law Journal 19 (1986-87): 1,48-49; Tilson v. Mofford, 737 P.2d 1367, 1371 n.2 (Ariz. 1987); Colo. Rev. Stat. ~1-4O-105 (West Supp. 1993); D.C. Code Ann. ~1-1320 (1992 & Supp. 1994); Idaho Code ~34-1810 (Supp. 1990); Mass. Const. Amend. art. XLVlll, Init., pt. II, ~3], Yankee Atomic Electric Co. v. Secretary, 526 N.E.2d 1246 (Mass. 1988); Miss. Code Ann. ~23-17-5 (Supp. 1994); Mo. Ann. Stat. *116.120 (Vernon Supp. 1994), as interpreted in Ketcham v. Blunt, 847 S.W.2d 824 (Mo. App. 1992); Mont. Code Ann. *13-27-202 (1993); Neb. Rev. Stat. *32-704.01 (1988), Nebraska ex reI. Brant v. Beermann, 350 N.W.2d 18 (Neb. 1984) (on face); N.D. Const. art. III, ~2, Larkin v. GrOll1la, 285 N.W. 59 (N.D. 1939); Oregon Educ. Ass'" v. Phillips, 727 P.2d 602 (Or. 1986); White v. Welling, 57 P.2d 703 (Utah 1936) (Secretary of State not required to submit constitutional amendments or proposals that are so ambiguous that they would not become law). States without or apparently without review authority: Schmitz v. Younger, 577 P.2d 652 (Cal. 1978); Fla. Admin. Code Ann. r.IS-2.009 (1989) prohibits pre-signature substantive review by the Secretary of State but Fla. Const. art. IV, *10 and Stat. Ann. *16.061 (West 1988) direct the Attorney General to seek an advisory opinion from the state Supreme Court concerning compliance with the single-subject and titling rules; Lausin v. State Bd. of Elections, 438 N.E.2d 1241 (Ill. App. 1982); Me. Rev. Stat. Ann. tit. 21-A *905 (West 1993 & Supp. I 993)(unclear whether Secretary of State's review is more limited than court review); Beechnau v. Secretary of State, 201 N.W.2d 699 (Mich. App. 1972), Newsome v. Bd. of State Canvassers, 245 N.W.2d 374 (Mich. 1976) (no administrative review of constitutionality); Nev. Op. Att'y Gen. No. 379 (1929-30); Preckel v. Byrne, 244 N.W. 781 (N.D. 1932); State ex reI. Williams v. Brown, 368 N.E.2d 838 (Ohio 1977); I" re lnitiative State Question No. 10, 110 P. 647 (Okla. 1910); State ex reI. Evans v. Riif, 42 N.W.2d 887 (S.D. 1950); State ex reI. O'Connell v. Kramer, 436 P.2d 786 (Wash. 1968); Wyo. Stat. *22-24105 (Supp. 1996).

23The issues involved can be complicated. Where a statute appears to grant or deny review authority, the statute itself may be challenged as to whether it complies with constitutiottal provisions governing the initiative.

42

LAWMAKING BY INITIATIVE

Seven jurisdictions-Colorado, Idaho, Mississippi, Montana, Washington, Wyoming, and the District of Columbia-provide for some form of drafting review. Discussed more fully in Chapter Eight, these reviews are a form of preelection administrative review. In states using the direct initiative, some observers have long argued that it is wasteful to force the public to vote on initiatives that may be unconstitutional and that may therefore not go into effect even if adopted. These observers have frequently argued that there should be some mechanism for reviewing initiatives prior to the election to ensure their constitutionality. In states using the indirect initiative, pre-election review of constitutionality has been discussed less often because the legislature must consider initiatives before proposals go on the ballot. Since the legislature is not usually empowered to change the initiative proposals presented to it, however, constitutionality issues exist even in the indirect states. The legislature can call attention to issues related to constitutionality and usually has the option of presenting alternative proposals, but it has no power to prevent initiatives from being presented to a vote of the people because it believes that they are unconstitutional. One possible solution to the constitutionality problem is pre-election administrative review of initiatives. As discussed earlier, however, most states have rejected this solution. Two other possible solutions to the unconstitutionality problem-pre-election review by the legislature and the courts-are discussed in the two following sections.

PRE-ELECTION

LEGISLATIVE REVIEW

In the indirect-initiative states the legislature generally holds hearings on initiative measures as part of its consideration of whether to adopt them. This serves to educate the legislature, the public, and even proponents and opponents about the measures. It has sometimes been argued that legislative hearings, even in states that use the direct initiative, would be useful because of their educational value. Only California has a formal requirement for such a procedure; legislative committees have been required since 1980 to hold hearings on forthcoming initiatives, even though the legislature has no power to change the initiatives themselves.24 These hearings and the reports that result are frequently quite informative. Generally, however, they attract little public or media attention. There are no studies of the extent to which the hearings and reports are later used by journalists and others interested in information about initiatives, but such use does not appear to be extensive. Prior to 1988 South Dakota also required legislative consideration of initiatives before submission to the people. While South Dakota has always been considered a direct-initiative state, the pre-1988 state law required that initiative 24Cal. Elec. Code {l9034 (West Sp. Pamphlet 1995), added in 1980, makes hearings mandatory after an initiative qualifies for the ballot. Cal. Elec. Code {l9007 (West Sp. Pamphlet 1995), added in 1973, allows for optional legislative hearings before qualification.

A Comparative Analysis of American State Laws

43

petitions be formally presented to the legislature, which was directed to "enact and submit" initiative measures to a vote of the people. Legislators disliked this provision because it required them to vote for measures whether they personally approved of them or not. In 1988 South Dakota amended its law to permit initiative measures to be submitted directly to the people without the formality of enactment by the legislature.25

PRE-ELECTION

JUDICIAL REVIEW

The courts play an important role in the initiative process. In addition to interpreting and enforcing initiatives that are validly adopted, courts are frequently asked to review initiatives to determine: (1) whether the procedural requirements for submission to the voters or for adoption have been complied with, (2) whether the initiative falls within the subject matter for which the initiative process is available, and (3) whether the provision is valid under federal and state constitutional standards. An important issue is whether the courts should review an initiative prior to a vote on the initiative or afterward. Early determinations of validity conserve the energies and resources of all concerned: proponents, opponents, election officials, and the public. On the other hand, such reviews may delay the political process and throw the courts into the middle of heated political campaigns. Most jurisdictions allow pre-election review by the courts of issues concerning procedural compliance with the rules on the initiative process. Reviews of this kind typically concern the form of the petition, signature verification, deadlines, and the content of the title and summary of the proposition. Sixteen jurisdictions require that objections concerning procedural matters be raised prior to the election. These jurisdictions generally do not allow objections of this kind to be raised after the election. Even the nine states that do not formally require objections to be raised prior to the election generally allow them to be raised before the election, as shown in Table II. At least half of the initiative jurisdictions allow pre-election review of questions relating to whether initiatives fall within the proper subject matter for the initiative process. Reviews of this kind typically deal with such issues as whether the initiative involves an appropriation or some other topic excluded from the initiative process, whether it involves more than one subject under the single-subject rule, or whether it amounts to an advisory opinion rather than a law. The courts are much more reluctant to review questions of constitutionality before an election, generally preferring to wait to see if an initiative is adopted. This allows the voters to make the basic determinations, avoids the problem of advisory opinions, provides more contextual material and a fuller record for adjudication, and allows time for a full review by the courts. Many observers believe, however, that delaying judicial review until after the election distorts the process 25S.D. Canst. art. III, ~ 1.

44

LAWMAKING

BY INITIATIVE

TABLE 11. Pre-election Judicial Review Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Procedural Compliance

Proper Subject Matter

Constitutionality

Mandatory Mandatory Yes Yes Mandatory

Yes Yes Yes Probably No cases

No No cases

Yes Yes Mandatory

Depends (not for SS) On face Possibly

No On face No

Mandatory Mandatory

Yes Probably

On face No

Mandatory Yes Yes Yes Yes Automatic Mandatory Mandatory Mandatory Mandatory Mandatory Mandatory Mandatory Mandatory No cases

Yes On face Generally not Probably Yes Automatic Yes Yes Probably not No (for SS) On face No cases Yes Yes No cases

No Probably No Probably not On face Yes No No cases On face On face On face No On face No No cases

No" No cases No cases

Key: SS = smgle subject rule. aBecause of the restricted subject matter allowed, "proper subject matter" review in Massachusetts covers many topics thar would be included in constitutional review in other states. Yankee Atomic Elec. Co. v. Secretary of Commonwealth, 526N.E.2d 1246 (Mass. 1988).

Sources: Alaska Stat. *15.45.240 (1988) (procedural), McAlpine v. Univ. of Ala,ka, 762 P.2d 81 (Alaska 1988) (subject matter, const.); Ariz. Rev. Stat. Ann. *19-122(C) (Supp. 1993) (procedural), 1ilson v. Mofford, 737 P.2d 1367 (Ariz. 1987) (subject matter, const.); Ark. Const amend. vn (procedural), Plugge v. McCuen, 841 SW.2d 139 (Ark. 1992) (const.), Timothy Kennedy, "Initiated Constitutional Amendments in Arkansas: Strolling Through the Mine Field," U. Arkansa, Little Rock Law Journal 19 (1986-87): 1,48-49 (subject matter); Brosnahan v. Eu, 641 P.2d 200 (Cal. 1982), Cal. Trial Lawyer's Ass'n v. Eu, 245 Cal. Rptr.916 (Ct. App. 1988) (procedural, subject matter, const.); Colo. Rev. Stat. Ann. *1-40107 and -118 (West Supp. 1993) (procedural), City of Idaho Springs v. Blackwell, 731 P.2d 1250 (Colo. 1987) (subject malter, const.); D.C. Code Ann. *1-1320(b) (1992) (procedural, subject matter), Hessey v. Burden, 615 A.2d 562 (D.C. 1992) (const.); Aa. Const. art. IV, * 10 (procedural, subject malter), Floridians Against Casino Takeover v. Let's Help Florida, 363 SO.2d 337 (Aa. 1978), Carroll v. Firestone, 497 SO.2d 1204 (Fla. 1986) (const.); Idaho Code **34-1808 and1809 (Supp. 1993) (procedural), Associated Taxpayers of Idaho, Inc. v. Cenarru,m, 725 P.2d 526 (Idaho 1986) (subject malter, const), Weldon v. Bonner County Coalition, 855 P.2d 868 (Ida. 1993); Il1. Compo Stat Ann. ch. 10, ** 5/28-4, 5/ 28-10 (West 1993) (procedural), Chicago Bar Ass'n V. State Bd. of Elections, 561 N.E.2d 50 (Ill. 1990) (subject malter); Me. Rev. Stat Ann. tit. 21-A, *905 (West 1993 & Supp. 1993) (procedural), Opinion of the Justices, 191 A.2d 357 (Me. 1963) (subject matter); Ma". Gen. Laws Ann. ch. 55B, **1-12 (West 1991 & Supp. 1994) (procedural), Yankee Atomic Elec. CO. V. Secretary of the Commonwealth, 525 N.E.2d 369 (Mass. 1988) (subject matter, const.); Mich. Stat. Ann. *6.1479 (Callaghan 1993) (procedural), Beechnau v. Secretary of State, 201 N.W.2d 699 (Mich. ApI'.. 1972), Auto Club v. Secretary of State, 491 NW.2d 269 (Mich. Ct. ApI'.. 1992) (subject malter, const.); Miss. Code Ann. **23-17-]3, -25 (Supp. 1994); Mo. Ann. Stat. **116.190-200 (Vernon Supp. 1994) (procedural), Union Elec. Co. v. Kirkpatrick 1,606 S.w. 658 (Mo. 1980) (subject matter), Union Elec. CO. V. Kirkpatrick II, 678 S.W.2d 402 (Mo. 1984) (const., other); Mont. Const. art. III, *4(3), Mont. Code Ann. * 13-27-316 (1993) (procedural), State a rel. Montana Citizens V. Waltennire, 729 P.2d 1283 (Mont. 1986) (subject malter, const.); Neb. Rev. Stat. **32-706 to -707 (Supp. 1992) (procedural), Nebraska a reI. Brant V. Beennann, 350 N.W.2d 18 (Neb. 1984) (subject matter, const.); Lundberg V. Koontz, 418 P.2d 808 (Nev. 1966) (procedural); Stumpfv. Lau, 839 P.2d 120 (Nev. 1992) (subject malter, cons!.); N.D. Const. art. III, *7 (procedural), Anderson V. Byrne, 242 N.W. 687 (N .0. 1932) (const.); Ohio Const. art. XVI, *1 and art. n, * 19 (procedural), State ex rel. Roahrig v. Brown, 282 N.E.2d 584 (Ohio 1972) (subject malter, legislative const. amendment), Weinland V. Fulton, 121 N.E. 816 (Ohio 1918) (const.); Okla. Stat. Ann. tit. 34, **8-10 (West 1990) (procedural, subject malter); In re Initiative Petition No. 349, 838 P.2d 1 (Okla. 1992) (const.); Or. Rev. Stat. *250.085 (1993) (procedural), Oregon Educ. Ass'n V. Phillips, 727 P.2d 602 (Ore. 1986) (subject matter), State ex rel. Carson v. Kozer, 270 P.513 (Ore. 1928) (const.); Utah Code Ann. *20A-7-209 (Supp. 1994) (procedural), White v. Welling, 57 P.2d 703 (Utah 1936) (subject matter, const.); Wash. Rev. Code Ann. **29.79.060, -.160, -.170, -.210 (West 1993) (procedural), Seattle Bldg. & Constr. Trades Council v. City of Seattle, 620 P.2d 82 (Wash. 1980) (subject matter, county initiative), Washington ex rei. O'Connell V. Kramer, 436 P.2d 786 (Wash. 1968) (const.); Wyo. Stat. *P2-24-121 to -122 (1992) (procedural).

A Comparative Analysis of American State Laws

45

of review, particularly in states with elected judges. Judges, according to this view, are reluctant to overturn measures recently approved by the voters, and therefore strain to find such measures constitutional. 26 There is no easy solution to this problem. Some commentators agree that the better course is for the courts to continue to avoid pre-election review.27 Others argue that pre-election review is the lesser evil.28 A few states have opted for a pre-election review, at least in part. They will, before an election, review straightforward constitutionality issues that are apparent on the face of the proposition.29 One state, Florida, requires its Attorney General to request the opinion of its Supreme Court on the "validity" of any initiative petition to be submitted to the voters in that state.30 Whether it occurs early or late, it is clear that judicial review is an important aspect of the initiative process. One analysis indicates that at least 18 of the 41 constitutional and statutory initiatives adopted in California during the 19641996 period were ruled wholly or partially unconstitutional by the courts.31

26In a book written after he lost a retention election and left the bench, former California Supreme Court Justice Joseph Grodin explained the problem. "It is one thing," he said, "for a court to tell a legislature that a statute it has adopted is unconstitutional; to tell that to the people of a state who indicated their direct support for the measure through the ballot is another." Joseph Grodin, In Pursuit of Justice (Berkeley: University of California Press, 1989), p. 105.

27James Gordon and David Magleby, "Pre-Election Judicial Review of Initiatives and Referendums," Notre Dame Law Review 64 (1989): 298; Michael Farrell, "Note, The Judiciary and Popular Democracy: Should Courts Review Ballot Measures Prior to Elections?," Fordham Law Review 53 (1985): 919. 28Douglas Michael, "Preelection Judicial Review: Taking the Initiative in Voter Protection," fornia Law Review 71 (1983): 1216.

Cali-

29District of Columbia, Missouri, Montana, Nebraska, Nevada, Oklahoma, and Utah. See Table II. 30Fla. Const. art IV,

S 10.

31Charlene Simmons, California's Statewide Initiative Process (Sacramento: California Research Bureau, California State Library, 1997), p. 6. Charles Price, "Shadow Government: Getting Voters to Approve an Initiative Idea Isn't Enough Anymore," California Journal 28 (October 1997): 32, reports that three fourths of the California initiatives that are adopted are challenged in court.

CHAPTER FIVE

INITIATIVE IN SWITZERLAND AND OTHER COUNTRIES SWITZERLAND DEMOCRACY HAS LONG BEEN a feature of Swiss government. The mountain cantons that formed the original Swiss confederacy in 1291 made their .laws through the landesgemeinden, a form of town or valley meeting. I In the later middle ages the referendum was also used for a time in some cantons such as Bern. The fIrst national referendum came in 1802 when the Swiss approved a short-lived constitution arising out of the country's conquest by Napoleon.2 After the defeat of Napoleon the country reverted to a loose confederacy. The overthrow in France in 1830 of the restored monarchy, however, released new energy in Switzerland as in other European countries and triggered an intense period of constitutional and political development. Fired by such ideas as equality and sovereignty of the people (drawn from Rousseau and the French Revolution, as well as the American Revolution and the older Swiss traditions), the cantons adopted a wide array of new constitutions, seeming to compete with each other in the elimination of the last vestiges of aristocracy and the development of new direct democracy procedures.3 While the idea that basic charters should be subject to a vote by the people appears to have developed among the POPULAR

IThis is still in use in five small cantons. See Table IS; Kris Kobach, The Referendum: Democracy in Switzerland (Aldershot: Dartmouth, 1993), pp. 16-30.

Direct

2Jean-Francois Aubert, "Switzerland," in David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (Washington, D.C.: American Enterprise Institute, 1978), pp. 39-66; Joseph Voyame, "Introduction," in F Dessemontet and T. Ansay, eds., Introduction to Swiss Law (Deventer, The Netherlands: Kluwer, 1981), pp. 1,4-5. 3Simon Deploige, The Referendum in Switzerland (London: Longmans, Green, I 898)(C.P. Trevelyan, trans.), pp. 68-90; Eduard His, Geschichte des neuern Schweizerischen Staatsrechts (Basle: Helbing & Lichtenhahn, 1920; reprinted Frankfurt: Sauer & Auvermann, 1968). Some of the methods used involved violence and revolutionary tactics.

46

Initiative in Switzerland and Other Countries

47

citizens of Massachusetts and New Hampshire before it became a regular part of Swiss law,4 the modern concept of the initiative is clearly a Swiss invention. In 1831 two cantons gave their citizens the right, through the collection of signatures, to force a vote of the electorate on whether the cantonal constitution as a whole should be rewritten.5 In 1832 a third canton not only adopted this system, but also allowed its citizens to use the collection of signatures to propose amendments to the cantonal constitution. Although establishing the principle of the initiative, these and similar provisions adopted in other cantons were extremely limited. They required signatures from a majority of the citizens, had significant time limits as to when they could be used, or both. Indeed, the first really practical initiative for either constitutional amendments or ordinary legislation did not appear until 1845 when canton Vaud allowed 8,000 citizens (around 13 percent of the eligible voters)6 to propose such changes.7 In 1848 Switzerland itself adopted a new constitution, transforming the old Swiss confederacy into the modern federal state. Not surprisingly, this new constitution included a popular constitutional initiative, the first regular modern initiative at the national level. Anyone who could muster at least 50,000 signatures on a petition could force the national electorate to consider whether the constitution as a whole should be rewritten. The 1848 constitution also gave citizens the right to vote on constitutional amendments proposed by the parliament, and in 1874 citizens acquired the right to use the referendum to review ordinary legislation.8 Citizens were not, however, allowed to propose initiatives for either ordinary legislation or for amendments of the federal constitution that were less than total revisions. 4The American usage also predated the submission of the new French constitution to the people in 1793. See, e.g., Deploige, Referendum in Switzerland, p. 57 n.2. sThe two cantons were Aargau and Lucerne. Dian Schefo1d, Volkssouveriinitiit und repriisentative Demokratie in der schweizerishen Regeneration 1830-1848 (Helbing & Lichtenhahn: Basle, 1966), p. 143. This work describes the development of the initiative and other direct democracy devices during this period. See also Andreas Auer, Les origines de la democratie directe en Suisse (Basel: Helbing & Lichtenhahn, 1996). 6Compare Switzerland Statistics Bureau, Statistisches His, Geschichte, vol. 3, p. 309.

Jahrbuch der Schweiz 1891, pp. 7, 10-11;

7The 1845 Vaud constitution made significant use of the 1792 Condorcet draft of the French constitution. His, Schweizerischen Staatsrechts, 2: 242,272-273. The idea of proposing legislation by the collection of voter signatures had an even earlier origin in Switzerland. In canton Uri, one of the town meeting (landesgemeinde) cantons that formed the original Swiss confederation, legislative proposals from the earliest days ("time immemorial") could be made only when supported by seven separate families (Siebengeschlecht-begehren). Influenced by the ideas of the French revolution, Geneva changed its constitution in 1796 to allow 700 citizens to propose changes in ordinary laws and 1,000 to propose constitutional amendments. These rights were eliminated a few years later, however, when revolutionary France took over the republic itself. Deploige, Referendum in Switzerland, pp. 15-16, 21, SO n.2. In 1838, St. Gallen adopted a constitutional amendment allowing 10,000 voters to propose a total constitutional revision. Martin Huser, Stimmrechtsgrundsiitze und Urnenabstimmungsverfahren (diss., University of St. Gallen, 1983), p. 104. Total constitutional revision is, however, a much less practical tool than the ability to make constitutional amendments.

8"Referendum" is used here to refer to the procedure by which citizens through the collection of signatures are entitled to demand review of legislation. In the more complicated Swiss terminology, this is called a "facultative referendum."

48

LAWMAKING

BY INITIATIVE

Democratic reforms in the 1850s and 1860s led many additional cantons to adopt initiative procedures that could be used to propose ordinary legislation as well as cantonal constitutional amendments. A typical campaign in this development was that in Zurich, where Karl Buerkli, a socialist labor leader, played a prominent role in securing adoption of the initiative for both constitutional amendments and ordinary legislation.9 In 1891 the federal initiative was extended to permit the proposal of constitutional amendments ("partial revision") as well as complete revisions of the constitution ("total revision"). The federal initiative has never been extended, however, to ordinary legislation.lO TABLE 12. Swiss Federal Initiatives 1891-1991 Status

Exact Text

Agreed to by parliament

Qualifying

General Suggestion

Total 2a

2

Submitted to people

98

6

104

Withdrawn by sponsor

58

2

60

Declared invalid

'2

2

IS

IS

Declared redundant Pending Total

176

8

184

aBoth were ultimately rejected by the voters. Note: Three other initiatives that appeared to have qualified were later found not to have enough valid signatures. Sources: Hans-Drs Wili, "lux Populi? VoxDei?," Zeitschr(ftjiir Schweizerishes Recht 110(11)(1991): 486, 502; id., Schaubild R (special printing); Luzius Wildhaber, "Art. 121/122," in Jean-Francois Aubert, Kurt Eichenberger, lorg Muller. Rene Rhinow, and Dietrich Schindler, eds., Kommentar zu Bundesverfassung der Schweizerischen Eidgenossenscha(t vom 29. Mai 1874 (Bask: Helbing und Lichtenhahn Verlag, 1990). pp. 1-45.

TABLE 13. Swiss Federal Initiatives 1891-1991 Status

Submitted

to the Voters

Exact Text

General Suggestion

Total.

Approved

10

0

10

Disapproved

88

6

94

Total

98

6

104

Sources: See Table 12.

9Andreas Gross, Die direkte Gesetzgebung durch das Volk: Die Utopie des Karl Biirkli (18231901) (diss., University of Lausanne, 1983)(cited in David Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution (Philadelphia: Temple University Press, 1989), p. 313 n.lO. According to his pamphlet, Direkte Gesetzgebung durch das Volk (Zurich and Geneva: 1869), Buerkli himself was influenced by the German Martin Rittinghausen, an early socialist writer, who began to promote direct legislation in Paris around 1850. Amazingly, Buerkli's pamphlet was translated into English in the same year it appeared in Switzerland. (London: Cherry & Fletcher, 1869; Eugene Oswald, trans.).

Initiative in Switzerland and Other Countries

49

TABLE 14. Swiss Federal Constitutional Amendments 1874-1991 Who Proposed

Number Voted On

Number Yes

Percent Yes

Initiative -Full text -General concept

104 (98) (6)

10 (10) (0)

10 (10) (0)

Parliament/Government

118

90

76

26

17

65

248

117

47

Counterproposals Total

Note: Not included in this table are II extraconstitutional proposals and 3 treaty proposals put forward by the government. All of these proposals were approved except one of the treaty proposals. Sources: See Table 12.

The Swiss experience played a powerful role in the development of the initiative in the United States. J. W. Sullivan's book and articles about the Swiss experience circulated widely in the United States and had a profound impact.1I Other writers of the day also drew heavily on the Swiss experience. From the perspective of today it appears that many of these writers overstated the role of the initiative in Switzerland.12 The Swiss model remains, however, a matter of great interest in the United States .

SWISS LAW-FEDERAL LEVEL Swiss law permits initiative proponents at the federal level to submit either the exact text of a change to the constitution or to present only the general concept they want adopted. 13 After preliminary processing by the Federal Chancery, proponents have 18 months within which to collect signatures. Since 1978, the number of signatures required is 100,000.14 If the necessary signatures are collected, the measure is then considered by the IOThe 1977 draft of a revised constitution proposed a rather complicated extension to ordinary laws. Committee of Experts for the Preparation of a Total Revision of the Federal Constitution, Draft Constitution arl. 64 (Siegenthaler trans., 1977). II See Chapter Two. Sullivan knew Karl Buerkli personally and was influenced by Buerkli's ideas. J. W. Sullivan, Direct Legislation by the Citizenship through the Initiative and Referendum (New York: True Nationalist Publishing Co., 1893), pp. 15-17. 12 A more balanced account was given by the Belgian attorney Simon Deploige. He reported that after inventing the procedure in 1845, canton Vaud had by 1892 used the procedure only once (in 1883). He concluded that the initiative was "the least studied of the Swiss democratic institutions." Referendum in Switzerland, pp. 263, 189.

13The earliest of the cantonal initiatives that preceded the federal initiative required the vote to be on the general idea rather than on a text of the proposed law. Most cantons do now, however, allow use of exact texts. His, Geschichte, vol. 3.1, pp. 309-310. 14Switzerland Const. art. 121 and 122. This section draws heavily on Luzius Wildhaber, "Art. 1211 122," in Jean-Francois Aubert, Kurt Eichenberger, Jtirg Miiller, Rene Rhinow, and Dietrich Schindler, eds., Kommentar zu Bundesverfassung der Schweizerischen Eidgenossenschaft vom 29. Mai 1874 (Basle: Helbing und Lichtenhahn, 1990), pp. 1-45. This commentary also describes the historical development of the Swiss federal initiative.

50

LAWMAKING

BY INITIATIVE

Federal Assembly, the Swiss parliament. If proposed as an exact text and approved by the Assembly, the initiative is then presented to the voters with an indication that it has been endorsed by the Assembly. If the Assembly rejects the initiative, the initiative goes before the people for consideration. The Assembly may place its own counterproposal before the people at the same time, may present arguments as to why the initiative should be rejected, or, if it chooses, may simply reject the initiative without commenting or presenting negative arguments. If the Assembly puts forward a counterproposal, voters are asked to answer three questions: (1) whether they favor the initiative, (2) whether they favor the counterproposal, and (3) which they favor if both are adopted. If both the initiative and the counterproposal pass, the third question controls. Adoption requires two different majorities: first, a majority of those voting throughout the country; and second, approval in a majority of the cantons. If the initiative is submitted as a general concept and the Federal Assembly approves, the Assembly prepares a text giving effect to the concept. This text is then submitted to the people and must be approved by the double majority required for approval of exact texts. If the general concept is not approved by the Assembly, the people must vote preliminarily to determine whether the Assembly is required to develop a text giving effect to the concept.I5 Swiss citizens may also use the initiative process to request a total revision of the federal constitution instead of an amendment. If the request is of this kind, the issue is put directly to the citizenry. If the voters approve, the Federal Assembly is dissolved and a new Assembly elected. This new Assembly then begins work on the revision.

SWISS LAW-CANTONAL

LEVEL

The Swiss constitution requires cantons to make the initiative available for constitutional revisions. All cantons, however, go well beyond this minimum requirement. All allow use of the initiative for constitutional amendments and statutes, and some allow the initiative to be used to command or revoke administrative acts as well.16 (This is prohibited in some American states.) There are not only many more varieties of the initiative than in the U.S., but the number is still growing. The new Bern constitution (1990), for example, adds four new types. 17 Like the federal initiative,

15The preliminary vote on general concept initiatives does not require a majority of the cantons. 16A1fred Kolz, "Die kantonale Volksinitiative in der Rechtsprechung des Bundesgerichts," Sehweizerisehes Zentralblatt fUr Staats-und Gemeindeverwaltung 83 (1982): 1. No canton allows the .initiative to be used to change executive acts. 17Walter Killin and Drs Bolz, Handbueh des bernishen Veifassungsreehts (Bern: Stampfli and Cie, 1995), pp. 117-119. A partial list of the types of initiative includes: (1) total revision of the constitution, (2) partial revision of the constitution, (3) adoption of ordinary statutes, (4) administrative initiatives, (5) dissolution of the parliament, (5) initiatives proposed by a single individual (usually requires some measure of support in the legislative body), and (6) initiatives proposed by subordinate governmental units or designated private groups. The number of initiative varieties and the way they interact with other Swiss direct democracy devices creates considerable difficulty with terminology.

Initiative in Switzerland and Other Countries

51

the cantonal initiatives are indirect, going to the cantonal parliament for review and action rather than directly to the voters as in many American states.18 The cantons also make wide use of the referendum. Contrary to American practice, some cantons subject all laws, including fiscal measures, to the referendum ("the financial referendum"). In some cantons all important laws are automatically voted on by the people (without the necessity of signature collection). Initiative and referendum powers are also widely available at the local level.

SWISS EXPERIENCE Federal. The Swiss experience with the initiative is extensive. Between 1891 and 1991, proponents submitted 187 initiatives for partial revision of the federal constitution, 184 of which were found to have sufficient signatures to qualify.19 Ninety-five percent of the qualifying initiatives were in the form of an exact text. Only 5 percent were in the form of a general suggestion. The reasons that most proponents choose to present an exact text seem obvious. They are able to present the exact proposal that they want and do not have to worry about how their proposal will be formulated by the Federal Assembly. They also do not face the possibility of having to campaign twice before the people for their proposal. Over half of the proposals that obtained enough signatures were eventually submitted to a vote of the people, as shown in Table 12 (page 48). A third, however, were withdrawn by the proponents-in 13 instances in favor of a counterproposal developed by the Swiss parliament.20 Two initiatives were declared invalid and one redundant and were therefore not submitted to a vote of the people. Two general suggestion initiatives were adopted by the parliament and formulated into specific proposals. Both were eventually rejected by the voters, however. Fifteen initiatives were still pending at the end of 1991. Of the 104 initiatives proposing amendments to the federal constitution that came to a vote between 1891 and 1991, only 10 were approved by the voters (see Table 13). This is about 10 percent of the total voted upon, and, if the number withdrawn is taken into account, around 5 percent of those that qualified. This result contrasts sharply with voting record for constitutional amendments proposed by the Swiss parliament. Between 1874 and 1991 the parliament proposed 118 amendments. Seventy six percent of these were approved by a majority of both voters and cantons (the so-called "double majority"), as shown in Table 14. In 26 instances the Swiss parliament put forward a counterproposal to a people's initiative. Seventeen of these counterproposals were adopted by the

18The process of review and the actions required are discussed in Zaccaria Giacometti, Das Staatsrecht der schweizerischen Kantone (Zurich: Polygraphischer, 1941),pp. 426-429. 19At least 66 efforts to collect signatures resulted in failure during this period. Hans-Drs Wili, "lux Populi? Vox Dei?," Zeitshriftfii.r Schweizerisches Recht 110(1)(1991):486,501. 20Swiss law requires initiative proponents to name a committee of at least seven persons authorized to act for the proponents. A majority of this committee is by law authorized to withdraw the initiative.

52

LAWMAKING

BY INITIATIVE

voters. These high rates of approval indicate the considerable level of trust that the Swiss electorate places in its parliament. 21 The Swiss results also reflect the consensus character of Swiss politics. Three major parties (Radicals, Christian Democrats, and Social Democrats) have dominated Swiss politics since 1919. Since 1959 these three parties and the smaller Swiss People's Party have governed Switzerland through a stable multiparty coalition.22 Proportional representation minimizes change. Initiatives are normally put forward by minority groups, and generally only after they have been rejected by the Federal Assembly. Initiatives have frequently involved progressive issues such as reduction of the work week, lowering the age of retirement, taxes on wealth, rights of conscientious objectors, bans on the export of arms, and ecological safeguards. Often the populace is even more conservative than the Federal Assembly. "That is why so many initiatives ... get only minority support" in the final vote, according to Jean-Francois Aubert, a leading constitutional scholar.23 "Although they sometimes get respectable support (40 to 45 percent), they are nevertheless almost always rejected. But that does not mean that they have no effect. Often they provoke counterproposals or legislative reforms which at least partially satisfy their authors.,,24 A leading commentary suggests that perhaps 40 percent of all initiatives result in some kind of legislative or other effect.25 Because these indirect effects are generally compromises, it is rare that proponents secure adoption of their whole program. Some initiatives are proposed more with the hope of eventually influencing the decision process or articulating fundamental policy aims than with any realistic expectation of passage.26 Swiss initiatives tend to be much shorter and more understandable than their American counterparts. This is in part because the Swiss authorities take their single subject rule more seriously than most American states. It is also a result of the fact that Swiss voters tend to distrust long proposals and to vote against them.27 Cantons. Although cantonal initiatives can legally be used in many situations where the federal initiative cannot, use in the individual cantons is generally less than in the federal system. In cantons with large cities such as Basel, Zurich, and Geneva, there are many votes on initiatives, as shown in Table IS. In other cantons there are very few 21In 13 instances there were direct confrontations between initiatives and counterproposals. In six of these confrontations the voters approved the counterproposal, in two the initiative, and in five the voters rejected both. 22Wolf Linder, Swiss Democracy: Possible Solutions to Conflict in Multicultural Societies (New York: St. Martin's Press, 1994),pp. 11-12,22-23,44-45. 23Aubert, "Switzerland,"

p. 46.

24Aubert, "Switzerland," p. 46. In 13 instances initiatives were withdrawn favor of a legislative counterproposal. 25Wildhaber, "Art.

by their sponsors in

121/122,"p. 14.

26Linder, Swiss Democracy, pp. 118-130. 27Interview with Professor Luzius Wildbaber, University of Basel, January

1993.

Initiative in Switzerland and Other Countries

53

TABLE 15. Switzerland: Votes on Cantonal Initiatives 1845-1994 Canton Aargau Appenzell Outer Appenzell Inner Basle-City Basle-Land Bern Fribourg Geneva Glarus Graubunden Jura Luzern Neuchatel Nidwa1den Obwalden St. Gallen Schaffhausen Schwyz So loth urn Thurgau Ticino Uri Valais Vaud Zug Zurich Total

Cantonal Population 507,508 52,229 13,870 199,411 233,488 958,192 213,571 379,190 38,508 173,890 66,163 326,268 163,985 33,044 29,025 427,501 72,160 111,964 231,746 209,362 282,181 34,208 249,817 601,816 85,546 I 179044 6,873,687

Year Initiati ve AdoptedO

Adoption to 1931

1932-1994

Total

1852

10 NA NA 33 9 13 0 18 NA 8 NAc

23 NA NA 91 37 34 7 47 NA 8 3 18

33 NA NA 124 46 47 7 65 NA 16 3 35

NA NA 10 5 1 13 6 25 Oe 0 4 9

17d NA NA 21 31 11 23 11 18 18 5 49 26

22d NA NA 31 36 12 36 17 43 18 5 53 35

-.3..8.

~

ill

224

574

798

Land.b Landb 1875 1863 1893 1857,1921 1905,1891 Landb 1880 1979 1863, 1906 1858, 1882 Land.b Land.b 1861, 1869 1876 1848, 1876 1851,1869 1869 1892 1928e 1875, 1907 1845 1873 1869

17 5

"When two dates are given, the first is the date the initiative was adopted for constitutional amendments and the second the date adopted for ordinary laws. When one date is given, the dates for both are the same. In some instances cantons adopted initiative procedures for total constitutional revisions before the dates indicated. The dates indicated are the first when the cantonal constitution clearly allowed use of the initiative to make constitutional amendments in a practical way. Procedures requiring a majority of the citizens or percentages higher than 30 percent are not indicated. bSee Appendix 0 for discussion of landesgemeinde cantons. CCanton Jura was created in 1979. Previously it was a part of canton Bern. dOoes not include 1994. eCanton Uri was a landesgemeinde until 1928. Although canton Uri allowed the initiative during its days as a landesgemeinde, no attempt was made to include this time period in the table. Sources: Population: Switzerland Bundesamt fiir Statistik, Statistisches Jahrbuch der Schweiz, 1996 (using 1990 figures). Dates of adoption: Dian Schefold, Volkssouveriinitiit und repriisentative Demokratie in der schweizerish en Regeneration 1830-1848 (Helbing & Lichenhahn: Basle, 1966), pp. 142-152; Eduard His, Geschichte des neuem Schweizerischen Staatsrechts (Basel: Helbing & Lichtenhahn, 1929), vols. 2, 3.1 (particularly p. 309 n.37); Sammlung der Bundes- und Kantonsverfassungen (1850,1860,1880,1910, I 937)(Many commentaries do not distinguish clearly between use of the initiative to make constitutional amendments and use to bring about a total constitutional revision. The dates indicated are those when the cantonal constitution clearly authorized use of the initiative to make constitutional amendments and ordinary laws.) Number of initiatives: The most complete early study of the initiative in the cantons is Wilhelm Ruppert, Die Unterscheidung von Verfassunginitiative und Gesetzinitiative in den schweizerischen Kantonen (diss., University of Zurich, 1933). See also Zaccaria Giacometti, Das Staatsrecht der schweizerischen Kantone (Zurich: Polygraphischer, 1941), pp. 467-468. Ruppert himself indicates that his data is undercounted. In the table, data from more specific studies of individual cantons have been used in place of the Ruppert data or as a supplement to the Ruppert data when the newer studies appeared to be superior. Corrections were also made in the process of collecting data on voting outcomes for Table 16. (Ruppert listed the initiatives but did not indicate whether initiatives were approved or voted down. Because of time constraints, checking was limited to about three fourths of Ruppert's original sources.) For a list of sources by canton and a discussion of some of the problems of counting Swiss initiatives. see Appendix D.

54

LAWMAKING

BY INITIATIVE

TABLE 16. Switzerland: Number of Cantonal Initiatives Approved

1845-1994 Year Initiative

Number of

Number

Percent

Population

Cantonal

Adopteda

Initiatives

Approved

Approved!

Aargau Appenzell Outer Appenzell Inner Basle-City

507,508 52,229 13,870 199,411

1852 Land.b Land.b 1875

33 NA NA 124

10 NA NA 43f

30 NA NA 37

Basle-Land Bern Fribourg Geneva

233,488 958,192 213,571 379,190

1863 1893 1857,1921 1905,1891

46 47 7 65

20 llf 2 16f

43 24 29 32

Glarus Graubunden Jura Luzern

38,508 173,890 66,163 326,268

Land.b 1880 1979 1863, 1906

NA 16 3 35

NA 5 2 3f

NA 31 67 9

Neuchatel

163,985

Nidwalden

33,044

1858,1882 Land.b

NA

NA

NA

Canton

5f

22d

26

Obwalden St. Gallen Schaffhausen Schwyz Solothurn

29,025 427,501 72,160 lll,964 231,746

Land.b 1861,1869 1876 1848, 1876 1851,1869

NA 31 36 12 36

NA 5 13f 4 7f

NA 16 42 33 25

Thurgau Ticino

209,362 282,181

1869 1892 1928e

17 43

3 9f

18 50

18 5 53 35

5 0 20 7f

28 0 38 21 26 30

Uri Valais Vaud Zug Zurich Total

34,208 249,817 601,816 85,546 1 179 044 6,873,687

1875,1907 1845 1873 1869

ill

:ill

798

220

JResults not available for 63 of the 224 initiatives through 1931. Percentage the number of results available, not the total number of initiatives. Notes a-e and Sources: See Table 15.

approved is calculated on the basis of

The number of votes on initiative petitions is not the whole story, however. In virtually every canton there are many more initiative petitions than votes. Cantonal parliaments themselves approve some initiative proposals and declare others to be legally invalid.28 Even more frequently, they and the initiative proponents agree on a compromise proposal, and the initiative petition is eventually withdrawn. Proponents in canton Zurich, for example, withdrew 31 of the 104 initiative petitions filed between 1869 and 1970 in favor of a parliamentary alternative. (Appendix Table 1.) Ultimately only 61 of the 104 Zurich petitions were submitted to a vote of the people. Of these 61, only 15 (25 percent) were approved by the voters. If the

28Even when approved by the cantonal parliament, petitions for constitutional many cantons statutes as well, must go before the voters.

amendments,

and in

Initiative in Switzerland and Other Countries

55

parliamentary counterproposals approved by the voters are counted as partial successes, however, 48 percent of the petitions can be credited with either full or partial success.29 In some cantons the percentage of initiatives approved at the polls is higher thim that in Zurich and in some cantons lower, as shown in Table 16. Overall, however, the results at the polls are comparable. The information available suggests that the patterns of compromise that exist at the federal level and in Zurich exist in at least some other cantons as well.30 Both the types of legislation sought in the cantonal initiatives and their timing is remarkably similar to that sought in state initiatives in the United States.31 In the 1930s, 1940s, and 1950s, there were relatively few initiatives in both countries, while in the 1970s, 1980s, and 1990s, there have been many more.

MORE DETAILED DESCRIPTION OF SWISS PROCEDURE32 Administrative Review Swiss federal initiatives must initially be filed with the Federal Chancery (the Swiss secretary of state's office). This office approves the title, translates the text into the other Swiss languages, publishes the text, and establishes dates for the collection of signatures. This office does not review initiatives for substance.

Signature Gathering The Swiss federal initiative, which may be used only for constitutional amendments, requires 100,000 signatures to qualify.33 This is about 2.2 percent of the 4.5 million citizens qualified to vote, and about 4.8 percent of the 2 million plus who typically vote in national candidate elections. Signatures may be gathered from any qualified voter without regard to canton. Signatures are typically collected on the street, house to house, near polling places on election day, and through ads in newspapers. In recent years some signatures have also been col-

29This result includes both counterproposals the original petition.

following a withdrawal and those that competed with

30See, e.g., Ivo Caviezel, Die Volksinitiative im allgemeinen und under besonderer Berucksichitigung des Kantons Graubunden (Institut du Federalisme Fribourg Suisse, 1990),pp. 70-76;"Der Kanton St. Gallen heute und morgen Nr. 8" (Schriftenreihe Staatskanzlei St. Gallen, 1982)(1953-1980); Friedrich Huwyler, Gesetz und Verordnung im Kanton Schwyz (diss., University of Zurich, 1970),p. 70, indicates that 10 initiatives were filed between 1848and 1969;Marie-Claire Pont Veuthey, Le pouvoir legislatif dans Ie canton du Valais (diss., University of Geneva, 1992),pp. 139-141. 3IThe topics of initiatives voted on in canton Zurich between 1869and 1970were: social matters (29), taxes (19), medical matters (16), voting laws (10), economic matters (9), law (7), government organization (4), agriculture (3), schools (3), political parties (3), traffic (3), and government finances (2). Kurt Biitikofer-Johanni, Die Initiative im Kanton Zurich 1869-1969, Entstehung, Wirkung (diss., University of Zurich, 1982),pp. 202-203.

Funktion und

32Much of this section is based on an interview with Hans-Urs Wili (Office of the Swiss Federal Chancery), January 1993. 33The number was raised from Dei?," p. 490.

50,000to 100,000signatures

in

1977.Wili,

"Jux Populi? Vox

56

LAWMAKING

BY INITIATIVE

lected through the mails. Cantons are allowed to regulate the gathering of signatures to a limited extent. Some, for example, prohibit collection within 50 meters of the polls. Some signature gatherers are paid, but in the past most have not been. Payment is not illegal, but is generally regarded as politically damaging. Some knowledgeable observers believe that most who sign petitions believe in the positions espoused, and that voters are generally unwilling to sign initiative petitions simply to allow the matter to appear on the ballot. There were some paid signature gatherers in Switzerland at least as early as the 1890s, however, and it seems 34 clear that appeals for signatures are not always on the merits of the proposal.

Executive Review If the Federal Chancery finds that sufficient valid signatures have been collected, the initiative goes to the Federal Council. This body, which is roughly the equivalent of the Swiss cabinet, reviews both the policy and the legality of the initiative and makes a report to the Federal Assembly.

Legislative Review The Swiss federal initiative is indirect. Whether submitted in the form of an exact text or a general concept, all initiatives must be considered by the Swiss parliament. Proponents have no option as to whether the proposal will be submitted to the Swiss parliament, and there is no requirement for additional signatures following the action of the parliament. The Swiss form of indirect initiative is closest to the mandatory type used in Maine, Michigan, and Nevada in the United States. The Swiss parliament plays a much more extensive role in the initiative process than any American legislature. American legislatures, even in the indirect initiative states, often take no stand on proposed initiatives. The Swiss parliament, however, almost always takes a stand, and that stand is almost always against the proposal. It recommended acceptance of only three of the 98 full-text initiatives voted on between 1891 and 1991: the absinthe prohibition initiative of 1908, the cantonal treaty referendum initiative of 1921, and the gambling house initiative of 1928.35 The Swiss parliament also adopted as its own two general concept initiatives.36 In only two instances, however, has it taken no position at all. In 1977 the two houses of the Swiss parliament were unable to agree on a position regarding a term-limit initiative, and in 1982 excessive delays prevented the development of a position on an initiative concerning excessive foodstuff production and animal factories. In 26 instances, about a quarter of the 104 initiatives that went to a vote of

34Deploige, Referendum in Switzerland, pp. 158 n.l, 157-158, 202. 35Wili, "lux Populi? Vox Dei?," p. 491. 36Wildhaber, "Art. 121/122," p. 16.

Initiative in Switzerland and Other Countries

57

the people between 1891 and 1991, the Swiss parliament developed its own counterproposal for submission to the voters. Seventeen of the counterproposals were adopted by the voters. Even when the counterproposal was rejected by the voters, the initiative was also generally rejected. In only two instances did the voters reject a parliamentary counterproposal and approve an initiative. Cantonal parliaments also take a very active role in dealing with cantonal initiatives. Like the federal parliament, they generally take stands on initiative proposals. They also frequently present their own counterproposal. For at least 11 percent of the cantonal initiatives going to a vote, there was a parliamentary counterproposal. Over half of these counterproposals were approved by the voters. Generally when the parliamentary counterproposal lost, the initiative lost as well. Only 14 percent of the cantonal initiatives that faced parliamentary counterproposals succeeded at the polls.

Timing Although the 18 months allowed for signature gathering in Switzerland is comparable to that in many American jurisdictions, the processing time allowed after signature collection is much longer than the typical American process. The parliament may take as long as four years to act on an exact text initiative, and as long as five years if the parliament is submitting a counterproposal. The Federal Council also has considerable discretion in setting the time of the vote.37

Judicial Review The major legal questions concerning the Swiss federal initiative are determined by the Swiss parliament rather than by the courts. Thus, the parliament must determine whether an initiative meets the constitutional requirements for unity of subject matter and unity of form, and possibly for other matters as well. If the two houses cannot agree over the question of validity, the initiative is treated as valid. While the courts have no authority to review federal initiatives, they are empowered to review cantonal initiatives.38 The doctrines developed by the Federal Tribunal (the Swiss Supreme Court) in reviewing cantonal initiatives are often used by members of the parliament in reviewing federal initiatives. Overall both at the federal level and in the cantons there is a much greater effort to resolve legal questions prior to the vote of the people than in the United States. 37Parliament must act on general concept initiatives within three years. The actual time to a final decision, however, can be longer than that allowed for the exact text initiatives. Some proponents and others have criticized the long period required for processing initiatives in Switzerland. Kobach, The Referendum, pp. 43,106-107. Because good legislation often requires time, however, other observers believe that it is this relatively relaxed schedule that has made it possible for the parliament to develop so many counterproposals. 38Between 1912 and 1976 the Federal Tribunal reviewed 25 cantonal initiatives. Andreas Auer, Les droits politiques dans les cantons suisses (Geneva: 1978), p. 93.

58

LAWMAKING

BY INITIATIVE

RESTRICTIONS

ON INITIATIVE SUBJECT MATTER

Single Subject Like the law of most American states Swiss law places a number of subject matter restrictions on use of the initiative. The most important is that the initiative must have "unity of matter.,,39 This limitation is very similar to the single subject rule in use in American states. The Swiss take the rule more seriously than most American states, however, viewing it as a protection of the people's democratic right to vote. A 1977 federal initiative was rejected, and a 1920 federal initiative was divided into two proposals because of this principle. A number of cantonal initiatives have also been found in violation of this rule.

Unity of Form While Swiss law allows initiatives to be proposed either as a specific text or as a general concept, it does not allow these two forms to be mixed in a single initiative.

Amendment or Total Revision Eighteen American states permit use ofthe initiative to amend their constitutions. Some of these states prohibit changes that are so extensive that they are more properly called "revisions.,,40 Swiss law draws a similar distinction. It allows the initiative to be used to begin the process of a total revision of the Swiss federal constitution but does not permit use of a particular initiative to make a specific total revision or to make so-called "packet-revisions," revisions that go beyond a single article or topic. Packet-revisions can be made only through a series of individual amendments or through the total revision process.

Ordinary Legislation Because the federal initiative may be used only to amend the constitution and not to adopt ordinary legislation, proponents who wish to propose legislative changes must propose these as changes to the Swiss constitution. Although it is generally agreed that the Swiss constitution today is a bloated document containing much that is not a matter of fundamental law, the initiative does not appear to be the major cause of this problem.41

Other Restrictions Swiss law imposes a number of restrictions on legislatively proposed constitutional amendments. Among these restrictions are those relating to resource barriers, impossibility, infeasibility, and purposelessness. The Swiss constitution does 39Switzerland Canst. art. 121(3);Wildhaber, "Art. See Chapter Nine, "Switzerland."

1211122,"pp. 26-39 ("Einheit

4oCalifornia, Florida, Montana, and Oregon. See Table 25. 41Wili, "lux Populi? Vox Dei?," pp.

502-504.

der Materie").

Initiative in Switzerland and Other Countries

59

not clearly indicate whether these limitations apply to initiative constitutional amendments. While finding this omission intentional, a leading commentary suggests that initiatives failing to meet these criteria could be held invalid.42

Other Issues Restrictions on Number of Initiatives. Switzerland has no restrictions on the number of initiatives appearing on a single ballot. As a practical matter, however, very -'W initiatives appear on any single ballot. Because Swiss voters generally vote lhree times each year on issues, the number of matters appearing on anyone ballot is almost always small.43 Another major difference between Swiss and American elections is that there is no mixing of issue and candidate elections. When candidate elections are on the ballot, no federal initiatives appear. Drafting. Proponents of constitutional amendments in Switzerland who propose exact texts do not have to follow any specific drafting procedures. As in the United States, however, drafting can be a problem. In some instances drafting defects are cited by the Federal Assembly as reasons for rejecting a proposal or for the development of a legislative counterproposal. Because Switzerland has three official languages, all texts must be translated from the language of submission into the other two official languages. Because it is difficult to translate concepts that are not written clearly, the translation process may expose drafting defects. The Federal Assembly rather than the proponents drafts general concept initiatives. This solves many of the technical drafting questions, but allows the Federal Assembly to undercut the proponents' intent through the actual language employed, if it chooses to do so. Conflicting Ballot Propositions. In Switzerland it is rare to have more than one initiative concerning the same subject on the ballot at the same time. It is not at all rare, however, for the Federal Assembly to put forward a counterproposal to an initiative. When this occurs, the voters are asked to say: (l) whether they favor the initiative, (2) whether they favor the counterproposal, and (3) which they favor if both are adopted. California and most American states faced with more than one measure dealing with the same subject simply give priority to the proposal which receives the higher number of affirmative votes, in effect omitting the third question. While more complicated, the Swiss system is more precise. It was adopted in 1988.44 42Wildhaber, "Art. 121/122," pp. 31-32. Because the Federal Tribunal must rule on questions concerning the initiative at the cantonal level, the cantonal law is much more developed than the federal law. The cantonal law concerning unity of subject matter, political actions of the authorities, and preemption questions is particularly rich. Interview with Professor Walter Kalin, University of Bern, January 1993. 43Kobach, The Referendum, p. 44. 44See Chapter Ten.

60

LAWMAKING

BY INITIATIVE

Amendment and Repeal of Initiatives. Constitutional amendments made through the initiative process have exactly the same status as constitutional amendments proposed by the Federal Assembly. Both can be amended or repealed by using one of the two normal amendment procedures. As the initiative process cannot be used for legislating statutes at the federal level, the question of amending or repealing federal statutes enacted through the initiative process does not arise.

Campaign Finance and Special Disclosure Rules Switzerland prohibits the buying and selling of votes, but has no campaign finance law regulating the use of money in elections. Proponents and opponents may therefore collect and spend what they choose in initiative campaigns. There is also no requirement for disclosure of campaign contributions and expenditures. Campaign advertising is also unregulated except for directives of the Swiss national television corporation. These directives give equal amounts of free television time to both proponents and opponents, but also allow additional television time to be purchased. The government distributes a ballot pamphlet, which must be "objective," at least three weeks before the election.

Assessment Although Swiss voters have approved only 10 initiatives in the first 100 years since the initiative was introduced at the federal level, at least three of these have been of fundamental importance. A 1909 initiative required treaties to be voted on by the people, a 1918 initiative introduced proportional voting, and a 1946 initiative eliminated the parliament's ability to bypass the referendum.45 Voter turnout for initiative elections in Switzerland has been declining. From a high of over 70 percent in 1935, the percentage of voters participating has dropped to about 40 percent,46 Given the fact that Swiss voters generally vote three times a year on issues and that issue elections do not occur at the same time as candidate elections, however, this turnout is still quite high by American standards. Perhaps more importantly, the evidence available indicates that the Swiss electorate, whether they vote in a particular election or not, continues to value the initiative and other direct democracy devices very highly.47 A recent comparison by Swiss political scientist Wolf Linder of Swiss direct democracy devices with those in the United States found many similarities.48 Swiss voters, like their American counterparts, often have relatively little knowledge about the specifics of the proposals voted. Many rely heavily on brief cam45The required vote on treaties made it possible for opponents in a 1992 vote to defeat the government's decision to enter into negotiations with the European Community with a view toward membership. 46Switzerland Statistics Bureau, Statistisches Jahrbuch der Schweiz 1993, p. 376. Kris Kobach, "Switzerland," in David Butler and Austin Ranney, eds., Referendums Around the World: The Growing Use of Direct Democracy (Washington, D.C.: American Enterprise Institute, 1994), pp. 134-139, shows that votes on particular issues often run considerably higher than the average and that polls indicate that the results usually track Swiss general opinion.

paign

slogans

opposing

or

on

cues

the proposal.

to playa

major

unequal.

There

campaigns,

role in determining is also

including

In Switzerland,

as in the common

rather

than

political

parties

less

well

unwise

differences

than

land

has

been

much

the

with

States, and

larger,

interests that

major

parties

supporting

spending

is perceived

and is often the

dramatically

professionalization

of

49 firms. direct

tends

democracy

to strengthen

general

in opening it consistently

States, endum.

significant

political factor since

scene.

At the in

society,

on the

the two

however.

considerably

more

a major

conflict

between

similarities,

grown

Switzerland cal

of votes toward

relations

United

or

campaign

interest

has single

programs.

up the political produces

not

brought

issue

groups

Initiatives agenda,

unsound

can

however,

legislation

or

policy.50

The

was

organized

figures

States,

of a trend

people

is no indication

tant

the

or

public

the use of public

by the

there

by

the outcome

something

rule

and

61

As in the United

about

assist

given

Initiative in Switzerland and Other Countries

other

parties

since than

countries Although 1970,51

the initiative.

to reach

agreement

are use the

perhaps of the

referendum

but hand,

Its winner-take-all

level,

it tends

in advance

to promote

is conservative

in its

overall

the initiative

is much

more

qualities

arguably

increase

47Linder, Swiss Democracy, p. 134. The fact that voter turnouts in United States that use the initiative heavily are all low in comparison gests that the initiative may be less of a draw for voter participation See, e.g., Alois Riklin and Roland Kley, Stimmabstinez und direkte 1981), pp. 71-80 (suggesting that a more intensive direct democracy Swiss voter participation).

more

impor-

in Switzer-

has

Its availability

in the creation of the party coalition 1919.52 The referendum is a dominant national

even initiative

historically

generally on that

feature

forces

legislation has

and

governed

of the

politi-

and

reduce

the

United

compromise 53 effect.

In

important

than

the refer-

societal

conflict,

and

its

Switzerland and the states in the with many other countries sugthan some proponents believe. Demokratie (Bern: Paul Haupt, is one reason for the decline in

48Linder, Swiss Democracy, pp. 111-114, 118-130, 141-146. 49Interviews with Hans Urs Wili (Office of the Swiss Federal Chancery) and Professors Walter Kalin and Wolf Linder, University of Bern, January 1993; Kobach, "Switzerland," pp. 107-108. 50In discussing the Swiss political system of the future, two leading political scientists give considerable attention to the citizenry's ambivalence to direct democracy. On the one hand the public continues to be proud of its right to vote on virtually everything, but on the other hand the percentage of the public that actually exercises this right continues to decrease. Particularly problematic in the authors opinion is the low rate of participation by workers and women. Wolf Lindner and Thanh-Huyen Ballmer-Cao, "Das politische System in der Schweiz von morgen," in Direkte Demokratie (Bern: Paul Haupt, 1991), pp. 337-361. 5l0ver half (98) of the 187 initiatives during the first century of the Swiss federal initiative came during the 1970s and 1980s. See Kobach, "Switzerland," pp. 98-100. Thirty eight percent of the cantonal initiatives through 1994 came during the 1970s and 1980s and 48 percent since 1969. 52Linder, Swiss Democracy, pp. 118-130; Kobach, "Switzerland,"

pp. 101-102, 108-132.

53From 1874 to 1991 the Swiss electorate voted on 104 referendums concerning laws adopted by the federal parliament. Fifty six percent of these referendums succeeded, and the law in question was defeated. By contrast only 10 percent of the federal initiatives during this same period succeeded. The raw numbers, however, greatly understate the influence of the referendum on Swiss national political life. In many cantons the numbers are much greater, and the influence, if anything, even more pervasive.

62

LAWMAKING

BY INITIATIVE

overall effect tends to be innovative rather than conservative. Although the significance of the initiative has been increasing in the United States, the initiative clearly has much less overall importance in American political life than the referendum in Switzerland.

OTHER COUNTRIES Referendums have often been used throughout the world by governments seeking popular approval of their actions. From the French annexation of Metz in 1552, to the various constitutional revisions and annexations by the French revolutionaries and the Bonapartists, to the more recent votes on the Maastricht treaty by Denmark, France, and Ireland, the referendum has been a popular and sometimes a nefarious institution.54 Many fewer countries have sought to use the initiative, a procedure that springs from the people. Other than Switzerland and the United States, it has had limited use, principally in Germany, and more recently Austria and Italy.

Germany The Weimar Republic and 16 German states adopted the initiative after the fIrst World War. 55 After the second World War, the authors of the West German Constitution chose not to create a national initiative, partly because of a widespread belief that the Weimar initiative had proved useful to the Nazi party and regime. Nine of the 11 West German states, however, adopted the initiative. 56 Six of the 54Plebiscites used by the League of Nations after World War I proved to be an effective and peaceful way of letting ordinary citizens settle territorial claims. High pressure referendums put forward by the Nazis and other totalitarian governments to justify their actions, however, gave the device a negative image. See Butler and Ranney, Referendums, pp. 3-16. David Butler and Austin Ranney, eds., Referendums Around the World: The Growing Use of Direct Democracy (Washington, D.C.: American Enterprise Institute, 1994) discusses more recent developments concerning use of the referendum. 550tmar Jung, Direkte Demokratie in der Weimarer Republik (Frankfurt: Campus, 1989). Reinhard Schiffers, Elemente direkter Demokratie im Weimarer Regierungssystem (Dusseldorf: 1971), pp. 243244, lists 32 announced efforts to file a national initiative during 1919-1932. According to his table, 19 of these efforts never got beyond the planning stage. Of the 13 that were filed, 2 went to a vote, 1 failed to get the necessary signatures (l0 percent of qualified voters), 5 were disqualified (mostly because they involved financial matters that were not permitted under the Weimar constitution), and 5 were filed with the government but signatures were never sought. Wolfgang Berger, Die Unmittelbare Teilnahme Des Volkes An Staatlichen Entscheidungen Durch Volksbegehren und Volksentscheid (diss., University of Freiburg i. Br., 1978), pp. 246-281, lists only 8 efforts that went beyond the planning stage. Although both the initiatives that went to a vote got over half the votes cast, both lost. Because the Weimar legislation allowed initiatives to pass only if a majority of all eligible voters actually voted, initiative opponents urged the opposing voters not to vote, thus making it difficult for the proponents to achieve the necessary quorum. Gunther Jurgens, Direkte Demokratie in den Bundeslandern (Stuttgart: Richard Boorberg, 1993), p. 250, lists the German states that adopted the initiative after World War 1. Schiffers, Elemente direkte Demokratie lists 25 efforts to adopt initiatives at the state level during 1919-1932. Two of these efforts were successful, 7 others went to a vote but lost, 4 achieved the necessary signatures but never went to a vote, 7 failed to obtain the necessary signatures, 2 were filed but signatures were never sought, and 3 never got beyond the planning stage. 56A tenth state, Berlin, also authorized use of the initiative until 1974. Jurgens, Direkte Demokratie, p. 59. Its constitution still allows a fifth of the voters to call for dissolution of the state parliament. Berlin Const. art. 39(2).

Initiative in Switzerland and Other Countries

63

nine allow use of the procedure for both ordinary laws and constitutional amendments.57 Initiatives concerning budgets, taxes, and government salaries are generally not allowed. Most West German states require a large number of signatures. Statutes require signatures from 20 percent of all citizens eligible to vote in four states; 17 percent in one state; 10 percent in three states; and 5 percent in one state. Constitutional amendments require the same number of signatures in all states but one: this state requires 20 percent for constitutional amendments, but only 10 percent for statutes.58 The voting requirements for initiative constitutional amendments are generally very restrictive, a number of states require an absolute majority of all citizens eligible to vote, an extraordinarily high minimum standard. One state requires both an absolute majority of all citizens and a positive vote in the parliament. Procedures for the collection of signatures in most West German states are also extremely restrictive. Petitions must be signed in designated governmental offices within a relatively short time-in most states two weeks or less. Because of the large number of signatures required and the restrictions concerning the collection of signatures, there were only 29 attempts to use the initiative in West Germany between 1946 and 1996.59 Fourteen of these attempts were in Bavaria, by far the most frequent user of the German states and until 1990 the state with the lowest signature requirement. In addition to the 29 attempts to use the initiative, citizens twice sought to use a special initiative-like procedure for dissolving the state parliament. A 1971 Baden- Wurttemburg proposal received a majority of the votes, but failed because participation in the election was too low. A 1981 Berlin proposal succeeded, however, when the parliament dissolved itself because of the strong support for the proposal. The German states that use the initiative generally review legality prior to a vote.60 The executive branch reviews proposed initiatives for deficiencies of form 57Baden-Wurtt. Const. arts. 59, 60, 64(3); Bayern Const. 72(2); Niedersachsen arts. 47-49; Rheinland-Pfalz Const. arts. 42, 42. Hesse, Nordrhein- Westfalen, and the Saarland allow use sen Const. art. 124; Nordrh.-Westf. Const. arts. 68, 69(2); Saar.

arts. 73-75; Bremen Const. arts. 70, 109, 129; Schl.-Holstein Const. arts. of the initiative only for statutes. HesConst. arts. 99,100.

58The state with a lower percentage for statutes is Bremen. Because it is based on the number of eligible voters (virtually all adult citizens), the German signature requirement is much greater than the American requirement, which is generally based on the number of voters at the last election. In addition, most West German states require proponents to submit a sizeable number of signatures at the time of initial filing. Unless these signatures are submitted, the authorities will not institute the procedures necessary for collection of the larger number of signatures necessary for qualification of an initiative. Bavaria, for example, requires 25,000 signatures to be submitted at the time of initial filing. 59Jiirgens, Direkte Demokratie, pp. 162-198, discusses 23 proposals through 1992. Two of these were proposals to dissolve parliaments under a special initiative-like procedure, and are not counted here. Two initiatives were proposed in Bavaria during the period 1992-1996. Information supplied to the authors from the states indicates that one proposal not listed by JUrgens was submitted in the Saarland in 1982, but withdrawn by the sponsors. Several abortive attempts to use the initiative in Nordrhein- Westfalen are not listed by JUrgens and not included in the count made by the authors. Five initiatives were proposed in Schleswig-Holstein between 1990 and 1996. 60In some states, including Bavaria, the courts may be asked to review the proposal before signatures are collected.

64

LAWMAKING

BY INITIATIVE

and for constitutional and other legal violations. The parliament can also review proposals for legal violations. When either the executive branch or the parliament determines that the proposal violates some provision of law, proponents may, and generally do, take the issue to the courts. Forty percent of the post-World War II attempts to use the initiative in West German states (12 of 29) failed because the courts agreed that there were constitutional or other legal defects in the proposals.61 Frequently the problem was that the proposal conflicted with federal law or was not within the competence of the states.62 Five proposals did not secure enough signatures, and one was withdrawn by the sponsors. Like the Swiss initiative, the initiative in the German states is indirect, requiring consideration by the parliament before going to a vote of the people. In ten instances West German proponents were successful in having their proposal considered by the parliament. In three, the parliament adopted the proposal,63 and in three instances, the proponents reached a compromise agreement with the parliament;64 In three other instances-all in the 1990s--citizens in Schleswig-Holstein made use of a procedure that allows a relatively small number of citizens to propose legislation for parliamentary action but requires the collection of many more signatures to force a vote of the people. In all three cases, the legislature declined to adopt the proposal, but there was no vote of the people. In only four instances have citizens in West Germany voted on an initiative proposal.65 All four instances were in Bavaria. In 1967 citizens voted in favor of a parliamentary compromise agreement concerning non-denominational schools and rejected two initiative proposals. In 1991, citizens rejected an initiative concerning solid waste and voted in favor of a parliamentary counterproposal. In 1995, however, the proponents of a proposal 61The Gennan courts, particularly the Bavarian courts, are more willing to review initiatives prior to a vote than are the American courts. 62JUrgens, Direkte Demokratie, pp. 162-198. 63In Nordrhein- Westfalen in 1977 the government sought to combine the previously separate vocational and academic high schools into a new type of "cooperative high schools." A citizens group filed an initiative to block this change. Because the number of signatures collected was so great (primarily because of the massive support of the Christian Democratic Party), the legislature adopted the initiative. JUrgens, Direkte Demokratie, pp. 194-195. In the I 990s, the Schleswig-Holstein parliament adopted an initiative proposal to abolish certain licenses and taxes for bars and substantially adopted a proposal for direct election of mayors and chief county executives. 64(1 and 2) In Bavaria the Free Democratic Party and Social Democratic Party each proposed initiatives in 1967 to create non-denominational schools alongside the existing denominational schools. The ruling party (Christian Social Union) responded with a proposed initiative of its own. The FOP proposal failed to get enough signatures, but both the SDP and the CSU proposals qualified. The SDP and the CSU then reached a compromise agreement. The two original initiatives then appeared on the ballot, alongside a constitutional amendment recommended by the legislature embodying the compromise. The two initiatives failed, but the compromise passed. (3) In 1972 the Bavarian legislature passed a law giving the government greater control over what was said by government-funded radio and television stations. A citizens group responded with an initiative proposing greater freedom of speech. The legislature rejected the proposal as unconstitutional, but reached a compromise with the proponents. The initiative died because the legislative detennination of unconstitutionality was not appealed. The compromise was approved by the voters. JUrgens, Direkte Demokratie, pp. 174-179. 65These two initiatives are discussed in the previous footnote.

Initiative in Switzerland and Other Countries

65

for the creation of an initiative at the city-county level defeated a parliamentary counterproposal. Although this was not the first initiative to gain its objective, it was the first initiative since World War II to succeed at the polls. Political parties are much more involved in initiative campaigns in Germany than in the United States. Partly because of this, German initiative campaigns, like those in the United States, are expensive. It is estimated, for example, that the 1991 Bavarian campaign over solid waste cost around $15 million-$I million spent by the proponents (who lost) and $14 million by those who favored the legislative alternative (who won).66 Bavaria has neither contribution limits, nor a financial disclosure law. It distributes ballot pamphlets in advance of initiative elections. Poll results, however, suggest that the populace is generally not well-informed about the proposals.67 As in Switzerland, initiative elections take place on a different day from candidate elections. Voter turnout is as a consequence generally much lower than that for candidate elections (about 20 percent less in Bavaria). While the initiative procedure has not been used very often in the German states, it has achieved some important successes, particularly in Bavaria.68 During the 1990s, there has been renewed interest in the procedure at both the state and national levels. In addition to the 1995 initiative that succeeded in creating an initiative procedure for cities and counties in Bavaria, two West German states adopted the procedure for the first time in the 1990s (Niedersachsen and Schleswig-Holstein), one lowered the signature requirements for statutes (Bremen), and all five former East German states adopted the initiative. All five allow use of the initiative for both laws and constitutional amendments. Although the five former East German states require absolute majorities of all eligible voters for constitutional amendments, they have established easier procedures for proposing statutes.69 By the end of 1996, proponents had sought to use these procedures 21 times. Half of these efforts involved simplified procedures that allow 15,000 to 35,000 citizens to present an issue to the legislature for action but do not require a vote of the people if the legislature fails to adopt the proposal.70 Nine of the efforts failed to collect enough signatures, four were declared invalid, and one was withdrawn. In only one instance did the parliament agree with a proposal, and there were no instances in which a proposal was put to a vote of the people. There has also been considerable discussion about the initiative. Former 66Jiirgens, Direkte Demokratie, p. 170. 67Jiirgens, Direkte Demokratie, p. 231. 68Jiirgens, Direkte Demokratie, pp.199-233. Hartmann,Volksinitiativen, p.83,in 1974calledtheschool initiatives"themostimportantpoliticaldecisionin Bavariasincethe war."See alsoReinholdBock1et, "Volksbegehren undVolksentscheid inBayern,"in ReinholdBock1et, ed.,Das Regierungssystem des FreofBavarianinitiatives). istaates Bayem (Munich:ErnstVoegel,1979),pp.334-406(discussion 69Brandenburg Const.arts.76ff,79;Meck.-Vorpommern art.60;SachsenConst.arts.71 ff, 74 III; Sachsen-AnhaltConst.arts.81,81V;ThuringenConst.arts.82,83. 70lnsome statesthis procedureis calleda "Volksinitiative." Becausethe proceduresvary,some petitionsarecountedin severalcategoriesinthis analysis.

66

LAWMAKING

BY INITIATIVE

Gennan President Richard von Weizacker, for example, has spoken out strongly for the development of more direct democracy at all levels of government, including the national level.

Austria Like the Weimar Republic, Austria adopted a national initiative after the first World War. Included in its 1920 constitution was a provision allowing 200,000 voters to propose draft laws.71 This provision was extremely limited, however, as it did not require a vote of the people if the Nationalrat, the Austrian parliament, chose not to adopt the draft. A similar provision was included in the 1955 constitution, adopted after World War 11.72In 1981 the number of signatures required was reduced to 100,000.73 Implementing statutes were adopted in 1921, 1931, 1973, and 1982.74 In theory the Austrian national initiative may be used to propose both statutes and constitutional amendments. All nine Austrian states also authorize use of the initiative; the three states closest to Switzerland since around 1920, most others since the 1970s. Most use a restricted form like that at the national level. Three states, however, provide for a vote of the people. Salzburg requires a vote of the people anytime the parliament rejects the initiative proposal. Steirmark and Vorarlberg also provide for a vote of the people, but only if the proposal has received many more signatures than are necessary for the initial consideration by the parliament. In Steinnark the requirement increases from 2 to 10 percent; in Vorarlberg from 2.7 to 20 percent.75 Some states restrict the initiative even further-requiring a waiting period before new laws can be changed through the initiative process.76 As in the German states, signature collection is generally arranged in a twostep procedure. The proponent first presents a petition with a sizeable number of signatures (10,000 for the federal initiative) to the authorities. If the petition is in good form, the authorities then set a brief time period for supporters to register their support in an election office. The federal initiative requires 100,000 registrants, all to be registered within a one week period.?7 This is about 2 percent of 71Sylvia Greiderer, "Volksbegehren in Osterreich als ein Instrument direkten Demokratie" (unpublished Diplomarbeit, University of Innsbruck, 1994), p. 31. One half the voters of each of three states were also authorized to propose draft laws. See also John Hawgood, Modern Constitutions Sinee 1787 (New York: Van Nostrand, 1939), pp. 263-265. 72Austria Const. art. 41. 73William Brauneder, Osterreiehisehe Veifassungsgesehiehte (Vienna: Manzsche, 6th ed. 1992), p. 274; Robert Walter and Heinz Mayer, Grundriss des osterreiehisehen Bundesveifassungsreehts (Vienna: Manzsche, 7th ed. 1992), pp. I 65ff. 74Greiderer, Volksbegehren in Osterreieh, pp. 30-47. 75Priedrich Koja, Das Veifassungsreeht der osterreiehisehen Bundeslander (Vienna: Springer- Verlag, 2d ed. 1988), pp. 172-173; Franz Merli, "Rechtsprobleme des Volksbegehrens in Bundes- und Landesgesetzgebung," Juristisehe Blatter 110 (1988): 85,98. 76Merli, "Rechtsprobleme,"

Juristisehe Blatter 110: 85, 87.

77Initiative Law (Volksbegehrengesetz),

1973, as amended.

Initiative in Switzerland and Other Countries

67

the Austrian electorate.78 The percentage of registrants required in the states varies from 2 to about 7 percent of the electorate. Two states allow the private collection of signatures.?9 The first federal initiative to collect sufficient signatures to require parliamentary consideration was in 1964. It sought to make radio and television more independent from the political parties. Two others followed in 1969, one seeking to reduce the work week to 40 hours and the other seeking to overturn a then newly enacted requirement for a 13th school year. Of the 15 initiatives that had been presented to the parliament by 1993, only the first three resulted in successful parliamentary action.80 Although all nine Austrian states have the initiative in their law books, they have used the procedure sparingly. Because the states that allow the people to vote have not used the procedure often, the first popular vote on a question raised by initiative was in Salzburg in 1993.81 Although the initiative has not played a major role in Austrian political life, there is a great deal of interest in the procedure. Six states have adopted the procedure since 1971, the number of signatures required for the federal initiative was reduced in 1981, arrangements for federal signature registration were improved and proponents were relieved of some costs in 1982, and there has been some liberalization in the states as well. 82 Further expansion of the initiative has also been discussed.83

Italy Italy adopted a limited form of the initiative in its 1948, post-World War II constitution. A petition from 50,000 voters forces the parliament to consider a law, but as with the Austrian federal initiative there is no required vote of the people if the parliament rejects the proposal. 84 More important is a second provision in the 1948 constitution. Although labeled as a "referendum," this provision is in reality a kind of initiative. It calls for a popular vote if 500,000 voters request the total or partial repeal of a law.85 This provision is like a classic referendum in that it can be used to allow the elec78Prior to 1982 the number required was 200,000. 79Merli, "Rechtsprobleme,"

Juristische Blatter 110: 85, 88-89.

80Rainer Nick and Anton Pelinka, Osterreichs politische Landschaft (Innsbruck: Haymon, 1993), p. 52; Greiderer, Volksbegehren in Osterreich, pp. 48-74. 81Greiderer, "Volksbegehren in Osterreich," pp. 101-103, lists the number of initiatives for some states as of 1994: Niederosterreich (3), Salzburg (I), Steiermark (3), Tirol (2) and Vorarlberg (I). Based on information supplied to the authors in 1992 by the state governments, Oberosterreich had never used the initiative, Vienna had used the procedure seven times, and Karnten three times. 82Greiderer, "Volksbegehren

in Osterreich," pp. 45-47.

83Walter and Mayer, Grundriss, p. 48; Greiderer, Volksbegehren in Osterreich, pp. 78-81. 84Italy Const. art. 71. 85Italy Const. art. 75. This procedure cannot be used for budgetary or fiscal legislation, granting of pardons or amnesties or for the authorization to ratify international treaties.

for the

70

LAWMAKING

BY INITIATIVE

but no vote of the people is required if the parliament fails to act. Matters concerning "organic laws, taxation, international affairs or the prerogative of granting pardons" are excluded.96 Guatemala and Liberia also have initiative procedures somewhat like that in Austria.97 Liechtenstein has an initiative procedure for both constitutional amendments and laws. Both procedures are indirect, requiring consideration by the parliament. Both, however, allow a vote of the people if the parliament fails to act.98 The Philippine initiative adopted in its 1987 constitution is one of the newer initiatives,99 as is the Hungarian initiative adopted in 1989. The Hungarian initiative allows 100,000 voters to put matters directly on the ballot.lOO

96Spain Const. art. 87. 97Markku Suksi, Bringing in the People: A Comparison of Constitutional the Referendum (Dordrecht: Nijhoff, 1993), p. 143.

Forms and Practices of

98Si1vano M6ck1i, Direkte Demokratie: Ein internationaler Vergleich (Bern: Paul Haupt, 1994), pp. 136-138,394-397. Between 1919 and 1990, Liechtenstein had 20 votes on initiatives. Ten initiatives were successful at the polls. In four instances there were parliamentary counterproposals. In one instance the counterproposal won; in one instance the initiative won, and in two instances both lost. 99Anna Abad and Evalyn Ursua, "Initiative and Referendum: Empowerment," Philippine Law Journal 63 (1988): 375. looSuksi, Bringing in the People, pp. 112-117.

An Experimentation

at People

CHAPTER SIX

THE BASIC STRUCTURE: CONsrmn10NALAMENDMENTS,INmAlMSfATUTES, AND SUBJECT-MATTER RESTRICTIONS THE ROLE OF THE INITIATIVE IN STATE CONSTITUTIONAL AMENDMENTS Constitutions are fundamental laws. They establish the rules by which ordinary laws are created. They define the powers of government, establish the basic permanent institutions of government, such as the executive, legislative, and judicial branches, protect the people in the exercise of their civil liberties, and provide a method for changing the fundamental law. I In the United States the classic model is the federal constitution. Hammered out in Philadelphia in the summer of 1787, this constitution is one of the most respected governmental documents ever devised. Even with the addition of the Bill of Rights, it is a brief document that limits itself primarily to establishing the framework of government. Amendments were deliberately made difficult in order to discourage changes that were not themselves fundamental. In over 200 years there have been only 27 amendments, and only 17 since the adoption of the Bill of Rights in 1791. The early state constitutions tended to follow the federal model. As a group they focused on fundamental questions of government, were short, and were difficult to amend. Some state constitutions continue to be in this mold. Other states have taken a different view of their constitutions. Rather than limit themselves to questions concerning the framework of government, they have sought to regulate more of the details of everyday life through constitutional rules. No American jurisdiction has gone as far in creating detailed economic and social entitlements in their constitutions as such countries as Brazil, Mexico, the former Soviet ISee, for example, John Wheeler, ed., Salient Issues of Constitutional National Municipal League, 1961). p. xii.

71

Revision (New York:

72

LAWMAKING

BY INITIATIVE

Union, or Haiti. But some state constitutions are nearly as lengthy. Like their counterparts in other areas of the world, these longer, more detailed constitutions have frequently overregulated. As a consequence, they have been far less permanent and subject to more frequent change than the federal model. Collectively, the states have approved 146 different state charters, have convened over 230 constitutional conventions, and have approved over 5,000 amendments to their constitutions.2 South Carolina and Alabama have each adopted over 450 amendments. Nineteen states, on the other hand, retain their original constitutions. Like James Madison and Alexander Hamilton, the principal authors of the Federalist Papers, most modem commentators tend to favor a shorter, more basic constitution. Sixteen new state constitutions have been adopted since 1940, and virtually all are noticeably shorter and more basic than their predecessors. When the California Constitution Revision Commission completed its work in 1971, for example, it had reduced the California constitution from 75,000 to 45,000 words.3 Even so, the new constitution was still more than double the 20,000 words of the original California constitution and about six times the 7,500 words of the federal constitution.4 TABLE 17. State Constitutional Amendments Legislative Procedure Degree of Difficulty Difficult

Number of States

2/3 vote by legislature (2 sessions)

4

Majority vote by legislature (2 sessions)

IO

2/3 vote by legislature

16

Moderate 3/5 vote by legislature

10

Easy Majority vote by legislature

lQ

Total

50

Source: The Council on State Governments. The Book of the States: 1994-95 Edition (Lexington. Ky.: 1994), pp. 21-22.

AMENDMENT

PROCEDURE

Just as states differ sharply in the extent to which they view their constitutions as fundamental documents, so they also differ sharply in the extent to which they 2Jamce May, "Constitutional alism 17 (1987): 153,164.

Amendment and Revision Revisited," Publius: The Journal of Feder-

3Cal. Constitution Revision Commission, 4See, for example, "California's 279.

Proposed Revision Part 1 (1970): 7; Part 6 (1971): 3.

Constitutional

Amendomama,"

Stanford Law Review 1 (1949):

The Basic Structure: Constitutional Amendments, Initiative Statutes, and Subject Matter Restrictions

73

make constitutional amendments difficult. While all 50 states allow their legislatures to initiate constitutional amendments, 49 states require ratification by the people as well. (Delaware is the exception.) Thirty-two of these states require a two-thirds vote by the legislature, a positive vote in two consecutive legislatures, or both, as shown in Table 17. While these procedures are less rigorous than those required to amend the federal constitution, they are relatively difficult nonetheless. Ten states, on the other hand, require only a majority vote by the legislature to initiate a constitutional amendment, a relatively easy procedure. The 17 states with some experience in use of the initiative as an alternative method for bringing about constitutional amendments in 1990 are analyzed in Table 18. Six of these states require their legislatures to use relatively difficult methods of amendment, while seven require only a majority vote in the legislature for legislatively initiated amendments. TABLE 18. State Constitutional Amendments Legislative Procedure-Initiative States Only

---------"'--Degree of Difficulty

Number of States

Difficult Majority vote by legislature (2 sessions)

2

2/3 vote by legislature

4

Moderate 3/5 vote by legislature

4

Easy Majority vote by legislature Total

1 17

Sources: See Table 17. Mississippi authorizes initiative constitutional amendments but is omitted from

Tables 18-22. because the authorization is new.

As might be expected, the states with easy procedures for amendment tend to have the larger number of amendments. The major exception is California, which has a relatively difficult legislative amendment procedure but a large number of legislatively proposed constitutional amendments, as Table 19 indicates. A partial explanation of this anomaly is that California legislators introduce an exceptionally large number of constitutional amendments (1,249 between 1971 and 1984). While only about 8 percent secured the approval needed to appear on the ballot, the total on the ballot is larger than that for most states. The total may also have some connection with the work of the California Constitution Revision Commission in the late 1960s and early 1970s.5 50nly a few (6 or 7) of the 140 legislatively sponsored constitutional amendments can be clearly traced to the Constitution Revision Commission. The number of legislative constitutional amendments was much higher from 1970 to 1974, however, than in later years. It seems likely that at least some of these amendments are attributable to constitutional revision or inspired by it. (The total number for 1970-1979 was 93; for 1980-1988 it was 46). Ten legislative amendments in the 1980s concerned the Jarvis-Gann tax limitation that was adopted by initiative in 1978.

74

LAWMAKING

BY INITIATIVE

States also vary considerably in the ease with which they allow their constitutions to be amended through the initiative process. Four states require signatures equal to 15 percent of the last vote or some similarly onerous hurdle, as shown in Table 20. Eight states, on the other hand, require only half or less that number of signatures. Again, as might be expected, the states with the easier procedures tend to have the larger number of initiatives, as shown in Table 21. More striking are the results in states that have difficult legislative procedures for amending their constitutions but relatively easy initiative procedures. The only two states that meet this condition, Colorado and California, rank first TABLE 19. State Constitutional Amendments Number Proposed by Legislature 1970-1988 Rank I

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

State California Nebraska

Easy

Oklahoma

Easy

Arizona

Easy Easy

North Dakota Florida

Moderate

Nevada

Difficult Easy

Missouri

Moderate

South Dakota

Easy

Colorado

Difficult

Massachusetts

Difficult

Michigan

Difficult

Montana

Difficult Easy

Arkansas Illinois

aSome California initiatives involve both constitutional constitutional amendments.

Moderate amendments

and statutes. These are counted as

TABLE 20. State Constitutional Amendments Degree of Difficulty Degree of Difficulty Difficult 15% signatures Other Moderate 10% signatures Easy 5-8% signatures Total

140a 92 92 90 68 65 58 58 57 52 38 33 31 22 20 17 10

Difficult Moderate

Oregon

Ohio

Number Proposed

Degree of Difficulty

by Initiative Number of States 2 3

6 6. 17

The Basic Structure: Constitutional Amendments, Initiative Statutes, and Subject Matter Restrictions

75

TABLE 21. State Constitutional Amendments Number Proposed by Initiative, 1970-1988 Rank

State

I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17

Colorado California Ohio Michigan Oregon Arkansas Missouri Florida Arizona Montana South Dakota North Dakota Nevada Oklahoma Nebraska llIinois Massachusetts

Degree of Difficulty

Number Proposed

Easy Easy Moderate Moderate Easy Moderate Easy Easy Difficult Moderate Moderate Easy Difficult Difficult Moderate Difficult Difficult

22 17 17 16 16 12 9 9 6 5 5 5 5 4 2 I I

TABLE 22. State Constitutional Amendments Effect of Proposal Difficulty on Number oflnitiative Proposals, 1970-1988 Degree of Difficulty State Colorado California Ohio Michigan Oregon Arkansas Missouri Florida Arizona Montana North Dakota Nevada South Dakota Oklahoma Nebraska Massachusetts Illinois

Rank by Number

Legislative Proposals

Initiatives

of Initiatives

Difficult Difficult Moderate Difficult Easy Easy Easy Moderate Easy Difficult Easy Difficult Easy Moderate Moderate Difficult Moderate

Easy Easy Moderate Moderate Moderate Moderate Easy Easy Difficult Moderate Easy Difficult Moderate Difficult Moderate Difficult Difficult

I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16

17

and second in the number of constitutional amendments proposed by initiative during the period 1970 to 1988, as Table 22 shows. Conversely, the states with easy legislative but difficult initiative methods for amendment rank far down the list.

76

LAWMAKING

BY INITIATIVE

In California it is harder for the legislature to propose a constitutional amendment than for many initiative proponents to do so. The legislature must achieve a two-thirds vote, a difficult, if not impossible, task on any hotly disputed matter. Initiative sponsors, however, can propose constitutional amendments by obtaining signatures equal to 8 percent of the last gubernatorial vote, a task that sponsors who have enough money to pay signature gatherers generally have no trouble accomplishing.6 To be sure, proponents who must rely on volunteers to gather signatures find this number of signatures very hard to obtain. As very few proponents today even attempt to rely on volunteer signature gatherers, however, most initiative proponents are able to meet the threshold needed for constitutional amendments. There is nothing to indicate that either the authors of the California initiative or the California Constitution Revision Commission intended to make it easier to propose constitutional amendments through the initiative than by the legislature. Indeed it is difficult to understand why any state would want to have a policy of this kind. Because legislative proposals are subject to public hearings and can be amended during the legislative process, constitutional amendments proposed by the legislature tend to be better drafted and more thoroughly debated and understood than those proposed by initiative. A good case can be made for making the legislative process easier, but it is hard to justify making the initiative process the easier of the two. Although it is not easy to structure the process in ways that encourage initiative proponents to take their proposals first to the legislature, it is important to take advantage of the legislative machinery for honing proposals to the extent possible. There is much to be said for the view that the state constitution should include only those things that are fundamental and that amendments both through the legislature and through the initiative should be difficult.7 At a minimum, however, it seems clear that the initiative amendment process should be at least as hard as the legislative amendment process.8

6Signature-gathering finns charge 60 cents or more per signature gathered. To calculate the cost of qualifying an initiative, this figure must be multiplied by the required number of signatures. See, for example, Charles Price, "The Mercenaries Who Gather Signatures for Ballot Measures," California Journal (October 1981): 357-358. 7 According to the California Constitution Revision Commission, the state constitution should be a "reasonably short, concise and readable statement establishing (I) basic political concepts; (2) an outline of the organizational framework of government; and (3) a set of limitations on governmental powers." Proposed Revision of the California Constitution (San Francisco: 1966), p. 7.

8The California Policy Seminar Report recommended that California increase the number of signatures required for constitutional amendments from 8 to 10 percent. Philip Dubois and Floyd Feeney, Improving the California Initiative Process: Options for Change (Berkeley: California Policy Seminar, University of California, 1992), p. 162. The California Commission on Campaign Financing, Democracy by Initiative: Shaping California's Fourth Branch of Government (Los Angeles: 1992), p. 25, recommended that California require voter approval at two separate elections for constitutional amendments unless 60 percent or more of those voting at the first election approve the proposal.

The Basic Structure: Constitutinnal Amendments, Initiative Statutes, and Subject Matter RestrictiJJns

77

Constitutional Amendments and Statutes by Initiative Compared In order to maintain the fundamental character of state constitutions, it should be more difficult to amend a constitution than to adopt a statute. The added difficulty encourages proponents to enact their proposals as statutes rather than as constitutional amendments. In California this distinction is fully honored in the legislative process. There is a big difference between securing passage of a statute (majority vote) and proposing a constitutional amendment (two-thirds vote of the legislature plus a vote of the people). The differential between ordinary statutes and constitutional amendments is much smaller in California for initiatives, however. It is almost as easy for proponents with money to pay for gathering signatures to propose constitutional amendments through the initiative process as to propose statutes.9 The only difference is that initiative constitutional amendments require gathering signatures equal to 8 percent of the previous vote, whereas initiative statutes require 5 percent. Prior to 1966 the California Constitution failed to include even this limited incentive in favor of statutory proposals. At that time there was no difference between the number of signatures required for initiative constitutional amendments and that required for direct initiative statutes-8 percent of the last gubernatorial vote was required for both. (Only 5 percent was required for indirect initiative statutes.) Upon the recommendation of the Constitution Revision Commission, the indirect initiative was eliminated and the number of signatures for direct-initiative statutes was decreased to 5 percent. The purpose of the decrease was to encourage proponents to propose initiative statutes rather than initiative constitutional amendments, so as not to clutter the state constitution. This change appears to have worked as the Constitution Revision Commission expected it would. Between 1948 and 1966, the year in which the change recommended by the commission was adopted, 30 initiatives qualified for the ballot-16 constitutional amendments and 14 statutes. Between 1968 (the first year of the change) and 1996, 120 initiatives qualified--41 constitutional amendments and 79 statutes, as shown in Table 23. These figures show that the number TABLE 23. Effect of 1966 Decrease in Signature Requirements for California Initiative Statutes Number of Initiative Constitutional Amendments Qualifyinga Period Prior to 1966 1948-1966 Period After 1966 1968-1996

Number of Initiative Statutes Qualifying

47%

16

41

Percent Statutes

79C

66%

alnitiatives that contain both a constitutional amendment and a statute are counted as constitutional amendments. bTwo indirect initiatives are included. blncludes two initiatives that qualified but that were taken off the ballot by the California Supreme Court in 1984.

9See the discussion of signature gathering in Chapter Seven.

78

LAWMAKING BY INITIATIVE

of signatures required can be manipulated to encourage initiative proponents to seek statutory change instead of constitutional amendments. Since 1966, initiative statutes have increased from 43 to 64 percent of all initiatives qualifying for the ballot. This shift represents a significant step toward limiting the use of initiative constitutional amendments to fundamental governmental issues. Because the initiative process continues to provide an easier method for amending the state constitution than the legislative process, however, the number of initiative constitutional amendments remains high. The experience in other states tends to confirm these results. Most of the states with little or no difference in the percentage of signatures required for initiative statutes and that required for initiative constitutional amendments have more initiative constitutional amendments than average. Conversely two of the three states with large differences have considerably fewer constitutional amendments than average, as a comparison of Tables 3 and 5 (pages "Use of the Initiative from Year of Adoption through 1996 (Measures Voted On)" on page 30 and "Initiatives Approved by Voters from Year of Adoption through 1996" on page 32) shows. On principle, an easy initiative process in comparison to the legislative process for constitutional amendments seems likely to have greater effect than an easy initiative constitutional amendment process in comparison with the initiative statute process. It seems clear, however, that both the initiative/legislative differential and the initiative statute/initiative constitutional amendment differential profoundly affect proponents' decisions.

AMENDMENT AND REPEAL OF INITIATIVE STATUTES Twenty-one states and the District of Columbia allow statutes to be adopted through the initiative process. Twelve states and the District of Columbia allow the legislature to amend or repeal initiative statutes at any time after their adoption, as shown in Table 24. Five states place relatively minor limits on the power of the legislature to amend or repeal. Alaska and Wyoming allow amendment at any time but prohibit repeal until two years have passed. Washington also allows amendment at any time, but restricts repeal during the first two years by requiring a two-thirds vote of the legislature.lO Nevada prohibits both legislative amendment and repeal for three years. Arizona allows an easy change procedure for the normal case (amendment or repeal at any time); it uses a very strict procedure, however, for those rare cases when an initiative statute is approved by a majority of the registered voters, allowing such statutes to be amended or repealed only by another initiative. 11

1000e original Washington initiative prohibited both amendment and repeal for two years. This provision was relaxed in 1952. Philip Trautman, "Initiative and Referendum in Washington: A Survey," Washington Law Review 49 (1973): 55, 67-70. llAdams v. Bolin, 247 P.2d 617 (Ariz. 1952); Randall Hodgkinson, "Executive, Legislative, and Judicial Power Over Direct Legislation in Arizona," Ariz. State Law Journal 23 (1991): 1111, 11171129.

The Basic Strurture: Constitutionnl Amendments, Initiative Statutes, and Subject Matter Restrictions

79

Four states place major limits on the power of the legislature to amend or repeal. Michigan requires a three-fourths vote of the legislature to amend or repeal, Arkansas a two-thirds vote of the legislature. Michigan allows amendment and repeal by a lesser vote only if the initiative so provides. North Dakota requires a two-thirds vote for the first seven years but thereafter allows the normal legislative process to work. The most restrictive state is California. TABLE 24. Amendment of Initiative Statutes Number of States 13

Amend or Repeal at Any Time Colorado

Nebraska

D. of Columbia

Ohio

Idaho

Oklahoma

Maine

Oregon

Massachusetts

South Dakota

Missouri

Utah

Montana Minor Limits

5

Alaska: Amend anytime; no repeal for 2 years Arizona: Amend or repeal anytime (unless approved by majority of electorate; then only by another initiative) Wyoming: Amend anytime; no repeal for 2 years Washington:

No repeal for 2 years, amend within 2 years by 2/3 vote of legislature Nevada: No amendment or repeal for 3 years Major Limits

4

Arkansas: Amend or repeal by 2/3 vote of legislature North Dakota: No amendment or repeal for 7 years Michigan:

Amend or repeal by 3/4 vote of legislature unless initiative makes easier) California: Amend or repeal by vote of the people (unless initiative makes easier) Total states

22

Sources: Alaska Const. art. XI, ~6; Ariz. Const. art. IV, pt. I, ~I(6); Ark. amend. VII: Cal. Const. art. II, ~ 10(e); Mich. Const. art. II, ~9; Nev. Const. art. XIX, ~2; N.D. Const. art. III, ~8; Wash. Const. art. II, ~l(e); Wyo. Const. art. III, ~52(f).

In California a statute adopted by initiative can be changed only by submitting it to another vote of the people-unless the initiative itself allows the legislature to adopt changes. Generally when initiatives allow the legislature to make changes, they require supermajorities. One initiative on the June 1990 ballot required a four-fifths vote of the legislature.I2 This kind of provision makes initiative statutes very much like constitutional amendments.I3

80

LAWMAKING

BY INITIATIVE

An important policy question is whether initiative statutes should be treated any differently than statutes adopted by the legislature. While it may be reasonable to protect statutes enacted by the people through the initiative process from immediate change by the legislature, it seems highly undesirable to have a category of "super statutes" that are very difficult to change without a vote of the people.14 As the circumstances upon which statutes are based change, the legislature should have the power to make changes. 15 Aside from the improvement that such power would bring in the legislature's ability to manage the affairs of the state, giving the legislature this kind of authority would reduce the number of ballot measures by eliminating the need to have trivial changes in old initiatives approved by the people.16 In the early 1900s when the initiative was first adopted, there were reasons to fear that legislatures might do all they could to sabotage measures adopted through the initiative process. In actual practice, however, legislative sabotage has not proved to be a major problem, even in the states where the legislature can easily amend or repeal initiative measures.17 To be sure there have been a few instances in which legislatures have quickly sought to dismantle initiative measures.18 More frequently, however, legislatures have sought to jump on bandwagons created through the initiative process. Once an initiative has established the popularity of an idea, legislatures have often responded by passing additional legislation of the same character. i2Proposition 117, Wildlife Protection. See Cal. Secretary of State, California Ballot Pamphlet, June 5, 1990, p. 76, g8. Another common provision is to allow amendment by a two-thirds vote of the legislature "if the amendment is consistent with and furthers the purposes of the initiative." See, for example, Proposition 16, Rail Transportation, California Ballot Pamphlet, June 5, 1990, p. 74, g5. While no published opinions concerning this kind of provision have been discovered, the potential for misunderstanding and litigation appears great. The history of initiative grants of authority to the legislature is discussed in California Commission on Campaign Financing, Democracy by Initiative, pp. 94-95. 13Repeal of initiative statutes is generally governed by the same rules as amendment. art. II, g 10.

Cal. Const.

14In Switzerland, the initiative and legislative processes are considered to be equal. Initiative statutes are given no preference, and can be changed through normal legislative procedures. Zaccaria Giacometti, Das Staatsrecht der schweizerischen Cantone (Zurich: Polygraphischer, 1941), pp. 440441. i5The California Policy Seminar Report recommended against any special protection for initiative statutes. Dubois and Feeney, Improving the California Initiative Process, p. 162. The Commission on Campaign Financing, Democracy by Initiative, p. 24, recommended that the legislature, with a 60 percent vote, be allowed to amend any initiative. 16Relatively minor changes in a 1923 California initiative concerning chiropractors have thus far resulted in four ballot propositions, including Proposition 113 on the June 1990 ballot. Cal. Bus. & Prof. Code, gglOOO-1 to 1000-20 annot. (West 1990 and Supp. 1995). 17Discussions with officials in most initiative states. 18In the early 1900s the South Dakota legislature repealed two proportional representation initiatives adopted by the voters. Interview with S.D. Legislative Research Council, 1995. News accounts indicate that some members of the Wyoming legislature thought about seeking repeal of the term limits adopted in that state in 1992 but were dissuaded from doing so by large numbers of letters and telephone calls from citizens in favor of term limits.

The Basic Structure: Constitutionnl

Amendments,

Initiative Statutes, and Subject Matter Restrictions

81

A possible downside to giving the legislature the authority to amend or repeal initiative statutes without a vote of the people is that this may lead some proponents to propose initiative constitutional amendments rather than initiative statutes. The remedy for this problem is to make initiative constitutional amendments properly difficult. ________

T""1\.~B!ALE 25. Restrictions

on Initiative

Process

Restriction

Number

Single subject or similar rule

17

No statutes that the legislature could not legally adopt

12

Restrictions on taxes or appropriations

10

Waiting period for failed proposals

5

No local or special legislation

4

No constitutional

4

revision

No creation of courts or changing jurisdiction

of States

of courts

3

No changes in the initiative process

2

No changes affecting freedom of speech, press, elections, assembly, just compensation, or right of access to courts Other

2 3

Sources: Single subject rule: See Table 33. Restricted to statutes the legislature could adopt: Alaska Canst. art. XII, 911; Ariz. Canst. art. XXII, 914; Convention Center Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889 (D.C. 1981) (en banc); Luker v. Curtis, 136 P.2d 978 (Idaho 1943); Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Mich. Canst. art. II, 99; Neb. Canst. art. III, 92; Nev. Op. All'y Gen. No. 153 (1934-36); State ex reI. Eckroth v. Borge, 283 N.W. 521 (N.D. 1939); Ohio Canst. art. II 91; State ex rei. Jones v. Charboneau's, 615 P.2d 1321 (Wash. App. 1980); Wyo. Canst. art. lll, 952(g). Waiting period for failed proposals: Mass. Canst. amend. art. XLVlIl, Init., pt. 2, 93; Miss. Canst. art. 15, 9273; Neb, Canst. art III, 92; aida. Canst. art. v, 96; Wyo. Canst. art. Ill, 952(d), Restrictions on taxes or appropriations: Alaska Canst. art. XI, 97; D.C. Code Ann, 91-281(a) (1992); Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Miss. Canst. art. 15, 9 273; Mo, Canst. art. III, 951; Mont. Canst. art. III. 94; Neb. Rev. Stat. 932-704.01 (1988); Nev. Canst. art. XIX, 96; Ohio Canst. art. II, 9 Ie; Wyo. Canst. art. III, 952(g). No local or special legislation: Alaska Canst. art. XI, 97; Mass. Canst. amend. art. XLVIII, luit., pt. 2, 92; Mont. Canst. art. III, 94; Wyo. Canst. art. III, 952(g). No constitutional revision: McFadden v. Jordan, 196 P.2d 787 (Cal. 1948); Adams v. Gunter, 238 SO.2d 824 (Fla. 1970); Holmes v. Appling, 392 P.2d 636 (are. 1964); Mont. Canst. art. XIV. No creation of courts or changing jurisdiction of courts: Alaska Canst. art. XI, 97; Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Wyo. Canst. art. Ill, 952(g). No changes in the initiative process: Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Miss. Canst. art. 15, 9273. No changes affecting freedom of speech, press, elections, assembly, just compensation, right of access to courts: Mass. Canst. amend. art. XLVIII, Init., pt. 2, 92; Miss. Canst. art. 15,9273. Other: Ill. Canst. art. XIV, 93 (restricted to constitutional amendments affecting state legislature); Miss. Canst. art. 15, 9 273 (no changes affecting right to work law or state pensions); Nev. Canst. art XIX (constitutional amendments must be passed twice),

SUBJECT-MATTER RESTRICTIONS General Subject-Matter Restrictions Most states that use the initiative process have at least some restrictions on its use. The single-subject rule, which generally limits initiatives to a single area of constitutional or statutory change (discussed in Chapter Nine), is the most frequent restriction, as Table 25 shows. The second most frequent restriction is to prohibit the adoption of statutes through the initiative that the legislature could not legally adopt. At least 12 of the 22 jurisdictions that authorize ini-

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tiative statutes have limitations of this kind. Four states limit the reintroduction for a time of initiative proposals that have previously failed. Four states prohibit the adoption of local or special legislation through the use of statewide initiatives. Four states, including California, distinguish between constitutional amendments, which are permitted, and constitutional revisions, which are prohibited. This kind of restriction has usually been imposed by the courts, but Montana develops the distinction in its constitution.19 Alaska, Massachusetts, and Wyoming have sought to protect the integrity of their judiciary by prohibiting the creation of courts, defining the jurisdiction of courts, or prescribing court rules through the initiative process. Two states have interpreted federal law as prohibiting the use of the initiative to ratify amendments to the United States Constitution or to call for a national constitutional convention.20 Massachusetts and Mississippi go considerably further in protecting the basic outline of their existing constitutions. Both states prohibit initiatives that change the initiative process itself. In addition in Massachusetts all measures relating to religion or religious practices or institutions are excluded, as are propositions limiting individual rights, including the right to free speech, to trial by jury, to just compensation for takings of property, and access to the courts.21 Mississippi also protects critical parts of its constitution from change through the initiative-its Bill of Rights, its constitutional right to work guarantee, and the initiative process itself. But by far the most restrictive provisions are those in lllinois. Here the initiative may only be used to amend the portions of the Illinois Constitution concerning the structure and procedures of the legislature.22 This safety-valve authority was created because it was thought that the legislature would be unlikely to propose changes in its own basic structure. Among the many policy questions that these restrictions suggest, three seem particularly important: • To what extent should the budget process be controlled by, the initiative process?

19Although Montana voters may not use the initiative to propose specific constitutional they may use the initiative to call a constitutional convention. Mont. Const. art. XIV, 92.

revisions,

2oAFL-CIO v. Eu, 36 Cal.3d 687 (1984); State ex rei. Harper v. Waltermire, 691 P.2d 826 (Mont. 1984). Both cases rely on the language of U.S. Const. art. V, which requires ratification of U.S. constitutional amendments by "legislatures" or "conventions." Relying on this same language, the U.S. Supreme Court in Hawke v. Smith, 253 U.S. 221 (1920), held that ratification of the eighteenth amendment by Ohio was not subject to referendum. Massachusetts avoids this problem by allowing a nonbinding advisory vote by the electorate on proposed amendments to the U.S. Constitution. Mass. Gen. Laws Ann. ch. 53, 918 (West 1991). 21Good discussions of these restrictions are contained in Alexander Gray, Jr. and Thomas Kiley, "The Initiative and Referendum in Massachusetts," New England Law Review 26 (1991): 27; Robert Stewart, "The Law ofInitiative Referendum in Massachusetts," New England Law Review 12 (1977): 455. 22m. Const. art. XIV, 93. Legislative salaries and conflicts of interest are not considered "structural and procedural." Coalition for Political Honesty v. State Ed. of Elections. 359 N.E.2d 138 (Ill. 1976).

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• Should initiative sponsors be allowed to change the rules about how the initiative process itself works? • If so, should initiative sponsors be allowed to change the rules so as to make adoption or effectuation of their particular initiative easier?

Budget Matters Nine states place restrictions on the extent to which taxes can be levied or appropriations made through the initiative process. Even more states prohibit the use of the referendum to block or alter tax and appropriation measures.23 The new Mississippi initiative does not restrict the levying of taxes or the making of appropriations. It does, however, require proponents to identify in the text of the initiative itself the amount and source of revenue required to implement the initiative. If the initiative requires a reduction in any revenue source or a reallocation of funding, the text must identify the programs to be reduced or eliminated. Nevada forbids any appropriation through the initiative process unless the initiative includes a tax sufficient to cover it. California is one of the states that does not impose restrictions on the use of the initiative to raise revenue or spend money. One consequence is that a large proportion of the state's budget is now permanently subject to control by initiatives adopted in the past.24 Some believe that this not only creates annual budgeting problems but also encourages interest groups that lack the protected status conferred by the prior initiatives to seek protection for themselves. Concerns about this have been expressed by former Governor Deukmejian and many legislators. California, like other states, subjects its normal appropriations to a number of important processes. The budget must be balanced. Appropriations, except those for the public schools, must be passed by two-thirds of the membership of each house, and all appropriations are subject to an item veto by the governor. No bill except the budget bill may contain more than one item of appropriation, "and that for one certain, expressed purpose.,,25 Appropriations contained in initiative measures are subject to none of these processes. This seems unduly lax, making it easier in some instances to secure appropriations through the initiative than through the legislative process. Because the appropriations process necessarily involves comparisons among programs, it also seems unwise and ultimately unworkable to allow a great proportion of a state's resources to be appropriated through the initiative process.26 23Eleven of the 20-plus states using the referendum procedure have some kind of subject matter limitation. The majority of these restrictions relate to the "dedication of state revenues and appropriations." Council of State Governments, The Book of the States 1994-95 Edition (Lexington, Ky.: Council of State Governments, 1994), p. 301 fn. (d). See also "Comment, Limitations on Initiative and Referendum," Stanford Law Review 3 (1951): 497. 24Appendix Table 2 shows the number of initiatives titled, voted on, and approved in California by their subject matter category. Fiscal matters and taxation are large categories. 25Cal. Const. art. IV, ~12.

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LAWMAKING

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Rules About the Initiative Process The initiative is just one of many governmental processes and many believe that it should, like other governmental processes, be subject to change through the initiative.27 The initiative process should not be used, however, to change the rules in the middle of the game. It is one thing to use the initiative to change the general initiative rules to improve the initiative process. It is a different matter altogether to subvert the existing rules by including changes designed to cure an otherwise unlawful initiative. If an initiative proponent, for example, proposed a measure prohibiting the sale of cigarettes and abolishing the Labor Day holiday, this proposal would clearly violate the rule limiting initiatives to a single subject. Suppose, however, that the proponent added a third prong to the initiative, one that retroactively modified the single subject rule so that it would not apply to the proposed initiative. If the courts gave effect to this third prong, the proponent would have been able to bypass the single subject rule entirely.28 Some California initiative proponents have already tried to use their own initiatives to make changes in the rules governing initiatives in order to strengthen their position. Proposition 136 on the November 1990 ballot, for example, sought to make tax increases more difficult. This proposition sought to give itself an effective date earlier than the other tax measures on the same ballot. Because the measure was defeated, the courts were never required to rule on the measure. Its intent, however, was clear enough. By giving itself an earlier effective date, it sought to invalidate all the other tax measures on the ballot, thus totally bypassing the normal constitutional rules for deciding which of various conflicting initiatives should be given priority.29 Both Massachusetts and Mississippi address this problem by refusing to allow the initiative to be used to make any changes in the initiative process. A less drastic solution would be to prohibit initiatives from changing the normal rules governing their own operation and effect. If a propo,nent wants to propose an initiative that violates the single subject rule, the proponent would be forbidden from including a clause exempting the proponent's proposal from the single subject rule. The proponent would be forced to develop a separate, more general initiative in order to change the single subject rule. 26Among the appropriations protected by their initiative-created status in California are: the Fair Political Practices Commission, the entity that enforces the state's campaign finance laws; the proportion of the state budget devoted to primary and secondary schools; and the state's advertising program against smoking, These programs have all fared much better in the hard budget years of the early 1990s than they would have if they had lacked the protection of their initiative status. In addition many observers believe that the permanent appropriation for the Fair Political Practice Commission has greatly enhanced that agency's independence and ability to do its job. 27In California a 1974 initiative greatly improved the state's ballot pamphlet. Two earlier initiatives (1920, 1922), seeking to increase the number of signatures required for initiatives, failed, 28The courts might find that the three-pronged initiative itself violated the single subject rule, but as discussed in Chapter Nine the courts have taken a very loose approach to the single subject rule. 29proposition osition 136.

126, placed on the same ballot by the legislature, sought to exempt itself from Prop-

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85

Another issue which frequently arises in initiative elections is the extent to which the initiative may be used to create supermajority requirements for the passage or repeal of legislation in the future. Because normal constitutional procedures allow legislatures to create supermajority requirements of this kind, many states allow this kind of requirement to be created by the initiative process as well. The California Commission on Campaign Financing argued that any kind of supermajority requirement is undemocratic if imposed by a simple majority vote. It recommended that ad hoc supermajority votes be allowed only if approved by a supermajority of the people at least as large as that called for in the proposal.30

EFFECTIVE DATE To give citizens and government agencies time to prepare for changes in the law, legislative statutes in most states have delayed effective dates, unless adopted by a supermajority as urgency statutes. A 90-day delay is not uncommon, and some have a longer delay. Initiative statutes generally take effect much more quickly, as shown in Table 26. In many states they take effect immediately upon adoption. No strong reasons have been put forward for this difference in treatment, and it seems difficult to justify. It would seem better to use a standard delayed effective date for all, treating all statutes uniformly. While citizens and government agencies also generally need time to adapt to constitutional amendments, most states put constitutional amendments-both legislative and initiative-into effect at the time of passage.

THE INDIRECT INITIATIVE Nine states use some form of the indirect initiative for statutes. Five states (Maine, Massachusetts, Michigan, Nevada, and Ohio) require proponents to submit all proposals to the legislature for consideration, as shown in Table 7 (page 36). Two other states, Alaska and Wyoming, formally provide only the direct initiative but allow their legislatures to void the initiative petition if it adopts the proposal. This is functionally the same as an indirect initiative. The remaining two states, Utah and Washington, allow proponents to choose whether they wish to submit their proposals to the legislature or go directly to the people. The indirect initiative is obviously a compromise, an attempt to have the virtues of both the legislative and the initiative systems. Citizens are given the opportunity to put proposals forward, but these proposals are then subject to normal legislative consideration. If there are flaws or defects or better ways to accomplish the same objectives, these can be discovered and dealt with in the normal manner. The flaws can be described and debated, or alternatives that present fewer difficulties can be developed. 30Democracy by Initiative, pp. 25-26.

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LAWMAKING

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TABLE 26. Effective Date (Generally Days from When Passed) Statutes Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota

Constitutional Amendments Initiative Legislative

Initiative

Legislative

90

90 90 90 60 90

NA

30

NA WP 30

WP WP

NA

WP

90

45 WP 30

WP WP

30 30

NA 90

WP

45

10 WP 30

Oct. I

5 30

60 90

NA

WP

NA

GP

GP 30 WP GP 30 NA GP NA WP Oct. I GP 30 WP 30 WP

90 90 Jan. I WP 30 60 60 July I 90 Oct. 1 3 months Aug. I 90 90 July I

GP 30 WP GP NA Jan. NA WP 30 July I GP 30 WP 30 WP

GP 30 WP WP 35 Jan. WP WP 30 July I WP WP WP GP WP

90

Key: GP (Governor's Proclamation); WP (When passed). Many states allow laws to vary the standard effective date. Many states count the time for legislative statutes from the adjournment date rather than the date passed. Sources: Effective Dates-Initiative: Alaska Const. art. XI, ~6; Ariz. Const. art. IV, pt. I, ~1(5); Ark. Const. amend. VII; Cal. Const. art. II, ~1O(a) (statutes), art. XVIII, ~4 (const. amend.); Colo. Const. art. V, ~1(4); D.C. Code Ann. ~]-J320(r)(I) (1992); Fla. Const. art. XI, ~5(c)(first Tuesday after first Monday); Idaho Code ~34-1813 (1981); Ill. Const. art. XIV, ~3; Me. Const. art. IV, pt. 3, ~19; Mass. Const. amend. art. XLVIII, Init., pt. 5, ~1 (statutes), pt. 4, ~5 (const. amend.); Mich. Const. art. II, ~9 (statutes), art. XII, ~2 (canst. amend.); Miss. Const. art. 15, ~273 (const. amend.); Mo. Canst. art. III, ~51 (statutes), art. XII, ~2(b) (canst. amend.); Mont. Code Ann. ~13-27-105 (1993) (statutes), Const. art. XIV, ~9 (const. amend.); Neb. Const. art. III, ~4; Nev. Const. art. XIX, ~2; N.D. Const. art. III, ~8; Ohio Const. art. II, ~Ib; Okla. Const. art. V, ~3; Or. Const. art. IV, ~1(4)(d); S.D. Codified Laws Ann. ~2-1-12 (1992); Utah Code Ann. ~20A-7-212 (Supp. 1994); Wash. Const. art. II, ~I(d); Wyo. Const. art. 111,52(1). Effective Dates-Legislative: Alaska Stat. ~01.1O.070 (1990) (statutes), Canst. art. XIII, ~I (const. amend.); Ariz. Const. art. IV, pt. I, ~J(3) (statutes), art. XXI, ~I (const. amend.); Ark. Const. amend. VII (statutes) [Fulkerson v. Refunding Board, 147 S.W.2d 980 (Ark. 1941)], art. XIX, ~22 (const. amend.); Cal. Const. art. IV, ~8(c) (statutes), art. XVIII, ~4 (const. amend.); Colo. Const. art. V, ~19 (statutes), art. XIX, ~2 (canst. amend.); D.C. Code Ann. ~1-233 (statutes), ~I- 205 (1992) (charter amend.); Fla. Const. art. III, ~9 (statutes), art. XI, ~5 (const. amend.); Idaho Const. art. Ill, ~22 (statutes), art. XX, ~I (const. amend.); Ill. Const. art. IV, ~10 (statutes), art. XIV, ~2 (const. amend.), Compo Stat. Ann. ch. 5, ~~75/l, 75/2 (West 1993) (canst. amend.); Me. Const. art. IV, pt. 3, ~16 (statutes), art. X, ~4 (const. amend.); Mass. Const. amend. art. XLVIIl, Ref., pt. I (statutes), pt. 4, ~5 (const. amend.); Mich. Const. art. IV, ~27 (statutes), art. XII, ~I (const. amend.); Miss. Const. art. 4, ~75 (statutes), art. 15, ~273 (const. amend.); Mo. Const. art. III, ~29 (statutes), art. XII, ~2(b) (const. amend.); Mont. Code Ann. ~1-2-201 (1993) (statutes), Const. art. XIV, ~8 (const. amend.); Neb. Const. art. III, ~27 (statutes), art. XVI, ~I (const. amend.); Nev. Rev. Stat. ~218.530 (1993) (statutes), Const. art. XVI, ~I (const. amend.); N.D. Const. art. IV, ~13 (statutes), ~16 (const. amend.); Ohio Const. art. II, ~I c (statutes), art. XVI, ~I (const. amend.); Okla. Canst. art. V, ~58 (statutes), art. XXIV, ~I (const. amend.); Or. Const. art. IV, ~28 (statutes), art. XVII, ~I (const. amend.); S.D. Codified Laws Ann. ~2-J4-16 (1992) (statutes), Const. art. XXIII, ~3 (const. amend.); Utah Const. art. VI, ~25 (statutes), art. XXIII, ~I (const. amend.); Wash. Const. art. II, ~41 (statutes), art. XXIlI ~I (const. amend.); Wyo. Stat. ~8-J-108 (1989) (statutes) Const. art. XX & I (const. amend.).

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Proponents generally dislike the indirect initiative and whenever given a choice generally choose not to use it. As they frequently have already failed to persuade the legislature of the merits of their proposal before beginning the initiative process, many see little point in one more rerun in the legislative body. Proponents also tend to find going back to the legislature disruptive of their political efforts. Having created the organization and made the effort necessary to collect the signatures required to qualify for the ballot, they generally prefer to carry these efforts straight on through to an election.31 Many argue that the stops and starts required by the indirect initiative process are particularly hard on grass roots groups. Aside from the drawbacks of the indirect initiative, one of the most important reasons that proponents prefer the direct initiative is that it does not require compromise and allows them to put exactly what they want before the voters. Utah and Washington allow proponents to choose whether they wish to use the direct or the indirect initiative. In both states the number of signatures required for the indirect initiative is less than that required for the direct initiative. In both states, however, proponents overwhelmingly choose the direct initiative. In Utah all 14 proponents who collected enough signatures to qualify an initiative through 1992 chose to file direct initiatives.32 In Washington over 80 percent of the proponents who submitted enough signatures to qualify an initiative statute (107 of 129) chose to file direct initiatives.33 In the period between 1912 and 1966 when California had an indirect initiative for statutes, over 94 percent of the proponents who collected enough signatures to qualify a statutory initiative filed direct initiatives (66 of 70). In three other states proponents must use the indirect initiative for statutes but are allowed to use the direct initiative for constitutional amendments. In Michigan and Ohio 85 percent of the proponents who have been successful in getting on the ballot have chosen the direct initiative (Tables 3 and 4, pages "Use of the Initiative from Year of Adoption through 1996 (Measures Voted On)" on page 30 and "Recent Use of the Initiative, 1978-1996" on page 31), despite the fact that the direct initiative requires more signatures.34 Undoubtedly one reason for selecting the direct initiative in these states is the greater immunity to legislative change that constitutional amendments provide for the proponents' proposals. It seems likely, however, that the choice to use the direct initiative also reflects a strong preference for the direct initiative.35 31The staff of the California Constitution Revision Commission found that one of the most serious complaints about the indirect initiative was the 23 months it took to complete the process. The staff suggested that if the delay could be reduced to II months that the indirect initiative might be more competitive with the direct initiative. Nick Brestoff, "Note, The California Initiative Process: A Suggestion for Reform," Southern California Law Review 48 (1975): 922,953 n,140. 32Utah legislative records through 1992 indicate that no indirect initiative was ever presented to the legislature. 331nformation supplied to the authors by the Washington Secretary of State's Office. 341n states where there is no indirect initiative, the number of statutory initiatives usually exceeds the number of constitutional amendment initiatives.

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LAWMAKING

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TABLE 27. Indirect Statutory Initiatives (Through 1996) Number Adopted by State

Number on Ballot

Alaska

19 3

4b 3

35 50 10 12 9 0 21

13e 4 2 4 0 5

Californiac Maine Massachusetts Michigan Nevada Ohio Utah Washington Wyoming Total

Legislaturea

~ 163

Number of Alternatives Legislature

by

o o

3

-l 39

aLegislature adopted initiative verbatim or adopted a close substitute. bLegislative action preempted the filing of 3 or 4 other petitions. cCalifornia used the indirect initiative for statutes from 1912 to 1966. dIn 1996 there were two legislative alternatives for one proposal. eEstimated on the basis of 1918-1933 figures from "Report of the Special Commission on the Initiative and Referendum Amendment to the Constitution," Massachusetts Law Quarterly 17 (Feb. 1932 Supplement): 9-12, and number of petitions begun (from the Massachusetts State Archives). See also Robert Stewart, "The Law of Initiative and Referendum in Massachusetts," New England Law Review 12 (1977): 455, 489 n.168. Legislature attempted to place an alternative on the ballot in 1976, but the alternative was fThe Massachusetts stricken from the ballot by the Massachusetts Supreme Judicial Court. Stewart, "The Law of the Initiative and Referendum," pp. 489-498. Sources: Nevada Legislative Counsel Bureau, The Initiative and Referendum in Nevada (January 1989): 15; Information from secretary of state or comparable office in Alaska, California, Maine, Massachusetts, Michigan, Utah, Washington and Wyoming; Jefferson Fordham and Russell Leach, 'The Initiative and Referendum in Ohio," Ohio State Law Journal I I (1950): 495, 497.

Legislative Response In 19 percent of the instances in which American legislatures have been presented with indirect statutory initiatives, the legislature has responded by adopting the initiative or a close substitute. In another 4 percent of the instances in which legislatures have been presented with indirect statutory initiatives, the legislatures have placed an alternative of their own on the ballot in opposition to the initiative presented, as shown in Table 27. Because the existing records of legislative action on indirect initiatives have many gaps, it is possible that legislatures have in reality responded even more frequently than these figures indicate. Massachusetts is by far the largest user of the indirect initiative. Between 1919 and 1932, 12 statutory initiatives were submitted to the Massachusetts legislature. In two instances the legislature adopted substitutes that were satisfactory 351n Nevada, the third state in which the indirect initiative is used for statutes but the direct initiative for constitutional amendments, proponents preferred the indirect initiative from 1908 to 1978 (10 to 3). Since 1978, however, proponents have preferred the direct initiative (5 to 2), despite the fact that constitutional amendments (the direct initiative) must be approved by the people at two separate elections. Nevada Legislative Counsel Bureau, The Initiative and Referendum in Nevada (January 1989), p. 15. Barbara Grossman, "The Initiative and Referendum Process: The Michigan Experience," Wayne Law Review 28 (1981): 77, 107, lists some of the reasons Michigan proponents prefer the direct initiative.

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to the proponents and no proposition was put before the people. The remaining 10 proposals were rejected by the legislature. The proponents of five of these 10 proposals collected the additional signatures required in Massachusetts to put their measure on the ballot. The other five apparently lapsed.36 Data are not available for subsequent years, but it is clear that the legislature sometimes acts on proposals presented to it.3? Based on the number of petitions circulated and the number of propositions appearing on the ballot, it seems likely that the legislature has adopted another 10-15 proposals.38 In its only attempt to use its authority to place an alternative measure on the ballot, the Massachusetts legislature was overruled by the Massachusetts Supreme Court.39 Maine is the second largest user of the indirect initiative. The Maine legislature has on three occasions adopted proposals put before it, and has on three occasions placed an alternative measure on the ballot. Generally the Maine legislature has taken the approach that initiative proposals should be placed before the people. In Michigan the legislature adopted four of the 14 indirect initiatives presented between 1913 and 1996: a 1948 proposal to repeal a ban on the use of colored margarine, a 1964 proposal on tenure for teachers, a 1987 proposal to prohibit the use of public funds for abortion, and a 1990 proposal requiring parental consent for abortion.40 In 1982 the legislature placed an alternative on the ballot to an initiative concerning utility rates. In Ohio the legislature adopted three of the 17 statutory initiatives presented between 1912 and 1950. The proponents of at least three or four others secured the necessary votes to appear on the ballot. The proponents of the remaining 10 propositions, however, did not. The information available since 1950 is scanty. In 1995, the legislature adopted an initiative proposal concerning campaign finance. In Nevada the legislature does not appear ever to have adopted verbatim a statutory initiative proposal. In 1955, however, the legislature adopted the key features of a school financing proposal.41 In addition in 1922 and 1982 the legislature placed alternative proposals on the ballot. The Washington legislature has adopted five of the 26 indirect initiatives 36"Report of the Special Commission on the Initiative and Referendum tution," Massachusetts Law Quarterly 17 (Feb. 1932 Supplement): 9-12.

Amendment to the Consti-

371n J 994, after consideration of a campaign finance proposal put forward by Common Cause, the legislature adopted a substitute that was satisfactory to the proponents. 38The Massachusetts State Archives list 217 initiative petitions on file through 1992. One hundred ninety-three of these are for the period 1933-1992. 39Robert Stewart, "The Law of Initiative Referendum in Massachusetts," New England Law Journal 12 (1977): 455, 489-502. The Massachusetts legislature has not sought to use its authority to group measures on the ballot. 40Grossman, "The Initiative and Referendum Process; The Michigan Experience," pp. 77, 79 n.1 I (1981). After adoption by the legislature both initiatives were subjected to a referendum. The colored margarine statute was defeated in the referendum, but a new initiative succeeded in 1950. 41Because the approval of the original initiative wa~ not verbatim, Nevada law required that it appear on the ballot.

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LAWMAKING BY INITIATIVE

presented to it. The most recent concerned the creation of a Presidential preference primary in 1989, penalties for armed crime in 1994, and property taxes in 1994. In three other instances the legislature has enacted an alternative proposal, which has then gone on the ballot along with the original initiative.42 More frequently the Washington legislature has taken no action, and has sometimes even refused to hold a hearing. Knowledgeable observers indicate that Washington proponents choose the indirect initiative for a variety of motives. Sometimes they are trying to embarrass a political party; occasionally they want to get the issue before the legislature. Legislative hearings on the initiative sometimes help to frame the ballot issues, but frequently add little to the debate. Timing is a major concern, as using the indirect initiative means skipping at least one whole general election.43 The Alaska legislature has taken action on at least four of the 23 initiatives presented to it. In 1979 it placed a question on the ballot similar to the petition; in the same year it passed a tax law that was substantially the same as another initiative; in 1985 it passed a legislative pay bill substantially similar to an initiative petition; and in 1996 it adopted a campaign finance bill that was substantially similar to an initiative proposal. In several other instances the legislature adopted legislation that preempted the filing of initiative petitions. The Wyoming legislature has adopted one of the five initiative proposals that have been presented to it. Although the indirect initiative exists in Utah, through 1996 none had ever been presented to the legislature.

Indirect Constitutional Amendments Only two states use the indirect il1itiative for constitutional amendments. The Massachusetts procedure for constitutional amendments is the most indirect of any American initiative procedure, as the proponents have no right to a vote of the people unless the legislature places the measure on the ballot. Between its inception in 1918 and 1992, 47 proponents sought to use this procedure. Only 12 of these obtained enough signatures, however, to have their petitions certified to the legislature. Although the petitions only need to receive approval from one fourth of the legislators to go on the ballot, they must secure this approval in two successive legislative terms. Only two of the 12 petitions that have gone to the legislature received the necessary legislative votes. Both were ultimately approved by the people. Four petitions failed to receive the necessary votes in the legislature and died. Two other petitions died because of decisions by the Massachusetts Supreme Court, and the remaining four petitions never received a definitive vote from the legislature.44 Only one initiative proposal has been presented to the Mississippi legislature 421n two instances the voters preferred the legislative alternative; in one the original initiative. 43See also Hugh Bone and Robert Benedict, "Perspectives on Direct Legislation: State's Experience 1914-1973," Western Political Quarterly 28 (1975): 330.

Washington

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under the Mississippi procedure adopted in 1995. This term limits initiative was not adopted by the legislature, appeared on the ballot in 1995, and was rejected by the voters. Nevada used an indirect procedure for initiative constitutional amendments until 1962. Since then, Nevada has required that initiative constitutional amendments be approved at two separate elections but has allowed the amendments to go directly on the ballot. Because of the two separate elections requirement, the legislature still has an opportunity to deal with any matter proposed before a final ballot. As a result, some observers characterize the state's new procedure as an "indirect" procedure.45

Swiss System By far the most extensive use of the indirect initiative has been in Switzerland. All initiatives-both federal and cantonal-must be submitted to the legislature. The legislature may approve the proposal, formulate an alternative, or simply take a formal position against the initiative. If the legislature approves of the proposal, it is submitted to the people with an indication that the proposal has been approved by the legislature. If the legislature formulates an alternative proposal, the two are submitted at the same time for a vote by the people. If the legislature takes a formal position against the proposal, the proposal is submitted to the people with an indication of the legislature's objection. The federal executive branch also takes positions on initiatives. Unlike some American legislatures the Swiss parliament routinely considers each initiative submitted. Generally it takes a negative position, but in many instances it seeks to work out a satisfactory alternative. Between 1892 and 1991 final action was completed on 169 initiatives. Only two of these initiatives were approved by the Swiss parliament, as shown in Table 12. Sixty were withdrawn by their sponsors, however, with at least 13 being withdrawn because a satisfactory compromise had been worked out with the parliament. One hundred four were submitted for a vote with parliament in opposition. In 13 of these 104 votes there was a parliamentary alternative.46

California From 1911 to 1966 California law allowed use of the indirect initiative for statutes. This indirect initiative was similar to that in Utah and Washington in that it 44ln five instances the legislature itself proposed, and the people approved, constitutional amendments similar to petitions that failed to secure sufficient signatures. Robert Millar, "Legislative History of Petitions for Initiative Amendments to the Ma,sachusetts Constitution" (unpublished paper on file with the Massachusetts State Archives, 1993). The legislative leadership can often prevent a petition from receiving a definitive vote, thus killing the petition. Alexander Gray and Thomas Kiley, "Initiative and Referendum in Massachusetts," New England Law Journal 26 (1991): 27, 95-102. 45Nevada Legislative Counsel Bureau, The Initiative and Referendum in Nevada (January 1989): IS. 46In total the Swiss parliament formulated 26 alternative measures. withdrew their proposal in favor of the parliamentary alternative.

In 13 instances proponents

92

LAWMAKING

BY INITIATIVE

gave proponents of statutory initiatives the option of choosing between the direct and the indirect initiative. Although proponents of indirect initiatives needed signatures for only 5 percent of the last gubernatorial vote as compared to 8 percent for direct initiatives, only four of 70 statutory initiatives that secured the necessary number of signatures during this period were submitted as indirect initiatives. The legislature adopted only one of the four indirect initiatives. The other three were voted on by the people, but alI were rejected. Because it had been used so rarely, the indirect initiative was deleted from the state constitution in 1966 on recommendation of the Constitution Revision Commission. In 1984 the California League of Women Voters recommended reinstatement of the previous option for an indirect initiative.47 The League report gave no reason to believe that the option would be more widely used than before, and bills seeking to reinstate the option were not successful in the legislature. In 1992 both the California Commission on Campaign Financing and the California Policy Seminar reports recommended that all initiatives be submitted to the legislature for consideration, that the legislature be required to act on an expedited basis, and that the legislature be granted a limited authority to amend the initiative proposal.48 The reports argued that submitting proposals to the legislature would improve drafting, increase the accountability of the legislature, save the electorate from voting on matters unnecessarily, and provide some practical reinforcement for the principle that the initiative should primarily be used when normal legislative channels are blocked.

47League of Women Voters of California, Initiative and Referendum in California: A Legacy Lost (Sacramento, Ca.: 1984), pp. 72-74; Consensus Position, June 1984. 48Dubois and Feeney, Improving the California Initiative Process, p. 163; California Commission on Campaign Financing, Democracy by Initiative, pp. 21-23. For an earlier suggestion along the same lines, see Brestoff, "Note, The California Initiative Process," pp. 922,953-957.

CHAPTER SEVEN

SIGNATURE REQUIREMENTS PURPOSE OF SIGNATURE REQUIREMENTS SiNCE ITS INCEPTION,THE INITIATIVEHAS BEEN governed by a process that depends on the gathering of signatures of concerned voters to qualify a measure for a place on the ballot. States have typically expressed these signature requirements in terms of a percentage of registered voters having participated in a previous gubernatorial election, usually around 8 percent, as Table 6 (page 34) shows. States have also placed limitations on the amount of time permitted for the circulation of signature petitions, imposed regulations governing the form and content of petitions, provided sanctions to govern the behavior of those who gather signatures, and occasionally required that the signatures gathered represent a geographic as well as a numerical base of support within the state before a measure may qualify. 1 The somewhat paradoxical purpose of signature requirements has been understood by proponents of the initiative from the beginning. By permitting a relatively small proportion of voters to qualify an issue for the ballot, the initiative is supposed to serve as a "safety valve for groups experiencing intense discontent with the legislature.,,2 At the same time, it is argued, since even a small proportion of voters in any state may amount to thousands or even hundreds of thousands of individuals, signature qualification requirements are intended to keep the number of issues submitted to a public vote reasonable, both over time and in any single election where the public's ability to make intelligent decisions would be tested by a large number of ballot issues. Although a few states have supplemented signature requirements by prohibiting a defeated measure from being resubmitted within a certain period of time, most states have used signatures alone (combined with modest filing-fee require'David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), pp. 36-44. 2Daniel Lowenstein and Robert Stern, "The First Amendment and Paid Initiative Petition Circulators: A Dissenting View and a Proposal," Hastings Constitutional Law Quarterly 17 (1989): 175,200.

93

94

LAWMAKING

BY INITIATIVE

ments) to control the number of qualifying initiatives. Previous empirical research and the authors' own assessment confirm that "the relationship between signature threshold levels and the number of measures qualifying for the ballot is strong and statistically significant.,,3 The experience in other countries also strongly confirms this relationship. There are many fewer initiatives in the German states with their highly restrictive requirements for a large number of signatures that can only be given in a public office during a very short time period than there are in Switzerland where the number of signatures required and the methods of collection are similar to the United States.4

QUALIFYING FOR THE BALLOT: TOO EASY OR TOO DIFFICULT? Reflecting perhaps the paradoxical purposes of signature qualification requirements, it is not unusual in many states to hear arguments claiming that the state's signature requirements are either too lenient, too stringent or both. For some critics, access to the ballot is too easy. They point to the increasing number of qualified ballot measures and the emergence of an industry built around paid signature gatherers who, it is claimed, can "buy a place on the ballot" for "anyone willing to put up the funds," without regard to the depth or breadth of popular support for the substantive issue advanced in the initiative.5 Armed with social science studies and anecdotal accounts concerning voters' willingness to sign petitions without fully reading or understanding them, these critics argue that the initiative qualification system today measures more the abil6 ity of sponsors to circulate their proposal than it does popular support for it. To be sure, none of the more than a dozen research studies published in the last 25 years by either social psychologists or political scientists on petition signing deal specifically with citizen responses to actual statewide initiative petitions of the sort presented to voters across America in recent years. Much of what is known about citizen responses to petition circulators is based on social psychologists' studies of undergraduate students asked to consider such weighty matters as the desirability of lights on the campus fountain,? the threatened removal of soft drink machines from the student union,8 the color of the school seal,9 and the establishment of ROTC programs.lO Similarly, studies of petitions aimed at citi3Magleby, Direct Legislation, p. 42. 4See Chapter Five. 5Lowenstein and Stem, "The First Amendment and Paid Initiative Petition Circulators," 6Lowenstein

and Stern, "The First Amendment

and Paid Initiative Petition Circulators,"

p.

199. 194-

pp.

200,203. 7Robert Blake, Jane Mouton, and Jack Hain, "Social Forces in Petition-Signing," Southwestern Social Science Quarterly 36 (December 1955):385-390. 8Harry Helson, Robert Blake, and Jane Srygley Mouton, "Petition-Signing as Adjustment to Situational and Personal Factors," Journal of Social Psychology 48 (August 1958):3-10. 9John Phillips, "Conformity in Petition-Signing Social Psychology 87(1972):287-291. IOPhillips, "Conformity

in Petition-Signing."

as a Function of Issue Ambiguity,"

Journal of

Signature Requirements

zens

and

shoppers

Street,l1

creating 13

altogether.

Indeed,

sial political

issues

bodian

invasion),

petition

circulators'

agreement

with

have

dotal tion

accounts process

picture,,16 mation.,,17 tive initiative

when have

although

"the

Indeed,

have

War,

they

emphasis

trees

petitions assess

have

voters'

the

Main

content

on controver-

impeachment, to

on

of substantive

or the Caminfluence

agreement

of

or dis-

15 and quasi-experimental overwhelmingly

in and observers academic

planting

involved

more

than

is not

as devoid

Nixon's

designed

of the petition.

studies

self-styled

rather

evidence

persuasive,

of the initiative to "present

is on efficiency

as one prominent

sponsors

been

the experimental

by participants

that

been

to petitions

with

matters

the studies

l4 or behavior

the substance

combine

such or have

as the Vietnam

dress

responses

with

path,12

even (such they

Nevertheless, individuals'

dealt

a bicycle

95

signature

a consistent than

"campaign

the

solicita-

and plausible

on disseminating manual"

of

anec-

infor-

for prospec-

counsels:

Volunteers should not converse at length with signers or attempt to answer lengthy questions. While such a conversation is in progress, a hundred people may walk by unsolicited. The goal of the table operation is to get petition signatures, not educate voters. All efforts to educate voters will be futile if the initiative does not qualify for . the ballot. 18

1 1 Harry

Reis, Barbara Earing, Alan Kent, and John Nezlek, "The Tyranny of Numbers: Does Group Size Affect Petition Signing?," Journal of Applied Social Psychology 6 (July-September 1976): 228234. 12Edward Walsh, "Petition Signing in Town and on Campus," Journal of Social Psychology (August 1977): 323-324.

102

13John Darley and Joel Cooper, "The 'Clean for Gene' Phenomenon: The Effect of Students' Appearance on Political Campaigning," Journal of Applied Social Psychology 2 (January-March 1972): 24-33. 14Peter Suedfeld, Stephen Bochner, and Carol Matas, "Petitioner's Attire and Petition Signing by Peace Demonstrators: A Field Experiment," Journal of Applied Social Psychology I (July-September 1971): 278-283; Charles Keasey and Carol Tomlinson-Keasey, "Petition Signing in a Naturalistic Setting," Journal of Social Psychology 89 (1973): 313-314. 15See also, in general, Allen Wilcox and Leonard Weinberg, "Petition-Signing in the 1968 Election," Western Political Quarterly 24 (December 1971): 731-739; James Garrett and Benjamin Wallace, "Effect of Communicator-Communicatee Similarity in Political Affiliation upon Petition Signing Compliance," Journal of Psychology 90 (May 1975): 95-98; Nigel Bryant, "Petitioning: Dress Congruence Versus Belief Congruence," Journal of Applied Social Psychology 5 (April-June): 144-149; Richard Bingham, John Frendreis, and James Rhodes, "The Nominating Process in Nonpartisan Elections: Petition Signing as an Act of Support," Journal of Politics 40 (November 1978): 1044-1053; John Pierce and Nicholas Lovrich, "Survey Measurement of Political Participation: Selective Effects of Recall in Petition Signing," Social Science Quarterly 63 (March 1982): 164-171; Max Neiman and M. Gottdiener, "The Relevance of the Qualifying Stage of Initiative Politics: The Case of Petition Signing," Social Science Quarterly 63 (September 1982): 582-588. 16Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators,"

p. 199.

J7Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass.: Harvard University Press, 1989), p. 62; see also Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," pp. 196-199. 18David Schmidt, Citizen Lawmakers: versity Press, 1989), p. 199.

The Ballot Initiative Revolution (Philadelphia:

Temple Uni-

96

LAWMAKING

BY INITIATIVE

When confronted in shopping malls or on their doorsteps, only a fraction of the citizens who sign petitions attempt to read or understand what they are signing. Still others may sign to escape a personal confrontation with the circulator, while others may be convinced that any proposed ballot measure deserves its opportunity before the voters.19 Even when a group plays by the rules, an incentive exists to get as many people to sign as fast as possible. The circulation of petitions seldom educates voters; rather, it is a marathon of endurance.... No law says the petition gatherer must read and explain the proposed initiative to the signer, and most people take the solicitor's word for what an initiative would do.20 There is some fragmentary evidence that compensating circulators for their work further attenuates the relationship between the number of signatures collected and the extent of voters' substantive support for the issue addressed by the initiative.21 It is highly doubtful, however, that the signature qualification process has ever reflected careful voter deliberation.22 Even when initiative sponsors have sought to collect signatures (and campaign contributions) by direct-mail solicitations, criticisms of the signature qualification process are to be heard. Although a direct-mail solicitation removes the social pressure attending face-to-face interactions and gives voters an opportunity for private reflection on a petition's merits, this method is said to place voters at the mercy of deceptive literature, further enhances the advantages of well-funded special-interest groups, and subverts the underlying assumption of the initiative signature qualification requirement that voter interest in a particular policy issue is measured by the direct participation of a corps of volunteer signature gatherers. 23 In contrast to those who see that access to the ballot is too easy for wellfunded special-interest groups, others argue that the existing signature requirements are too stringent and that the growing number of initiatives in a number of states is simply a reflection of widespread popular discontent with the legislative process. The California experience in this connection is instructive. Although the signature threshold for constitutional initiatives has remained constant at 8 percent since 1911 and was actually reduced from 8 to 5 percent for statutory initiatives in 1966 (accompanying the abolition of the indirect initiative), the raw number of signatures required has grown in response to the expanding base of voters that has accompanied the state's dramatic population growth.24 The num19Cronin, Direct Democracy, p. 64. 2oCronin, Direct Democracy, p. 62 21See generally Lowenstein and Stem, "The First Amendment and Paid Initiative Petition Circulators," pp. 188-194. 22Cronin, Direct Democracy, p. 62; Charles Beard and Birl Shultz, Documents on the State- Wide initiative, Referendum and Recall (New York: Macmillan, 1912; reprinted New York: DaCapo Press, 1970), p. 36. 23Cronin, Direct Democracy, pp. 216-217; Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," pp. 205-209. 24Magleby, Direct Legislation, pp. 66-70.

Signature Requirements

97

ber of signatures required to qualify a constitutional initiative in California has doubled since 1950, from slightly over 300,000 to nearly 700,000 today, apparently leaving the initiative process available only to those who can mount the kind of highly organized petition circulation effort needed to gather such a large number of signatures in the 150 days allowed by law. TABLE 28. Historic Qualification California Yeari

Number Titled

Initiatives,

Number Qualified

and Passage Rates, 1912-19963

Percent Qualified

Number AdoptedC

Percent AdoptedC

1912-1919

46

31

67

8

26

1920-1929

5]

34

67

10

29

1930-1939

68

38

56

IOc

27c

1940-1949

42

20

48

7

35

1950-1959

16

II

69

I

9

1960-1969

47

10

21

3

30

1970-1979

180

24

13

7

29

1980-1989

261

54d

21

25c

48c

1990-1996

240e

40e

17

14c

37c

"Adapted from A History of the Califomia Initiative Process, prepared by the California Secretary of State (Oec.1996): 10-13. bEn tries are based upon the year in which each measure was titled as reported by the Secretary of State. cBased on the number of measures appearing on the ballot. Excludes one indirect initiative adopted by the legislature (1936), two measures removed from the ballot by California Supreme Court (1984), and two to be voted upon in 1998. dThis number includes two measures that were subsequently removed from the ballot by the California Supreme Court (1984). cExdudes four measures from the Secretary of State's report due to missing data and includes two qualified measures to be voted upon in 1998.

The objective empirical evidence from California both supports and yet also calls into question each of these opposing characterizations of the signature qualification process. As Table 28 shows,25 when considered in historical terms, the proportion of circulating initiatives that have actually qualified for the ballot has been lower in recent years than it was in the first five decades of the initiative. In the 1980s, just 21 percent of the titled initiatives earned a place on the ballot. Because the number of titled measures reached an all-time high in the 1980s at 261, however, the absolute number of qualified initiatives also reached a record number of 54.26 The 1990s showed no change in this trend, with 240 measures titled from 1990-1996, only 40 of which (17%) qualified for the ballot. As shown in Table 29, there was a general upward trend in the rate of qualification from the 25See also Magleby, Direct Legislation, p. 66. 26This number includes two measures that qualified but were removed from the ballot by the California Supreme Court.

98

LAWMAKING

BY INITIATIVE

mid-1970s through the late-1980s (peaking at 26% in 1986-1987), but it remains true that proposed initiatives are far less likely to qualify for a place on the balIot than was the case in the years prior to 1960. TABLE 29. California

Initiatives

Circulated,

Qualified, and Approved

1974-19963 Yeari

Number Titled

Number Qualified

Percent Qualified

Number

Percent

Adopted" 0

Adopted" 0

1974-1975

43

3

7

1976-1977

40

5

13

2

40

1978-1979

61

4

7

1

25

1980-1981

59

8

14

5

63

1982-1983

48

8d

17c

1984-1985

34

7

21

2 3

43

1986-1987

57

15

26

9

60

1988-1989

63

16

25

6

38 36

33

c

1990-1991

65

11

17

4

1992-1993

60

6

10

2

33

1994-1995

75

16

21

7

44

1996-

40<

18

1c

14c

7<

aAdapted from California Secretary of State, A History of the California Initiative Process (Dec. 1996): 10-13. bEntries are based upon the year in which each measure was titled as reported by the Secretary of State. CBased on the number of measures appearing on the ballot. Excludes two measures removed from the ballot in 1984 by California Supreme Court and two to be voted upon in 1998. dThis number includes two measures that were subsequently removed from the ballot by the California Supreme Court (1984). eExcludes four measures from the Secretary of State's report due to missing data and includes two qualified measures to be voted upon in 1998.

TABLE 30. Voter Support

of California

Initiatives,

Mean Affirmative

Vote

1912-1996 Median Affirmative Vote

%

%

1912-1919

30

44.8

43.1

1920-1929

35

43.9

41.4

1930-1939

36

43.1

39.1

1940-1949

20

40.5

34.6

1950-1959

12

37.8

41.1

1960-1969

9

46.9

43.6

1970-1979

22

46.3

41.9

1980-1989

44

48.2

47.9

1990-1996

49

45.6

46.6

Vote

Number Voted On

Source: Calculated from the California Secretary of State's Statement of Vote for qualified initiatives from 1912-1996. Excludes two measures removed from the ballot by the California Supreme Court (1984).

It is difficult to assess the implications of these statistics. If qualification requirements are intended to keep the balIot free of frivolous balIot measures, one might be concerned if the use of modern signature-gathering techniques had rendered the system incapable of denying balIot access to measures that most voters

Signature Requirements

99

would consider unimportant, trivial, or so serving of some narrow special interest that they could never earn a significant share of voter support. 27 There may be no objective measure of the significance of qualified initiatives, but surely one indirect indicator that the signature qualification system had been fundamentally weakened as a screening device would be a decrease in the proportion of ballot measures winning voter approval. However, as Table 28 shows, the proportion of qualified initiatives winning majority support reached a record high of 48 percent (25 of 52) in the 1980s and has remained at a relatively high 37 percent level (14 of 38) in the 1990s. This compares to just 28 percent (46 of 167) from 1912 to 1979. Similarly, as shown by Table 30, the mean and median proportions of affirmative votes for initiatives have never been greater. Although such results could be interpreted to support the view that heavily financed mass-media campaigns have caused voters to lose their ability to make informed and rational choices, they are also fully consistent with the view that the initiative process has brought to the ballot a substantial number of matters of interest and importance to the public. On the other hand, regardless of what the election results themselves may say about the public's support of a particular issue, it is still possible to argue that the emergence of the professional circulation industry has so fundamentally altered the signature collection process that it no longer measures the potential breadth or depth of support in the public at large. Signature collection has never been a perfect barometer of public sentiment, but it has been rendered even less functional as a safety valve when paid circulators are able to qualify a measure even if no one cares strongly about it. 28 Furthermore, although impossible to measure precisely, there is the general sense among initiative observers and the public at large that the initiatives that have qualified in recent years are more complex, more technical, and far less certain in their consequences than initiatives of the past. When combined with the large number of measures that have qualified for the ballot, the complexity of contemporary initiatives has stretched voter competence to its limits. In this view, something must be done to restore the initiative qualification process as an effective device for keeping reasonable the number of measures subject to public review in anyone election.

REFORMING THE SIGNATURE QUALIFICATION PROCESS Both assessments of the current signature qualification extent, correct. As Lowenstein and Stem have observed, start with the recognition that it can be both too hard and initiative.,,29 The goal of reform should be to ensure that 27Lowenstein and Stern, "The First Amendment S!.

process are, to some "genuine reform must too easy to qualify an voters are sufficiently

and Paid Initiative Petition Circulators,"

pp. 50-

28Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators,"

p. 204.

29Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators,"

p. 220.

100

LAWMAKING

BY INITIATIVE

informed about the contents of initiative petitions so that their signatures, considered in the aggregate, represent a critical minimum number of individuals who are sufficiently dissatisfied with the substance of existing policy (or the absence of policy) that they want the matter brought before their fellow citizens for discussion and disposition by majority vote. The California requirements can be used to illustrate the issue. Under existing California provisions, that critical minimum is set at 5 percent for proposed statutory initiatives and at 8 percent for proposed constitutional initiatives, with the actual signature threshold calculated on the number of voters participating in the most recent gubernatorial election. To the extent that signature requirements are designed to serve their safety-valve function of detecting citizen discontent while simultaneously controlling access to the ballot, there appears to be no reason to adjust the signature threshold percentages up or down to some arbitrarily chosen figure. Although there are good reasons (discussed later in this chapter) to support changing the numerical base upon which signature requirements are calculated, a more immediate concern is the fundamental issue of ensuring adequate voter information and deliberation in connection with signature collection itself. Assuming that it is desirable, as a matter of state policy, to have an initiative qualification process that is more reflective of the degree of popular support for a proposal (or voters' willingness to submit the issue for a public vote) than it is the ability of supporters to circulate their proposal, attention has been focused on the mechanisms most likely to achieve that objective. Meaningful reform of the signature qualification process should be designed to: • Increase the time available for voters to understand the implications of their signatures; • avoid imposing significant additional financial costs upon potential initiative sponsors and the political system as a whole; • reduce the advantages that individuals and groups with substantial financial backing already enjoy in qualifying ballot measures; • reflect a realistic understanding of the place of political affairs in the dayto-day activities of average citizens and thus seek to keep low the amount of time and energy demanded of voters in the ballot qualification process.

Previous Suggestions Using these criteria, it is useful first to consider whether the modest modifications of the signature-gathering requirement that have been proposed in the past would significantly improve the initiative qualification process. Geographic distribution requirements, which require signatures to be collected from voters living in a certain proportion of the state's counties, are a frequent reform suggestion. Ostensibly, such requirements prevent sponsors from collecting most or all of their signatures from a single urban area, thereby ensuring that any measure going before the voters has at least been tested for some minimum degree of substantive support across the state. Although the stringency

Signature Requirements

of these distribution

requirements

tive provide for this limitation. Geographic requirements,

fOf

varies, nearly half of the states using the initia-

of acceptable signatures.30 if sufficiently stringent,

would

surely

constrain

the ability of initiative sponsors to qualify measures for the baJlot. But the overaJl costs of qualifying initiatives would rise and the barrier to qualifying would be considerably higher for organizations relying on volunteer help than it would be for those which can afford to hire signature gatherers in every county. More importantly, given what is known about voters' degree of attention to the specifics of initiative petitions, geographic requirements would only ensure that the ignorance tapped was well distributed. It also has been argued that geographic requirements are suspect on constitutional grounds for "treat[ing] voters differently according to their place of residence.,,31 Other options are aimed more squarely at helping voters make more deliberate and informed choices in deciding whether to sign an initiative petition. Precirculation legislative hearings, for example, are designed to improve public awareness about initiative proposals so that voters are prepared to evaluate requests for their signatures.32 However, although it is conceivable that voters made aware of the substantive content of proposals would exercise more care when approached for their signatures, it is unrealistic to expect that voters wiJI pay such close attention to political affairs between elections. The value of hearings would also be highly dependent on extensive media coverage to stimulate any latent voter interest that might exist. Such media coverage at this early stage of an initiative campaign is highly unlikely. Further, the sheer number of such hearings, which in recent years, in California, would have been from nearly 30 to 40 annually for titled measures (see Table 29, page 98) would be cost-prohibitive and would unfairly test voters' abilities to digest political information. Lengthening the amount of circulation time that initiative sponsors have to coHect the required signatures from the current provision of 150 days is worthy of consideration,33 although the evidence on petition circulation practices suggests that additional time would not provide any incentive for circulators to provide voters with complete information. While such an extension would assist

30Magleby,Direct Legislation, pp. 38-41; David Magleby, "Ballot Access forInitiatives and Popular Referendums: The Importance of Petition Circulation and Signature ValidationProcedures," Journal of Law and Politics 2 (1985): 287-311. 31Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," p. 215 n.163. The argument is that a system that effectively values a signature from a voter living in a lesspopulated area more than it does one from an urban voter runs afoul of the "one person, one vote" standard. Not all authorities would agree, however. Numerous states have geographic requirements, but no cases finding them unconstitutional have been discovered. 32Nick Brestoff, "Note, The California Initiative Process: A Suggestion for Reform," Southern California Law Review 48 (1975): 954. 33The California Commission on Campaign Financing recommended lengthening the California collection period to 180 days in order to assist grass roots groups. See California Commission on Campaign Financing, Democracy by Initiative: Shaping California's Fourth Branch of Government (Los Angeles: 1992), pp. 162-163.

102

LAWMAKING

BY INITIATIVE

groups that depend on volunteer circulators to qualify their measures, it would not address the criticism that initiatives qualified by paid circulators will enjoy continued access to the ballot regardless of the content of proposals. The posting of a bold notice on petitions warning or urging voters to read the petition prior to signing is a device that has been found in use in just two states (Colorado, Montana). The authors of two recent major studies of the initiative process recommend the use of such instructions on circulating petitions.34 The effectiveness of such instructions in improving voter consideration of the merits of a petition prior to signing is unknown, however. While some voters would pause for a moment, probably few voters would give the matter any serious amount of time' or attention, and most people would, as at present, "trust the petition circulator's description of the proposition to be accurate, and ... desire to comply with the request for assistance.,,35 A statement on a petition, presented under circumstances that do not encourage voter deliberation, is simply not likely to produce a quantum leap in voter understanding. The same can be said for proposals designed to require professional signature solicitors to disclose to potential signers that the solicitors are being compensated for their work. Indeed, it is almost inevitable that some circulators would seek and obtain signatures by using the disclosure as the basis for an appeal for voter support to help them achieve some worthy personal goal (e.g., pay the rent, go to college, travel abroad) wholly unrelated to the content of the petition.36

The Cynic's Choice All of these proposals are based on the assumption that the collection and verification of the signatures of registered voters should continue to serve as the sole means by which access to the ballot for proposed initiatives should be regulated. There is, however, another option. Given that political interests with sufficient funding and professional assistance can qualify nearly anything they want for the ballot, one possibility might be to forego the formality of signature gathering and simply accept direct payments into the state treasury as an alternative method of qualification. Not only would what we might call "the cynic's choice" save counties and the state the considerable costs of signature verification, but the direct funds provided by the initiative sponsors could be directly used to promote voter information and understanding of that proposal and other ballot measures appearing simultaneously.3? While this method has a certain intuitive and pecuniary appeal, its very nature suggests that the content of, and the general public's support for, an initia34Magleby, Direct Legislation, p. 194; Cronin, Direct Democracy. p. 236. 35Magleby, Direct Legislation, p. 62. 36Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," 37Lowenstein and Stern, "The First Amendment n.116.

and Paid Initiative Petition Circulators,"

p. 220. p. 200

Signature Requirements

103

tive proposal would be irrelevant to whether or not access to a place on the ballot was granted. Although the willingness of a large number of individuals to make small contributions to "purchase" a place on the ballot for a given measure might be as meaningful an expression of the breadth and depth of public support as signatures that cost the signators nothing, a more likely scenario is that measures would reach the ballot with a small number of large contributions, thereby rendering wholly irrelevant the question of whether the proposed measure had any degree of potential support in the electorate at large. On the other hand, there is ample precedent for using fees to control access to the ballot. This has long been done in candidate elections; indeed, it is only in recent years that the alternative of gathering signatures has been available to candidates. For a statewide office in California, for example, formal candidacy may be established either by the submission of 10,000 signatures or a filing fee equal to 2 percent of the first-year's salary of the office being sought.38 In the context of the initiative process, this option should be given serious consideration. Although there is no systematic evidence on the point, close observers of the initiative process in California believe that a large number of the measures now awarded a place on the ballot are the result of professional circulation efforts.39 A 1989 study identified 35 firms specifically designated in the campaign disclosure reports of California initiative sponsors as having been compensated for signature solicitation services.40 Our inspection of the published campaign finance reports for sponsors of the 12 measures appearing on the November 1988 ballot found that seven spent more than half of their funds on signature solicitation and that nine spent more than $400,000 (up to $878,504 in the case of Proposition 104) in soliciting signatures. Anecdotal reports suggest that paid signature collectors are also widely used in other states. Many of the firms that operate in California also do business in other states. Given such facts, it is tempting to suggest that one alternative for the sponsors of such proposals could be to pay a substantial filing fee in lieu of signatures. As Lowenstein and Stern note, "a useless exercise would be avoided, and a modicum of relief would be provided to beleaguered state treasuries.,,41 On the other hand, adoption of such an alternative would conceivably allow onto the ballot a number of measures that, despite substantial financial backing and the efforts of professional consultants and paid circulators, would have failed to obtain a sufficient number of signatures to qualify. No systematic research exists on the frequency with which professional circulation firms are successful in qualifying the 38Cal. Elections Code

~~8103,8106(West

Sp. Pamphlet

1995).

39Eugene Lee, "Representative Government and the Initiative Process," in John Kirlin and Donald Windler, eds., California Policy Choices 6 (Los Angeles: University of Southern California, School of Public Administration, 1990):234-236;Magleby, Direct Legislation, pp. 60-65. 40Larry Berg and C. B. Holman, "The Initiative Process and Its Declining Agenda-Setting Law and Policy II (1989):451,456. 41Lowenstein and Stern, "The First Amendment n.116.

and Paid Initiative Petition Circulators,"

Value," p.

200

104

LAWMAKING BY INITIATIVE

proposals for which they are hired. One large petItIOn circulation firm has reported, however, that it has qualified measures in 52 of 53 attempts, including 24 statewide California measures.42 In a study covering about 30 percent of the initiative qualification efforts from 1975 to 1986, Berg and Holman reported "that only two initiatives in the entire history of the process had $500,000 or more spent on behalf of qualification efforts and failed to be placed on the bal10t.,,43If, as Lowenstein and Stern assert, "anyone willing to put up the funds can buy a place on the ballot,,,44 then providing such sponsors with a mechanism to do so directly is a reform option worthy of serious consideration.45

The Volunteer's Bonus Prior to 1988, concerns about paid signature gatherers had led six states to ban their use. In 1988, however, the U.S. Supreme Court found the Colorado law prohibiting the use of paid circulators to be a violation of the free-speech rights of initiative sponsors.46 Prohibiting paid signature gatherers is consequently no longer a policy option. Washington, formerly a state that banned all paid signature gatherers, has responded to the Supreme Court ruling by prohibiting payment by the signature. While this new law appears to reduce some of the worst problems associated with paid signature gatherers, its benefits are likely to be more theoretical than real. Whether they pay an hourly wage or a per signature wage, signature gathering firms will doubtless continue to seek gatherers who are efficient and productive. Another innovative reform proposal seeks to make it more difficult to qualify measures with paid circulators and easier to qualify those gathered by volunteers.47 To make it more difficult to qualify initiatives with paid circulators, Lowenstein and Stern have proposed first to raise the signature requirements by 150 percent-in California, for example, to 12.5 percent for statutory initiatives and 20 percent for constitutional ones. To then make it easier for grassroots organizations relying on volunteer circulators to qualify a measure, they propose a "volunteer's bonus" by counting each signature gathered by a volunteer five times. Thus, whereas a circulator for a statutory initiative presently has to collect signatures from 5 of every 100 registered voters, the volunteer's bonus would consider these 5 signatures to be

42Lowenstein and Stern. "The First Amendment and Paid Initiative Petition Circulators," p. 199 n.l15. 43Berg and Holman, "The Initiative Process and Its Declining Agenda-Setting Value," p.

458. 199.

44Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," p.

45Calling this alternative "unseemly," the California Commission on Campaign Financing has opposed direct payment as a means of qualifying initiatives, asserting that it is contrary to the idea that proposed measures should demonstrate broad rather than narrow support and because it would increase voter cynicism and weaken voter confidence in the initiative as a popular check upon government. See California Commission on Campaign Financing, Democracy by Initiative, pp. 167-169. 46Meyer v. Grant,

486 U.S. 414(1988).

47Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," pp. 219-

223.

Signature Requirements

105

equal to 25, twice as many as would be required under the elevated signature requirement. In contrast, 5 signatures gathered by a professional circulator would still be equal to 5, far short of the 12.5 percent signature threshold. The Lowenstein/Stern proposal, although intriguing, suffers from a number of problems. It could be cumbersome to administer in practice, susceptible to fraud and deception by those seeking the bonus, difficult to enforce, and possibly unconstitutional on equal-protection grounds by valuing some signatures more than others. In addressing such matters, Lowenstein and Stern concede that "the volunteer bonus makes the process somewhat more complex than it has been, and even may appear gimmicky at first hearing," but conclude that it would significantly advance "the compelling state interest of rationing ballot positions on a basis other than the depth of the proponent's pocket.,,48 To be sure, the volunteer bonus might enhance the opportunities of citizens' groups to qualify ballot measures. Ironically, however, by effectively cutting the existing signature thresholds in half for petition drives relying exclusively on volunteers, the bonus would provide access to the ballot for issues that concern an even smaller proportion of citizens than is presently the case. Although the higher thresholds might discourage some interests that would ordinarily rely on paid circulators, the ballot would in all probability continue to be accessible to large, well-organized, and amply financed corporate interests. Even assuming that the Lowenstein/Stern proposal could be administered, enforced, survive constitutional challenge, and be effective, it suffers from a more fundamental flaw: it fails to come to grips with the fact that signatures, whether gathered by volunteers or paid solicitors, are simply not meaningful gauges of public discontent or even interest.49 Accepting for the moment the assertion that paid circulators can assure a place on the ballot for measures even if no one cares strongly about them, the anecdotal and empirical evidence suggest that the measures qualified by volunteer signatures are not necessarily all that different. Indeed, although "qualification of a measure by volunteer circu!ators demonstrates that there is at least a cadre of individuals who care enough about the proposal,"so the same can often be said of those who contribute funds that end up in the pockets of paid solicitors (for example, the 1979 Jarvis direct-mail campaign in California). Similarly, just as a measure qualified by a small group of volunteer fanatics might be viewed as "tolerable ... because the election itself is a measure of breadth of support,,,SI full acceptance of this justification could lead to the unacceptable conclusion that it is unnecessary to have some mechanism for rationing access to the ballot so that 48Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators," pp. 221223. 49For quite similar reasons, the "volunteer's bonus" has been opposed by the California Commission on Campaign Finance, Democracy by Initiative, pp. 170-171. 50Lowenstein and Stem, "The First Amendment and Paid Initiative Petition Circulators,"

p. 203.

5 ILowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators,"

p. 204.

106

LAWMAKING

BY INITIATIVE

"the number of initiatives qualifying for each election ballot will be within the limits regarded as reasonable for voters."S2

RESTORING

THE RELIABILITY

OF SIGNATURE QUALIFICATION

Adjusting the signature thresholds or tinkering with the method of counting signatures is not likely to produce truly meaningful reform. Such reform is much more likely to be found in improvements in the signature-gathering process that increase the reliability of signatures as an indication of public discontent sufficient to set off the safety valve offered by the initiative process. Except for the "cynic's choice," the authors have been unable to identify a workable alternative to signatures as a way of allowing some proposed measures to go before the public for a vote while denying ballot access to others. Traditional public-opinion polling techniques might be useful for identifying general areas of public concern or discontent. However, they are not suitable means for asking voters to evaluate specific detailed proposals for statutory or constitutional change, even assuming such polls were conducted to meet rigorous scientific standards and administered in a way that would be regarded as immune from political manipulation. Accordingly, if the signature solicitation process is to become meaningful as a barometer of the breadth and depth of public concern, ways must be found to separate the solicitation of sIgnatures from the collection or acquisition of signatures. In arriving at this recommendation, the comments of Lowenstein and Stern concerning the behavior of voters confronted with a direct-mail solicitation for a proposed initiative are persuasive: A signature on a petition distributed by direct mail is likely to be superior, as a measurement of substantive support, to a signature obtained personally, whether the circulator is a professional or a volunteer. Direct mail entails none of the social pressure or perceived need to avoid an argument that may be implicit in a personal solicitation. Whereas the course of least resistance in a shopping mall may be to sign when asked, signing and returning a petition by mail takes significantly more effort than throwing away the solicitation letter. It is difficult to see how this effort can be induced other than by persuasion that the petition is meritorious [emphasis added].53

Limiting signature solicitation exclusively to direct mail is not a good idea, however, primarily because it would effectively restrict the initiative process to interests and groups with the tremendous financial resources necessary to mount such an effort. Rather, some way must be found, as in a direct-mail campaign, to permit voters some opportunity for private reflection about whether they wish to lend their signatures to an initiative effort. Under the current system, when voters are confronted face to face, either in the shopping mall or on their doorsteps, that opportunity is lacking. Just as the privacy of the secret ballot was designed to protect individuals from undue influence, harassment, or reprisal in making their 52Lowenstein and Stem, "The First Amendment and Paid Initiative Petition Circulators,"

p. 201.

53Lowenstein and Stem, "The First Amendment and Paid Initiative Petition Circulators,"

p. 206.

Signature Requirements

107

voting decisions, so too should some method be found for protecting the integrity of individual choice in deciding whether or not to place a measure on the ballot. It is not difficult to imagine how the solicitation of signatures could be segregated from the collection of signatures. Solicitors could be limited to discussing ballot measures with prospective signators and to distributing the official ballot title and summary along with appropriate campaign literature urging voters to support placing the matter on the ballot. Petitions for signatures could then be made available for voters to sign in a number of prominent public locations, such as state and local government offices, public libraries, and fIre stations.54 Alternatively, solicitors might provide voters with a stamped or unstamped postcard bearing the official title and summary with a space for voters to provide their names and addresses as required by law, pre-addressed to the county registrar of voters where it would be sent for verifIcation. The use of modem technology to record voter support for circulating initiatives might also be considered. Just as the telephone has been utilized by television news stations and others to record public opinion on various topics and by a wide variety of private companies and governmental agencies to create sophisticated call routing and voice-mail systems, one can imagine voters using their home telephones to call in their support for particular initiatives and having that support recorded automatically. With the use of unique voter identifIcation code numbers assigned to each voter (and issued to each new voter at the time of registration), it should be possible to prevent voters from "signing" more than once for each circulating initiative. Further, because only registered voters possessing valid voter identifIcation numbers would be allowed by the controlling computers to record their preferences on circulating initiatives, the time-consuming and expensive process of verifying signatures would be rendered obsolete and unnecessary. Admittedly, for this system to work, thought would be required with respect to maintaining the integrity of the rolls of registered voters who had changed residences and maintained the same telephone number but failed to reregister. Although the issues surrounding security and vote fraud are undoubtedly substantial, at first blush they seem no more diffIcult than those which have already been solved by major financial institutions in controlling individual access to bank accounts via instant teller machines. There are differences, of course, not the least of which is that individual depositors' motivation for keeping their secret bank codes private may be substantially more powerful than keeping the secrecy of voter identifIcation numbers. Certain organized political interests might well be capable of "collecting" from among their supporters a set of voter identifIcation codes for ready use en masse when the need arose. Nevertheless, such activities and others that would threaten the integrity of such a system could be regulated by statute and, in some instances, prevented.

54In some German states, citizens are required to go to government offices to sign petitions.

108

LAWMAKING

BY INITIATIVE

For instance, it is within the reach of technology to tie each unique voter identification number to a unique telephone, thereby substantially minimizing the possibility that a voter identification number would be misused by an unauthorized third party.

IMPACT ON THE INITIATIVE PROCESS Regardless of whether technology is adapted to the initiative qualification process or not, separating the collection of signatures from their solicitation will be criticized for making it too difficult to qualify potential initiatives. Busy voters, it might be said, will simply not take the time to stop by a public location to sign a petition, mail in a postcard, or even pick up the telephone to call in their support. It might also be argued that such a system would favor those political groups which can muster the financial resources to distribute extensive campaign literature or to prepay postcards that require only that voters sign and mail in their support. Although such potential criticisms have an initial appeal, they appear flawed on at least two counts. The concern over the willingness of voters to make the effort to sign petitions is clearly rooted in the fact that, as presently practiced, whether or not voters are actually concerned about a measure being circulated is often quite irrelevant to whether or not it will qualify for the ballot. The system proposed here would help the signature system to achieve the purpose for which it was intended. By providing voters with some time and distance to consider the implications of their signatures and by requiring of them a modest effort to record their support, the system proposed here would make it far more likely that the measures that qualify for the ballot actually enjoy substantial support in the voting population than is presently the case. With respect to the advantages of wellfinanced interests, their advantages under the present system are already substantial; the system proposed here would not magnify those advantages. Although the use of direct mail for signature solicitation and collection would be consistent with the system proposed here, it has proven to be highly costly and would remain an option for only well-organized and well-financed interests. Further, because a signature gathered in this fashion is more likely to measure what signatures were intended to measure-support for the substance of a measure in the general population-it "is not vulnerable to the criticism [made of paid petition circulators that it] permits qualification [of initiatives~ that enjoy little or no public support.,,55 For the vast majority of initiative campaigns that depend on paid circulators, the proposed system would actually reduce the advantages they currently enjoy over volunteer-based campaigns by diminishing the importance of having large numbers of solicitors out working the community to collect signatures. One can imagine, for example, a formidable telephonebased "grassroots" initiative campaign that could be quite successful in encouraging voters to support placing an issue on the ballot by signing a petition in a 55Lowenstein and Stem, "The First Amendment and Paid Initiative Petition Circulators," pp. 203, 206.

Signature Requirements

109

public place, sending in a petition postcard, or calling in their "signature" using their unique voter identification number. The system proposed here would undoubtedly result in fewer qualified initiatives, at least until voters became accustomed to making the modest extra effort required of them to help measures qualify. Under the system that exists today, however, the key to qualification appears to be the result of circumstances "in which the social pressure [for voters] to sign is relatively high" and where all but the most perfunctory amount of voter reflection about the substantive content of a proposed measure is actually discouraged.56 As it is presently functioning, is "direct democracy" worthy of its name? It does not appear so.

CALCULATING THE SIGNATURE THRESHOLDS Short of the fundamental change proposed in the signature solicitation and collection process, other improvements related to the signature-qualification process are worthy of consideration. For instance, the California Commission on Campaign Financing has recommended that signatures be accepted for verification on a continuous basis (rather than all at the end) and that the proportion of randomly selected signatures that, once checked for validity, automatically qualify a measure be reduced from 110 percent to 105 percent.57 This would reduce the cost of verification without any loss in reliability. Another area of concern is the method used in calculating the number of signatures necessary for measures to qualify. Many states calculate the number of signatures required as a percentage of the number of votes cast at the last gubernatorial election.58 The gubernatorial election turnout varies, however, depending on the attractiveness of the candidates, the importance of the issues contested, and general voter satisfaction with or alienation from the political system. Additionally, because both the proportion of eligible voters who have chosen to register and the proportion of registered voters participating in gubernatorial elections have been in general decline in the last two decades, the existing signature requirements represent a declining proportion of both the potential electorate and the registered electorate. In California, for example, the 8 percent requirement of 303,687 signatures to qualify a constitutional initiative represented 4.7 percent of the eligible electorate and 5.7 percent of the registered voters in 1950. By 1994, however, those proportions had dropped to 3.7 percent and 4.7 percent, respectively (see Table 31). From 1950 to 1994, although the raw number of signatures required has doubled, the constitutional and statutory initiative signature requirements have effectively been reduced by 18 percent when based on the registered voting population and by over 21 percent when based on the eligible voting population.

56Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators,"

p. 199.

57California Commission on Campaign Financing, Democracy by Initiative, pp. 127-128, 164-] 66. 58See Chapter Four.

110

LAWMAKING

BY INITIATIVE

TABLE 31. Initiative

Gubernatorial Election 1950

8% Canst. Initiative 303,687

Signature Requirements in California Eligible and Registered Voters 1950-1994 % Eligible Voters 4.7

% Registered Voters 5.7

as a Proportion

5% Stat. Initiativea 189,805

% Eligible Voters 2.9

of

% Registered 3.6

1954

322,429

4.3

5.5

210,518

2.8

3.6

1958

420,462

4.7

6.2

262,789

2.9

3.9

1962

468,259

4.5

6.2

292,662

2.8

3.9

1966

520,276

4.5

6.2

325,173

2.8

3.9

1970

520,806

4.3

6.0

325,504

2.7

3.7

1974

499,846

3.6

5.0

312,404

2.3

3.1

1978

553,790

3.7

5.5

346,119

2.3

3.4

1982

630,135

3.9

5.5

393,835

2.5

3.4

1986

595,485

3.4

4.6

372,178

2.1

2.9

1990

615,958

3.2

4.6

384,974

2.0

2.8

1994

693,230

3.7

4.7

433,269

2.3

2.9

'Prior to 1966 an indirect statutory initiative required 5 percent and a direct statutory initiative required 8 percent. Since 1966 there is no indirect initiative and direct statutory initiatives require 5 percent. Source: Annual signature thresholds are reported in California Secretary of State, A History of the California Initiative Process (Dec. 1995): 8. Percentages of registered and eligible voters are based on estimates contained in the Secretary of State's Statement of Vote for general elections held in gubernatorial election years.

Accordingly, one useful reform would be to change the signature thresholds so that they are calculated on a more stable base than gubernatorial turnout. North Dakota, which uses the resident population as a basis for its calculations, has already done this.59 Although there might be a philosophical argument for using the eligible adult voting population so that the threshold would serve as a measure of discontent in the polity at large, actual figures are not available in many states. In Califomia the only figure available is an estimate derived by the Department of Finance, an agency of the executive branch. A more precise measure is the number of registered voters in gubernatorial election years. In California, this figure has remained relatively constant for nearly three decades as a proportion of the eligible voting population, despite the decline in voter turnout and admitting the existence of "deadwood" on the rolls of registered voters. Except for a one-year drop in 1978 to 68.5 percent, voter registration as a proportion of eligible adults has varied only between 70.0 percent and 73.1 percent since November 1962. Accordingly, to stem further erosion in actual signature thresholds as population grows and as voter turnout continues to decline, one reform possibility is to base signature thresholds on the number of registered voters. Because even voter registration varies depending on the election and time of year, voter registration numbers should be used for the close of the fall registration period, 29 days before the November general elections for governor. In California the number of

59See Table 6 (page

34).

Signature Requirements

111

voters registered for that election has actually increased every time since 1910, reflecting the steady growth in the state's population; in contrast, in 1914, 1918, 1934, 1942, 1974, and 1986, the number of gubernatorial election voters actually declined from the preceding gubernatorial contest.60 One disadvantage to altering the signature thresholds in this fashion is that it may result in something other than whole integers for expressing the required percentages. Although undesirable, this appears to be a necessary evil for recalibration of the thresholds to reflect population growth and the declining rate of electoral participation.

CHANGING THE REQUIREMENTS

FOR PASSAGE

Concerns over the apparent ease with which some initiatives have qualified for the ballot in states such as California and the fact that major constitutional changes can be effected by a simple majority vote of those casting ballots on each question have led to proposals to change the requirements for passage. In California the two most frequently mentioned suggestions have been: (l) to require that initiatives receive not just a simple majority of those votes cast on the question, but also support from a majority of all individuals going to the polls; and (2) to require proposed constitutional amendments to receive an extraordinary majority (e.g., 55%, 60%, 66.7%) of those casting ballots on the issue.61 Because of the gradual decline in voter participation and the shrinking voter base on which successful initiatives rest, others have proposed adoption of a minimum threshold for turnout (such as 50 percent of registered voters) as a condition of passage or a requirement that initiatives receive affirmative votes from a number of voters equal to a majority of the state's registered voters, without regard to the number of voters attending the election or actually voting on the ballot measures in any particular year.62 Although it may not be appropriate to judge the merits of such proposals solely upon the effects they would have, it is important to document how such changes might work in practice. Many persons who go to the polls on election day choose not to vote on all ballot issues (or even for all candidates). As a result there is often a sizeable difference between the total number of voters and the number of ballots cast for a particular measure. In California in November 1992, for example, this dropoff ranged from 6.78 percent for a physician-assisted suicide initiative to 14.93 percent for a legislatively-proposed measure. Basing the passage rate upon the 60Ca1. Secretary of State, A History of the California Initiative Process (Sacramento:

1996), p. 14.

61Tracy Westen, "Some Possible Reforms to California's Ballot Initiative Process" (remarks before the Direct Democracy Research Group Round Table on "Reforming the California Initiative Process" at the Annual Meeting of the American Political Science Association, San Francisco, August 31, 1990), p. 9. See also Lynn A. Baker, "Constitutional Change and Direct Democracy," University of Colorado Law Review 66 (1995): 143. 62Lee, "Representative Government and the Initiative Process," p. 251. The closest thing to such a requirement among the states currently using the initiative is Mississippi which requires any measure to receive "a majority of the votes thereon and not less than forty percent (40%) of the total votes cast at the election at which the measure was submitted to be approved." Miss. Const. art. XV, 9273(7).

112

LAWMAKING

BY INITIATIVE

number of voters going to the polls rather than those voting on each question would have changed the outcome of only 14 of the 79 initiatives considered in California from 1974 to 1992. This new standard would have caused over 30 percent of the 34 initiatives adopted in California during this period to fail, however. Requiring an extraordinary majority of 55 percent for passage would have had about the same effect in California. Of the 34 measures that passed from 1974 to 1992, 12 (35.3%) would have been defeated if required to achieve a 55 percent majority. A passage threshold of 60 percent would have resulted in the defeat of 19 measures (55.9%), however, while a two-thirds threshold (66.7%) would have resulted in the rejection of all but five of the measures that actually passed under the current simple majority standard. Any proposal to set passage requirements that are based on the number of registered voters-without lowering the percentages required for passagewould effectively eliminate the initiative as a tool of direct democracy. Of the 79 California petitions voted on from 1974 to 1992, not one would have passed if passage required affirmative votes exceeding a simple majority of registered voters. Indeed, only nine would have passed if the standard set was as low as 40 percent of the registrants. Similarly, recommendations that relate to the issue of participation would have a major impact on the outcomes of initiatives. Of the 79 initiatives considered by California voters from 1974 to 1988, turnout dropped below 50 percent of the registered voters in 20 cases. Of these 20 ballot measures, 14 (70.0%) were initiatives that actually passed but would have failed if a minimum participation standard had been in place. Significantly, all but one of the California races where turnout dropped below 50 percent of the registered voters occurred during the June primary election (or, in one additional instance, in a special election). For this reason, a number of objective observers of the initiative process have suggested that initiatives should be scheduled for November general elections when voters tum their attention to political matters and, consequently, their participation is greatest.63 Whether the advantages of increased voter participation and the greater representativeness of November electorates outweigh the potential disadvantages of having longer ballots and ballot pamphlets that would make it more difficult for voters to sort out the issues is not at all clear, however.64 An alternative that does seem worthy of consideration is the scheduling of votes on constitutional amendments only at the November general election. This would not only increase the likelihood of a good turnout on constitutional amendments but might provide a modest increase in the incentive for proponents to use statutes instead of constitutional amendments. 63Magleby, Direct Legislatioll, pp. 195-196; Cronin, Direct Democracy, p. 240; Lee, "Representative Government and the Initiative," p. 25 J; and Eric Patashnik, "Califomia's Initiative Process in the I 990s: Laying the Groundwork for Reform" (unpublished study prepared for the League of Women Voters and for the Graduate School of Public Policy, University of California, Berkeley, May 1989), p. 35. 64Magleby, Direct Legislatioll, pp. 100-121; Cronin, Direct Democracy, p. 240.

CHAPTER EIGHT

REDUCING COMPLEXITY I: BETTER DRAFTING AND MORE ACCURATE VOTING BETTER DRAFTING OF INDIVIDUAL PROPOSALS

A PERSISTENT

COMPLAINT ABOUT INITIATIVE PROPOSALS is that many are poorly drafted. Poor drafting of California's Proposition 13, the tax-limit initiative, for example, prevented the use of general obligation bonds by local governments in many circumstances between 1979 and 1986. This drafting oversight appears to have cost local taxpayers hundreds of millions of dollars. In their argument in favor of Proposition 46 in 1986, officials of the California Taxpayers Association and the California Chamber of Commerce estimated that this authority would have saved more than $50 million in interest costs in 1985 alone.! Projected over the seven-year period between Propositions 13 and 46, the savings would have totaled more than $250 million. Not everyone finds the drafting of initiatives to be a problem. Agreeing with earlier studies by Crouch (1950) and Palombara (1950) arguing that initiative laws were technically about the same as those drafted by the legislature, Professor Betty Zisk concluded that poor drafting is not a "major problem for most initiatives." While conceding that "some ballot questions indeed show evidence of hasty drafting," she found that the "most hastily drawn measures" were eleventhhour compromise proposals drawn by the legislature.2 Robert Stern has described one instance in which an initiative in which he was involved was drafted, with considerable outside consultation, over a two-year period while its legislative ICal. Secretary of State, California Ballot Pamphlet, June 1986, p. 19. The argument was placed in capital letters: "IF LOCAL GOVERNMENTS HAD BEEN ABLE TO USE THESE BONDS LAST YEAR THEY WOULD HAVE SAVED MORE THAN $50 MILLION IN INTEREST COSTS."

2Betty Zisk, Money. Media and Grass Roots: State Ballot Issues and the Electoral Process (Newbury Park, Ca: Sage Publications, 1987), pp. 259-260. The earlier studies cited were Winston Crouch, The Initiative and R~ferendum in California (Los Angeles: The Haynes Foundation, !950) and Joseph Palombara, The Initiative and Referendum in Oregon: /938-1948 (Corvallis, Ore.: Oregon State College Press, 1948).

113

114

LAWMAKING

BY INITIATIVE

counterpart was drafted in two weeks.3 David Schmidt goes even further than Zisk, arguing that "initiatives are usually drafted more carefully than bills in legislatures because sponsors cannot. .. make any changes once their petition drive begins." His principal evidence is that only two of the 40 state-level initiatives adopted throughout the nation in 1980-82 were ruled "wholly unconstitutional." He gives no comparative data for legislative measures.4 Those who defend the drafting of initiatives by pointing to the problems of legislative drafting make several valid points. Legislative drafting is not always ideal, and some initiatives are well drafted. This is particularly true in states like California where many initiatives are drafted by highly skilled attorneys. While there is no definitive study comparing the technical quality of the drafting of initiative and legislative measures, the weight of opinion both in published analyses and in discussions that the authors have had with knowledgeable practitioners is that many initiatives are poorly drafted.5 Some are poorly or ambiguously worded; others create strange effects because they ignore related legislation; still others have other vices. When these technical failures occur in a very long, highly complex initiative, there is a double effect. Both the technical flaws and the potential for voter confusion increase geometrically. Overall it is hard to argue with Professor Julian Eule's description that initiative propositions "tend to be lengthy, complex, technical, carelessly phrased, and ambiguous.,,6

Drafting Assistance Drafting good legislation requires more than just a good idea for a program. Drafting itself is a technical art that requires a great deal of skill. The program idea must be spelled out in a clear, systematic way, while at the same time dovetailing with statutory and constitutional provisions. Legislatures generally have a special staff to assist with this process, but unanticipated problems frequently arise even with this expertise. 3The California Initiative Process: Current Controversies and Prescriptions, Summary Proceedings, Public Issue Forum (Davis, Ca.: University of California, University Extension, March 23, 1990), pp. 31-33.

4David Schmidt, Citizen Lawmakers: versity Press, 1989), p. 34.

The Ballot Initiative Revolution (Philadelphia:

Temple Uni-

sCalifornia Commission on Campaign Financing, Democracy by Initiative: Shaping California's Fourth Branch of Government (Los Angeles: 1992), pp. 78-91; David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), pp. 186-187; John Shockley, The Initiative Process in Colorado Politics: An Assessment (Boulder: Bureau of Governmental Research and Service, University of Colorado, 1980), pp. 39-41; Massachusetts Legislative Research Council, Report Relative to Revising Statewide Initiative and Referendum Provisions of the Massachusetts Constitution, House No. 5435 (1975), pp. 143-145; Joseph Grodin, In Pursuit of Justice (Berkeley: University of California Press, 1989), pp. 102-117; Nick Brestoff, "Note, The California Initiative Process: A Suggestion for Reform," Southern California Law Review 48 (1975): 922-958; Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass.: Harvard University Press, 1989), pp. 208-209. Numerous persons in many states interviewed by the authors and numerous older studies also criticize initiative drafting. 6Julian Eule, "Judicial Review of Direct Democracy,"

Yale Law Journal 99 (1990): 15m, 1516.

Reducing Complexity I: BerrerDrafting ond More Accurate Voting

II5

The fact that initiative proponents frequently lack access to drafting skills is one of the arguments sometimes used in favor of the indirect initiative. This argument is also sometimes used in favor of an early review of initiatives by administrative agencies or the courts. Only eight jurisdictions now formally offer any form of drafting assistance to initiative proponents. California has officially offered some form of drafting assistance since 1917. Under current law the legislative counsel, the attorney who assists the legislature, provides drafting assistance when requested by 25 or more electors or when there is a reasonable probability that the measure will ultimately be submitted to the voters.7 Proponents are neither obligated to seek assistance nor to take any advice that is offered, and few take advantage of the service. Seven jurisdictions go beyond this purely voluntary assistance. In all seven, as in most other initiative states, a proponent begins the initiative process by submitting a proposal to the secretary of state or the officer designated to receive initiatives. In five of these jurisdictions the initiative is automatically referred to a legislative drafting office or group, which reviews the proposal and makes suggestions and recommendations. In the other two jurisdictions (Wyoming and the District of Columbia), other offices make comments. The reviewing office's recommendations are made a part of the public record in Idaho, Mississippi, Montana, and Wyoming.8 Montana does not require a public meeting but proponents must formally respond in writing to the comments. In Washington the suggestions are made privately so that the proponent may consider them without public pressure. The proponent is not obliged to accept the suggestions in these five states, but there is obviously some pressure to respond. Although no formal studies of these procedures have been discovered, officials in the states concerned indicate that they make many technical comments, including comments on constitutionality, that proponents generally take the drafting comments seriously, and that proponents frequently change their proposals to address the comments made.9 In Colorado, the directors of the legislative council and the office of legislative legal services give their comments to the proponent at a meeting open to the public. The written comments and an audiotape of the meeting become a part of the public record. In addition a "title board," consisting of the secretary of state, the attorney general, and the director of the office of legislative legal services, must fix a "proper fair title" for the initiative. If the initiative violates the state's 7Cal. Gov't Code 910,243 (West 1992). See also California Commission Democracy by Initiative, pp. 91-92.

on Campaign Financing,

8Colo. Const. art. V, 9 I, Rev. Stat. Ann. 91-40-105 (West Supp. 1994); Idaho Code 934-1809 (Supp. 1994); Miss. Code Ann. 923-17-5 (Supp. 1994); Mont. Code Ann. 13-27-202 (1993); Wash. Rev. Code Ann. 929.79.015 (1993); Wyo. Stat. 922-24-105, -110 (Supp. 1996). The names of the legislative drafting offices differ, e.g., legislative council, code reviser, attorney generaL 9The Montana procedure was created in 1981 to alleviate serious drafting problems that had forced the state's supreme court to rewrite substantially a number of initiatives after adoption by the people. 1981 Mont. Laws ch. 488, 9 I.

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single subject rule so that the board cannot provide a title that is a "clear, concise summary," the board must reject the initiative and return it to the proponents. 10 The seventh jurisdiction with required drafting assistance is the District of Columbia. As elsewhere, proponents draft their own propositions. The Board of Elections and Ethics, however, exercises much more control over the format than any other jurisdiction. The board may reject the measure at the outset if it is not "in the proper form." If the initiative is accepted, the board is directed to place the initiative "in the proper legislative form" and "may consult experts in the field of legislative drafting. ,,11 In practice, the board seeks to assist proponents in putting their ideas into the proper format, but is not hesitant to require changes in proposition texts when necessary to achieve the proper form. A complicating factor in seeking to improve the drafting of initiatives is that proponents are often more concerned about the political problems in their drafts than the technical problems. Even when drafting errors are called to the attention of proponents, they may have incentives not to do anything to correct the problem. In the research for this report the authors were told of a number of instances in which California proponents were informed of significant drafting problems prior to circulation of their petitions, but nonetheless chose to proceed without curing them. In one case, a sponsor was informed of a flaw that totally undermined the stated purpose of the proposal. At first the proponent seemed interested in curing the problem. When told that it would take several months to correct, however, the proponent responded, "If I do that, I will not be able to use college students as petition circulators during their summer recess." The proponent then proceeded to circulate the petition with the fatal flaw. Although this particular petition failed by a small margin to receive enough signatures to qualify for the ballot, the authors were told of several other petitions with major drafting problems that did qualify and were passed by the electorate. In each instance the drafting problem was called to the proponents' attention, but the proponent chose to ignore the problem. In each case the courts had great difficulty in resolving the problem about which the proponent had been informed. 12

Revising the Proposal In the normal legislative process, drafting problems are frequently identified in the course of hearings and normal legislative consideration. Legislative bills may be amended during the process to alleviate the problems identified. Most states IOColo. Rev. Stat. Ann. SI-40-106.5 (West Supp. 1996); In re Tttle, Ballot Title and Submission Clause, 900 P. 2d 104 (Colo. 1995). llD.C. Code Ann. SI-1320(b)(I)(B) and (c)(3) (1992). The board is directed to conform the measure to "the legislative drafting format of acts of the Council of the District of Columbia." 12California Commission on Campaign Financing, Democracy by Initiative, pp. 81-83, discusses some of the major technical problems in Proposition 13, the famous California tax cutting initiative. Interviews by the authors of this book indicated that Howard Jarvis was advised in advance about some of these technical problems, but that he chose not to rewrite the initiative because of his belief that initiatives should be written in plain, ordinary language. Other examples could be given.

Reducing Complexity I: Better Drciftingand More A ccurate Voting

I 17

do not allow initiative proposals to be amended in this way. Once a petition has been submitted for circulation, most states prohibit any amendment of the initiative proposal. Changes in the text of the initiative proposal therefore can be made only by withdrawing the petition and starting over. Many observers believe that to allow amendments after signature collection has begun would break faith with those who have previously signed the petition. Perhaps those who signed would not have signed, the argument goes, if the petition had been circulated in the amended form. A few states do provide some opportunity for amending initiatives. Massachusetts allows proponents to make "perfecting" amendments to initiative statutes if the legislature fails to adopt the measure.13 Some forms of the indirect initiative also allow an opportunity to cure drafting defects. 14

California In order to improve the quality of proposals both the California Commission on Campaign Financing and the California Policy Seminar reports recommended that all initiatives be submitted to the legislature for expedited consideration. After a legislative hearing, the legislature would be free to adopt the initiative, develop its own alternative, or reject the proposal. If the legislature developed an alternative, the initiative proponent would be free to accept the alternative but would not have to do so. If the proponent did not wish to accept the legislature's alternative or if the legislature totally rejected the proposal, the original initiative would go on the ballot. Having heard the arguments at the legislative hearing and before the legislature, the proponent would be allowed to make amendments to the initiative before the proposal was submitted to the voters. Any amendments made by the proponent would have to be consistent with the purposes of the original initiative. A state official would be required to certify that the amendments were consistent with the original purpose of the initiative. 15 Both the California Commission on Campaign Financing and the California Policy Seminar reports thought that requiring all initiatives to be submitted to the legislature would have major benefits in addition to the improvement in drafting. 13Mass. Const. amend. art. XLVIII, Init., pt. 5, 9 I (applies only if legislature rejects). Three states allow amendment during the titling process. As this is before signature collection has started, it is a very narrow procedure: Cal. Elec. Code 99004 (West Sp. Pamphlet 1995)(interpreted very narrowly); Colo. Rev. Stat. Ann. 91-40-105 (West Supp. I994)(any kind of amendment after the public drafting review session); Or. Rev. Stat. 9250.045 (I 993)(allows amendments that do not "substantially change the substance" of an initiative proposal).

141nAlaska and Wyoming the legislature may adopt measures that are substantially similar to those originally proposed. This allows the legislature to correct minor drafting defects without triggering a vote by the people on the original petition. Alaska Const. art. XI, 94; Wyo. Const. art Ill, 952( d). In other jurisdictions-both direct and indirect-the legislature can place alternative measures on the ballot that are drafted to its satisfaction. In these states the legislature has no authority to amend petitions themselves, however. Both the legislative alternative and the original petition therefore go on the ballot. 15California Commission on Campaign Financing, Democracy by Initiative, pp. 21-23, 79-123 (quite detailed); Philip Dubois and Floyd Feeney, Improving the California Initiative Process: Options for Change (Berkeley: California Policy Seminar, University of California, 1992), p. 72.

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Other benefits foreseen were improved public understanding improved legislative accountability.

of proposals and

MORE ACCURATE VOTING: STATE THE EFFECTS OF YES VOTE Voter confusion has been a persistent problem with initiatives. In polls and studies voters frequently indicate that they are confused about the meaning of particular initiatives, their effects, and in some cases even about the effect of a "yes" vote. The June 1980 California ballot, for example, contained a rent-control initiative (Proposition 10). The title of this initiative, as it appeared on the ballot, suggested that a "yes" vote was a vote in favor of rent control. In fact this initiative was put on the ballot by landlord groups, and, if passed, would have severely restricted rent control. In these circumstances it is hardly surprising that a Los Angeles Times exit poll conducted just after the election showed that three-fourths of those who voted on the proposition voted contrary to the outcome they actually wanted.16 Proposition 15 on the June 1976 ballot was entitled "Nuclear Power Plants," a title that could be read to indicate a pro-nuclear power proposal. In fact this initiative was intended to restrict the use of nuclear power. A post-election survey showed that 14 percent of the voters had voted contrary to their policy preference. 17 A study of Ohio initiative elections showed similar problems. Voter surveys of elections involving three different initiatives-a 1972 initiative to repeal a recently adopted income tax, a 1977 initiative to repeal election day registration and an initiative to repeal tax increases adopted in 1983-showed that in each election 25 to 30 percent of the voters voted opposite to their own policy preference.18 Voters who vote "yes" when they mean "no" are just one aspect of the more general problem of voter confusion. Because less educated voters tend to have this problem more than better educated voters,19 there are limits to what can be done to reduce even this special problem. Many states, however, have adopted requirements designed to ensure that the question posed on the ballot is one in which it is easy to determine which is the "yes" side and which is the "no" side. They seek to eliminate the double negative that is inherent in some initiatives. States that address this problem employ two different methods for clarifying the ballot. In seven states the ballot itself must indicate the effect of a "yes" vote 16"Twenty-three percent wanted to protect rent control but incorrectly voted yes, and 54 percent were opposed to rent control and voted no." Magleby, Direct Legislation, p. 144. 17Magleby, Direct Legislation, p. 143. Nineteen percent of the Swiss voters on a 1979 nuclear power initiative voted against their policy preferences. Stephan Widmer, Wahl. und Abstimmungs. freiheit (diss., University of Zurich, 1989),pp. 90.91. Fifteen percent voted for when they wanted to vote against; four percent voted against when they wanted to vote for nuclear power. 18Herb Asher, "Voter Confusion in Initiative Elections," paper presented at the ing of the American Political Science Association, Atlanta, Georgia. 19Magleby, Direct Legislation, p.

144.

1989Annual

Meet.

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II9

and a "no" vote. Arizona is more or less typical of these states. After the descriptive title of a proposition is given, the following phrases are printed: A "yes" vote shall have the effect of A "no" vote shall have the effect of

' _

The blank spaces are filled with a brief phrase stating the essential change in the existing law that will occur if the initiative receives a majority of the votes cast,20 Other states with this kind of law include Colorado, Massachusetts, Montana, Nebraska, North Dakota, and South Dakota, as shown in Table 32. TABLE 32. YeslNo Vote Requirements Type

Ballot Must State Effect of "Yes" Vote

Indirect Only Alaska

x a

Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansas California Colorado D.ofColumbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota a Although not required for the ballot, an explanation

"Yes" Vote to Enact

x

x x

x x x

x x

x X X

X

X X of what a yes vote favors is published in newspapers

Sources: Alaska Stat. ~15.45.l80 (1989); Ariz. Rev. Stat. Ann. ~19-125(D) (Supp. 1993); Ark. Stat. Ann. ~7-9117(b) (1993); Colo. Rev. Stat. Ann. ~1-40-106(3)(b) (West Supp. 1993); Me. Rev. Stat. Ann. tit. I, ~353 (West Supp. 1993); Mass. Gen. Laws Ann. ch. 54, ~~53 (West 1991); Miss. Code Ann. ~~23-17-9 (Supp. 1994); Mich. Stat. Ann. ~6.1485 (Callaghan 1993); Mont. Code Ann. ~13-27-501(2)(t) (1993); Neb. Rev. Stat. ~32-707(2) (Supp. 1992); N.D. Cent. Code ~16.I-06-09 (1991); Or. Rev. Stat. ~250.035 (1993); S.D. Codified Laws Ann. ~ 12-13-9 (1982); Wash. Rev. Code Ann. ~29.79.040 (West Supp. 1994).

20Ariz. Rev. Stat. Ann. *19-125(D) (Supp. 1994).

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Oregon addresses the "yes/no" vote problem even more explicitly. Its law requires "a question of not more than 20 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affIrmative vote on the measure.',21 Arkansas also has a strong provision for dealing with the yes/no vote problem.22 While slightly weaker, the Alaska and Michigan laws are similar to the Oregon statute.23 Although there do not appear to be any studies assessing the effects of provisions like those in Arizona or Oregon, it seems likely that they are helpful in clarifying the ballot choices. They would seem particularly helpful with initiatives that involve repeals. They should also be helpful in avoiding intentionally deceptive wording based on the use of double negative language. It is perhaps not coincidental that neither of the two states where studies have shown that citizens have trouble identifying the effects of a "yes" vote (California and Ohio) have legislation addressing this problem. The California Policy Seminar report recommended that the California ballot be required to state briefly the effect of a "yes" vote and the effect of a "no" vote and that initiative propositions be worded so that an affirmative vote is a vote to adopt the proposal. 24

210r. Rev. Stat. 9250.035 (1993). 22Ark. Code Ann. !\7-9-107(c) (Michie 1993): "If, as a result of his review of the ballot title and popular name of a proposed initiated act or a proposed amendment to the Constitution ... , the Attorney General determines that the ballot title, or the nature of the issue, is presented in such manner that the ballot title would be misleading or designed in such manner that a vote "FOR" the issue would be a vote against the matter or viewpoint that the voter believes himself casting a vote for, or, conversely, a vote "AGAINST' an issue would be a vote for a viewpoint that the voter is against, the Attorney General may reject the entire ballot title, popular name, and petition and state his reasons therefor and instruct the petitions to redesign the proposed measure and the ballot title and popular name in a manner that would not be misleading." 23Alaska Stat. !\15.45.180 (1988); Mich. Stat. Ann. 96.1485 (1993). 24Dubois and Feeney, Improving the California Initiative Process, p. 124.

CHAPTER NINE

REDUCING COMPLEXITY II: MAKING INDIVIDUAL INITIATIVES UNDERSTANDABLE THE PROBLEM ONE CRITICAL PROBLEM WITH INITIATIVES TODAY is whether it is possible for the average voter, or even the extremely sophisticated voter, to understand the issues and the policy choices as they are presented on the ballot and in the ballot pamphlet. The November 1988 California ballot illustrates the problem. Four initiatives on this ballot related to automobile insurance-an important topic about which there was intense public interest. The shortest of these propositions was about the length of the federal constitution. The longest was nearly six times the length of the federal constitution. Proposition 103, the only one of the four to be approved by the voters, was roughly twice the length of the federal constitution. I Length is not a mundane problem. If citizens are to vote on initiatives, good government requires that they study the issues. Long propositions take longer to read, digest, and understand than short ones. It would have taken an adult-level reader at least one hour just to read the legislative analyst's analysis and the pro and con arguments for these four propositions. It would have taken an additional four hours to read the text of these four propositions. And if readers truly wanted to understand the issues involved, a second or third reading would probably have been necessary. Few readers, for example, are able to digest the text of the United States Constitution in one reading. The 1988 voters who wanted to be informed also had a second problem. Even if they were willing to read and reread the initiatives, they would have had lproposition 101 was approximately 4,800 words long. The federal constitution is approximately 5,000 words long. Proposition 100 was approximately 15,600 words long. Proposition 103 was approximately 10,800 words long. Proposition 104 was approximately 29,200 words long.

121

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difficulty deciphering the text. While the United States Constitution is written in reasonably understandable prose, these propositions were not. There was, to be sure, some quite understandable prose about the unfairness of the existing system of insurance. It was the fine print, however, that spelled out the "solutions" to the problem. The fine print was extremely dense and contained many hidden provisions. While an intelligent reader who was willing to spend the time could conceivably understand the broad outlines of the propositions from the legislative analyst's analysis and the pro and con arguments, few other than experienced industry lawyers would have been likely to understand many important facets of the propositions. Proposition 100, for example, emphasized a 20 percent reduction in rates for good drivers and a requirement that all insurance companies write policies for good drivers. Among numerous other provisions, was one that prohibited any restriction on contingent fees for lawyers, a provision of considerable interest to the California Trial Lawyers Association, which sponsored the initiative. This provision was not prominently featured. Proposition 104, sponsored by the insurance industry, contained similar hidden provisions. Billed as a "no-fault" insurance plan, the initiative also contained limits on attorneys' fees and reenacted-without change-43 key provisions of the Insurance Code. The purpose of these reenactments was to make it difficult for the legislature to change these parts of the code. Had this initiative passed, these provisions could have been changed only by a later vote of the people.2 Proposition 103 claimed to be different. Its proponents asserted that it was "written in plain language," that it contained "no loopholes or fine print," and that "unlike the other propositions, nonlawyers can read it.,,3 That has not turned out to be the case, however. Even the California Supreme Court has had difficulty interpreting it. Proposition 103 plainly promised a 20 percent rollback in automobile insurance rates. Relying on standard constitutional principles, however, the courts have ruled that such a rollback would be required only if the new rates are fair and reasonable and not confiscatory.4 Proposition 103's hidden provision, therefore, was that the rate reduction-its principal political attraction-might never occur. The other hidden aspect of the initiative was the creation of a wholly new

ZCal. Const. art. II, S 1O(c). See Chapter Six, "Amendment and Repeal ofInitiative Statutes." Proposition 104 allowed amendments by two-thirds vote in the legislature, but only "to further its purposes." Cal. Secretary of State, California Ballot Pamphlet, November 8, 1988, p. 158. Substantive change of these provisions would therefore have required a vote of the people. 3 California

Ballot Pamphlet, November 8, 1988, p. 100.

4Caljarm Insurance Co. v. Deukmejian, 48 Cal.3d 805 (1989). In this case, the California Supreme Court held a key provision of Proposition 103 unconstitutional on its face. The provision prohibited the insurance commissioner from approving a rate increase before November 1989 unless an insurer was threatened with insolvency. With this provision removed, the court said that insurers were free to apply for rate increases to prevent the imposition of a confiscatory rate. The effect of this decision is to guarantee insurers a fair and reasonable rate of return.

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and much more intrusive method of government regulation. Whether the voters would have approved this new form of regulation without the promise of the 20 percent rollback is highly doubtful.5 The length and complexity of these propositions was not unusual. The propositions on the November 1990 California ballot were even more complex and those on the June 1990 ballot were at least as difficult. Propositions in other states often have similar problems.

Legislative Bills Protections. There have always been problems about how to make popular participation in the legislative process meaningful and effective. It took a civil war in England and a revolution in America to establish the legislature's independence from the Crown and the right of the people, through their elected representatives, to participate in making the laws. Any democratic law-making process necessarily encounters three major problems: • understanding and evaluating legislative proposals, • detecting hidden consequences (either by accident or deliberate deception), and • structuring the vote: whether to present proposals individually, each to be evaluated on its own merits, or packaged as a group. Out of bitter experience and over the course of centuries, rules and procedures have been developed to assist in solving these problems. Among the more important of these procedures are requirements that: • • • • • • •

(1) the subject matter of a bill be expressed in its title, (2) bills be read three times before passage, (3) bills be in writing, (4) a waiting period exist between the introduction of a bill and a vote, (5) bills be limited to a single subject, (6) there be an opportunity for public hearing and comment on bills, (7) there be an opportunity to amend bills to cure problems that are identified in the legislative process, and • (8) all amendments be in writing. The history behind these rules and procedures provides many striking examples of the things that can go wrong in the legislative process. Since the time of Henry VIII, legislative bills have been given titles to improve public and legislative understanding. While usually helpful, this requirement has sometimes been used to mislead legislators and the public about the nature of bills. One of the most notorious cases was the Yazoo land scandal of 1795. Using the title of "an

5Another hidden feature related to proposed changes in rate-justifying affect consumers in some parts of the state.

factors that could adversely

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Act for the payment of the late State Troops," Georgia land speculators bribed state legislators into authorizing the sale to them of 35 million acres of state lands-the present states of Alabama and Mississippi-for less than 2 cents an acre.6 Following this debacle, Georgia adopted a constitutional provision requiring that all bill titles be accurate. Virtually all states now have similar requirements.? The Georgia amendment requiring accurate titles for bills also limited bills to a single subject, a provision that has also been widely copied.8 The Massachusetts legislature was only 12 years old in 1641 when it established the requirement that all bills be in writing ("nothing should bee put to vote before it bee written"). In the Pennsylvania Frame of Government, William Penn went even further, requiring that bills not only be published, but also that they be "affixed to the most noted places in the state" 30 days before the legislature could act. The obvious purpose was to provide notice not only to the legislators but also to the public. Supported strongly by Benjamin Franklin, this publication requirement was confirmed on the eve of the American Revolution in the Pennsylvania Constitution of 1776.9 Bad legislative experiences led other states to adopt similar provisions. Charles Beard explains that in New York "it was a common thing, which happened at every session of the legislature, for an apparently insignificant amendment to be offered on the third reading of a bill, and after being adopted in the hurry and confusion of the moment, turn out to be a vicious proposition."ID Complexity. One of the central tasks of a legislature has always been to analyze and evaluate legislative proposals. It should not be surprising, therefore, that consideration by legislative committee, waiting periods before votes, titles for bills, and three readings for bills-four of the eight legislative procedures discussed above--date back to the sixteenth century. II The requirements that bills and amendments be in writing, that public hearings be held, that the subject matter be expressed in the title, and that bills be limited to a 6Cady v. Jardine, 193 S.E. 869 (Ga. 1937); Fletcher v. Peck, 10 U.S. 87 (1810); Robert Luce, Legislative Procedure: Parliamentary Practices and the Course of Business in the Framing of Statutes (Boston: Houghton Mifflin, 1922; reprinted New York: Da Capo, 1972), p. 546. 7Nonnan Singer, Sutherland Statutory Construction 5 (Deerfield, Ill.: Clark Boardman, 5th ed. 1993): 25-70; Chester Lloyd Jones, Statute Law Making in the United States (Boston: Boston Book Co., 1912), pp. 62-68. For an assessment of the effects of the title requirement in one state, see Thornton Sinclair, "The Operation of a Constitutional Restraint on Bill-Styling," University of Newark Law Review 2 (1937): 35. 8Singer, Sutherland Statutory Construction, vol. 5, pp. 1-24; Millard Ruud, "No Law Shall Embrace More Than One Subject," Minnesota Law Review 42: 389, 391-392 (1958). 9Robert Luce, Legislative Procedure: Parliamentary Practices and the Course of Business in the Framing of Statutes (New York: Houghton, Mifilin, 1922; reprinted New York: Da Capo Press, 1972), p. 516. IOCharles Beard, Readings in American Government and Politics, p. 466, quoted in Charles Beard and Birl Shultz, Documents on the State-Wide Initiative, Referendum and Recall (New York: Macmillan, J 9 12; reprinted New York: DaCapo Press, 1970), p. 7. lISee, for example, Luce, Legislative Procedure, pp. 57-60, 220-223. Before the time of Henry VII, the English Parliament considered only petitions. The text of a statute was not drawn up until the King had approved the petition.

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single subject came later, but all playa part in helping any legislature understand the proposals before it. The development of legislative staff and the ability of the modern legislature to call on expertise both inside and outside of government have enhanced the legislature's capacity to comprehend and evaluate proposals. Even the simplest bill must usually be considered by several committees, and it is common for complicated bills to be the subject of hearings in several legislative sessions before final consideration. Bills are frequently amended in the course of the legislative process to remove ambiguities and reduce unintended effects. Many states have found these procedural rules important enough to include some of them in their constitutions. The California Constitution, for example, prohibits the legislature from passing a bill unless it has been read by title on three separate days in each house. Similarly, no bill may be passed until it has been printed and distributed to the members.12 Except for the budget bill, bills may not even be heard by committees until the thirty-first day after the bill was introduced.13 Under the California Constitution a statute may "embrace but one subject", and the subject must "be expressed in its title." Moreover, "a statute may not be amended by reference to its title", and "a section of a statute may not be amended unless the section is reenacted as amended.,,14 No bill except the budget bill may contain more than one item of appropriation, and that "for one certain, expressed purpose.',15 The legislature's own rules expand these constitutional protections considerably. California Assembly Rule 56.5 requires each standing committee and subcommittee to prepare an analysis of every bill set for hearing and to have that analysis available to the public one working day prior to the date of the hearing. Constitutional amendments are referred to a subject matter committee and to the committee that handles constitutional amendments.16 No bill may be considered on the floor unless a copy of the printed bill as introduced and a printed copy of each amended form of the bill has been placed on each member's desk.17 In addition to these procedural protections, the California legislature has the assistance of the Office of Legislative Counsel in the drafting of legislation and the assistance of its own staff analysis. Each house provides interested parties and the public an opportunity to testify before a committee about any proposed bill. Before a vote, each house also has before it the recommendations of the committee that heard the bill. Bills that have fiscal effects must generally be heard by a fiscal committee in addition to a substantive committee.

12Cal. Const. art. IV, 98(b). l3Cal. Const. art. IV, 98(a). 14Cal. Const. art. IV, 99. 15Cal. Const. art. IV, 912(d). 16Cal. Assembly Rule 62.5. l7Cal. Assembly Rule 64. These provisions obviously help only to the extent that the legislator is interested in knowing the contents of the bill. See H.L. Richardson, What Makes You Think We Read the Bills? (Ottawa, Ill., Caroline House Books, 1978).

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Hidden Consequences ("Trojan Horses") and Accidental Effects. While most bills are fairly straightforward, historically many have contained hidden consequences. Frequently these hidden consequences have been accidental; general language developed for one purpose inadvertently affects an issue that the author had not considered or contemplated. All too often, however, important proposals are deliberately buried in innocuous-sounding language with the hope that opponents will fail to become aware of them-in reality a kind of legislative Trojan horse. Probably the most important legislative weapons against both Trojan horses and accidental hidden consequences are public hearings and diligent legislative staff. Also useful is the requirement that the subject matter of a bill be encompassed within its title. This rule, specifically aimed at the Trojan-horse problem, was a direct response to the Yazoo land scandal. The requirement that amendments be in writing, the waiting-period requirement, and other procedures are also useful in counteracting hidden consequences. Legislative Packages ("Log Rolling"). The legislative process is by nature collective and it is desirable that legislators work together to fashion solutions to problems that will be both effective and enjoy wide public support. Often a particular bill addressing a specific problem is the product of many minds. Legislators are frequently tempted to go beyond this useful kind of collaboration, however, seeking to combine their own legislative proposal for problem A with the proposals of other legislators for problems B, C, and D. By agreeing in advance to support each other through this kind of "log rolling," each sponsor may be able to secure the political support necessary for the adoption of his or her idea. There has long been general agreement that this second kind of collaboration, based on combining two or more proposals, is undesirable and that it is better for legislative proposals to be voted on individually on their own merits. One problem with log rolling is that it reduces the scrutiny given to each individual proposal. Individual proposals cease to be evaluated on the basis of their own merits but rather on what they can be combined with. Another problem is that log rolling is in a sense a violation of majority rule, because proposals may be adopted that might not pass if voted on by themselves. 18 Two major rules have been developed to prevent log rolling. One rule limits legislative bills to a single subject. A second rule prohibits attaching "riders" to bills, particularly appropriations bills, as they pass through the legislature.19 Other procedures, such as holding public hearings and the rule that the subject matter of a bill must be expressed in its title, may be useful in identifying when a 18For early views about the evils of logrolling, see Thomas Cooley, A Treatise on the Constitutional Limitations (Boston: Little, Brown, 7th ed. 1903), pp. 202-214.

19Unpopular proposals are sometimes attached to popular or necessary measures to secure their adoption. These proposals are called "riders" and are a specialized form of log rolling.

Reducing Complexity II: Making Individunl Initiatives Understandable

/27

bill is the product of log rolling. Only the single-subject rule and the no-rider rule, however, actually seek to prevent log rolling.

The Initiative Process The reformers who brought about the adoption of the initiative did not devote a lot of attention to the mechanics of the initiative process. They had enough to do to get the process adopted. They seem largely to have assumed that the process of drafting and voting on initiatives would work much like the legislative process. Aside from the requirement that the text of an initiative be circulated along with the petition on which signatures are to be collected and the development of a ballot pamphlet, almost no new procedures have been developed for making the initiative process and initiatives themselves more understandable to average citizens.20 While initiatives, like legislative bills, involve questions of complexity, hidden consequences, and how to structure a meaningful vote, only four of the eight procedures available to assist the legislature evaluate legislative bills are available to assist citizens who vote on initiatives. Missing are the requirements for holding a public hearing so that the public can comment on proposals before they reach their final stage of development, for having the opportunity to amend proposals, and for having three readings. The requirement that bill amendments be in writing has little relevance to initiatives because initiatives may generally not be amended during the initiative process. While the requirements that the subject matter of a proposal be expressed in its title, that proposals be in writing, that a waiting period exist between the introduction of a proposal and a vote, and that proposals be limited to a single subject all apply to initiatives, there is a major question of whether these procedures work as well for initiatives as for legislative bills.

THE SINGLE SUBJECT

RULE

Just as many states have rules restricting legislative bills to a single subject, many states also have rules restricting initiatives to a single subject. Of the 22 jurisdictions that allow use of the initiative for the adoption of statutes, 13 have, and three more probably have, such rules. Eleven of the 18 states that allow voters to adopt constitutional amendments by initiative also have rules of this kind. In some jurisdictions the initiative single subject rule is textually separate from the legislative single subject rule; in others the legislative single subject rule is simply applied to initiatives. In some jurisdictions this application is clear. In others it is not so clear. In Idaho, Nevada, and Ohio single-subject rules applicable to legislative statutes probably apply to initiative statutes, as shown in Table 33. In Utah the legislative rule possibly applies, and in South Dakota the application is unclear. 20Both of these devices were developed by Oregon, the third state to adopt the statewide initiative. South Dakota, the first state to adopt the initiative process, required proponents to attach a statement of an initiative's substance to the petition on which signatures were collected.

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LAWMAKING

BY INITIATIVE

TABLE 33. Single Subject Rule Type Indirect Only Alaska Maine Massachusetts Mississippi Wyoming Mixed Michigan Nevada Ohio Both Utah Washington Direct Only Arizona Arkansas California Colorado D.ofColumbia Florida Idaho Illinois Missouri Montana Nebraska North Dakota Oklahoma Oregon South Dakota Key: I

= Indirect;

Statutes

Constitutional Amendments

Single subject No rule Related or mutually dependent Single subject

NA NA Related or mutually dependent Vote separately NA

Single subject (I) Probably (I) Probably (I)

No rule (D) No rule (D) Probably (D)

Possibly (I); (D) Single subject (I); (D)

NA

NA

No rule No rule Single subject Single subject No rule NA Probably

Vote separately No rule Single subject Single subject NA Single subject

NA

Single subject One revised article or new single subject Vote separately Unclear No rule One general subject and vote separately Single subject and vote separately No limit (may amend one or more articles)

Single subject Single subject Single subject Single subject Single subject Single subject Unclear D

NA

NA

= Direct

Sources: Alaska Canst. art. II, g 13 [Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1179 n.2 (Alaska 1985) applies this section to initiatives; also discusses Alaska Stat. g 15.45.040 (1989) which limits statutes to single subject]; Ariz. Canst. art. XXI, gl [Slayton v. Shwnway, 800 P.2d 590 (Ariz. 1990)]; Ark. Canst. art. XIX, g22 requires voting "separately" on legislatively proposed constitutional amendments but amendment VII governing initiatives contains no such provision [Cf. Chaney v. Bryant, 532 S.w'2d 741 (Ark. 1976)]; the titling requirement for initiatives, however, is stricter than that for legislative matters [Becker et al v. McCuen, 798 S. W.2d 71 (Ark. 1990)]; Cal. Canst. art. II, g8(d); Colo. Canst. art. V, gl(5.5) (statutes and canst. amend.); Fla. Canst. art. XI, g3; Westerberg v. Andrus, 757 P.2d 664 (Idaho 1988) suggests that Idaho Canst. art. III, g 16 probably applies; TIl. Canst. art. III, g3 [Coalition for Political Honesty v. State Bd of Elections, 415 N.E. 2d 368 (TIl. 1980) finds "free and equal" elections clause violated when separate and unrelated questions are combined in a single proposition]; Mass. Canst. amend. art. XLVIII, Init., pt. 2, g3; Auto. Club of Michigan v. Secretary of State, 491 N.w'2d 269 (Mich. App. 1992), holds that Mich. Canst. art. II, g9 incorporates Canst. art. IV, g24; Miss. Canst. art 15, g273(2); Mo. Canst. art. III, g50; Mont. Canst. art. V, gil [Montana Auto Ass'n v. Greely, 632 P.2d 300 (1981)], art. XIV, gil (canst. amend.); Neb. Canst. art. III, gl4 (art. TIl, g2 makes applicable to initiative statutes), no cases on applicability of art. XVI, gl (canst. amend.); Nev. Op. Att'y Gen. No. 153 (1934-36) suggests that Nev. Canst. art. IV. g 17 probably applies to initiative statutes; N.D. Canst. art. IV, g13 [applied to initiative statutes in Sunbehm Gas, Inc. v. Conrad, 310 N.w'2d 766 (N.D. 1981)]; Ohio Canst. art. II, gl appears to incorporate the legislative single subject rule from art. II, g 15(D), art. II, *Ig may apply the "vote separately" requirement of art. XVI, *21 to statutes as well as constitutional amendments; Okla. Canst. art. V, g57 (statutes) [In re Initiative Petition No. 347, 813 P.2d 1019 (Okla. 1991)], art. XXIV, *1 (canst. amend.) [In re Initiative Petition No. 363,927 P.2d 558 (Okla. 1996)]; Or. Canst. art. IV, gl(2)(d) (statutes and canst. amend.), art. XVII, gl (canst. amend.); S.D. Canst. art. XXIII, gl (canst. amend.), unclear whether art. III, g21 applies to initiative statutes; Utah Canst. art. VI, g22 possibly applies to initiative statutes; Wash. Canst. art. II, gl9 [Washington Fed'n of State Employees v. State, 901 P.2d 1028 (Wash. 1995)]; Wyo. Stat. *22-24-105 (Supp. 1996).

Reducing Complexity 1/:Making Individual Initiatives Understandable

129

While at least 17 (and possibly as many as 21) of the 25 jurisdictions that use the initiative employ some version of the single-subject rule, the specific form of the rule varies considerably. For statutes a common form of the rule is that "each bill ... shall contain only one subject, clearly expressed in its title.',21 Other variations speak about a "single object" or about "related or mutually dependent" parts. For initiative constitutional amendments, there is even greater variation. A common provision is that "proposed amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately.,,22 This kind of language is usually interpreted as a singlesubject limitation. Other states use language similar to that used for initiative statutes. Because most efforts to render initiatives more understandable have focused on the single subject rule, we now examine that rule in considerable detail. This examination will focus primarily on California. California has had much more litigation on this issue than other states and has developed doctrines that have often been applied in other states.

California The California Constitution has from its beginnings in 1849 contained a legislative single-subject rule.23 The present-day single-subject rule for initiatives was not added, however, until 1948, some 37 years after the initiative was introduced into the state.24 It provides that "an initiative embracing more than one subject may not be submitted to the electors or have any effect.',25 During the 1930s and 1940s, a number of wide-ranging, complex proposals designed to provide income for older citizens appeared on the California ballot. These were known as "ham-and-egg" initiatives. It is generally agreed that the purpose of the single-subject rule was to put an end to such initiatives.26 The single-subject rule was apparently specifically aimed at a 1948 proposal of this kind, but proved to be unnecessary because the California Supreme Court struck the proposal from the ballot for other reasons.27 To date the single-subject rule appears to have done little to reduce the complexity of California initiatives. While there have been constant challenges to initiatives under the rule, the California Supreme Court has never found any 21Mont.Canst.art.V,9I J. 22Ariz.Canst.art.XXI,9I. 23Cal.Canst.art.IV,99 (derivedfromCal.Canst.1849,art. IV,925and art.XI, 921;Cal.Canst. 1879,art.IV,924). 24Cal.Canst.art.XXV,adoptedNovember2, 1948. 25Cal.Canst.art.II, 98(d). 26SeeDanielLowenstein,"CaliforniaInitiativesandthe Single-SubjectRule,"UCLA Law Review 30 (1983):936,949-953. 27Thecourtfoundthat this initiative,whichwas21,000wordslong,wasa constitutionalrevision ratherthan a constitutionalamendment.McFadden v. Jordan, 32 Cal.2d330(1948).Constitutional revisionsmaynotbeproposedin Californiaby initiative.

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LAWMAKING BY INITIATIVE

initiative

to be in violation of the rule, and the lower courts have found only two initiatives in violation of this rule.28 The first challenge under the single-subject rule came in 1949, only one year after adoption of the new rule. The challenged initiative sought to repeal a scheme providing pensions for needy older and blind citizens that had itself been adopted by initiative in 1948. The California Supreme Court held that the repeal initiative ballot. 29

did not violate

the rule and allowed

the initiative

to go on the

The California Supreme Court said that "the problem of whether more than one subject is embraced within one legislative act is not new in this state.,,30 While the provision relating to initiatives was new, the California Constitution had for many years required that legislative acts "shall embrace but one subject, which subject shall be expressed in its title.,,31 The court then concluded that the new provision relating to initiatives should be interpreted in the same way as the old provision relating to legislative acts.32 Under the legislative rule, the court said that "the legislature may insert in a single act all legislation germane to the general subject as expressed in its title and within the field of legislation suggested thereby." The court also referred favorably to a 1932 decision holding that the legislature had not violated the legislative single-subject rule by enacting 1,700 sections revising the Probate Code in a single act.33 The second initiative to be challenged in the California Supreme Court as a violation of the single-subject rule was Proposition 13, the Jarvis-Gann property tax initiative.34 The court said that this initiative contained four major elements: (l) a real property tax rate limitation, (2) a real property assessment limitation, (3) a restriction on the method of changing state taxes, and (4) a restriction on the method of changing local taxes. Because it found these features "interrelated and interdependent," the court said that they were all "reasonably germane" to the purpose of the initiative, thus satisfying the test set

28California Trial Lawyers Ass'n v. Eu, 200 Cal.App.3d 351 (Cl. App. 1988); Chern. Specialities Mfrs. v. Deukrnejian, 227 Cal. App. 3d 663 (Cl. App. 1991). 29perry v. Jordan, 34 Cal.2d 87 (1949).The law to be repealed contained 12 sections and about 3,000 words. Among other things it established the minimum amounts for old-age assistance that California had adopted in conformity with the federal Social Security Act, created a new category of assistance for persons between 63 and 65, and made the director of Social Welfare an elective office. Cal. Stat. (1949), p. cxl. 30Perry v. Jordan, p. 92.

31Thisis now Article IV, ~9. The wording wa~changed slightly in the 1966 revision of the California Constitution. Cal. Constitution Revision Commission, Proposed Revision of the California Constitution (San Francisco: 1966), p. 34. 32"When the scope and meaning of words or phrases in a statute have been repeatedly interpreted by the courts, there is some indication that the use of them in a subsequent statute in a similar setting carries with it a like construction." Perry v. Jordan, p. 93. 33Evans v. Superior Court, 215 Cal. 58 (1932). 34Proposition 13 contained six sections and approximately 350 words. It was adopted in June 1978.

Reducing Complexity II: Making Individual Initiatives Understandable

forth in Perry v. earlier case for a furtherance of a tive satisfied this

/3 I

Jordan.35 Noting

that Justice Wiley Manuel had argued in an stricter test requiring that initiatives "be functionally related in common underlying purpose,,,36 the court said that the initiatest as wel!.37

Considering the massive publicity surrounding the Jarvis-Gann initiative, the court thought there was little likelihood that the voters had been deceived or confused by combining the four major features of the initiative. The court also rejected an assertion that the initiative secured its majority vote by combining a number of different provisions, no one of which was likely to achieve majority support. "[N]o apparent 'logrolling' is involved in this case," the court said, because "each of the four basic elements ... was designed to interlock with the others to assure an effective tax relief program.,,38 The third challenge was to the Political Reform Act of 1974.39 This act contained more than 20,000 words and, according to the California Supreme Court, eight "complex features": (l) the establishment of a Fair Political Practices Commission, (2) the creation of disclosure requirements for candidates' financial supporters, (3) a limitation on campaign spending, (4) regulation of lobbyist activities, (5) enactment of conflict-of-interest rules, (6) adoption of rules relating to voter pamphlet summaries of arguments, (7) location of the ballot position of candidates, and (8) specification of auditing and penalty procedures to aid in the act's enforcement. The court upheld the statute under the "reasonably Clark met head on the argument that the initiative violated

germane" test. Justice the single-subject rule:

Although the initiative measure before us is wordy and complex, there is little reason to expect that claimed voter confusion could be eliminated or substantially reduced by dividing the measure into four or ten separate propositions. Our society being complex, the rules governing it whether adopted by legislation or initiative will necessarily be complex. Unless we are to repudiate or cripple use of the initiative, risk of confusion must be borne.40

35 Amador Valley Joint Union High School District v. State Board of Equalization, 22 Ca1.3d 208 (1978). 36WhileProposition 13 was the second initiative to receive full judicial scrutiny under the initiative single-subject rule, the California Supreme Court considered another aspect of the single-subject rule in Schmitz v. Younger, 21 Cal.3d 90 (1978). In this case the court decided that the attorney general lacked the authority to refuse to prepare a title and summary for an initiative because it violated the single-subject rule. The court said that only the courts could make that determination. Justice Wiley Manuel dissented, arguing that the attorney general should be allowed to make this determination. In his dissent, he also argued that the test for determining whether an initiative satisfied the single-subject rule should not be whether the provisions were "reasonably germane" to a single scheme but whether they "were functionally related in furtherance of a common underlying purpose." Schmitz v.

Younger, p. 100.

p. 230. p. 232. 39 Fair Political Practices Commission v. Superior Court, 25 Cal.3d 33 (1979). The eight complex features are listed in Brosnahan v. Brown, 32 Cal.3d 236, 246 (1982). 37 Amador 38 Amador

Valley Joint Union High School District v. State Board of Equalization,

Valley Joint Union High School District v. State Board of Equalization,

4°Fair Political Practices Commission v. Superior Court, p. 42.

132

LAWMAKING BY INITIATIVE

The "possibility that some voters might vote for the measure-while objecting to some parts" did not in Justice Clark's view "warrant rejection of the reasonably germane test." "Such risk," he said, is "inherent in any initiative containing more than one sentence or even an 'and' in a single sentence unless the provisions are redundant." Justice Clark went on to compare the initiative process with lawmaking as carried out by the legislature: Given the widespread public debate of initiatives, the explanations in the ballot pamphlets and in the media, and the huge volume of legislative business--over 1,000 bills enacted each year-it is unreasonable to assume that initiative measures receive less scrutiny than proposed legislation.41 Justice Manuel dissented, noting that the initiative contained 11 separate chapters, 215 sections, 16 closely packed pages of the voter's pamphlet, and 131 pages in the annotated codes. He also noted that the proponents had some difficulty identifying the subject of the initiative-one saying that it concerned "the reform and integrity of the political process," another that "of making government more accountable by diminishing the influence of wealth on governmental processes," another the "prevention of deceptive practices," and another "political reform.,,42 The next major court challenge concerned Proposition 8, the "Victim's Bill of Rights," adopted in June 1982. Again, the California Supreme Court upheld a multifaceted, diverse initiative. By a 4 to 3 vote, the court reaffirmed the "reasonably germane" test, again cited favorably the case under the legislative singlesubject rule upholding the 1,700 sections of the 1932 Probate Code, and rejected the idea that the provisions of an initiative were required to be "interdependent and interlocking.,,43 The court acknowledged that Proposition 8 was indeed a wide-ranging initiative. The court's own summary indicated that the initiative concerned 11 topics: (l) restitution, (2) safe schools, (3) truth-in-evidence, (4) bail, (5) prior convictions, (6) diminished capacity, (7) habitual criminals, (8) victims' statements, (9) plea bargaining, (l0) sentencing to the Youth Authority, and (11) mentally disordered sex offenders. The court seemed to agree that the provision creating a constitutional right to "safe schools" was the least related to the criminal justice system, but concluded that a relationship to "potential" crime victims was enough. Discussing the Political Reform Act more candidly than in its original opinion, the court emphasized its "multifaceted provisions" as a method of justifying its decision concerning the multifaceted provisions of the Victim's Bill of Rights. The court rejected, however, the idea that Proposition 8 contained an "unnatural

41Fair Political Practices Commission v. Superior Court, p. 42. 42Fair Political Practices Commission v. Superior Court, pp. 43Brosnahan v. Brown, pp.

245-253.

54-56.

Reducing Complexity II: Making Individual Initiatives Understandable

133

combination" of unrelated provisions and found the measure "singularly insusceptible" to the criticism that it involved log rolling.44 Noting that the proposition had received widespread publicity, the court also rejeCted the idea that the complexity of Proposition 8 may have led to confusion or deception among voters. "Moreover," the court said, "as we stated in FPPC in disposing of an identical contention that the measure was too complicated, 'Our society being complex, the rules governing whether adopted by legislation or initiative will necessarily be complex. Unless we are to repudiate or cripple use of the initiative, risk of confusion must be borne.",45 While not totally writing the single-subject rule out of the state constitution, the court indicated that the rule was reserved for "rare occasions." The court said that the 1948 ham-and-eggs initiative would not have passed the single-subject test because it added 21,000 words to 15 of the Constitution's 25 articles and dealt with such widely disparate subjects as gambling, civic centers, mining, fishing, city budgets, liquor control, senate reapportionment, and oleomargarine.46 Three justices dissented. Chief Justice Bird found Proposition 8 in violation of the single-subject rule because the provisions were not "interdependent," a standard that she said went back to the 1932 Probate Code case. She found the right to safe schools to be a "striking example" of one provision that was independent of the other provisions.47 The fact that the legislature had previously dealt with a number of the initiative's topics in separate bills also led her to conclude that the proposition included more than a single subject. Pointing out that Proposition 4 relating to bail received more votes that Proposition 8, which also included a bail provision, she argued that Proposition 8 denied the voters an opportunity to vote on its individual provisions. She also argued that the initiative was misleading in that some of its provisions might be harmful to victims of crime and that it presented a danger of log rolling. Justice Mosk, joined by Justice Broussard, also dissented. He said the court's decision approving an initiative that "adds seven separate subdivisions to the Constitution, repeals one section of the Constitution, adds five new sections to the Penal Code and three more sections to the Welfare and Institutions Code" rendered the single-subject rule as "virtually a dead letter." He adhered to his earlier view that Proposition 8 failed to satisfy either the "reasonably germane" or the "functionally related" test.48 In 1987 the California Supreme Court demonstrated that the legislative single-subject rule was not totally dead, unanimously striking down a wide-ranging legislative bill that amended, repealed, or added 150 sections contained in more 250-251. 252. pp. 252-253. p. 274. pp. 297-299.See alsoBrosnahan

44Brosnahan v. Brown, pp. 45Brosnahan v. Brown, p. 46Brosnahan v. Brown, 47 Brosnahan

v. Brown, 48Brosnahan v. Brown,

v. Eu.

31Cal.3dI, 5-14(1982).

134

LAWMAKING BY INITIATIVE

than 20 codes and legislative acts. The court broad a term to constitute a single subject,49

said that "fiscal

affairs"

was too

In 1990, however, the California Supreme Court, in its rulings on the Crime Victims Justice Reform Act from the June 1990 ballot, returned again to its very broad reading of the initiative single-subject rule. While striking part of the initiative as an improper constitutional revision, the court nonetheless found that the measure satisfied the single-subject rule. 50 The court itself listed 12 separate subjects in its own summary.51 Although acknowledging that these subjects "seem somewhat disparate," the court found that they "reflect a consistent theme." In 1991 the California Supreme Court again affirmed its broad view of the singlesubject rule, upholding an initiative constitutional amendment that combined limitations on legislative terms, restrictions nation of legislative pensions.52

on the cost of the legislature,

and elimi-

Critiques of the California Approach Academic commentary on the court's treatment of the single-subject rule has been mixed. A 1983 student note criticized the California Supreme Court's performance. Arguing that the initiative process differs significantly from the legislative process because there is no mechanism for reviewing proposals and because there is considerable voter misunderstanding, the note found that initiatives were more likely to involve multifarious proposals than legislation. The single-subject rule was designed to combat this. To avoid frustrating the purpose of the rule, the note proposed replacing the "reasonably germane" test with a stricter standard of review that would require the provisions of initiatives to be interrelated and interdependent and "form an interlocking package." Far from stifling the voice of the people, more clearly heard.,,53

the note concluded,

such a standard

"will make that voice

A 1991 student note agreed with the need for a stricter standard. Arguing that the "reasonably germane" standard used by the California Supreme Court was too loose and the "functionally related" standard proposed by the dissenting justices was too strict, this note suggested a more middle of the road approach. The important thing, it stressed, was not the verbal formula, but a willingness to

49Harbor v. Deukmejian. 43 Cal.3d 1078, 1094-1101 (1987). See also Planned Parenthood Affiliates v. Swoap, 173 Cal.App.3d 1187 (Cl. App. 1985).

52 CaI.3d 336 (1990). 51These were (I) post-indictment preliminary hearings, (2) independent construction of state constitutional criminal rights, (3) people entitled to due process and speedy public trial, (4) joinder and severance of cases, (5) hearsay testimony at preliminary hearings, (6) discovery procedures, (7) voir dire examination, (8) felony-murder statute, (9) special circumstances statutes, (10) torture statute, (II) appointment of counsel, and (12) trial date and continuances. 52Legislature v. Eu, 54 CaI.3d 492, 512-514 (1991). The California cases are reviewed in League of Women Voters v. Eu, 7 Cal. AppAth 649 (Cl. App. 1992). 53StevenRay, "Note, The California Initiative Process: The Demise of the Single-Subject Rule," PacijicLawJournaI14(1983): 1095, 1108. 50Raven v. Deukemejian,

Redw:ing Complexity //: Making Individual Initiatives Understandable

135

give some meaning to the single-subject requirement. Finding that the "objective" of an initiative was inherently broader than its "subject," the note also criticized the supreme court's willingness to interchange these terms. Such interchanges, it argued, improperly expanded the number of things that could be included within a "single sUbject.,,54 A 1983 article by Professor Daniel Lowenstein came to an opposite conclusion. In the most extensive academic commentary to date on the rule, Professor Lowenstein, one of the authors of the Political Reform Act and an attorney of record in the case that upheld that act in the face of a single-subject challenge, concluded that the "reasonably germane" test was "preferable to the 'functionally related' test or any other stringent interpretation of the single subject rule.,,55 Noting that "subjects" are normally thought of hierarchically, Professor Lowenstein pointed out that virtually any item can be contained within another subject if the level of abstraction is raised high enough. While "physics" and "torts" would not be regarded as a single subject within either the "physical sciences" or "professional studies," they are both encompassed by the term "university education.,,56 Reviewing the legislative history of the single-subject rule as it applies to initiatives, Professor Lowenstein argues that there is no reason to interpret the rule any more broadly than would have been necessary to strike down the ham-andeggs initiative that caused the legislature to propose the rule in the fIrst place. He also argues that the court that decided Perry v. Jordan in 1949 knew much more about the intent of the legislature that proposed the rule than any present-day court that might consider the question.57 Finding that the single-subject rule is ill suited to preventing either complexity or log rolling, Professor Lowenstein concedes that there is some relationship between the diversity of an initiative's provisions and complexity, but gives examples of diverse initiatives that are not particularly complex and of initiatives that are not diverse but are very complex. As to log rolling, he argues that a voter might approve of all the provisions of an extremely diverse initiative but might disagree with some of the methods employed in an initiative that clearly concern a single subject. Interpreting the single-subject rule strictly would create two signifIcant types of risks, according to Professor Lowenstein. First, the drafters of initiatives could manipulate the stricter standards in undesirable ways in order to create a "functional relationship" between the parts they want to include in the initiative. Sec-

54Marilyn Minger, "Note, Putting the 'Single' Back in the Single-Subject Rule: A Proposal for Initiative Reform in California," University of California Davis Law Review 24 (1991): 879, 907-913. 55Lowenstein, "California Initiatives and the Single-Subject

Rule," pp. 936,938.

56Lowenstein, "California Initiatives and the Single-Subject Rule," p. 940. A leading California initiative attorney once told a University of California, Davis, law school class that he could qualify any initiative in California under the subject of "life." 57Lowenstein, "California Initiatives and the Single-Subject

Rule," p. 952.

136

LAWMAKING BY INITIATIVE

ond, the courts might view a stricter test as an invitation to decide cases according to their policy views rather than by reference to neutral principles. Because the single-subject rule is so manipulable, Professor Lowenstein argues that courts should adopt the public's perspective as the basis for determining how to categorize subjects. He acknowledges that there are some problems in doing this, but believes that this would aid in providing a common method of interpretation that is justified by the theory of the rule. Ultimately, Professor Lowenstein concludes: "Despite its conceptual weakness, Perry v. Jordan has served the court well, and under its authority the court has interpreted the singlesubject rule as it was intended.,,58

Florida Of the 16 other jurisdictions that clearly apply the single subject rule to initiatives, Florida is by far the most distinctive. Its first initiative law, adopted in 1968, allowed amendments to "any section" of the constitution. In 1970 the Florida Supreme Court found an initiative that would have changed the legislature to a unicameral body invalid on the ground that it would be a revision of the Florida constitution instead of an amendment,59 Following this decision the constitution was amended to provide that the people may revise or amend the constitution by initiative, "provided that, any such revision or amendment shall embrace but one subject and matter directly connected therewith.,,60 The first rulings under this new provision came in 1976 and 1978. The Florida Supreme Court found that the new language was intended to broaden the initiative and interpreted it to have the same meaning as the single-subject rule long used in the state for statutes. Applying this new rule, the court upheld both of the initiatives that had been challenged.61 In 1984, however, the Florida Supreme Court reconsidered the question of whether the two single-subject rules should be interpreted similarly. Advancing three interlocking reasons for its decision, the court concluded that "it is proper to distinguish between the two [tests].,,62 The court first reasoned that the initiative single-subject rule was worded more narrowly than the legislative single-subject rule. Initiatives were restricted to embracing "but one subject and matter directly connected therewith," while legislative bills were allowed to "embrace but one subject and matter properly connected therewith" (emphasis supplied). The court also found significant differences between the legislative and the initiative procedures. Proposed legislation, it said, "must proceed through legisla58Lowenstein, "CaliforniaInitiativesandtheSingle-SubjectRule,"p. 975. 238SO.2d824(Fla.1970). 60Fla.Const.art. XI, *3. 61Weber v. Smathers. 338SO.2d819(Fla. 1976);Floridians Against Casino Takeover v. Let's Help Florida, 363 SO.2d337(Fla.1978).Strictlyspeaking,in Weber v. Smathers onlythe threeconcurring justicesreliedspecificallyonthe statutorysingle-subjectrule. 62Fine v. Firestone, 448 SO.2d984(Fla.1984). 59 Adams v. Gunter,

Reducing Complexity II: Making Individual Initiatives Understandable

137

tive debate and public hearing. Such a process allows change in the content of any law before its adoption. This process is, in itself, a restriction on the drafting of a proposal which is not applicable to the scheme for constitutional revision or amendment by initiative.,,63 The court's third, and "most important" reason for requiring strict compliance with the initiative single-subject rule was that this was the intent of those who voted for the new constitutional requirement: In our view, the single-subject restraint on constitutional change by initiative proposals is intended to direct the electorate's attention to one change which may affect only one subject and matters directly connected therewith, and that includes an understanding by the electorate of the specific changes in the existing constitution proposed by any initiative proposa1.64

A second 1984 decision, striking down another initiative, elaborated on the tests to be applied in determining whether an initiative was devoted to a single subject. The court said that "the primary and fundamental concern" was the prevention of log rolling: "Where separate provisions of a proposed amendment are an "aggregation of dissimilar provisions [designed] to attract support of diverse groups to assure its passage," " ... the defect is not cured by either application of an over-broad subject title or by virtue of being self-contained." While not the "exclusive test," the court indicated that "conflict with multiple sections of the existing constitution" was a fatal defect "where a proposed amendment changes more than one government function, it is clearly multi-subject. In Fine, we found multiplicity of subject matter because the proposed amendment would have affected several legislative functions.,,65 More recent cases have upheld some initiatives against single-subject challenges and struck others down.66 In these cases the Florida Supreme Court has frequently restated the Fine v. Firestone test: "The purpose of the single-subject requirement is to allow the citizens to vote on singular changes in our government that are identified in the proposal and to avoid voters having to accept part of a proposal which they oppose in order to obtain a change which they support.,,67 The court has also frequently indicated that proposed amendments must have a "logical and natural oneness of purpose." In 1994, the Florida single sub63Fine v. Firestone,

p. 989.

64Fine v. Firestone. 65Evans v. Firestone,

457 SO.2d1351(Fla. 1984),discussedin CherieAlbury,"AmendmentNine andtheInitiativeProcess:A CostlyTripto Nowhere,"Stetson Law Review 14(1985):349. 66Carroll v. Firestone, 497 SO.2d1204(Fla. 1986)(upholding a lotteryto raise fundsfor education); In re Advisory Opinion English-The Official Language of Florida, 520 SO.2dII (Fla. I988)(upholds);In re Advisory Opinion, Limitation of Non-Economic Damages in Civil Actions, 520 So. 2d 284 (Fla. 1988)(upholds); Advisory Opinion-Limited Marine Net Fishing, 620 SO.2d997 (Fla. I993)(upholds);In re Advisory Opinion-Restricts Laws Related to Discrimination, 632 SO.2d 1018 (Fla. I994)(strikes);In re Advisory Opinion-Save Our Everglades, 636 SO.2d1336 (Fla. I994)(strikesproposalto cleanup theEverglades). 67In re Advisory Opinion English-The Official Language of Florida, 520 SO.2d11, 12 (Fla. 1988),quotingFine v. Firestone.

.

138

LAWMAKINGBY INITIATIVE

ject rule was amended to exempt initiatives "limiting raise revenue" from the single subject rule.68

the power of government

to

Other States Many courts that have considered application of the single subject rule to initiatives have reached conclusions similar to the California courts. Indeed courts in other states have often cited the California decisions. Florida is not the only state that has carved its own path, however. Arizona has at times taken a more restrictive approach,69 and there are indications that some other states may be taking the single subject rule more seriously.7° Because the doctrines developed by the Florida courts are relatively new, only a few states have given them full consideration. Those that have, such as Alaska and Oregon, have declined to follow the Florida approach.71

Switzerland In Switzerland the parliament rather than the courts decides whether federal initiatives comply with the explicit single subject ("unity of matter") rule contained in the federal constitution. The Swiss Supreme Court is the final authority, however, on whether cantonal initiatives comply with the more general unity of matter requirement contained in federal constitution and with the explicit unity of matter requirements contained in most cantonal constitutions. Both the Swiss parliament and the Swiss Supreme Court have indicated that initiative proponents should be treated generously, and both have taken a relatively lax posture in enforcing in the unity of matter rules. Both, however, have enforced the unity of matter rule more stringently than the typical American appellate court. Although it has approved a number of questionable initiatives, the Swiss parliament has found two federal initiatives to be in violation of the unity of matter 68JosephLittle, "Does Direct DemocracyThreatenConstitutionalGovernancein Florida?" Stetson 24 (1995): 393, compares legislative and initiative constitutional amendments and reviews the history of the Florida initiative. 69CompareSlayton v. Shumway, 800 P.2d 590 (Ariz. 1990) with Tilson v. Mofford, 737 P.2d 1367 (Ariz. 1987). 70:In1994, two states amended their constitutionsto add single subject rules. Colorado added rules governing both initiative statutes and constitutional amendments while Mississippi added one for initiative constitutionalamendments.Although the new Colorado single subjectrule for initiatives is in a separate section from the single subject rule for legislation, the wording is the same. Despite the fact that the Colorado courts have taken a relatively lax approach to the legislativesingle subject rule, they have found three of the first 10 initiativeschallenged under the new rule to be in violation of the rule. In 1992,the Michigan courts applied the legislativesingle subject rule to initiatives for the first time, and in 1990 the Missouri and Oklahoma courts adopted stricter constructions of their initiative single subject rules. Automobile Club v. Secretary of State, 491 N.W.2d 269 (Mich. 1992); Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d824 (Mo. 1990); Initiative Petition No. 342,797 P.2d 331 (Okla. 1990). 71 Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173 (Alaska 1985); Oregon Education Association v. Phillips, 727 P.2d602 (Or. 1986). Law Review

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rule, ordering a 1920 initiative to be split into two and removing a 1975 initiative from the ballot. A third very questionable initiative was ruled invalid on other grounds, obviating the necessity for a ruling on unity of matter. The 1975 initiative that was found invalid addressed the problem of unemployment and the rising cost of living, and included provisions dealing with security of employment, the right to housing, social security, and a healthy agriculture. Although it was a very broad initiative, it was no broader in concept than many initiatives that have been held valid by American courts. The Swiss Supreme Court has developed a more consistent and more articulate approach to the unity of matter rule than either the Swiss parliament or the typical American appellate court. It recognizes that different kinds of proposals present different kinds of problems. It applies a stricter standard of review to initiative proposals than to legislation developed by the parliament. It also applies a stricter standard of review to constitutional amendments than to statutes. This means that the strictest standard is applied to initiative constitutional amendments and the least strict standard to ordinary parliamentary statutes.72 The Swiss Supreme Court also prohibits the joining of constitutional amendments and statutes in the same legislation. Although it has not taken as strict an approach to unity of matter as the Florida Supreme Court has taken to the single subject rule, the Swiss Supreme Court has taken a clearly tougher approach than the typical American appellate court. Its ruling on a 1984 canton Geneva initiative is illustrative. This initiative required the canton to withdraw from its use of nuclear energy, to introduce various energy saving measures, and to submit the cantonal industry budget to review by the people. The Swiss Supreme Court ruled that joining the nuclear energy and energy saving measures did not violate the unity of matter rule because of the close connection of the two measures. Adding a requirement for review of the cantonal industry budget by the people did violate the rule, however, because at least part of the industry budget had nothing to do with energy?3 Although Swiss academic commentary on the unity of matter requirement is much more extensive than American commentary on the single subject rule, the Swiss commentators have been no more successful than their American counterparts in developing a verbal formula with clearly defined boundaries. Many commentators have been critical of the broad, inconsistent approach taken by the Swiss parliament, and several leading authorities have called for use of a much narrower verbal formula ("a necessary connection between the parts"). Both the Swiss parliament and the Swiss Supreme Court have rejected this narrower approach as too restrictive. While still reciting the verbal formulas, the best 1990s commentaries use a new, and more helpful, approach, developing empiri72BGE 113 Ia 46, 52f, Landesring der Unabhangigen 73Stephan Widmer, Wahl- und Abstimmungsfreiheit pp. 104-111.

des Kantons Zurich m. w.H. (Zurich: Schulthess Polygraphischer,

1989),

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cal categories that distinguish the initiatives that present unity of matter problems from those that do not.74

THE SUBJECT MATTER MUST BE EXPRESSED IN THE TITLE Most states also require that legislative bills and initiatives state the subject of the proposed legislation in their title. Some combine this requirement with the single subject rule, mandating that the proposal "state the single subject in the title." The California Constitution, for example, requires legislative bills to "embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title. A section of a statute may not be amended unless the section is re-enacted as amended.,,75 Like many other courts, the California courts consider the titling rule to be separate from the single-subject rule, finding that compliance with one does not necessarily mean that the other has been satisfied. "A statute must comply with both the requirement that it be confined to one subject and with the command that this one subject be expressed in its title.,,76 Considering the titling requirement to be an important vehicle for informing legislators and the public about the subject of bills, many courts in the early 1900s and before interpreted it very strictly. To avoid problems with the titling requirement many legislatures developed the habit of writing very detailed titles. This practice continues today, even though many courts, including the California courts, now interpret the titling rules in a much looser fashion. The California Supreme Court now holds, for example, that a title that gives a reasonably intelligent reference to the subject of legislation is sufficient.77 Although some question the utility of the titling requirement in the modern legislative process, many believe that it continues to have value as a method for informing legislators and the public about the subject matter of legislative bills. Many of the founders of the initiative process also had considerable faith in the titling requirement. From the beginning of the initiative process many states required proponents to submit their proposals to state attorneys general or other appropriate officers for titling before beginning the collection of signatures. The purpose was to inform citizens about the contents of the initiative they were being asked to sign. Although initiative titles are often not read by citizens, they are available and 74Luzius Wildhaber, "Art. 121/122," in Jean-Francois Aubert, Kurt Eichenberger, Jorg Mtiller, Rene Rhinow, and Dietrich Schindler, eds., Kommentar zu Bundesverfassung der Schweizerischen Eidgenossenschajt yom 29. Mai 1874 (Basle: Helbing und Lichtenhahn Verlag, 1990), pp. 1-45; Dietrich Schindler, "Rechtsgutachten tiber die Volkinitiative '40 Waffenplatze sind genug-Umweltschutz auch beim Militar,''' Schweizerisches Zentralblatt fUr Staats- und Verwaltungsrecht 93 (1992): 388. 75Cal. Canst. art. IV, g 9. 76Harbor v. Deukmejian,

43 Ca1.3d 1078, 1096.

77ln re Bear, 216 Cal. 536, 542 (1932). See also Milgate v. Wraith, 19 Cal.2d 297 (1942).

Reducing Complexity II: Making Individual Initiatives Understandable

do provide a neutral, independent summary of the proposed measures. requirement that they be prepared has done little to prevent lengthy, highly fusing initiatives, however. Generally the result has been a lengthy, highly fusing title, rather than a simplified initiative. The official title for one of the California auto insurance initiatives is typical:

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The concon1988

INSURANCE RATES. REGULATION, COMMISSIONER. INITIATIVE STATUTE. Requires minimum 20-percent rate reduction from November 8, 1987, levels, for automobile and other property!casualty insurance. Freezes rates until November 8, 1989, unless insurance company is substantially threatened with insolvency. Thereafter requires every insurer offer any eligible person a good-driver policy with 20-percent differential. Requires public hearing and approval by elected Insurance Commissioner for automobile, other property! casualty insurance rate changes. Requires automobile premiums be determined primarily by driving record. Prohibits discrimination, price-fixing, unfair practices by insurance companies. Requires commissioner provide comparative pricing information. Authorizes insurance activities by banks.78

While the courts once played an important role in insuring that the legislature and the public were informed about bills under consideration in the legislature through their enforcement of the titling requirements for legislative bills, the courts have generally not played a similar role in the initiative process. One problem is that there are questions about the extent to which the courts are authorized to apply the titling requirements to the initiative process. In California, for example, there are strong arguments and some authority indicating that initiative statutes are subject to the titling rules enforced by the courts, but initiative constitutional amendments do not appear to be subject to these rules.79 A more fundamental problem is that the traditional interpretation of the titling rules has little potential for producing clarity and reducing confusion in the initiative process.80 The titling rules require an accurate summary, not an understandable proposal. The titling rules would have much more impact if they were interpreted literally instead of loosely. The California titling rule, for example, requires a legislative bill to have its "one subject. .. expressed in its title." Taken literally, this combines the titling requirement for an accurate summary with the single subject rule's requirement for a single subject. The courts typically do not rely on the legislative title, however, in determining the subject of the bill for the purpose of applying the single subject rule. Generally they take a much more abstract approach in defining the bill's subject than does the title, which is generally quite particularistic.81

78California Ballot Pamphlet, November 8, 1988, p. 98. 79See Dubois and Feeney, Improving the California Initiative Process, pp. 110-112. In California proponents of both types of initiatives must submit their petitions for titling by the attorney general. sOBrosnahan v. Brown, 32 Ca1.3d 236, 255-257. slThe California Attorney General's title for the Crime Victims Justice Reform Act (Proposition 115), for example, included most of the items in footnote 51 supra. The California Supreme Court, however, held by a vote of 6 to I that these 12 matters were but one subject.

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This schizophrenic treatment of a bill's subject matter is probably functional for the legislative process. It is much less clear, however, that it serves the public good for initiative proposals.82 A more literal approach might help considerably in producing initiatives that are more understandable.

Florida The approach taken by the Florida courts illustrates some of the ways that titling requirements might be used to make initiative proposals more understandable. Its statutes provide that Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot. ... The substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of. 83

The Florida courts have found this statute to require that the "voter should not be misled and ... [should] have an opportunity to know and be on notice as to the proposition on which he is to cast his vote." "What the law requires," they say, "is that the ballot be fair and advise the voter sufficiently to enable him intelligently to cast his ballot.,,84 The Florida courts have generally taken a nontechnical approach to this requirement, saying: "We cannot accept the contention that the seventy-five word ballot summary required by the statute must explain in detail what the proponents hope to accomplish by the passage of the amendment.,,85 The statute nonetheless imposes important duties. In 1982 the Florida Supreme Court struck down an initiative in which the ballot summary represented that a proposed constitutional amendment granted citizens greater protection against conflicts of interest in government without revealing that it also removed an established constitutional protection.86 In 1984 the Florida Supreme Court struck from the ballot an amendment whose summary claimed to "establish" citizens' rights in civil actions that were in fact already provided for in existing statutes. While the proposed amendment would have placed these rights in 82The California courts have also taken a relaxed approach to other requirements. Cal. Elections Code 99084 (West Sp. Pamphlet 1995) requires that the ballot pamphlet contain "each constitutional provision" repealed or revised by each state measure. It also requires the legislative analyst to provide an impartial analysis of each amendment. The courts have interpreted these requirements in a minimalist fashion, however-saying that they do not mandate "an inclusive legal discussion of each part of the state Constitution which might be influenced by the initiative." Tinsley v. Superior Court, 150 Cal. App.3d 90, 107 (Ct. App. 1983). 83Fla. Stat. Ann. 9101.161 (West Supp. 1995). 84Askew v. Firestone. 421 SO.2d 151. 155 (Fla. 1982) (emphasis omitted). 85/n re Advisory Opinion English-The 1988). 86Askew v. Firestone.

Official Language

of Florida, 520 SO.2d II,

13 (Fla.

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the Florida Constitution, the Florida Supreme Court said that it did not "establish" them.87

AN ASSESSMENT: HOW WELL HAVE THE RULES PROTECTED AGAINST TROJAN HORSES, LOG ROLLING, AND COMPLEXITY? Effects on Trojan Horses Many initiatives contain hidden provisions. Some are accidental. Many, however, are in effect "Trojan horses" intended to deceive or mislead the voters. Each of the major insurance initiatives on the November 1988 California ballot, for example, contained provisions of this kind. These propositions are relatively straightforward, however, compared to Proposition 36, the state lottery initiative, which appeared on the November 1984 ballot. This proposition is the champion California Trojan horse to date. On its face it called for establishing a state lottery, with the earnings from the lottery to go to help pay for education. The signature gatherers for this initiative were not paid for by forces interested in education, however, but rather by Scientific Games, Inc., the nation's leading supplier of lottery tickets. Scientific Games is owned by Bally Corporation, a manufacturer of gambling equipment. This firm contributed virtually all of the $1.2 million used to gather signatures and the $1.4 million spent in the election itself.88 Scientific Games was not interested, however, in merely creating a state lottery for whose business it might compete; it sought something more. Tucked away in the fine print of the initiative were innocuous-sounding phrases about procurement that turned out later to have eliminated all the other suppliers of lottery tickets and thus gave Scientific Games a monopoly on the initial lottery business. The first three contracts totaled $61.7 million. 89 Few California elections go by without Trojan horses of one kind or another. Proposition 118 on the June 1990 ballot was entitled the "Legislative Ethics Enforcement Initiative of 1990." It restricted lobbying by former legislators, prohibited legislators from accepting gifts and honoraria, and established a new Legislative Ethics Committee to develop and enforce ethics standards. It was widely understood, however, that the major purpose of the initiative was its reapportionment provisions. These would have required a two-thirds vote for any reapportionment plan adopted by the legislature, in effect guaranteeing the Republican

87Evans v. Firestone, discussed in Albury, "Amendment Nine and the Initiative Process," pp. 362372. See also In re Advisory Opinion to the Attorney General-Save Our Everglades, 636 SO.2d 1336 (Fla. 1994); James Lowrie, "Note, Single Topic and Clear Expression: A Legislative Error in Utah Constitutional Revision," Utah Law Review 1971: 512. 88Cal. Fair Political Practices Commission, Historical Overview of Receipts and Expenditures by Ballot Measure Committees (Sacramento: 1988), pp. 27, 55. $250,000 was contributed by Dittler Brothers, Inc., then a business associate of Scientific Games. See also Jonathan Kirsch, "Initiatives: Cutting Up the Constitution," California Lawyer (November 1984): 35. 89United Press International, September 28, 1986. This proposition may have violated Cal. Const. art. 11,~12, which prohibits legislation that "identifies any private corporation to perform any function or to have any power or duty."

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minority a voice in the 1990 reapportionment regardless of the outcome of the fall gubernatorial election. It was widely believed that the ethics provisions were included in the initiative because of the perception that voters were excited about legislative ethics but not about reapportionment.90 How successful have the rule requiring the title of the proposition to state its subject matter and other existing procedures been in identifying and preventing Trojan horses? On the whole in California, not very. A number of propositions have been challenged under the titling rule but few challenges have been successfu1.91 The legislative analyst has identified some of the more important hidden provisions in the ballot pamphlet, but many have gone unmentioned. Even those that have been mentioned have generally not been highlighted. The ballot pamphlet arguments against propositions have about the same record, presumably because space is limited and the opponents generally choose to concentrate their fire on what they perceive to be the most vulnerable aspects of the initiative. The media generally follow the same course.

Effects on Log Rolling It is generally agreed that the principal purpose of the single subject rule is to prevent "log rolling." While it is clear that Trojan horses are frequently hidden inside California initiatives, determining the amount of "log rolling" is more difficult and depends in part on the definition used. Classic log rolling involves an explicit bargain: "You back my proposal and I will back yours, and to be sure that we both keep our agreements, we will put both proposals in a single bill." Some California initiatives appear to involve the kind of horse-trading that is characteristic of classic log rolling. An account given by The San Francisco Examiner indicates that the major environmental measure on the November 1990 ballot (Proposition 128, known as "Big Green") was put together by a number of candidates and environmental groups.92 Only those groups willing to contribute $250,000 or more to the signature-gathering effort were allowed to participate in the drafting. And those who did contribute were allowed to include the items in which they were the most interested. The resulting proposition was one of the most complex ever submitted to the voters. 900rhe Trojan-horse problem is not limited to California and is not new. The Oregon initiative was only four years old when "the first trick bill [was] tried on the Oregon electorate." That initiative, a proposal ostensibly to abolish tolls on the Mt. Hood road but in reality a proposal to require the state to buy the road and assume responsibility for its upkeep, was defeated. Four years later, however, proponents of the single tax slipped a major proposal by the Oregon electorate. A 1912 study concluded that the voters "have been fooled by men who claim to trust the people but who are afraid to submit honestly measures which they describe and then succeed in passing." Allen Eaton, The Oregon System: The Story of Direct Legislation in Oregon (Chicago: A.c. McClurg, 1912), pp. 27, 133. 91The California Supreme Court has stricken two initiatives from the ballot for failure to comply with the titling requirements. Boyd v. Jordan, I Cal.2d 468 (1934), and Clark v. Jordan, 7 Cal.2d 248 (1936). 92Huey Johnson, "Back Room Deals Beat Big Green," San Francisco Examiner, November

1990,p. A-25.

18,

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Proposition 70 on the November 1988 ballot was a different kind of initiative. Entitled the "Wildlife, Coastal and Park Land Conservation Bond Act," this initiative sought authorization for $776 million in bonds to purchase land. Two-thirds of this money was designated for specific lands located throughout the state. While no specific "horse trading" has been reported in connection with this particular initiative, it was obviously put together with an eye toward creating political appeal in each different region of the state. By including the proposals all together in a single proposition, neither the voters nor any other group had the opportunity to evaluate the merits of any individual piece of land designated for purchase. Opponents of numerous other propositions have claimed that they too involved log rolling and should be struck down under the initiative single-subject rule. Notable among the propositions that have been attacked in this way have been Proposition 13 (the property tax limitation), Proposition 9 (the Political Reform Act), Proposition 8 (the Crime Victim's Bill of Rights), and Proposition 115 (another major omnibus crime measure). In each of these cases the California Supreme Court has specifically found that no log rolling was involved. In his 93 article Professor Lowenstein agreed that no log rolling was involved. The arguments about these and other initiatives raise some basic questions. Although there appears to be widespread agreement that "log rolling" is a bad thing, there is much less agreement about what "log rolling" actually is. As is the case with many metaphors, the content of log rolling appears to depend more on the speaker than on the metaphor itself. This suggests that there may be less agreement about the policy against "log rolling" than the black letter rules indicate. More basic questions, then, are what evils does the anti-log rolling rule seek to prevent and what policy does it seek to further? While most would agree that clear cases of "horse trading," in which proposals about very different spheres of life (such as transportation and the opera) are joined, are bad, there is much less agreement about whether the joining of a whole host of proposals dealing with 4 one specific sphere of life (such as crime or the environment) is undesirable.9 The courts and the constitution writers have tended to allow the legislature considerable leeway on these matters. Whether they should do the same for initiatives is an important question.

Effects on Complexity While there is no rule specifically prohibiting complex legislative proposals, much of the legislative process, including all eight of the procedures discussed at the beginning of this chapter, seeks to assist the legislature in two central tasks:

93Lowenstein, "California Initiatives and the Single-Subject Rule," pp. 957-963.This 1983article does not comment on Proposition liS, a 1990 initiative. Professor Lowenstein argues that both coalition-building log rolling and "riders" are rare. 94American Bar Association Torts and Insurance Practice Section, The Challenge of Direct Democracy in a Republic: Report and Recommendations of the Task Force on Initiatives and Referenda (January 1993),p. 44, indicates that views about this are split.

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(1) formulating proposals that are comprehensible and practical, and (2) understanding the proposals that are finally put forward for a vote. The initiative process is quite different. Most states lack adequate procedures for ensuring that initiative proposals are comprehensible, practical, and technically well drafted.95 Moreover, the tools available to assist citizens in understanding the proposals submitted for a vote seem much weaker than those in the legislative process. The ballot pamphlet is an important and valuable tool. Even on a routine bill, however, each member of the legislature will have much more information at the time of a final vote than that contained in the ballot pamphlet. At a minimum each legislator will have a report from the committee or committees that heard the proposal, the count and the character of the vote in committee, access to the author and the committee members who studied the bill, and various other written analyses, including those from his or her own staff. Each legislator may also have communications from constituents and interest groups affected by the legislation as well as direct access to knowledgeable lobbyists for those groups. In most states, neither the single-subject rule nor the rule requiring the purpose to be fully expressed in the title provides any substantial assistance to the average citizen on the issue of complexity and understanding. The California courts have treated the single-subject rule almost wholly as a rule against the horse-trading type of log rolling rather than as a rule requiring individualized votes on relatively discrete ideas. This lack of concern about the need for individualized votes on relatively discrete ideas is shown graphically by the interaction of the single-subject and titling rules. Everyone of the multifaceted propositions that the California Supreme Court has found to satisfy the single-subject rule had titles indicating four or more subjects. Commentators have been candid in identifying the single-subject rule as a rule against log rolling rather than a rule against complexity. Professor Lowenstein goes even further, arguing that no matter how it is interpreted the single-subject rule is never going to be very good at dealing with the problem of complexity.96

SOME FUTURE POSSIBILITIES The reformers who fought for adoption of the initiative believed that the people could be trusted to study and understand the issues. While voter participation and understanding have generally left much to be desired, when initiatives have embodied clearcut policy choices that are not too confusing, voters have generally been able to express their will successfully.97 Studies suggest that the voters have been fairly successful about making broad policy choices. When the California voters, for example, wanted lower taxes, they voted for Proposition 13. When they wanted cleaner politics, they voted for the Political Reform Act. For better environmental 95Chapters Six, Eight and Thirteen contain some suggested improvements. 96Lowenstein, "California Initiatives and the Single-Subject 97Thomas Cronin, Direct Democracy: bridge, Mass.: Harvard University Press,

Rule," pp.

954-957.

The Politics of Initiative, Referendum 1989),pp. 87-89.

and Recall (Cam-

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protection of the coastline, they voted to create the Coastal Commission. It is also clear that as propositions become more complex citizens understand less about the particulars of proposals. It seems higWy questionable whether it makes sense to ask ordinary citizens to vote on proposals that are so complex that even the experts have difficulty understanding them.98 Some believe that it is not possible to make initiative proposals understandable. They conclude that the initiative was a good idea that has not worked in practice, and call for its elimination. Indeed, this book contains much to support the view that the initiative idea has not worked in practice. Many citizens who have conscientiously tried to study the proposals know how lengthy and complicated these proposals can be. Reviews of individual proposals show that they include many hidden issues, suggesting that they are even more complicated than they appear to be on the surface. There has never been a concerted effort to make proposals understandable to the citizenry, however. There have certainly been some improvements since the initiative was first adopted. In California, for example, the ballot pamphlet is much better (see Chapter Eleven), initiatives now have to comply with the initiative single-subject rule, and some drafting assistance is available to proponents. On the whole, however, the situation is much as it was on the day that South Dakota adopted the first statewide initiative. The courts in most states are reluctant to find that any initiative violates either the single-subject rule or the rule that the subject matter must be included in the title, and these rules have provided voters with little real assistance in dealing with the problems of complexity. The problem of hidden consequences has hardly even been discussed. There has been more discussion about how to structure the vote, but usually this has been in extremely abstract terms such as "germaneness," "log rolling," and the like. If the initiative is to survive and be available to the public as a method for solving-rather than complicating-problems, it is crucial that it be recognized as a process that is different and distinct from the normal legislative process. Because it is different and distinct, it must have its own procedures and safeguards. It is not sufficient simply to assume that the procedures and rules used to safeguard the legislative process will work for the initiative.99

98A Swiss study of 8,000 voters shows that citizen understanding drops as ballot measures become more complex. Widmer, Wahl- und Abstimmungsjreiheit, pp. 134-137. Swiss studies also show that voter participation declines as ballot measures become more complex. Kris Kobach, The Referendum: Direct Democracy in Switzerland (Aldershot: Dartmouth, 1993), pp. 80-82. 99Even pure democracies such as ancient Athens, the Swiss landesgemeinden and New England town meetings have procedures to promote orderly consideration of proposals. Ancient Athens, for example, allowed only those proposals that had been approved by the Senate, a small, select body, to be presented to the citizenry for approval, and some New England towns publicize the issues for their annual meetings in "warrants" issued in advance of the meeting. See, e. g., Nathan Cree, Direct Legislation by the People (Chicago: A. C. McClurg, 1892), p. 135; J. W. Sullivan, Direct Legislation by the Citizenship through the Initiative and Referendum (New York: True Nationalist Publishing Co., 1893), pp. 73-78. Anyone who argued today, however, that legislatures should abide by the safeguards and procedures developed for these older face-to-face forms of direct democracy instead of the safeguards developed specifically for legislatures would rightly be considered silly.

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The initiative process is far more vulnerable to Trojan horses than the legislative process because of its take-it-or-Ieave-it quality and the reduced technical scrutiny that it receives. The longer a proposition, the more opportunity it affords for skulduggery. The problems of communicating with a large number of voters and the limited time that the public has to devote to public issues of this kind make complexity a greater problem for initiatives than for legislative bills. These same factors also make structuring the vote into "bite-sized" packages more necessary for initiatives than for legislative bills. By far the most effective method that voters currently have for dealing with overly complex proposals is to vote against them. While by no means conclusive, studies tend to show that voters have a healthy skepticism and that when they do not understand proposals they vote negatively on election day. 100 This attitude is a great protection and should be encouraged by political leaders, the media, and others to whom the public listens. If proponents understand that the media in particular will urge a "no" vote against proposals that are unclear or too complex, they will be much less likely to put forward confusing ones. Truth and clarity in the initiative process also require greater procedural protection than they now receive, however, to avoid overly complex ballot measures and assist voters in understanding the measures on the ballot. Since it does not appear possible for any single procedure to deal simultaneously with the problems of complexity, Trojan horses, and vote structuring, there is a need to consider each problem separately. Like the legislative process, the initiative process also requires a number of different procedures and safeguards.

Options for Reducing Complexity Single-Subject Rule Options. While it is probably true, as Professor Lowenstein asserts, that the single-subject rule lacks the intellectual fIre power to eliminate complexity, a rule that defIned "single subject" more narrowly than the present California rule would eliminate a great deal of complexity. Florida initiatives appear to be shorter and more comprehensible than those in California. 101 There are no indications that the narrower interpretation used by Florida has crippled the use of the initiative in that state. It also seems relevant to remember that leaders of the movement to create the initiative, such as California's Hiram Johnson, chose to put their proposals before the voters in small, understandable pieces, rather than as one gigantic, omnibus proposal. 102

lOODavid Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), pp. 142, 167-168, 191. This tendency becomes even stronger when the opponents are well-financed. Betty Zisk, Money, Media, and the Grass Roots: State Ballot Issues and the Electoral Process (Newbury Park, Ca.: Sage Publications, 1987), pp. 167-170; California Commission on Campaign Financing. Democracy by Initiative: Shaping California's Fourth Branch of Government (Los Angeles: 1992), pp. 87-89. IOIEven if the comparison seem simpler.

is limited to initiative constitutional

amendments,

Florida proposals

102v.O. Key, Jr. and Winston Crouch, The Initiative and Referendum in California (Berkeley: University of California Press, 1939), p. 491.

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How might a narrower single-subject rule be adopted and what form should it take? The first step in developing a narrower single-subject rule is to uncouple the initiative single-subject rule from the legislative single-subject rule, in order to create a separate single-subject rule for initiatives.103 The second step is to make it clear that an important purpose of the rule is to reduce complexity and improve understandability. Once the initiative single subject rule is uncoupled from the legislative single subject rule, and it is targeted against complexity as well as log rolling, the third step is to find a verbal formula indicating that a narrower definition is desired. The second step is to make it clear that an important purpose of the rule is to reduce complexity and improve understandability. Once the initiative single subject rule is uncoupled from the legislative single subject rule, and that it is targeted against complexity as well as log rolling, the third step is to find a verbal formula indicating that a narrower definition is desired. A number of verbal formulas for a narrower definition of a single subject already exist. They include: • California Justice Manuel's test requiring that all the parts of an initiative be "functionally related" to the single subject, • the Florida approach that prohibits "conflict with multiple sections of the existing constitution" and changes in "more than one government function," and • the very narrow approach now used in the rule requiring that the subject be expressed in the title. 104 (This frequently results in multiple phrases in the title for topics that are considered single subjects under the single-subject rule.) While there are virtues and drawbacks to each of these formulas, no one of them is likely to prove totally satisfactory. Any change, however, that has an announced purpose of uncoupling the initiative single subject rule from the legislative single subject rule and narrowing the definition of single subject for initiatives is likely to produce a narrower definition and shorter and more comprehensible initiatives. Other Options. Other options that have been suggested for reducing complexity include the following: • Set an arbitrary limit on the number of words that may be included in an initiative. Because complexity is frequently related to length, such a limit would arguably reduce complexity. lOS • Set an arbitrary limit on the number of sections that an initiative might contain or revise. • Adopt a requirement that initiativses must be written in "plain English." Rules requiring that insurance contracts and other legal documents be

I03See discussion of Florida and Swiss single subject rules. 104This

would in effect adopt the plain-sense meaning of the present legislative single-subject This rule has never been interpreted, however, in accordance with its plain meaning. I05The California Commission on Campaign Financing, Democracy gested a 5,000 word limit for initiatives.

rule.

by Initiative, pp. 20-21 sug-

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written in plain English have been enacted in some states. The principles developed from these statutes could be applied to initiatives. 106 • Split up complex initiatives so that voters, like legislators, can vote separately on discrete measures. 107

Options Concerning Trojan Horses Because they would tend to reduce the length of propositions, the options listed above would also tend to reduce the hidden consequences of initiatives. Other options that might be employed to reduce hidden consequences include: • Require ballot pamphlets to place greater emphasis on hidden consequences, perhaps adding a separate section entitled "Hidden Consequences." • Adopt a rule that provisions not strictly necessary to the purpose stated in the title of an initiative statute or an initiative constitutional amendment are invalid. (This would be a much stricter interpretation of the present rule requiring that the subject matter of a statute be expressed in the title, in effect adopting a different standard for initiative titles than for legislative statute titles.) • Create a three-member board, composed of the attorney general, the secretary of state, and the legislative counsel (or other appropriate officials), to review initiative proposals that have qualified and publicly identify any serious constitutional questions that they contain. Many of the hidden consequences presently contained in initiatives arise out of attempts to push constitutional limits. One solution is to mandate preelection review of proposals by the courts. This is not recommended because time factors make it difficult to have meaningful hearings. Identifying the serious constitutional issues in initiatives, however, is much easier than adjudicating these issues. Such an identification would assist voters in assessing the merits of an initiative. The knowledge that identification was going to take place might also cause proponents to exercise a little caution about including questionable provisions that are not central to their purpose. Perhaps the best way to carry out this recommendation is to include comments on constitutionality in the drafting assistance recommended earlier. 108

I06See, e.g., Robert Benson, "The End of Legalese: The Game is Over," N. Y.U. Review of Law & Social Change 13 (1984-85): 519. Colorado has taken a step toward requiring initiatives to be written in plain English. "Proponents are encouraged to write such drafts in plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning which are understandable to the average reader." Colo. Rev. Stat. Ann. S 1-40-1 05 (West Supp. 1994). 107Richard B. Collins and Dale Oesterle. "Structuring the Ballot Initiative: Procedures That Do and Don't Work." University of Colorado Law Review 66: 47, III (1995). 108Six former law school deans publicly rated the 16 initiatives on the fall 1996 Oregon ballot, concluding that four were unconstitutional. Three of the four were rejected by the voters. The deans also found one legislative proposal to be unconstitutional. Business Journal--Portland, September 6, 1996, p. 4. Unlike most U.S. jurisdictions, the Swiss cantons and the German states frequently try to resolve questions of constitutionality concerning initiatives in advance of a vote by the electorate.

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Options for Structuring Votes The real purpose of the anti-log rolling rule is to require that proposals be voted on separately so that each one can be evaluated on its own merits. Developing sensible, clear rules toward this end, however, will not be easy. Rules that are too strict would require proponents to put more initiatives on the ballot. Rules that are too loose make informed voting nearly impossible. From the point of view of vote structuring, proposals can be divided into four types: (1) simple, (2) one central purpose with subordinate implementing steps, (3) coordinate approaches to some larger end, and (4) disparate measures. A simple proposal is one that requires no significant implementing steps. An example is the creation of Martin Luther King's birthday as a holiday. Some relatively simple ideas require subordinate implementing steps. The creation of a public housing authority, for example, would require decisions about whether commissioners need to be appointed, their terms, and what powers the authority would have, including whether it would have separate revenue-raising authority. A proposal of this kind could be described as having one central purpose and subordinate implementing steps. Other ideas are more complicated. A plan to reduce civil trial court delay, for example, might involve a number of different features: creating more judges, increasing filing fees to discourage parties from bringing suit, making it harder for attorneys to get continuances, encouraging arbitration of disputes, and simplifying court procedures. Each of these various components would contribute in some way toward the common end, but no one idea would be central or perhaps even critical. This kind of plan could be described as coordinate approaches to a common end. A totally different kind of plan is one that combines an approach toward one end with one or more approaches toward other ends. An example of this kind of plan would be one that combined a ban on the use of mercury in paints with more money for public schools. This kind of proposal could be described as one involving disparate measures. U sing this analytical framework, it seems obvious that simple initiatives present no vote-structuring problem. Disparate measures, on the other hand, should not be allowed, and in any well-run system should be knocked out by the single-subject rule. Proposals that involve one central purpose with subordinate implementing measures should also be allowed, if they are not too complicated. While each subordinate implementing measure presents a separate policy choice, requiring a separate vote for each subordinate implementing measure would detract from the public's ability to adopt meaningful legislation. Proposals that involve coordinate approaches to a common end present more problems. Here the approaches toward the common end can be quite disparate. Some approaches may be very good, while others are very bad. In the legislature, where committees have the opportunity to study each feature and where individual legislators have the opportunity to change the package even on the floor, a

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case can be made for allowing packages of this kind to be included in a single bill. In the initiative process, where the vote must be a "yes" or a "no" on the whole package, the authors believe that each approach should be voted on separately. This has two advantages: First, it allows each approach to be evaluated on its own merits and, second, it allows this to be done in a way that is intelligible to the ordinary citizen. The argument against this approach is that it would require proponents to place more initiatives on the ballot to accomplish their purposes. This may be true in some instances. When the coordinate approaches are themselves controversial, however, a separate vote is highly desirable. When the coordinate approaches are not particularly controversial, there is no reason for them not to be considered through the normal legislative process. Even if it were decided that requiring a separate vote on each coordinate approach was too stringent a rule, consideration should be given to restricting the number of coordinate approaches allowed within a single initiative. When more than two or three coordinate approaches toward the same end appear within the same vote, it is virtually impossible for the ordinary citizen to understand the proposal.109

Role of the Media Studies indicate that voters obtain much of their information about initiatives from the media. An important dimension in fulfilling the media's role of informing the public is the extent to which the media call attention to the complexity of proposals. One way that the media might encourage more understandable proposals is to routinely urge a vote against proposals that are unclear or too complex.

New Constitutional Language for Initiatives The existing procedures governing the initiative process are almost exclusively adaptations of language and ideas taken from the legislative process. If the initiative is to accomplish the purposes for which it was brought into being, this mold will have to be broken and procedures developed that are specifically designed for the needs of the initiative process. Accomplishing this goal may well require the development of totally new concepts.

109A leading Swiss commentary divides Swiss federal initiatives into the following categories: (I) single purpose, (2) single purpose plus the necessary financing, (3) single purpose plus a transition provision, (4) a general, abstract purpose joined with prohibition of some specific facility such as a nuclear power plant, (5) a goal joined with the details necessary to carry out the goal, and (6) joining of several or more elements that have some historical or pragmatic connection. Wildhaber, "Art. 121/ 122," pp. 29-30. Following this model, an expert opinion for the Swiss parliament developed a slightly different version of the last three categories: (4) joining of various requirements with a logical connection, (5) elimination of a named rule, agency, or expenditure joined with a specified substitute, (6) joining of various requirements with a factual connection. Schindler, "Rechtsgutachten tiber die Volkinitiative," pp. 392-401.

CHAPTER TEN

REDUCING COMPLEXITY III: THE NUMBER OF INITIATIVES NUMBER OF INITIATIVES

IN MANY STATES THE NUMBER OF INITIATIVES APPEARING on the ballot does not appear to be a problem. While the number of initiatives increased nationally during the 1980s, most states had no more than two or three statewide initiatives on any single ballot. Initiatives are not the only matters that appear on ballots, however, and many jurisdictions have concerns about the overall length and complexity of their balloting process. There is unfortunately very little scientific research concerning how many issues voters can absorb at a given time. One line of research that is not directly on point but that is relevant to this issue concerns the effect of ballot position on voting. Studies show that, as the ballot becomes longer, voters begin to leave blanks toward the bottom of the ballot. Professor Magleby finds that voter fatigue or dropoff of this kind affects bond issues and ballot measures proposed by the legislature, but that it does not affect the percentage voting on initiatives. 1 Professors Cronin and Zisk agree.2 A major factor in these analyses is strong evidence that highly publicized initiative campaigns generate voter interest and that voters frequently scan the ballot to find the controversial propositions regardless of ballot position. Another line of research that is relevant to the number of initiatives that votIDavid Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), pp. 90-95. Professor Magleby's results for Washington differ somewhat from his more general findings. 2Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum and Recall (Cambridge, Mass.: Harvard University Press, 1989), pp. 68-70; Betty Zisk, Money, Media, and the Grass Roots: State Ballot Issues and the Electoral Process (Newbury Park, Ca.: Sage Publications, 1987), pp. 162-164; and John Mueller, "Voting on the Propositions: Ballot Patterns and Historical Trends in California," American Political Science Review 63 (1969): 1197-1213.

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ers can absorb concerns the effect of ballot position on election outcomes. Professor Magleby suggests that ballot measures appearing at the top of the ballot are more likely to pass than those at the bottom. Using California data Professor Magleby finds an average decline of 0.85 percent in the chances of passage for each step downward toward the bottom of the ballot.3 This finding is certainly explained in part, however, by the fact that bond measures and legislative ballot propositions precede initiatives on the California ballot and that these measures are often not terribly controversial. On balance the analyses available show little evidence that position on the ballot influences either the amount of participation or the success or failure of initiatives.4 Most of the analyses to date, however, were based upon the shorter ballots of the 1960s and 1970s. More importantly, none of the studies sought to analyze the outside limits of the number of issues that voters could absorb. It would be wrong therefore to conclude that ballot length can be extended indefinitely without adverse consequences for voter comprehension and participation.5 One obvious method for limiting the impact of initiatives on ballot length would be to restrict the number of initiatives that appear. Of the 25 American jurisdictions that allow use of the initiative process, only Mississippi has adopted this approach. It imposes a limit of five initiatives, giving priority to the earliest filed with enough signatures.6 Three other states limit the number of constitutional amendments that the legislature may propose for a single ballot. Arkansas and Illinois limit the number of constitutional amendments that the legislature may propose to three, while Colorado allows six.7 In the early years of its initiative Arkansas applied its limit to both initiative proposed and legislatively proposed constitutional amendments. In 1920, however, it adopted a new constitutional guarantee rejecting all limits on the number of initiative constitutional amendments.8 In addition to the normal initiative process that allows laws to be adopted through a vote of the people, Massachusetts allows citizens to put advisory questions of public policy on the ballot. While Massachusetts does not restrict the number of initiatives, it limits the number of public-policy questions that may be

3Magleby, Direct Legislation,

pp. 54-56.

4Cronin, Direct Democracy, pp. 68-70. 5In his presentation to the California Citizen's Commission on Ballot Initiatives on February 25, 1993, Mervyn Field, California's leading pollster, stated that the degree of attention given by voters to an initiative is "highly dependent on the number of other propositions appearing on the same ballot." "We have found," he said, "that there is a definite limit to the amount of attention and involvement that voters have for ballot propositions." P. 5. For a general discussion of the effects of complexity on political decision-making, see Herbert Simon, "Human Nature in Politics: The Dialogue of Psychology with Political Science," American Political Science Review 79 (1985): 293. 6Miss. Const. art. 15, *273(9). 7 Ark. Const. art. XIX, *22; Colo. Const. art. XIX, *2; Ill. Const. art. XIV, *2. 8 Ark. Const. amend. VII. This provision was adopted in 1920, in effect overruling State ex rei. Little Rockv. Donaghey, 152 S.w. 746 (Ark. 1912).

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posed to three. Public-policy questions are placed on the ballot in the order that they qualify.9

California In recent years the number of statewide initiatives qualifying for the California ballot has increased dramatically, going from 24 in the 1970s to 54 in the 1980s and 40 in the first six years of the 1990s. Some have attributed this increase to increased partisanship and bitterness in the legislature and to the inability of the executive branch and the legislature to work together. I 0 Whatever the causes, with a record high 18 statewide initiatives on the ballot in 1990 alone, the high pace shows no sign of slowing. At least some voters are upset by this large number of ballot measures. Prior to the November 1990 ballot, for example, local television stations reported that many California voters intended to vote "no" on all the ballot measures to be voted on because there were so many of them. 11 In the absence of better empirical research about what an individual voter can absorb, it is it difficult to answer the question of how many is too many. It is possible to get some perspective, however, by viewing the problem historically. The number of initiatives appearing on the California ballot in the 1980s was dramatically higher than those in the 1940s and 1950s, but only a third higher than the 1912-1939 average, as shown in Appendix A, Table 3 (page 237). The 1990s pace, however, is 40 percent higher than that of the 1980s and 80 percent higher than that the 1912-1939 average. Historically the California legislature has placed far more proposals on the statewide ballot than the initiative process. Between 1912 and 1996 over 1,000 measures appeared on the California ballot, over 70 percent placed on the ballot by the legislature, as shown in Appendix Table 3. Even in decades such as the 1980s and 1990s when there was intense initiative activity, the legislature's share of ballot positions was over 60 percent. Even the November 1990 ballot containing 13 initiatives, the second highest total on record, contained more legislative proposals than initiatives. Its total of 15 legislative measures included 10 bond issues, four constitutional amendments, and one statute. Overall control of the length of the statewide ballot is thus largely in the hands of the legislature. The California Policy Seminar report concluded in 1992 that over the history of the initiative the number of initiatives had not been too great, and that the number should be neither greatly increased nor greatly decreased. 12 The report also 9Mass. Gen. Laws Ann. ch. 53, ~21 (West 1991). JOEugene Lee, "Representative Government and the Initiative Process," in John Kirlin and Donald Windler, eds., California Policy Choices 6 (Los Angeles: University of Southern California School of Public Administration, 1990): 227-253 discusses some of these opinions. IlVoters feel that there are too many. "Voters Say Initiative Process Is Too Complex, Out of Control," Los Angeles Times, November 4, 1990, sec. A, pp. I, 38, 43. 12Philip Dubois and Floyd Feeney, Improving the California Initiative Process: Options for Change (Berkeley: California Policy Seminar, University of California, 1992), pp. 93, 161, 165.

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concluded, however, that the California voting public was neither willing nor competent to respond effectively to the number of issues that had sometimes been presented in the 1980s and 1990s. The report discussed some of the strategies available for reducing the number of excessive initiatives without greatly restricting the initiative process: (1) allowing the "free market" to work, (2) making it more difficult to place initiatives (or other measures) on the ballot, (3), arbitrarily limiting the number of initiative measures that might appear on the ballot, (4) arbitrarily limiting the number of legislative ballot measures, and (5) allowing the legislature to serve as a traffic cop for the ballot. A sixth possible strategy, now used in Switzerland, is more frequent voting.13 Some highly knowledgeable observers believe that there is no need to establish formal limits for the number of initiatives because the "free market" will itself establish limits. In their view initiatives are just one of a number of different ways that citizens or organizations have to accomplish policy objectives. Other methods of producing change include legislative action, public relations campaigns, court suits, and legislative efforts at a different level of government. Each method presents different possibilities for success and each has its own costs. If there are "too many" initiatives on a particular ballot, the electorate will react by voting against the proposals. The sponsors not only lose the election but all the effort and money that they had to put into the initiative campaign. In such circumstances the free market constrains future initiatives as potential sponsors take the possibility of such losses into account. Not wanting to risk such losses, they will decide to use methods other than the initiative for achieving their policy aims. Proponents of the "free market" approach would find much in the California experience in the 1990s to support their views. In the 1990 elections there were 18 initiatives, a record number. Most of these were defeated, at least partly because the electorate thought there were too many ballot measures. Only seven initiatives found their way to the ballot in 1992, however, and in 1994 the number was again seven.14 Obviously initiative proponents had gotten the message that there are risks as well as benefits to the initiative device. A second possible solution to the problem of "too many" initiatives would be to create stricter standards for placing initiatives on the ballot. This might be done by increasing the number of signatures required, changing the time period allowed for signature collection, or through the imposition of other types of restrictions. (See Chapter Seven.) Although perhaps useful in limiting the num13See Chapter Five. An unpublished study that examined citizen awareness of 64 ballot issues in California between 1956 and 1994 found tremendous variation in awareness. Highest was a 1982 initiative concerning gun control (97% awareness); lowest was a 1988 initiative that sought to limit lawyer's contingency fees (17% awareness). This study found that voter awareness was about 15 percent higher in years in which there was no Presidential election. This strongly suggests that the timing and frequency of initiative votes can affect citizen awareness. Steve Nicholson, "Agendas, Political Knowledge and State Ballot Issues" (Unpublished paper, University of California, Davis, 1997). '''The governor also called a special election in 1993 for one initiative.

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ber of initiatives, higWy restrictive standards for placing initiatives on the ballot make it more difficult for some groups, particularly groups without large amounts of money, to use the procedure and undercut the value of the initiative. Because many people find it more important to protect the access of all groups to the initiative than to solve the problem of "too many" initiatives, it could be politically difficult to enact stricter standards. While acknowledging that the free market does serve as something of a limit, other observers argue that this limit is at best haphazard and erratic. They see an inevitable push toward more initiatives in states where there is an established initiative industry. Arbitrarily limiting the number of initiatives, in their view, has the advantage of directly addressing the problem of "too many" initiatives, and, if the number is not set too low, need not be terribly restrictive on the opportunity to present initiatives. Such a limit would, however, pose the problem of deciding which initiatives would go on any given ballot and what would happen with those initiatives that did not get on that ballot. One possibility is to prioritize by date of qualification; another would be to use the number of signatures gathered. The California Policy Seminar report recommended that a limit of six statewide initiatives be established for any single ballot, that initiatives continue to go on the ballot in the order in which they qualify, and that if more than six initiatives qualified for a single ballot, the first six to qualify should go on the ballot and the remainder should be held for the next ballot.15 The report argued that even this number would tax the capacity of the electorate when there is a large number of legislatively proposed ballot measures. Viewed historically, a limit of six initiatives per election would not be a terribly stringent limitation. If such a limitation had been in effect from the beginning of the initiative process in California, it would have affected 12 of the 66 elections available for ballot measures between 1912 and 1996, and five of the elections involving ballot issues since 1950.16 Such a limitation would have significantly reduced the number of initiatives appearing on the November 1988, November 1990, and November 1996 ballots. A finite limit on the number of initiatives that can appear on any single ballot still leaves the legislature free to place as many statewide measures on the ballot as the legislature chooses. The California Policy Seminar report thought that a good argument could be made for either limiting the number of legislative ballot measures or requiring some kind of legislative supermajority if the legislature wanted to propose an unusually large number of statewide ballot measures. Based on the California historical experience, it suggested that 12 legislative pro15Dubois and Feeney, Improving the California Initiative Process, pp. 93, 165. 16Prior to 1960 initiatives were not included on the ballot for June primaries. If initiatives were restricted to the November general election ballot, a restriction to six initiatives per ballot would have greater effect. There were more than six initiatives in seven of the 18 general election years between 1962 and 1996.

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posals per election might be a reasonable number to consider. 17The report made no recommendation, however, because the considerations affecting legislative proposals are quite different from those affecting initiatives, and the authors had not studied the problem of legislative ballot measures. Some legislative ballot measures are more technical than controversial, and do not tax citizen capacities in the same way that initiatives do. Whether a limitation on the number of legislative ballot measures is wise or not, the California Policy Seminar report argued that the responsibility for managing the number of issues appearing on the ballot should be placed clearly on the legislature. At present neither initiative proponents nor the legislature have any obligation to consider the impact that their proposals will have on the overall length of the ballot. While the governor has the authority to call special elections on ballot measures, 18 the legislature is in a better position to serve as the traffic officer for the overall ballot. The California Policy Seminar report also urged consideration for giving the legislature explicit authority to manage the statewide ballot and holding the legislature accountable for how it carries out this responsibility.19 In order to begin to establish legislative accountability for managing the ballot, the report also suggested that the legislature be required to make special findings when it places an unusually large number of measures on the statewide ballot and that a statement be placed on the ballot or in the ballot pamphlet indicating that the legislature is responsible for the total number of statewide ballot measures.

CONFLICTING BALLOT PROPOSITIONS Sixteen jurisdictions provide that if two or more conflicting initiatives are each adopted on the same ballot, the initiative with the greater number of votes controls, as shown in Table 34. In four states the provision is even more precise, indicating that the initiative with the greatest number of affirmative votes controls over the initiative with the greatest majority of votes. Because voters do not have to vote for initiatives unless they want to, frequently the total number of votes cast for initiatives on the same ballot differs. Initiative A, for example, may receive 100,000 total votes and initiative B, 90,000 total votes. This situation creates the possibility that the initiative that wins by the greatest majority or the greatest percentage of votes will not have the larger number of affirmative votes. If initiative A, for example, were to be adopted by 51,000 to 49,000 votes and initiative B by 50,000 to 40,000 votes, initiative A would have the larger number of affirmative votes (51,000 versus 50,000), but initiative B would have a greater majority (l0,000 versus 1,000 votes) and a higher percentage of the total vote (55 17Historically the average between 1912and 1990was about 16per election. Since 1960,however, when ballot propositions began appearing on the primary ballot as well as on the general election ballot, the average through 1996was about 10. 18Cal. Const. art. 2,

S 8(c).

19Dubois and Feeney, Improving the California Initiative Process, pp. 93-94.

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TABLE 34. Conflicting Ballot Propositions

Type

Greatest Number of Affirmative Votes Control

Other Provisions

Indirect Only Alaska

No

None

Maine

No

Mississippi

Yes

(I) Choose between competing measures or reject both; (2) If neither passes, highest loser resubmitted at next election (I) Const. amend. controls statutory initiative. (2) Legis. can group competing proposals Voters can choose between competing measures or reject both

Wyoming

No

None

Massachusetts

Yes*

Mixed Michigan

Yes

None

Nevada

Yes

None

Ohio

Yes

None

Utah

Yes

Washington

No

(1) Governor proclaims winner (2) 3D-day challenge period Voters can choose between competing measures or reject both

Both

Direct Only Arizona

Yes

None

Arkansas

Yes

None

California

Yes

None

Colorado

Yes

None

D. of Columbia

Yes

None

Florida

No

None

Idaho

Yes*

None

Illinois

No

None

Missouri

Yes

None

Montana

No

None

Nebraska

Yes

None

North Dakota

None

None

Oklahoma

Yes*

If neither passes, highest loser resubmitted at next election

Oregon

Yes*

South Dakota

No

Governor proclaims winner None

*Controls over greatest majority. Sources: Ariz. Canst. art. IV, pt. 1,91(12); Ark. Canst. amend. VII; Cal. Canst. art. II, 910; Colo. Rev. Stat. 9140-123 (West Supp. 1993); D.C. Code Ann. 91-1320(s) (1992); Idaho Code 934-181 I (1981); Me. Canst. art. IV, pt. 3, 918, Me. Rev. Stat. Ann. tit. 21-A, 9906(6) (West 1993 & Supp. 1993); Mass. Canst. amend. art. XLVIlI, Init., pt. 6; Mich. Canst. art. II, 99 (statutes), art. XII, 92 (canst. amend.); Miss. Canst. art. 15,9273; Mo. Canst. art. III, 951; Neb. Canst. art. Ill, 92; Nev. Canst. art. XIX, 92; N.D. Canst. art. III, 98; Ohio Canst. art. II, 91b; Okla. Stat. Ann. tit. 34, 921 (West 1990); Or. Rev. Stat. 99254.065, 254.555(2)(b) (1993); Utah Code Ann. 920A7-211 (Supp. 1994); Wash. Canst. art. II, 91.

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versus 51 percent). All the states that have explicit rules about this situation indicate that in the event of a conflict between initiatives of this kind, the initiative with the greatest number of affirmative votes controls. In the example, this would be initiative A. Six states have no provision regarding conflicting provisions. Six others have explicit provisions making it clear that the rule applies to both statutes and constitutional amendments. A few states have other provisions designed to help avoid problems with conflicting provisions. In Utah the governor makes the initial determination of whether there is a conflicting provision, and declares which proposition controls based on the highest number of votes.20 Anyone wishing to challenge his determination must do so within 10 days. Oregon law requires the governor to make a 21 In Massimilar determination but contains no comparable challenge procedure. sachusetts there is a second rule for resolving conflicts between competing initiatives on the same ballot. Under this rule constitutional provisions control over statutory provisions.22 In Washington, Maine, Mississippi, and Massachusetts the ballot itself may be designed to prevent or minimize conflicts. Washington voters are asked to express two preferences about conflicting proposals. First, voters are asked to express their preference as to whether either of the competing measures should be adopted. Secondly, they are asked their preference as to which of the two measures should be adopted. If the first vote is negative-that is, if voters as a group do not want either of the two measures, both fail. If the first vote is positive, however, then all voters get to vote on the question as to which measure should be adopted.23 The Mississippi provision is similar, as is the Maine provision for legislative alternatives.24 In Massachusetts the legislature designates propositions as 25 conflicting or alternate measures, only one of which can be adopted. If the conflicting proposals are all defeated, two states (Maine and Oklahoma) automatically place the losing proposal with the highest number of votes on the next statewide ballot for a further vote. To go on the next ballot both states require that the proposal have received at least a third of all votes cast on the competing measures.26 The Washington procedure has been used three times and appears to have worked well. In all three instances both the initiative and the legislative alternative received a majority of the votes. In two instances in 1972 the voters preferred

20Utah Code Ann. 920A-7-211 (1984). 210r. Rev. Stat. 9254.555(2)(b)

(1993).

22Mass. Const. amend. art. XLVIII, Init., pt. 6. 23Wash. Const. art. II, 9 I. 24Miss. Const. art. 15,9273; Me. Const. art. IV, pt.3, 918. If there is more than one initiative in Maine, the secretary of state "shall write the questions in a manner that describes the differences between the initiatives. Me. Rev. Stat. Ann. tit. 2l-A, 9906(6)(West 1993 and Supp. 1993). 25Mass. Const. amend. art. XLVIII, Init., pt. 6. 26Me. Const. art. IV, pt. 3, 918; Okla. Stat. Ann. tit. 34, 921 (West 1990).

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the legislative alternative; in 1988 the voters preferred the original hazardous waste cleanup initiative. Maine has twice had competing measures on the ballot. In 1948 the two competing proposals appeared on the ballot separately without the use of any comparative voting method. Both measures were defeated. In 1985 voters were given a three-way choice. They could vote for the initiative, for the alternative measure, or against both. They voted in favor of the initiative. This method of voting is simpler than the Washington scheme but more confusing. The Massachusetts legislature once sought to use its procedure, but its Supreme Court held that the legislative alternative was not a true "substitute" and ordered it off the ballot. 27 The Mississippi procedure has not been used. The Swiss have considerable experience with conflicting proposals, mostly with competition between an initiative and an alternative proposal put forward by the Swiss parliament. There were 13 such votes between 1891 and 1991. Two initiatives and six parliamentary counterproposals were adopted, and in 5 instances both the initiative and the counterproposal were rejected. In these elections Swiss voters were allowed to vote against both measures but were not allowed to vote in favor of both. This limitation was heavily criticized, however, and in 1988 a new procedure somewhat like that in Washington was put into effect.28 The rules concerning which proposal controls are useful in determining what to do when more than one proposal on the same subject is approved by the voters. They do not settle all the issues, however, because the courts must frequently determine what constitutes a conflict between competing proposals. In 1988, for example, California voters approved two propositions dealing with the financing of political campaigns. These two propositions overlapped in their core provisions, but each contained elements that were not in the other proposition. The Fair Political Practices Commission and the lower courts implemented all of the proposition with the higher number of votes, but sought also to implement the "non-conflicting" parts of the proposition with the lower number of votes. Considerable litigation and confusion resulted.29 This was resolved in 1990, when the California Supreme Court ruled that if both propositions seek to comprehensively regulate the subject, the proposition with the lower number of votes should be totaIly ignored.30 While some have criticized this ruling,31 it 27Buckley v. Secretary of the Commonwealth, 355N.E.2d806(Mass.1976),discussedin Robert Stewart,"TheLawof InitiativeReferendumin Massachusetts,New England Law Journal 12(1977): 455,499.503. 28Hans-UrsWiJi,"JuxPopuli?VoxDei?"Zeitschrift fUr Schweizerisches Recht 100(1991):486, 492n.45. 29"Ratherthan beingtwo initiativesaffectingcampaignpracticesin California,Propositions68 and 73 havedevelopedintoan attorneys'annuityprogram.So far, I0 lawsuitshavebeenfiledconcerningthetwocampaignfinancereformmeasures."Cal.FairPoliticalPracticesCommission,FPPC Bulletin 15(No.7, July 1989):J. 30Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm 'n, 51 Cal. 3d 744 (1990). 31 CaliforniaCommission on CampaignFinanc.ing,Democracy by Initiative: Shaping California's Fourth Branch of Government (LosAngeles:1992),pp. 305-309.

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seems sensible and wise. The California Policy Seminar report recommended that the courts adhere closely to it, resolving any doubts as to the severability of parts of the lower vote initiative against survival of that initiative.32 A similar issue that arose in California in 1982 illustrates how long this kind of problem can fester. In this instance the proposition with the highest number of votes related to only one part of the proposition with a lower number of votes. Proposition 4, a legislative ballot measure concerning bail procedures, received more votes than Proposition 8, an omnibus crime control initiative that included a section concerning bail procedures. In 1982 the California Supreme Court indicated that the bail provisions of Proposition 8 may not have taken effect because of the greater vote for Proposition 4. The court did not rule on the issue, however, and the matter remains undecided.33 In the meantime courts and commentators have taken a variety of positions on the question. Legal publishers and many lower courts have long used Proposition 4 as the controlling authority.34 Others, however, have found that the two propositions could be reconciled and have attempted to use both.35 This kind of issue illustrates the virtues of clarifying procedures such as the governor's proclamation in Utah and Oregon and a presumption against the survival of the lower vote proposition in the courts.

California A new generation of problems has begun to appear in California. Many initiative opponents have concluded that the best way to defeat an initiative is to propose a counterinitiative that can appear on the same ballot. In November 1990 there were four sets of competing measures-two each on alcohol taxes, pesticides, timber harvesting methods, and legislative term limits.36 In November 1988 there 37 were four competing measures concerning automobile insurance. These counterinitiatives are often not simply alternate methods for accomplishing the goal espoused by the fIrst initiative. Many are more like "poison 32Dubois and Feeney, Improving the California Initiative Process, p. 95. 33Brosnahan v. Brown, 32 Cal. 3d 236, 255 (1982). 34See, e.g., Cal. Const. art. I, ~12 note (West 1983); People v. Cortez, 6 Cal.App.4th 1202, 12101211 (Ct. App. 1992); People v. Barrow, 233 Cal.App.3d 721 (Ct.App. 1991). In proposing a further amendment in 1994 to the bail portions of the California Constitution, the legislature also used the text of Proposition 4 as the controlling authority. See also Elizabeth Stein, "The California Constitution and the Counter-Initiative Quagmire," Hastings Constitutional Law Quarterly 21 (1993): 143, 179. 35Julius Leetham, " ... And the Defendant Will Be Admitted to Bail," Journal of the Beverly Hills Bar Association 18 (1984): 176. In Williams v. County of San Joaquin, 225 Cal.App.3d 1326, 1332 n.5 (Ct. App. 1990), the court assumed, without deciding the issue, that the bail portions of Proposition 8 remained in effect. See also Opinions of the California Attorney General 67 (1983): 162, 168; 67 (1983): 178, 191 (incidental but inconclusive references). 36 The alcohol measures were Propositions 126 and 134; the timber harvesting initiatives were Propositions 130 and 138, the pesticide measures were Propositions 128 and 135 and the legislative term limits measures were Propositions 131 and 140. Proposition 126 was placed on the ballot by the legislature. 37 Propositions 100, 101, 103, and 104.

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163

pills." These "poison pill" initiatives generally look like alternate methods toward the same end, but are in reality designed primarily to negate the competing proposal. Under California law-which does not include any procedure for grouping alternative proposals-they have appeared on the ballot in the order in which they qualified and with relatively little guidance to the voters about the conflicts involved. Not surprisingly, all sorts of confusion has resulted, and the tactic of using counterproposals to defeat initiatives has been a great success. Because there may be more than two proposals and because the proposals are often not true alternatives to each other, it could be argued that the voting procedures used in Washington, Mississippi, Massachusetts, and Switzerland for alterative proposals are not particularly appropriate for this new kind of counterproposal. Logic suggests, however, that the procedures used in Washington and Switzerland would in fact also work well with this new kind of counterproposal. Voters would be forced to consider the competing measures as a group and would have a method for expressing their policy preferences. In states with ballot pamphlets it would also be helpful if the competing proposals were grouped and analyzed together.38 Although the task of making the necessary groupings on the ballot might sometimes be largely clerical, it might sometimes require great skill and judgment. This task should therefore be assigned to an office that can exercise this skill and judgment in as nonpartisan a manner as possible.

38The California legislative analyst has on occasion done this. The California Policy Seminar report, Dubois and Feeney, Improving the California Initiative Process, pp. 94-95, recommends grouping this kind of initiative on the ballot as does Elizabeth Stern, "The California Constitution and the Counter-Initiative Quagmire," Hastings Constitutional Law Quarterly, 21 (1993), pp. 143, 184187.

CHAPTER ELEVEN

IMPROVING VOTER UNDERSTANDING QUALITY OF VOTER PARTICIPATION THOSE

WHO HAVE STUDIED VOTER BEHAVIOR

in initiative and proposition elec-

tions remain divided in their assessment of voters' abilities to participate meaningfully in the process of direct legislation. Following his book-length treatment of the subject, political scientist David Magleby concluded that: The majority of ballot measures are decided by voters who cannot comprehend the printed description, who have only heard about the measure from a single source, and who are ignorant about the measure except at the highly emotional level of the television advertising, the most prevalent source of information for those who have heard of the proposition before voting. The absence of straightforward, understandable, rational argumentation in initiative campaigns, combined with what has been discovered about voting decision making in these situations, raises serious questions about the integrity of the direct legislation process. 1

In contrast, political scientist Thomas Cronin argued that voters are "not as competent as we would like them to be, yet not as ill informed or irrational as critics often insist.,,2 Although voters are sometimes confused by the wording or meaning of complex ballot measures and may end up voting contrary to their actual policy preferences, "on most issues, especially well-publicized ones, voters do grasp the meaning of the issue on which they are asked to vote, and ... they act competently.,,3 Although scholars differ about how well voter participation works in the initiative process, they do seem to agree that the quality of voter participation in deciding

lDavid Mag1eby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), p. 198. 2Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass: Harvard University Press), p. 87. 3Cronin, Direct Democracy, p. 87.

164

Improving Voter Understanding

165

ballot measures is generally improved when: (1) the issues at stake are controversial and, accordingly, well publicized; and (2) voters can call on multiple sources of information to understand the arguments advanced by both supporters and opponents.4 This is particularly true with respect to low-income voters with limited education who, when confused by ballot issues, are likely to refrain from voting on them entirely or to cast votes that do not reflect their actual point of view.5 Among the many potential sources of information for voters, newspapers and television top the list of sources on which voters rely, particularly in highly publicized campaigns. Well-educated voters are likely to cite newspapers as their most important source of information, but use other sources of information as well-television, radio, magazines, friends, and the voter pamphlet. In contrast, less-educated voters tend to rely on one source of information at best; usually that source is television.6

THE VOTER INFORMATION

PAMPHLET: WHO USES IT AND HOW?

One important source of information to help voters evaluate competing assertions made by initiative proponents and opponents, particularly in sophisticated massmedia advertising campaigns, is the voter information pamphlet. As of 1996, 11 states prepared voter information pamphlets, although the amount of information provided in the pamphlets and their circulation varies considerably from state to state. Appendix Table 4 describes the provisions for voter information concerning initiatives in each initiative state.7 Some states merely reprint the full text of the proposed measure and arrange for it to be distributed at the polling place on election day or to be published in advance in various newspapers.8 Other states go to great lengths to provide voters with a wide range of information about ballot measures, assemble them in a convenient pamphlet, and mail it to voters prior to the election. California, for example, provides voters with the full text of each measure, an official title and summary prepared by the attorney general's office, votes in the legislature for and against a proposed legislatively-referred measure, SOD-word arguments for and against a proposed measure and accompanying 2S0-word rebuttals on each side, 4See generally Magleby, Direct Legislation, pp. 122-144, and Cronin, Direct Democracy, pp. 87-89. 5See Magleby, Direct Legislation, pp. 100-118, and Cronin, Direct Democracy, pp. 75-78. See also Herbert Asher, "Voter Confusion in Initiative Elections," paper prepared for Annual Meeting of the American Political Science Association, Atlanta, August 30-September 3, 1989. 6Magleby, Direct Legislation, pp. 130-136. 7 Our concern in this chapter is with the usefulness of the ballot pamphlet as a source of information to guide voter decision-making. We are not concerned here with describing the variety of methods used to write the official captions and descriptions of ballot measures, methods for contesting such descriptions and resolving disputes, or the alternative means by which ballot arguments are assembled. Various state arrangements in these areas as well as a useful analysis of the ballot pamphlet are covered by the report of the California Commission on Campaign Financing, Democracy By Initiative: Shaping California's Fourth Branch o/Government (Los Angeles: 1992), pp. 227-262. See also Table 9 (page 40).

SHerbert Graham, "The Direct Initiative Process: Have Unconstitutional Methods of Presenting the Issues Prejudiced Its Future?," UCLA Law Review 27 (1979): 441, 467-470.

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and an "impartial analysis" prepared by the office of the legislative analyst that includes an assessment of the fiscal impact of a measure on state or local governments. As a result of legislation adopted in 1989, the voter information pamphlet also contains an overview of the state's current bond indebtedness and a discussion of the impact that a bond measure, if approved, would have on the debt leveI.9 All California households with a registered voter receive the voter information pamphlet from ten days to three weeks before the election (depending on how recently they registered); the pamphlet is also widely distributed throughout the state in public libraries, high schools, and institutions of higher education. I 0 Just how important the voter pamphlet is for helping voters make up their minds on ballot propositions appears to depend upon the electoral context and the characteristics of the voter. Using survey data, Magleby placed the proportion of California voters who read the pamphlet at from 13 to 33 percent, found that those who read it are well educated and attentive to political affairs, and that the pamphlet's influence declines in highly publicized ballot-measure campaigns where mass-media coverage captures more public attention. II On the other hand many jurisdictions report heavy voter reliance on the pamphlet with many voters indicating that they regard the pamphlet as extremely helpfuI.12 The pamphlet may be particularly important in initiative campaigns because voters in these campaigns usually take much longer to make up their minds than they do in candidate campaigns. 13 According to one study, late-deciding voters who have had the full "benefit" of the information provided in initiative campaigns, but who have not had access to voter information pamphlets, may be even more confused than voters who have made up their minds before the campaign ever begins. 14 In an attempt to better understand the value and limitations of the voter's pamphlet, the authors collaborated with the California Secretary of State in placing a survey questionnaire in the back of the voter pamphlet distributed for the November election of 1990.15 Because this survey was not based upon a repre9Cal. Elec. Code {\9088 (West Sp. Pamphlet 1995). lOCal. E1ec. Code {\{\9094-9096 (West Sp. Pamphlet 1995). llMagleby,

Direct Legislation, pp. 132-133, 136-137.

12Cronin, Direct Democracy, pp. 80-81. The results of several recent studies and election polls showing more substantial voter reliance on the pamphlet are reported by the California Commission on Campaign Financing, Democracy by Initiative, pp. 244-246. Even when used heavily, however, pamphlets rank behind television and newspapers as the primary sources of information about ballot measures. 13Magleby, Direct Legislation, p. 124. l4Asher,"Voter Confusion," p. 21. 15Tbe 22-item survey questionnaire was printed on the front and back of a single page. For logistical reasons related to printing of the pamphlet, the questionnaire was placed in a rather obscure location at the back of the booklet, but voters were informed of its presence by a special message from the Secretary of State on the cover and in a box at the head of the table of contents. Voters were required to find the questionnaire, complete it, and return it to the Secretary of State at their own expense. Some of the results of this survey have previously been reported in Philip Dubois, Floyd Feeney, and Edmond Costantini, "A Voter Survey About the California Voter Pamphlet," CPS Brief [California Policy Seminar] 5 (no. 14, Aug. 1993).

Improving Voter Understmuling

167

sentative randomly-drawn sample of citizens,16 it is not useful for understanding opinions within the electorate at large concerning the value of the pamphlet. On the other hand, with nearly 54,000 responses, the survey produced a particularly rich source of opinion from voters who actually read the pamphlet.17 Moreover, by cross-tabulating voter responses with their self-disclosed demographic characteristics, it is possible to gain some insight into the perceived value of the pamphlet among different groups in the voting population at large.18 For this group of highly educated and politically motivated citizens who chose to respond to the questionnaire, the pamphlet is a very useful aid to voting; 69.3 percent found the pamphlet "very helpful" in making ballot choices. And when asked to identify those sources of information they usually use in considering ballot propositions, these voters most frequently chose the ballot pamphlet (92.4%), followed by newspaper stories (63.5%), newspaper editorials (51.4%), friends and relatives (47.8%), television news (38.0%), TV or radio talk shows (34.9%), TV or radio advertisements (29.5%), campaign mailings (27.3%), or recommendations from political candidates or political parties (25.4%).19 Large majorities also affirmed that they read and consider the arguments for and against proposed initiatives (94.2)%, the ballot title and summary (87.0%), the rebuttals (82.3%), and the analysis by the Legislative Analyst (75.5%). Only the legal text (contained in the rear of the California pamphlet) was relatively unimportant to these voters, only 16.8% of whom said they read it.20 Voters also value the other pieces of information contained in a comprehen16As indicated in the previous footnote, the participants in this study were entirely "self-selected" when they completed and returned the questionnaire form. of the respondents (88.1%) reported having at least some college education; said they usually voted in both primary and general elections; 95.4percent voted on most or all of the ballot propositions; 86.3percent reported "always" reading the pamphlet; and 95.9 percent said that they read either "something about most propositions" (34.1 %), "everything but the legal text (45.8%),or "almost everything" (16.0%)in the pamphlet. As pointed out by the California Commission on Campaign Financing, "[i]f those who responded [to this survey] are representative of ballot pamphlet readers in general, those who use the pamphlet are among the most highly educated and politically motivated segment of California's electorate." See Democracy By Initiative, p. 248. 17Nearly

90 percent

92.2percent

18Yoters were asked to reveal their gender, race/ethnicity, political party affiliation, age, and attained level of education. The only variable that appeared to differentiate voter responses to questions concerning their use of the pamphlet and their reliance on various sources of information (Le., television, newspapers, advertisements, friends, etc.) in making voting decisions on initiatives was education. These results, where relevant, are reported in the text. 19This is not a particularly surprising result given that the voters who responded to the survey were those who had already picked up the pamphlet, read it, and returned the questionnaire form. Nevertheless, it does appear that the margin of difference between the importance ascribed to the pamphlet and other sources of information is significant. In addition, when asked to select up to three of the most helpful of these several sources of information, 90.1percent selected the pamphlet, followed by newspaper stories (50.7%)and newspaper editorials (34.9%). 20When asked to identify the single most important part of the pamphlet, 47.6 percent selected the arguments pro and con, with the analysis provided by the legislative analyst in a distant second place (27.9%).When asked to identify a part of the pamphlet that could be eliminated without diminishing the value of the pamphlet, the largest group of voters (39.2%)identified the legal text. Nearly half the voters (47.2%),however, said that the pamphlet "is fine as it is."

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sive pamphlet, such as the one used in California. Nearly eight of ten voters responding (79.2%) to the survey indicated that they use the names of the individuals signing the pro and con arguments as a guide to voting, while nearly as many (77 .5%) find valuable the legislative analyst's estimate of the fiscal effect of a measure. Almost two-thirds of the voters (63.6%) also regard the stated impact of a bond measure upon the state debt as useful information. The only piece of information provided in the pamphlet that a majority of voters do not regard as useful in making up their minds is the reported vote taken by the two houses of the legislature on legislatively-proposed measures; only a third (33.2%) of the respondents said they use this information. At the same time that the pamphlet is useful to those who use it, there is clearly room for improvement. Over a quarter of those responding (27.0%) found the pamphlet only "somewhat helpful," while another 3.7% found it "not very helpful.,,21 And over half (51.4%) of those responding to the survey said they would be more likely to use the pamphlet if it clearly explained the meaning of a "yes" or a "no" vote.22 Analysis of the survey data also clearly indicates that the perceived usefulness of the pamphlet and patterns of its usage vary directly with the educational level of the voter. As shown in Table 35, the proportion of respondents indicating that the pamphlet is only "somewhat" or "not very" helpful is inversely related to the educational level of the voter. Less educated voters are not only more likely to say that they find the propositions generally too complicated to understand, but substantially more likely to say that the information contained in the pamphlet does not help them understand the issues and that they don't believe it anyway.23 On balance, then, it appears that Thomas Cronin's assessment of the ballot pamphlet is correct: "the commonsense verdict has to be that, better designed and prepared, [voter information pamphlets] could be valuable and should be encour2IThe survey also revealed that some of the problems voters have with initiatives have little to do with the pamphlet. When asked why they didn't use the pamphlet more, nearly 20 percent (18.9%) of those responding indicated that they find the propositions too complex to understand even with the pamphlet, while a near equal proportion (18.5%) said that they didn't have enough time to read the pamphlet. 22When asked the question of what changes might make them more likely to use the pamphlet, this was the only response garnering a support from a majority of respondents. Less than half thought that they would use the pamphlet more if it included information about political candidates (41.5%), was shorter (25.4%), received sooner (12.6%). printed with larger type (10.8%), or included information about how to vote by absentee ballot (2.4%). 23When asked why they don't use the pamphlet more, 58.0 percent of the voters with less than a high school education said that they found the propositions too complicated; this proportion compares to 55.6 percent of high school graduates, 47.9 percent of voters with some college, 40.3 percent of those with baccalaureate degrees, and 38.6 percent of those with graduate or professional degrees. Similarly, 39.9 percent of the individuals without high school degrees indicated that the information contained in the pamphlet does not help them understand the issues, compared to 32.2percent of the high school graduates, 24.2 percent of the individuals with some college, 16.7 percent of those with baccalaureate degrees, and 15.5 percent of those with graduate or professional degrees. The proportion of voters not believing the information in the pamphlet ranged from 8.6 percent of those with graduate or professional degrees to 20.5 percent of those without high school diplomas.

Improving Voter Understanding

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aged for those who can read. The challenge is how to make them attractive, readable, accessible, and relevant as a voter resource.,,24 Given what is known about voter behavior and capability, however, how is this challenge to be met? TABLE 35. Perceived Helpfulness

of Voter Pamphlet Respondent's

Helpfulness of Pamphlet

Non-High School Graduate

" High School Graduate

by Level of Education

Level of Education

Some College

Bachelor's Degree

Graduate or Professional Degree

Very helpful

58%

63%

67%

72%

73%

Somewhat helpful

35%

31%

29%

25%

24%

8%

6%

4%

3%

3%

Not very helpful

Total

101%a (N=652)

100% (N=5,601)

100% (N=18,01O)

100% (N=13,748)

100% (N=14,8l4)

aColumn does not sum to 100% due to rounding error.

IMPROVING THE PAMPHLET Reorganize and Improve Format The format of the pamphlet used in the states that distribute voter information pamphlets varies considerably. Some, like the California pamphlet, seem designed to be dull and unappealing; although recent changes in the format have made it less dense, it is fairly described as a lengthy, gray tome. On the other hand, some of the pamphlets used in other states seem much more likely to encourage voters to open the pamphlet and inspect the contents. The voter pamphlets from Massachusetts and Washington state are particularly impressive for their simplicity and clarity. In these pamphlets, the complete text of all measures is reprinted in a section at the rear, following the summaries and pro/con arguments of all ballot proposals. (In Washington, the text appears before the candidate statements, which also appear in the pamphlet.) In the November 1986 election, for instance, Massachusetts voters could learn about the essentials of eight ballot measures in 13 pages, printed in an attractive, eye-catching, threecolor format using at least four sizes of type. Nine pages of 9-point type containing the full text of the proposed measures appeared at the rear. See the 1994 sampIe in Appendix B. Similarly, in November 1988, Washington voters could prepare to cast ballots on six measures by reading through 13 pages and 20 columns of material, most of it in II-point type. Although one-and-a-half to two 24Cronin, Direct Democracy, pp. 82-83.

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pages per initiative is perhaps still intimidating to many voters, it is a far cry from having to wade through the ballot measures themselves. In recent years the California Secretary of State's office has sought to improve that state's pamphlet by using a "bullet" format for the ballot summary, by adding a summary section in the first few pages, and by moving the legal text to the rear of the pamphlet.25 26It remains to be seen whether voters will respond positively to these changes or remain discouraged by the sheer length of the pamphlet. The summary chart, which includes a section explaining the meaning of a "yes" or a "no" vote, is a particularly useful addition (see example in Appendix C). Segregating the text is only meaningful, however, for those voters who actually pick up the pamphlet with the intention of reading it. Voters may simply need more encouragement to read it at all. One possibility is to print the most essential parts of the pamphlet (i.e., the title, summary, analysis, and arguments) in a different color or quality of paper, distinguishable from the gray newsprint containing the text of measures. At minimum, a more creative use of type sizes, styles, and ink color would be an improvementP Change Position of Initiatives. The information in voter information pamphlets in most states is not limited to initiatives. Most pamphlets contain information about other ballot measures and some contain information about candidates as well. State law varies as to the order in which this information appears in the pamphlet. In California, information concerning initiatives follows that concern28 ing bond acts, constitutional amendments, and other legislative acts. Only referenda suffer a less privileged ballot position than initiatives. Given the large number of ballot measures that demand voter attention, there is good reason in many states to place initiatives so that they appear first in the pamphlet ahead of other kinds of ballot measures. Assuming that many voters will not read the titles, summaries, arguments, and analyses for each ballot measure, it makes sense to place those of particular importance in the pamphlet (and perhaps on the ballot) where they are most likely to receive voter attention. Giving priority to initiatives in the ballot pamphlet does not suggest that initiatives are more important than other kinds of ballot measures. Rather, it recognizes that other measures have had the benefit of scrutiny from elected 25Moving the text to the rear of the booklet was a suggestion of the authors. Following discussions with the Office of the Secretary of State, that office proposed successful legislation to place the legal text of ballot measures in the rear of the pamphlet, effective with the November 1990 election. Cal. Elec. Code g9086 (West Sp. Pamphlet 1995)[ch. 1430 (AB 4109), Laws of 1990]. 26Using the bulleted format for the attorney general's summary and creation of a summary chart were ideas suggested by the California Commission on Campaign Financing and subsequently adopted by the Secretary of State for the November 1992 election. See Democracy By Initiative, pp. 251-252,258-259, and Appendix K. 27The California Commission on Campaign Financing also recommends improvements in the design of ballot pamphlet, including the use of different type sizes, fonts, color, column formats, and the use of charts and graphs. See Democracy By Initiative, pp. 256-257. 28This is the order for the ballot. By law the ballot pamphlet follows the same order as the ballot. Cal. Elec. Code gg13,115 and 9,089 (West Sp. Pamphlet 1995).

Improving Voter Understanding

J71

representatives of both houses of the legislature and from the governor. Because initiatives do not benefit from this review, voters need to give them their initial and primary attention. Giving priority to initiatives in the ballot pamphlet or even on the ballot would probably also not affect the outcome of votes on initiatives, referenda, constitutional amendments, or bond measures. Several studies have shown that measures located toward the top of the ballot enjoy no systematic advantage over other ballot measures in terms of voter participation or the chances of passage. Differences in voter participation on ballot issues do not primarily reflect the location of an issue on the ballot, but rather the importance of the issue and the intensity of the campaign mounted to pass or defeat it. 29 Decrease Length. Another reason that many voters fail to make maximum use of voter information pamphlets is their length. The sheer number and complexity of recent California initiatives, for example, has resulted in voter information pamphlets of formidable length. Since 1974, only one regular election pamphlet in California has required fewer than 46 pages, with the average pamphlet (not counting supplements) consuming more than 76 pages. In 1988, the pamphlets accompanying the June and November elections required 63 and 159 pages, respectively. The June 1990 pamphlet consumed 110 pages, not counting a 15-page supplement. The November 1990 pamphlet had 143 pages with a supplement covering 79 pages. The length of the ballot pamphlet appears to be primarily a function of the number of measures being contested. In examining California ballot pamphlets from 1974 to 1988, there was no evidence that the perceived complexity of ballot measures in recent years has resulted in longer pamphlets. In the 16 regularly scheduled primary and general elections from 1974 to 1988, the average number of pages devoted to each measure (whether constitutional amendment, bond measure, initiative, or referendum) was 5.32, ranging narrowly from 4.67 (1976 primary) to 7.25 (1982 primary). The simple correlation between the number of pages per measure and the overall length of the pamphlet is only +.20. In contrast, the correlation between ballot length and the total number of measures is +.96 (where 1.00 is a "perfect" correlation). A fair proportion of the California ballot pamphlet is consumed by the legal text of each measure. In the June and November 1988 elections, for example, 20 (of 63) and 40 (of 159) pages were dedicated to this purpose. The June 1990 pamphlet contained over 59 (of 110) pages of legal text (nearly 25 of which consisted of existing Elections Code provisions to be deleted by the adoption of one of the reapportionment initiatives, Proposition 119). Of the 143-page pamphlet

29See generally Cronin, Direct Democracy, pp. 68-70; Mag1ehy, Direct Legislation, pp. 54-55, 9095; Betty Zisk, Money, Media, and the Grass Roots: State Ballot Issues and the Electoral Process (Newbury Park, Ca.: Sage Publications, 1987), pp. 162-164; and John Mueller, "Voting on the Propositions: Ballot Patterns and Historical Trends in California," American Political Science Review 63 (1969): 1197-1213.

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for November 1990, almost half (more than 70 pages) was consumed by legal text. Remove Legal Text. Consideration should be given to removing the legal text altogether. The California voter pamphlet study showed that only 16.8 percent of the respondents "usually" read the legal text; given that fewer than one in five of the state's most educated and politically active voters bothers to read the text, it must be assumed that there must be even less interest among the electorate at large. For those voters interested in the specific provisions of each measure, the text could in most states be made readily available in public locations, such as public libraries, and on request by telephone, fax, letter, or postcard directed to the distributing authority. Voters might also be allowed to have on file a standing request for the text of measures. 3031 Besides making the pamphlet appear less formidable, economic considerations support removal of the text. The ballot pamphlet for the June 1988 election, for example, cost California taxpayers $8.5 million to prepare, print, and distribute. In 1990 the Secretary of State's Office estimated that each page of the pamphlet currently cost approximately $30,000 in printing and postage. Elimination of the text from the 1988 June and November ballot pamphlets would have saved approximately $1.8 million. Reduce Explanatory Material. A second approach to making the voter information pamphlet less complicated is to reduce the length of the explanatory material. Since 1974, a typical California initiative has required 2,700 words of explanatory material, consisting of 1,500 words of arguments and rebuttals, the attorney general's 100-word official title and summary, and the legislative analyst's analysis, which averages approximately 1,100 words. Reading experts have found that the average reading rate of an adult with a twelfth-grade education who reads material of average difficulty with 70 percent comprehension is 250 words per minute.32 Thus, each initiative could easily require 10 to 11 minutes for the average voter to read. A conscientious voter seeking to read the pamphlet in its entirety, exclusive of the legal text, can expect

3CJ.rheCalifornia Commission on Campaign Financing opposes the idea of removing the legal text from the pampWet. Arguing that the text "lends the ballot pamphlet an important air of legitimacy," the Commission also claims that "whether or not a person reads the text, the very availability of the texts at the back of the pamphlet assures the reader of the accuracy of the official summary and analysis." The Commission asserts further that the presence of the text serves as an important historical record and as a check upon state officials who might otherwise be able to get away with writing a deceptive or inaccurate description. See Democracy by Initiative, pp. 261-262. 3 IThe California Commission on Campaign Financing also does not support the idea of-permitting voters to request the text by postcard; they argue that because voters do not read the pamphlet until shortly before the election there would not be enough time for them to request and receive the text; see Democracy By Initiative, p. 262. Of course, if this is true, this is precisely why having the text in the pamphlet does not serve the purpose of checking the behavior of state officials. 32Ronald Carver, "Is Reading Rate Constant or Flexible?" Reading Research Quarterly 18 (198283): 207-208; Stanford Taylor, "Eye Movements in Reading: Facts and Fallacies," American Educational Research Journal 2 (1965): 193.

Improving Voter Understanding

173

to dedicate from two to three hours to this task. It appears unrealistic to expect this kind of time commitment from the average voter. Reduce Pro and Con Arguments. Among the states permitting pro and con arguments for each measure, California, Idaho, Montana and Utah are the most generous in the space provided, permitting pro and con arguments of 500 words each and rebuttals on each side of 250 words. In contrast, other states have limited pro and con arguments more severely. Massachusetts, for instance, permits just one ISO-word argument per side, with no rebuttals. A longer statement of 500 words per side is kept on file with the secretary of state and is open to public inspection. Washington permits rebuttals, but each side is limited to 75 words in response to a 250-word argument. A comparative analysis indicates that the pro and con arguments presented in the states allowing less space are at least as effective as those in the states allowing more space. To save space, it is recommended that the arguments not exceed 400 words on each side.33 Remove Rebuttal Arguments. The least useful part of an analysis is usually the rebuttal argument. This tends simply to regurgitate the points made in a principal argument, and because of its placement, frequently adds confusion rather than clarity to the debate. For this reason, the rebuttal arguments should be eliminated. The California voter pamphlet survey showed that the rebuttals ranked only behind the legal text as the least helpful part of the pamphlet. The principal reason for having rebuttals is to provide a way for an opposing side to respond to an argument made by the other side of the debate, particularly to surprise arguments. This may be useful in an oral debate, but with written arguments it is not necessary. If arguments were exchanged in advance so that each side could see what the other was saying, then each side could write its most compelling argument without use of a rebuttal. More than one exchange of views might be necessary, but clarity could be gained. In some states rebuttals serve another purpose. In California, for example, they provide each side of the debate with a place to showcase three additional persons or groups in favor of their position. The indications are that voters do use these cues in determining how to vote. One useful change, therefore, might be to increase the number of individuals or groups allowed to sign the main argument from three to ten,34 while at the same time deleting the rebuttals themselves. Set Guidelines on Length of "Impartial Analysis." Some of the states that distribute voter information pamphlets include an "impartial analysis" of the issues, as shown in Appendix A, Table 4 (page 238). In California, for example, the legislative analyst has been directed, since the passage of the Political Reform Act of 1974, to prepare an "impartial analysis" that "shall be written in clear and concise terms, so as to be easily understood by the average voter, and shall avoid 330regon limits its pro and con arguments to 300 words each. Unfortunately, Oregon also permits almost unlimited access to the ballot pamphlet by permitting a pro or con argument to be filed by anyone willing to pay $300 or file a petition with 1,000 signatures. A 1993 special election, for instance, featured six arguments in favor and seven in opposition.

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the use of technical terms wherever possible.,,35 The analyst has been further instructed to include "the information which the average voter needs to understand the measure adequately." Three of the states that include an analysis of this kind set a word limit for the analysis. The limits set are 300 (Arizona), 500 (Oregon), and 1,000 (Utah) words. The benefits to voters of having such a limit and a more concise explanation of a ballot measure must be balanced against the fact that the courts often look to the voter information pamphlet to help determine the "voters' intent" in adopting a statutory provision or constitutional amendment.36 Given the ambiguities and complexities of some initiatives, sufficient space must be provided to permit as clear a statement as possible concerning the background, major provisions, and fiscal effect of proposed measures. It is clear, however, that in seeking to be understandable, the impartial analysis can contribute significantly to lengthening the pamphlet and reducing the chances that the average voter will be willing to read it. In California, for example, since 1974, the legislative analyst's analysis of initiatives has averaged approximately 1,100 words, ranging from a low of approximately 120 words for Proposition 63 in November 1986 (official state language) to about 2,300 words for Proposition 36 (taxation) in November 1984. It seems ill advised to recommend a particular word limit, but advisory legislative language suggesting the desirability of keeping the analysis to 1,000 words or so might be helpful as a guideline.37 Eliminate Summary. Most voter information pamphlets include a brief summary of the proposal. The formats for these summaries vary considerably. In

34rhe California Commission on Campaign Financing, Democracy By Initiative, p. 255, goes beyond this recommendation by suggesting that proponents and opponents of ballot proposals be given one-half page for each measure to list endorsements by prominent groups and individuals. In our view, it is doubtful that such extended lists would provide voters with substantively more help in making a decision and might even result in more confusion. There is limited direct evidence supporting the assertion that these endorsements serve as influential voting cues to voters; see, for example, Magleby, Direct Legislation, pp. 151-159.On the other hand, in our own survey of voters using the California ballot pamphlet, 79.2 percent indicated that they do use the names of supporting groups and individuals attached to the pro and con arguments (and rebuttals) in helping them decide how to vote. For that reason, a limited list of endorsements seems prudent while an extended list does not. In addition, quite apart from the additional length that an extended list would add to the pamphlet and the printing and distribution costs associated therewith, there are associated logistical difficulties, such as having in place some procedure for ensuring that those individuals and groups listed have actually given their permission to be listed. 35Cal. Elec. Code 99087(West Sp. Pamphlet 1995). 36Eugene Lee, "Representative Government and the Initiative Process," in John Kirlin and Donald Windler, eds., California Policy Choices 6 (Los Angeles: University of Southern California, School of Public Administration, 1990):239. 37This suggestion partially depends on the reduction of complexity in individual proposals. The total number of words might also need to be adjusted in light of possible recommendations concerning hidden consequences and sponsorship. See, e.g., Philip Dubois and Floyd Feeney, Improving the California Initiative Process: Options/or Change (Berkeley: California Policy Seminar, University of California, 1992),pp. 165-171.

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the past the California format followed the titling format used by most state legislatures, 100 words of deadly running prose. In November, 1992 the secretary of state's office introduced a new eye-catching "bulleted" format, a significant improvement.38 Even in the new format, however, the summary essentially duplicates the information that appears in the impartial analysis by the legislative analyst. By eliminating the official summary, reducing the space given to proponents and opponents to 400 words each, eliminating the rebuttal arguments, and providing the legislative analyst with a guideline to keep analyses under 1,000 words long, it would be possible to reduce the reading time required for each California initiative by approximately 25 percent or more.39 Financial savings in printing and postage could also be realized.

Establish Readability Standards Even if voter information pamphlets were read by a large proportion of the electorate, existing evidence indicates that many voters lack sufficient educational background to be able to understand what they are reading. Applying several standard "readability tests" to ballot-measure titles, summaries, analyses, pro/con arguments, and the text of measures themselves that appeared on the California ballot between 1974 and 1980, Magleby found that even the most understandable portion of the pamphlet-the arguments in favor and against-requires a full year of college, while the text of the ballot measure and the legislative analyst's analysis challenge even third-year college students. Indeed, official summaries of ballot measures are typically understood only by those who have attained the equivalent of two years of post-baccalaureate work.40 Magleby's readability analysis showed that the legislative analyst's impartial analysis was far more comprehensible than the official summary prepared by the attorney general, but showed that even the analyst's work required a grade level of from 14.5 to 15.4 (2 to 3 years of college). The standard readability formulas are based primarily on the usage of common words and the complexity and length of sentences.41 Because these formulas do not measure the difficulty of the ideas or concepts in written materials, they may overestimate the ability of 38This suggestion was originally made by the staff of the California Commission on Campaign Financing and adopted subsequently by the Secretary of State in 1992. See California Commission on Campaign Financing, Democracy by Initiative, p. 253 n.83 and pp. 258-259. 39The California voter pamphlet survey showed that time is an important consideration in voters' utilization of the pamphlet. Among those respondents willing to specify a reason for not using the pamphlet more, responses were split almost evenly between those who said that the propositions were too complicated for them to understand and those who indicated that they did not have enough time to read the pamphlet. Shortening the length of the pamphlet would thus seem to be a particularly significant consideration for the latter group, while clarifying the meaning of a yes or a no vote would help the former. 40See Magleby, Direct Legislation, pp. 118-119, 138-139. See also Nick Brestoff, "Note, The California Initiative Process: A Suggestion for Reform," Southern California Law Review 48 (1975): 922,935 n.67. 41Magleby, Direct Legislation, Appendix D.

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voters to comprehend what is in the voter information pamphlet. For example, even individuals with from one to three years of college (grades 13-15) can read and actually understand (at a 75 percent comprehension level) less than 40 percent of the passages judged to be written at this high level of difficulty.42 Since Magleby's study, there has been a major effort in California to improve the readability of the legislative analyst's analysis. Since 1985, the analyst has been required to submit proposed analyses to a committee of five persons appointed by the analyst to make recommendations "as it deems appropriate to guarantee that the analysis can be easily understood by the average voter." The recommendations submitted by this "readability committee" may then be adopted by the analyst at his or her discretion.43 Although the actual grade-level readability of each analysis could be routinely measured by anyone of several computer-based formulas, this is not done. Primary reliance for readability is thus placed on the judgment of the legislative analyst's office and the readability committee. Both are undoubtedly keenly aware of the pamphlet's possible role in future court interpretations of adopted measures, thereby producing an understandable concern that the analysis be as comprehensive and technically correct as possible. While this effort has undoubtedly made the analysis readable by more voters,44 it is still the case that the analysis is meaningful to a smaller percentage of the electorate than a sophisticated city newspaper, such as the Washington Post, which has a median grade difficulty of 9.2.45 In the United States the average adult has completed high school and less than a fifth has completed a bachelor's degree or equivalent.46 California's population is only slightly better educated; nearly 80 percent has completed high school, but less than 25 percent has completed four years of college or more.47 Actual voters are better educated than the

42RonaldCarver, "Measuring Prose Difficulty Using the Rauding Scale," Reading Research QuarII (no. 4, 1975-76): 673, 678. 43Cal.Elec. Code ~9087 (West Sp. Pamphlet 1995). The legislative analyst may also contract with "professional writers, educational specialists, or other persons for assistance in writing" to ensure that the analysis "will be easily understood by the average voter." In preparing the ballot title, the attorney general is instructed only to "give a true and impartial statement of the purpose of the measure in such language that the ballot title shall not be an argument, nor be likely to create prejudice, for or against the measure." Cal. Elec. 99051 (WestSp. Pamphlet 1995). 44The California Commission on Campaign Financing applied the Flesch-Kincaid readability test to two 1990 California initiatives and found that 3-4 years of college were required to understand the attorney general's summary and a year of college for the legislative analyst's analysis, while the pro and con arguments varied in difficulty between the 10th and 12th grade level. These data, while limited, suggest some improvement in the readability of the California pamphlet from the time of the Magleby study. The Commission also suggests that adoption of the "bulleted" format for the attorney general's summary reduced the grade level difficulty of that portion of the pamphlet by one full grade level. See California Commission on Campaign Financing, Democracy by Initiative, pp. 241,258. 45Theaverage grade difficultyof newspapersin the United States is 8.2. See Ronald Carver, "Measuring Prose Difficulty Using the Rauding Scale," Reading Research Quarterly 11, p. 673. 46Statistical Abstract of the United States, 1989: 131. See also Magleby, Direct Legislation, p. 120, Table 6.9. 47Current Population Reports, 1986-87:53. terly

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48In October, 1990, 84 percent of the voters surveyed in a statewide poll conducted by the Los Angeles Times agreed with the statement that "[tlhere are so many initiatives on the ballot with complex issues that an intelligent average voter cannot make an intelligent choice." Another statewide poll conducted at about the same time by the Field Institute found that just 21 percent of California voters believed that "most" or "all" of the initiatives appearing on the ballot are understandable to the average voter. The va~t majority (78%) of the respondents indicated that only "some" or "a few" of the propositions are understandable to most voters. See "Voters Say Initiative Process Is Too Complex, Out of Control," Los Angeles Times, November 4, 1990, pp. AI, A38, A43. Speaking before the Citizen's Commission on Ballot Initiatives in 1993, pollster Mervin Field indicated that a similar poll in 1991 showed that only 20 percent of the respondents indicated that "most" or "all" of the propositions can be understood by the average voter, while the vast majority indicated that "only some arc understandable" (41%) or "only a few are understandable" (35%). See Mark DiCamillo and Mervin Field, "Voters Think Most Statewide Ballot Propositions are Not Understandable to the Average Person ... ," The Field Poll, Press Release 1566 (October 24, ] 990); text of Mervin Field's presentation before the February 25, 1993 hearing of the Citizen's Commission on Ballot Initiatives (Sacramento, Ca.), p. 10 (both available from the authors upon request). 49The difficulty faced by voters in understanding some parts of the pamphlet is reflected in the results of the survey of voters participating in the California voter pamphlet survey of 1990. When asked to identify the parts of the pamphlet they use in making voting decisions, majorities of more than 90 percent indicated that they used the pro/con arguments; individuals without a high school education were almost as likely to use the pro/con arguments (89.2%) as were the individuals with post-graduate degrees (96.0%). By contrast, these disparities grew much larger when it came to the official title and summary (67.6% for the most poorly educated compared to 91.0% for the best) and the analysis provided by the legislative analyst (45.8% to 82.8%). Similarly, when asked to identify the single most helpful part of the pamphlet, all educational groups identified the pro and con arguments. But while the analysis provided by the legislative analyst was most favored by 31.5 percent of the voters with post-baccalaureate degrees, that proportion dropped steadily with declines in education; only 13.0 percent of the voters without high school degrees regarded the legislative analyst's contribution as the most valuable part of the pamphlet. 50See Or. Rev. Stat. 9250.039 (1993) and Or. Admin. Rules 165-14-045 to 165-14-075 (1994); Okla. Stat. Ann. tit. 34, 99 (West Supp. 1995); Alaska Elec. Code 915.60.005 (1988); and Magleby, Direct Legislation, p. 139 and Appendix D, p. 207. Prior to 1992 Oklahoma law required the superintendent of public instruction to certify the grade level and to return the ballot title to the secretary of state for rewriting if it did not meet this requirement.

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state define its target audience with more precision.51 The report suggested that the target audience should have .the normative reading level of a high school graduate who has achieved voting age, arguing that this level represented a reasonable compromise between the need to summarize highly complex, technical proposals and the goal of making the analysis comprehensible to the majority of voters. Formally determining grade level according to a standard, computer-based readability formula would heighten the awareness of the those responsible for writing the impartial analysis to the problem of public understanding. Because it might not be possible in all cases to achieve the twelfth-grade level, the analyst should be required only to submit each proposed analysis to a formal readability test and to consider the results. Because readability formulas are based primarily on word choice and sentence complexity and not the comprehensibility of concepts, it seems inadvisable to bind the analyst by the results of the tests. It is not clear whether any state applies standard readability tests to the pro and con arguments written by the proponents and opponents of a ballot measure. It also seems clear that proponents and opponents should be free to write what they want without having to comply with any mandatory standard of readability. But just as the standardized readability tests can be helpful in identifying other parts of the pamphlet that may challenge a large number of voters if not revised, they could also be useful for the pro and con arguments.

BROADCAST AND NONPRINT MEDIA Numerous studies indicate that one of the most important primary sources of information about elections and political affairs generally is television. The studies available indicate that television ranks on a par with newspaper reports as one of the two most significant sources of information about ballot propositions as well.52 Shortening the voter pamphlet and improving its readability would make it appear less formidable to potential readers and more understandable by those who inspect its contents. Changes in the voter pamphlet are unlikely, however, to alter the reliance by many voters on television as their primary source of information concerning initiatives, particularly those individuals with fewer years of formal education. This raises the question as to whether the government should attempt to provide televised information similar to that which appears in the ballot pamphlet. Proponents and opponents of initiatives often use television advertising as a major battleground for their campaigns. News programs, talk shows and commentators also add considerable information about initiatives. With highly controversial or highly visible measures, these sources produce a considerable

51 Dubois and Feeney, Improving

the California Initiative Process, p. 170.

52See Magleby, Direct Legislation,

pp. 130-136; and California Commission on Campaign Financing, Democracy By Initiative, pp. 244-248.

Improving Voter Unden.tanding

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amount of information. For other kinds of initiatives, however, these sources often produce very little information. It is also not uncommon that one side of an initiative will have a great deal of money for television advertising and the other very little. Two states-Montana and Oregon-have statutes authorizing state officials to use television as one of the methods for conveying information to voters about initiatives. In Montana, the secretary of state is authorized to arrange for the attorney general's summary of proposed constitutional amendments to be broadcast on radio or television.53 Similarly, in Oregon, the secretary of state may supplement issuance of the voters' pamphlet with radio and television broadcasts in the four weeks immediately preceding the election. By statute, these broadcasts are limited to the ballot title or popular name of the measure, the number and form of the ballot title, and a summary of the legislative counsel's SOO-word explanatory statement,54 Contacts with officials in these two states, however, showed that these states have not used this authority. The officials contacted were not even aware that the authority existed. Nevertheless, the idea of using television to provide voters with basic information and the implications of proposed initiatives seems attractive.55 Two kinds of uses seem worth trying. First, television and radio might be used simply to call attention to the voter information pamphlet, encouraging voters to look at the pamphlet before they vote. Second, television and radio might be used to disseminate the legislative analyst's analysis or the pro and con arguments.56 This kind of dissemination might involve the use of state funds to prepare programs for public television or to purchase broadcast time if public service announcements do not provide adequate coverage (either for reasons of timing or quantity).57 Given the amount of time that citizens in some states spend in their automobiles, audiotapes may be another way in which voters might become more informed about ballot issues. In California the secretary of state prepares and distributes audiotapes of ballot-measure summaries and analyses for visuallyimpaired voters. Because the running time of these tapes is substantial-approxi~13-27-311(2)(1993). ~S251.295and 251.225(1993). Wash. Rev. Code Ann. ~S29.27.072 (1993),65.16.130,-.140,-.150(1994).

53Mont. Elec. Code 540r. Rev. Stat. 55See also

56The California Commission on Campaign Financing also recommends that a condensed version of the pamphlet be made available on a videocassette containing "a simple explanation of the measure ... offered by the secretary of state, followed by arguments for and against presented by the primary adversaries." See Democracy By Initiative, p. 260.Unfortunately, among those California voters responding to the pamphlet survey in 1990,only 9.1 percent indicated an interest in this option as a way to learn more about the ballot proposals. 57The pamphlet survey questionnaire completed by California voters showed that 56.0 percent of those responding to the question would be interested in special public television programs as a way of learning more about the ballot propositions. Although lower-educated voters are significantly more likely to rely upon television as a primary source of election information, interest in this option was strong across all educational levels.

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mately 5 hours in recent elections-it is unrealistic to believe that audiotapes could be a substitute for the voter information pamphlet on any widescale basis. 58 The distribution of audiotapes may nonetheless be an idea worth trying on a pilot basis for voters in the urban commuting areas.59 60 Some states have also begun to include the text of their voter information pamphlets in their internet web sites.

58When voters in the California pamphlet survey were asked whether they would be interested in receiving a free audiocassette containing the ballot arguments, only 13 percent responded affirmatively. Voters of all educational levels had the same reaction. 59The California Commission on Campaign Financing reports that when the California Secretary of State decided in 1990 to make the audiotapes available to the general public upon request that over 1,000 tapes were distributed within the first four days following the announcement. See California Commission on Campaign Financing, Democracy By Initiative, pp. 258-259, n.88. 60Another idea worth exploring is the use of a toll-free telephone number for voters to hear prerecorded summaries of ballot measures with touch tone options to hear the arguments for and against, the legislative analyst's analysis, and so forth. See California Commission on Campaign Financing, Democracy By Initiative, p. 260.

CHAPTER TWELVE

INITIATIVE CAMPAIGN FINANCE AND DISCLOSURE the conduct of American elections for the selection of public officials is the role played by campaign contributions and expenditures. The initiative process is no different. Concern has been expressed about the large amounts of money required to qualify measures for the ballot, the apparent use of campaign contributions by individuals and groups to secure favorable provisions in proposed initiatives, the impact of large campaign expenditures in determining election outcomes, and the use of money to launch highly emotional, simplistic, and distorted media campaigns.1 Recent initiatives have brought the long-standing issue of campaign finance to the forefront of public attention. The November 1988 California ballot measures, for example, included three initiatives that had expenditures of $23.1 million (Proposition 99 on the cigarette and tobacco tax), $31.5 million (Proposition 100 on insurance rates and regulation), and $55.9 million (Proposition 104 on automobile insurance), as Appendix Table 5 shows. Total expenditures for the 1988 June and November ballot measures approached $150 million, nearly 5 times the amounts spent in 1984 and 1986 and 100 times the amount spent in 1974. Table 36 compares initiative spending in election years 1974-1988. Increases in the number of qualified initiatives on the ballot and inflation help to explain much of the increase. The per capita costs per election actually remaIned relatively stable through 1986.2 Nevertheless, the staggering amounts of money spent in 1988 on individual initiatives and the huge amounts (over $105 ONE

OF THE PERENNIAL

ISSUES CONCERNING

ILeague of Women Voters of California, Initiative and Referendum in California: A Legacy Lost? (Sacramento, Ca.: 1984), pp. 44-49; Betty Zisk, Money, Media and the Grass Roots: State Ballot Issues and the Electoral Process (Newbury Park, Ca.: Sage Publications, 1987), pp. 90-155; Cynthia Fountaine, "Lousy Lawmaking: Questioning the Desirability and Constitutionality of Legislating by Initiative," Southern California Law Review 61 (1988): 773-776; Larry Berg and C. B. Holman, "The Initiative Process and Its Declining Agenda-setting Value," Law and Policy II (1989): 451-469. 2John Owens and Larry Wade, "Campaign Spending on California Ballot Propositions, 1984: Trends and Voting Effects," Western Political Quarterly 39 (December 1986): 679-681.

181

1924-

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BY INITIATIVE

million) spent in 19903 raise the question of whether the California initiatives can be "bought" by the side most able to mount the kind of statewide media and direct-mail campaign necessary to reach and influence California's 14 million registered voters.4 TABLE 36. California Initiative Election Expenditures, 1974.1988 Year

No. of Initiatives

1974 1976 1978 1980 1982 1984 1986 1988

2 3 4 5 9 7 6 18

Total Expenditures $1,505,292 $8,872,899 $14,113,541 $23,793,969 $26,548,251 $33,589,410 $33,505,178 $147,330,000

Mean $752,646 $2,957,633 $3,528,385 $4,758,794 $2,949,806 $4,798,487 $5,584,196 $8,184,777

Median $752,646 $3,179,810 $3,220,658 $5,411,305 $1,082,240 $4,079,933 $5,364,020 $2,830,826

Sources: See Appendix A, Table 5 (page 243).

CAMPAIGN SPENDING AND INITIATIVE OUTCOMES The purpose of this section is to examine the empirical evidence that exists concerning the role of campaign finance in initiative elections and to assess the implications of that evidence for reform of the initiative process. Having dealt in Chapter Seven with the significance of money to compensate paid signature gatherers to qualify measures for the ballot, the focus here is on the role of money in influencing election outcomes. Although a majority of the public and many observers suspect that campaign spending determines the outcome of initiatives,5 the existing evidence is far from conclusive. Accordingly, reform proposals that purport to be based on empirical evidence rest on a shaky foundation. The most widely cited study concerning the relationship between campaign spending and initiative outcomes is Daniel Lowenstein's examination of 25 California initiatives and referendums from 1968 to 1980 in which at least $250,000 was spent for one side of a ballot measure and in which spending was at least twice as high as that of the other side. Lowenstein found that 46 percent of the initiatives with one-sided spending in their favor succeeded (7 of 15), while 90 percent of those with one-sided spending in opposition failed (9 out of 10).6 3California Commission on Campaign Financing, Democracy Fourth Branch of Government (Los Angeles: 1992), p. 379.

by Initiative: Shaping California's

4Daniel Lowenstein, "Campaign Spending and Ballot Propositions: Recent Experience, Choice Theory and the First Amendment," UCLA Law Review 29 (1982): 505, 510 n.16.

Public

5 As long ago as 1982, a poll showed that 63 percent of those polled thought that spending had a great deal of effect on the outcome of propositions, while an additional 28 percent thought that spending had at least some effect on the results. California Opinion Index, 1983, p. 3.

6Lowenstein, "Campaign Spending and Ballot Propositions,"

pp. 518-519.

Initiative Campaign FilUlJU:e and Disclosure

183

Analyzing these 25 elections in greater detail, including public-opinion polls taken during the course of each campaign, Lowenstein concluded that one-sided spending was not the "cause" of all these results. He found that one-sided spending by the proponents could reasonably be considered responsible for the outcome in just 2 of the 15 races of this kind. In contrast, he found one-sided spending in opposition responsible for the certain defeat of three measures and the probable defeat of two others.7 A number of separate studies looking at aggregate election results provide some support for Lowenstein's findings. Looking at all 51 propositions appearing on the California ballot from 1954 to 1982, Magleby found that only 31 percent of these measures were adopted. Heavy spending (i.e., a ratio of 2: 1) by a proponent's side improved the chances of passage to 48 percent, while heavy spending in opposition resulted in a measure's defeat 87 percent of the time.8 Using almost the same database, Ronald Allen studied 57 California races and two Montana races from 1954 to 1976. In races in which one side significantly outspent the other (i.e., by more than $500,000), money was on the winning side 48 percent of the time (10 out of 21). Where proponents significantly outspent opponents, their success rate was only 22 percent compared to a 75 percent success rate where opponents outspent proponents? David Schmidt examined the results of 189 statewide initiative campaigns conducted across the United States from 1976 to 1984 and for which spending data were available. Schmidt found that spending by opponents that exceeded the amount spent by proponents by a ratio of more than 2: 1 resulted in the defeat of measures 75 percent of the time. Heavy one-sided spending by proponents was successful in passing measures 55 percent of the time. Where spending on both sides was negligible or roughly equivalent, proponents were successful 52 percent of the time. 10 Betty Zisk studied 50 selected ballot measures in 4 states (California, Massachusetts, Michigan, and Oregon) from 1976 to 1980. In 80 percent of these cases, Zisk found that the high-spending side was victorious, leading her to declare that "campaign expenditures are the single most powerful predictor of the vote.,,11 Zisk's data confirm her agreement with Lowenstein that one-sided negative spending is more effective than one-sided spending by proponents. 12Where proponents outspent opponents, they were victorious in 12 out of 19 instances (63.2%); where opponents outspent proponents, the negative spending was effec7Lowenstein, "Campaign Spending and Ballot Propositions,"

pp.

519-543,545,609-632.

8David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984),pp. 147-148. 9Ronald Allen, "The National Initiative Proposal: A Preliminary Analysis," Nebraska Law Review

58(1979):965,1034-1036. IODavid Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution (Philadelphia: versity Press, 1989),p. 35. llZisk, Money, Media and the Grass Roots. p. 90. 12Zisk, Money, Media and the Grass Roots, pp.

116-117.

Temple Uni-

184 LAWMAKING BYINITIATIVE tive in 19 out of 23 cases (82.6%). Equal or negligible spending on both sides resulted in an even split of the remaining eight races. 13 The association between election outcomes and spending is a result that needs to be considered with caution. In some cases, campaign spending may merely reflect the popular appeal of some issue backed by citizen contributions. Intensive examinations of initiative campaigns, however, also have supported Lowenstein's assessment of the impact of campaign money in determining initiative results. Steven Lydenberg examined 16 propositions involving "corporate interests" in 11 states and one city. "Of the nine [of 13] propositions in which big opposition spenders were successful, at least six apparently would have had excellent chances of passing if the campaign spending had been more equal.,,14 John Shockley selected six initiatives and four referenda appearing on the Colorado ballot in 1976, only two of which were adopted. In a detailed review of the ten campaigns, Shockley found that early leads in the public opinion polls in favor of proposed measures were reversed by heavy spending by the opposition on the media. Interviews conducted with citizens confirmed that these media campaigns were probably influential in at least six of the ten cases.15 A separate analysis conducted by other investigators of three of the 1976 Colorado initiative campaigns confirmed the heavy advantage enjoyed in media access by those interests able to purchase media advertising in prime time, thereby making their opposition known to a wider audience.16 In a separate study involving the review of 12 initiatives in 11 states in 1976 that were aimed either at bottle deposits or nuclear power, Shockley found that early leads in public opinion polls in favor of the proposed measures were reversed by major campaign spending in opposition, resulting in the defeat of 9 ofthe 12 measures. 17 Similarly, for the 32 (of 50) elections for which she could obtain polling data, Zisk found that the public opinion reversed in the direction of the side bolstered by big spending was enough to decide the election 47 percent (15 out of 32) of the time. 18 This body of evidence suggests at least some relationship between campaign

13Recalculated fromZisk,Money, Media and the Grass Roots, pp.93-95. 14Lowenstein, "CampaignSpendingandBallotPropositions,"p. 639,summarizingStevenLydenberg, Bankrolling Ballots: The. Role of Business in Financing State Ballot Question Campaigns (Councilon EconomicPriorities,1979). 15JohnShockley,The Initiative Process in Colorado Politics: An Assessment (Boulder,Colo.: Bureauof GovernmentalResearchandService,Universityof Colorado,1980),pp.8-38. 16RandyMastro,DeborahCostlow,andHeidiSanchez,Taking the Initiative: Corporate Control of the Referendum Process Through Media Spending and What to Do About It (Washington,D.C.: MediaAccessProject,1980),pp. 3-15. 17"Testimony andFormalStatementbyJohnShockley,"in IRS Administration of Tax Laws Relating to Lobbying (Part I): Hearings Before a Subcommittee of the Committee on Governmental 95thCong.,2d Sess.(1978),p. 239. tions, Houseof Representatives,

18Zisk,Money,

Media and the Grass Roots,

pp.98-101,245.

Opera-

Initiative Campaign Finam:eand Disclosure

J 85

spending and the outcome of initiatives, particularly when large amounts of money are spent to mount opposition campaigns. In Ronald Allen's words: The limited data we have, then, tends to confirm the suspicion that money, and the public relations experts it can buy, is not a dominant factor in determining the outcomes of initiated measures, although there is reason to believe that well-financed campaigns against a measure may increase its chances of losing. Organized, monied interests clearly have an advantage in qualifying measures for the ballot, but it does not appear they can buy the election.19 The most popular explanation for the spending-outcome relationship is that negative spending is particularly effective in confusing voters or in raising fears of the potential adverse consequences of proposed measures; confused or fearful voters are more likely to vote "no" just to preserve the status quo.20

Conflicting Evidence Despite this body of evidence supporting the "opposition-spending" thesis, other studies exist suggesting that even this part of the spending-outcome link is a weak one. Examining California initiatives from 1924 to 1984 and using Lowenstein's definition of races involving one-sided spending (spending of at least $250,000 on one side and at least twice that of the opposition), John Owens and Larry Wade confirmed that one-sided negative spending has almost always resulted in a measure's rejection (29 out of 32, or 91%), while one-sided spending by proponents was less frequently successful (29 of 53, or 55%). However, when opponents outspent proponents by margins of less than 2: 1, Owens and Wade found that the rejection rate was still 89 percent, suggesting that "even when spending was more equalized (negative spending's advantage was less than 2: I), the negative side prevailed as frequently as when one-sided negative spending existed.',2] Applying multiple regression analysis to the 102 California races from 1924 to 1984 in which there was spending on both sides, Owens and Wade found that the impact of spending-even negative spending-was neither statistically nor substantively significant in explaining the variation in initiative outcomes.22 Indeed, because of the low passage rates for initiatives in general, regression analysis showed "that opponents in a 'typical' proposition campaign would be expected to start with an enormous electoral advantage amounting to 65 percent of the vote before any impact of spending has been entered into the equation." Owens and Wade conclude that "it is obvious that other undefined, unspecified factors are much more important than money in shaping electoral outcomes in direct legislation campaigns.',23 19Allen, "The National Initiative Proposal," pp. 1035-1036. 20See Lowenstein, "Campaign Spending and Ballot Propositions," Initiative Process in Colorado Politics, p. 43.

pp. 551-556, and Shockley, The

210wens and Wade, "Campaign Spending on California Ballot Propositions, 220wens and Wade, "Campaign Spending on California Ballot Propositions, 687. 230wens and Wade, "Campaign Spending on California Ballot Propositions,

1924-1984," p. 684. 1924-1984," pp. 6861924-1984," p. 687.

186

LAWMAKING

BY INITIATIVE

Using a similar technique but analyzing 40 selected bond referenda on waterpollution-control projects in 18 states from 1966 to 1970, an Environmental Protection Agency-sponsored study found that the single most important factor explaining election outcomes was the existence of an organized opposition. When opposition groups existed, 16 out of 18 bond measures failed; when they did not exist, 18 out of 22 passed.24 In this study, the mere existence of opposition, rather than the amount of money spent to defeat a measure, was determinative: A campaign against a bond, even one which is poorly organized, poorly financed or poorly reasoned can have a significant impact on the outcome of an election. The reason seems to be the ease with which one can create doubt in the minds of the voters.25

Finally, in an examination of recent California initiatives from 1976 to 1986, Michael Meyers documented a large number of cases in which it was difficult to discern a relationship between campaign spending and outcomes. Although proponents outspent opponents in 13 of the 15 initiatives adopted during the period, the relationship between the amount of money spent and the margin of victory was far from clear. In four of these races, despite opposition spending of more than $3 million, "the margin of victory ... was so substantial that it is questionable whether the opponents' spending had any influence on the outcome at all.,,26 Similarly, Meyers concluded that one-sided negative spending could explain defeated initiatives in only 4 of 19 cases, and that there were nearly as many instances of one-sided negative spending that backfired.27 According to Meyers: To summarize, there does not appear to be a consistent relationship between spending and voter behavior. Most heavily contested measures were voted up or down by large majorities and, while bigger expenditures might have narrowed the margins of victo~ or defeat in some instances, the end result would almost certainly have been the same.

Methodological Issues In addition to the mixed nature of the evidence, issues of methodology and data interpretation make the relationship between campaign spending and initiative outcomes far from clear. In all but one of the existing studies,29 the figures used for spending by proponents included expenditures made to qualify measures for the ballot. But as Appendix Table 6 shows, in 24 out of 48 measures in California from November 1978 through November 1988, qualification expenses amounted to more than half of all campaign expenditures, exceeding 75 percent in 13 instances. Although proponents may gain some public exposure for an issue during the qualification period, the vast majority of their dollars were spent on signature 24Abt Associates, Inc., Factors Affecting Pollution Referenda (Washington, D.C.: U.S. Government Printing Office, 1971), pp. 5, 61. 25Abt Associates, Factors Affecting Pollution Referenda, p. 72. 26Michael Meyers, A Study of California Initiatives, 1976-1986 (Claremont, Ca.: Rose Institute of State and Local Government, Claremont McKenna College, [988), p. 24 (unnumbered). 27Meyers, A Study of California Initiatives, 1976-1986, pp. 28-31 (unnumbered). 28Meyers, A Study of California Initiatives, 1976-1986, p. 33 (unnumbered). 29Lowenstein, "Campaign Spending and Ballot Propositions,"

p. 628 n.160.

Initiative Campaign Finance and Disclosure

187

solicitation, fund-raising, and campaign management. According to Larry Berg and C. B. Holman, whereas prior to 1978 initiative sponsors spent only 4 percent of their funds during the qualification period on professional services (for example, legal consultation for drafting assistance, campaign management firms, direct-mail services, professional signature solicitors), that percentage soared to 76 percent in 1978 and reached 91 percent in 1988.30 This professionalization of the initiative qualification process means that care must be taken in the use of expenditure data when investigating the link between initiative spending and their outcomes. For instance, in applying the Lowenstein criteria for spending-spending on one side of at least $250,000 and at least twice that of the opposition-to California initiatives from November 1978 through November 1988, the removal of qualification expenses affects the designation of fully one-third of the races (16 out of 48), either because the removal of qualification expenses reduces the spending disparity to less than 2: 1 or causes high-spending proponents to drop below the $250,000 threshold. To what extent the inclusion of qualification expenses has affected the results of empirical analyses of the spending-outcome link has not yet been determined. The weight of empirical evidence collected thus far is that the amount of money spent for or against an initiative is important in some circumstances.3l Although well-financed interests have an advantage in qualifying measures for the ballot, they do not appear to be able to "buy the election" with heavy campaign spending. Thus, "the initiative does not provide monied interests with an easy-to-use method of obtaining their statutory goals.,,32 On the other hand, there is some evidence that under some circumstances campaign spending can result in the defeat of an initiative. The interpretation of this phenomenon must depend on one's perspective, however. In one view, "initiatives that lose wreak no havoc," preventing neither "reconsideration of the issue by either the populace or the legislature.,,33 A contrasting perspective is that "dominance of the process by big spenders is a problem whether the spending is on the affirmative or the negative side" since effective opposition spending can frustrate the apparent will of a majority of voters. 34 Even if one shares this view, however, the evidence suggests that the number of these occasions is low and that conditions under which spending-positive or negative-will be effective are highly dependent on the presence of several other critical variables. The nature of the initiative-including the saliency of the issue for the public and the extent to which it challenges strongly held moral, social, or political values--can influence the "standing" yes or no vote among the electorate and thus influence the poten30Berg and Holman, "The Initiative Process," p. 459. 31See also Tom Thomas, "Corporate Political Strategy and Influence in the California Initiative Process" (unpublished Ph.D. dissertation, University of California, Berkeley, 1989). 32Allen, "The National Initiative Proposal," p. 1034. 33Allen, "The National1nitiative

Proposal," pp. 1036-1037.

34Lowenstein, "Campaign Spending and Ballot Propositions,"

p. 543 n.164.

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BY INITIATIVE

tial impact of campaign spending.35 Similarly, initiative outcomes can conceivably be influenced by the existence of well-organized but modestly financed grassroots organizations, the positions taken by prominent political and community leaders, the nature and extent of media coverage, and the presence of other controversial issues or political contests on the ballot.36 In short, the influence of money on electoral choice in initiative campaigns is a subject too complicated and too imprecisely understood to support a strong case for reform options designed either to limit or equalize campaign expenditures between initiative proponents and opponents.37

Reform Options Even if the empirical evidence on the role of money in initiative campaigns was more convincing, the available options for reform have been significantly limited by the decisions of the U.S. Supreme Court, lower federal courts, and the state courts. Limitations on expenditures for the circulation and campaign support of proposed ballot measures (including expenditures to compensate petition circulators) have been found to violate constitutional guarantees of freedom of speech and expression, except where expenditure limits have been tied as a voluntary condition of matching funds accepted in a scheme of public financing.38 Similarly, although contribution limits in candidate campaigns have been upheld against constitutional challenge, courts have found that the appearance and potential of corrupt influences on political decisionmakers resulting from individual or corporate contributions are not present in campaigns for popular votes on ballot measures and do not justify similar restrictions.39 Although some have argued that the courts might be persuaded to revisit these issues,40 the chances of a significant shift in judicial opinion are unlikely. 350wens and Wade, "Campaign Spending on California Ballot Propositions, 1924-1984," see also Meyers, A Study of California Initiatives, 1976-1986, pp. 34-35 (unnumbered).

p. 678;

36See, for example, Zisk, Money, Media and the Grass Roots, pp. 107-108, and Lowenstein, "Campaign Spending and Ballot Propositions," p. 546. 37Lowenstein, "Campaign Spending and Ballot Propositions,"

pp. 578-608.

38Daniel Lowenstein and Robert Stern, "The First Amendment and Paid Initiative Petition Circulators: A Dissenting View and a Proposal," Hastings Constitutional Law Quarterly 17 (1989): 175-223. 39Lonnie Colan, "Note, All the Free Speech that Money Can Buy: Monopolization of Issue Perception in Referendum Campaigns," University of Miami Law Review 35 (1980): 157-164; Stephen Burns, "Note, Citizens Against Rent Control v. City of Berkeley: Constitutionality of Limits on Contributions in Ballot Measure Campaigns," California Law Review 69 (1986): 1001-1026; Gilbert Gaynor, "Note, Preventing Corruption in the Electoral Process: The California Supreme Court Expands the Buckley v. Valeo Analysis of Campaign Finance Regulation to Non-Candidate Elections," Whittier Law Review 3 (1981): 431-474; Gary Hart and William Shore, "Corporate Spending on State and Local Referendums: First National Bank of Boston v. Bellotti," Case Western Reserve Law Review 29 (1979): 809-829. 40See Tracy Westen, "Some Possible Reforms to California's Ballot Initiative Process" (remarks before the Direct Democracy Research Group Round Table on "Reforming the California Initiative Process" at the Annual Meeting of the American Political Science Association, San Francisco, August 31, 1990), pp. 16-17; Lowenstein and Stern, "The First Amendment and Paid Initiative Petition Circulators"; Lowenstein, "Campaign Spending and Ballot Propositions," pp. 570-608.

Initiative Campaign Finance and Disclosure

189

Other reform options have been suggested, such as public financing or the enactment of tax credits to encourage media outlets to provide free broadcast time or advertising space as a way of equalizing the effects of disparate campaign spending,41 but are not likely to generate sufficient political support to be considered realistic possibilities. Since the Federal Communications Commission abandoned the Fairness Doctrine in 1987 and its requirement that broadcasters provide free advertising time in the interest of fairness, tax incentives are not as attractive as they once were.42

CAMPAIGN FINANCE RULES All states now regulate the financing of political campaigns to some degree. By far the most common provision is the required disclosure of campaign contributions and expenditures. A second very frequent provision is a limitation on the amounts that can be contributed. All 25 of the jurisdictions that use the initiative process require some form of disclosure of campaign contributions for campaigns involving statewide political candidates. All 25 also require disclosure for initiative campaigns, as shown in Table 37. In most of these jurisdictions, the disclosure rules for initiative campaigns are similar to those for candidate elections. All 25 initiative jurisdictions require campaign committees to file disclosure forms. Nineteen states require individuals who make expenditures supporting or opposing initiatives also to report. This form of reporting picks up "independent expenditures" that would otherwise escape disclosure because no committee is involved. Two states (Michigan and Oregon) require out-of-state committees to furnish a list of their donors.43 Within 30 days of filing their completed petitions, Ohio requires initiative and referendum committees to disclose the amounts paid, given, or promised for circulating petitions.44 Oregon requires even earlier information concerning signature collection: ballot-measure sponsors must indicate when they submit their petitions for pre-signature review whether anyone will be paid for gathering signatures.45 41Lowenstein,"CampaignSpendingand Ballot Propositions,"pp. 578-583, 603-604. 42SeeLowenstein,"CampaignSpendingand BallotPropositions,"p. 604 n.366; League of Women Voters,Initiative and Referendum in California, p. 67; ThomasCronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge,Mass.:HarvardUniversityPress, 1989),pp. 119-122. 43Mich.Stat. Ann. g4.1703(42)(Law.Co-op. Supp. 1996); Or. Rev. Stat. g260.045 (Supp. 1996). Idaho had such a provision until 1990 when it was repealed. Washingtonrequires out-of-state committees to file identifyinginformationand a list of in-statecontributorsand expenditurerecipients,but does not require identification of individual out-of-state contributors. Wash. Rev. Code Ann. g42.17.090(l)(1)(WestSupp. 1997). 440hio Rev. Code g3517.12(Baldwin 1995).This section also requires disclosure of all "appointments, promotions, or increases in salary" given or promised, as well as the names and addresses of all persons to whom payments or promises were made and of all who contributed anything of value used in circulatingthe petitions.Oregononce had a similar statute.Dubois and Feeney, Improving the California Initiative Process, p. 48 n.54. 450r. Rev.Stat. g250.045(Supp. 1996).

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TABLE 37. Campaign Finance

State

Must Issue Committees Register?

Threshold Amounts for By-Name Disclosure by Committees Contributors

Expenditures

Alaska

Yes

$250

Arizona Arkansas California Colorado D.ofColumbia Florida Idaho Illinois Maine Massachusetts Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes

$25 $100 $100 $25 $50 All $50 $150 $50 $50 $20 $200 $100 $35 $100 $500 $100 All $50

(I) Over $250 (C) (2) All spending for radio, TV, newspaper ads All $100 $100 $25 $10 All $25 $150 All $50 $50 $200 $100 All $100 $500 NA All $50

Oregon South Dakota Utah Washington Wyoming

Yes No Yes Yes Yes

$100 $100 $50 $25 $25

All All All $50 All

Key: E = expenditures;

Required Disclosurefor Individuals (I) Over $250 (C) (2) All spending for radio, TV, newspaper ads None Over $250 (E) $1000 or more (E) Over $100 (E) Over $50 (C,E) $100 or more (E) Over $50 (E) Over $3000 (C, E) Over $50 (E) None Over $100 (E) Over $200 (E) $500 or more (E) None Over $100 (E) Over $500 (C, E) None Over $100 (E) $500 or more if at last minute (E) $100 or more (E) All None $100 or more (E) None

C = contributions.

Sources: Alaska Stat. **15.13.010, -.040 (cont. & exp., ind.), -.050 (reg.) (1996); Ariz. Rev. Stat. Ann. 916-915 (cont. & exp.) (1996); Arlc Stat. Ann. **7-9-404 (reg.), -407 (cont. & exp.), -406 (ind.) (1993); Cal. Gov't Code 9984,013,84,101 (reg.), 82,013, 84,203.5 (ind.), 84,211 (cont. & expend.) (West 1993 & Supp. 1997); Colo. Rev. Stat. Ann. **1-45-104 (reg.), -108 (cont.& exp.), -110 (ind.) (West 1989 & Supp. 1996); D.C. Code Ann. **11401(5),1-1414 (reg.), 1-1416 (cont. & exp.), 1-1417 (ind.) (1992); Fla. Stat. Ann. **106.011(1), 106.03 (reg.), 106m (cont. & expend.), 106.071 (ind.) (West 1992 & Supp. 1997); Idaho Code **67-6602(m), -6603 (reg.), 6612 (cont. & exp.), -6611 (ind.) (1989); Ill. Compo Stat. Ann. ch. 10, **5/9-1.8,519-3 (reg., ind.), 5/9-13 (cont. & exp.) (West 1993); Me. Rev. Stat. Ann. tit. 21-A, **1052-53 (reg. & ind.), 1059-60 (cont. & exp.) (1993 & Supp. 1997); Mass. Gen. Laws Ann. ch. 55, **5 (reg.), 18 (cont. & exp.) (West 1991 & Supp. 1997); Mich. Stat. Ann. gg4.1703(24) (reg.), 4.1703(26) (cont. & exp.), 4.1703(51) (ind.) (Callaghan 1985 & Supp. 1996); Miss. Code Ann. gg23-17-49 (reg.), -51 (ind.), -53 (cont. & exp.) (Supp. 1996); Mo. Ann. Stat. gg130.011(7), -.041 (reg., cont. & exp.), -.051 (ind.) (Vernon Supp. 1997); Mont. Code Ann. gg 13-1-101(12), 13-37-201 (reg.), 13-37-229 (cont.), 1337-230 (exp.) (1995); Neb. Rev. Stat. gg49-1413, -1449 (reg.), -1455 (cont. & exp.), -1467 (ind.) (1993 & Supp. 1996); Nev. Rev. Stat. Ann. gg294A.0055, -.230 (reg.), -.150 (cont., ind.), -.220 (exp., ind.) (1995); N.D. Cent. Code gI6.1-08.1-03.1 (cont.) (Supp. 1995); Ohio Rev. Code Ann. 93517.10 (reg., cont. & exp.), -.105 (ind.) (Baldwin Supp. 1997); Okla. Stat. Ann. tit. 74, ch. 62, App. 257: 9910-1-11 (reg.), -14 (cont. & exp.), -16 (ind.) (West Supp. 1997); Or. Rev. Stat. Ann. *9260.042 (reg.), -.083 (cont. & exp.), -.044 (ind.) (1991 & Supp. 1996); S.D. Codified Laws Ann. 912-25-19.1 (cont.,ind.) (1995); Utah Code Ann. 9g20A-II-10l(25), -801 (reg.), -802 (cont.& exp.) (1995); Wash. Rev. Code Ann. gg42.17.020(33), -.040 (reg.), -.090 (cont. & exp.), -.100 (ind.) (West 1991 & Supp. 1997); Wyo. Stat. 9922-25-101 (reg.), -106 (cont. & exp.) (1992 & Supp. 1996).

Initintive Campaign Finance and Disclosure

191

Although 16 initiative jurisdictions impose contribution limits in candidate elections, most do not seek to apply these limits to initiative campaigns. A major reason is that the U.S. Supreme Court has ruled limits on the amounts contributed for campaigns involving initiatives unconstitutional. In Citizens Against Rent Control v. City of Berkeley, the Court struck down a $250 limit on contributions to committees in support of or opposition to ballot propositions in a local election as a violation of the First Amendment. The Court said that, while states may properly limit contributions to candidates, "there is no significant state or public interest in curtailing debate and discussion of a ballot measure. Placing limits on contributions which in tum limit expenditures plainly impairs freedom of expression.,,46 Of the 25 initiative jurisdictions, nine bar corporate contributions or expenditures in candidate elections.47 Prior to 1978, a number of these states also barred corporate contributions and expenditures in initiative campaigns. Since the decision of the United States Supreme Court in First National Bank v. Bellotti, however, these states have changed their laws to allow corporations to participate financially in initiative campaigns.48 In Bellotti, the Supreme Court struck down a Massachusetts law that prohibited banks and various other corporations from making contributions or expenditures "for the purpose of ... influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation.,,49 In response to the state's claim that this limitation was necessary to preserve the integrity of the electoral process, the Court said: [T]here has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government..; .Nor are ... [the state's] arguments inherently persuasive or supported by the precedents of this Court. Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections ... simply is not present in a popular vote on a public issue. 50 46454U.S. 290,299(1981).Despite the Supreme Court ruling, Washington has a limit on contri(West Supp. 1997).Florbutions within 21 days of the election. Wash. Rev. Code Ann. g42.17.105(8) ida, Massachusetts, and the District of Columbia repealed the limits they once had. 47Arizona, Massachusetts, Michigan, Montana, North Dakota, Ohio, Oklahoma, South Dakota, Wyoming. Edward Feigenbaum and James Palmer, Campaign Finance Law 96 (Washington, D.C.: U.S. Gov't Printing Office, 1996),Chart 2-A: Contribution and Solicitation Limitations. 48Massachusetts, Michigan, and Wyoming changed their statutes after Bellotti, removing the prohibition against corporate participation in ballot issue elections. Oklahoma Constitution art. IX, g40 continues to bar all corporate contributions and expenditures in elections, but after Bellotti the attorney general ruled that corporations could contribute up to $5,000in ballot-issue campaigns. Op. Okla. Att'y Gen. 80-68(1980).Post-Bellotti attorney general opinions in Arizona and South Dakota indicate that the general prohibition on corporate contributions in those states do not apply to ballot-issue campaigns. Op. Ariz. Att'y Gen. 187-108;Op. S.D. Att'y Gen. 80-3(1980). 49435U.S. 765,768(1978). 50 First National Bank v. Bellotti, pp. 789-790.California data for 1992show that 82 percent of all contributions to ballot measure committees of $100 or more were made by political action committees, business and labor. Charlene Simmons, California's Statewide Initiative Process (Sacramento: California Research Bureau, California State Library, 1997),pp. 12-13.

192

LAWMAKING

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Beginning in 1976, federal law has allowed candidates for the U.S. president to obtain public financing for much of their campaign expenditures, provided they agree to limit their campaign expenditures and to accept restrictions on the amount of contributions accepted. In somewhat similar fashion, a number of states, including five initiative states, now provide some amount of public financing for state candidate elections.51 No state thus far appears to have adopted this method of campaign financing for initiative campaigns. A number of states also provide tax deductions or tax credits for political contributions to candidates. Some states even allow use of the tax return form as a method of collecting contributions for candidates. Only one state, however, uses any of these methods for financing initiative campaigns: Oregon gives tax credits.52 California candidates, and those in other states as well, sometimes become involved in initiative campaigns. Sponsoring or becoming associated with an initiative campaign may enable candidates or contributors to escape some of the rigors of normal campaign finance rules. Individuals or groups wishing to influence the political process may find it easier or more effective to invest their resources in initiative campaigns because of restrictions on the amounts that can be contributed in candidate elections.53 The policy questions would appear to be: (l) Whether the difference between the candidate rules and the initiative rules creates artificial incentives favoring financial support of initiative campaigns instead of candidate campaigns,54 and (2) whether it is possible to devise rules that prevent candidates from using initiative campaigns as a way of avoiding restrictions on candidate campaigns.

SPECIAL DISCLOSURE RULES FOR CAMPAIGN LITERATURE AND ADVERTISEMENTS In addition to the campaign finance rules requiring disclosure of campaign contributions and expenditures, special state and federal rules require the sponsors of campaign advertisements, literature, and broadcasts to identify themselves in the advertisement, literature, or broadcast itself. In 21 of the 25 initiative jurisdictions, persons who place political ads, circulate campaign literature, or make political broadcasts are required to disclose who is sponsoring the communication in the advertisement, the literature, or the broadcast, as shown in Table 38. Mississippi, North Dakota, and Utah also have 51Florida, Massachusetts, Michigan and Nebraska. Campaign Finance Law 96, individual state summaries. The amounts of money generated by these systems in candidate elections has not been great. In November 1997,Maine also adopted public financing for candidate elections. 520r. Rev. Stat. g316.102(Supp. 1996)($50 credit). Alaska Stat. g43.20.013(1996)gives a $100 tax credit but this credit, along with other credits, has been suspended for most years since its adoption. 53See, e.g., California Commission on Campaign Financing, Democracy by Initiative, pp. 275-277. 5"The California Fair Political Practices Commission developed rules to avoid this result. 2 Cal. Code Regs. g18,538(1991).After the courts struck down the California contribution limits, these rules were repealed.

Initiative Campaign Finance and Disclosure

193

TABLE 38. Must Initiative Ads Identify Their Sponsors? State

Identification of Sponsor Required

Alaska Arizona Arkansas California Colorado D. of Columbia Florida Idaho Illinois Maine Massachusetts Michigan Missouri Mississippi Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Dakota Utah

Yes Yes Yes Yes Yes Yes Yes Yes Unconstitutional Yes Yes Yes Yes No Yes Yes Yes Unconstitutional Yes Yes Yes Yes No

Washington Wyoming

Yes Yes

Limits on False Statements and Other Requirements None By-name ID of top 4 funders Both sponsors and payors By name ID of top 2 funders No false statements None Both sponsors and payors Media log required Fund solicitations must give disclosure report location Ads must give report location No false statements Both sponsors and payors (radio, TV) None None N arne must disclose economic or special interest Radio, TV log required Media log required No false statements Radio log required; no false statements None No false statements Radio log required No false statements, unauthorized endorsements; payments for newspaper support prohibited Advertiser log required, no false statements None

Sources: General Disclosure: Alaska Stat. 915.13.090 (1996); Ariz. Rev. Stat. Ann. 919-128 (Supp. 1996); Ark. Stat. Ann. 997-1-103(7)-(8) (Supp. 1995); Cal. Gov't Code 984,305 (West 1993)(mass mailings only); Colo. Rev. Stat. Ann. 91-13-108 (West Supp. 1996); D.C. Code Ann. 91-1420 (1992); Fla. Stat. Ann. 9106.143 (West 1992 & Supp. 1997); Idaho Code 967-6614A (1995); Me. Rev. Stat. Ann. tit. 21-A, 91055 (West 1993 & Supp. 1996); Mass. Gen. Law Ann. ch. 56, SS39, 41 (West 1991); Mich. Stat. Ann. 94.1703(47) (Callaghan 1985); Mo. Ann. Stat. 9130.031(8), -(9) (Vernon Supp. 1997); Mont. Code Ann. 9913-35-225, 13-37-210 (1995); Neb. Rev. Stat. S491474.01 (Supp. 1996); Nev. Rev. Stat. Ann. S294A.320 (1995); Ohio Rev. Code Ann. 93517.20 (Baldwin Supp. 1997); Okla. Stat. Ann. tit. 21, 91840 (West Supp. 1997); Or. Rev. Stat. 9260.522 (Supp. 1996); S.D. Codified Laws Ann. 912-25-4.1 (1995); Wash. Rev. Code Ann. 9942.17.505 through 42.17.540 (West 1991 & Supp. 1997); Wyo. Stat. 922-25-110 (1995). Miss. Code Ann. S23-15-899 (1990); N.D. Cent. Code SI6.1-1O-04.1 (1991); and Utah Code Ann. S20A-11-901 (1995) do not include initiatives. The previous version of the North Dakota law, which did cover initiatives, wa, ruled unconstitutional in State v. N.D. Education Ass'n, 262 N.W.2d 731 (N.D. 1978). The previous Oklahoma statute applying to persons who distributed anonymous campaign information as well as to those paying for or causing the distribution of the anonymous advertisements was held unconstitutional in Wilson v. Stocker, 819 F.2d 943 (10th Cir. 1987).111. Compo Stat. Ann. ch. 5, 929114 (Smith-Hurd 1993) was held unconstitutional in People v. White, 506 N .E.2d 1284 (lll. 1987) [discussed in Thomas Leggins, "Note, Invalidation of lllinois' Anonymous Political Literature Statute--The Unprotected Interest in an Informed Electorate," So. Ill. U.L.J. 12 (1988): 677]; the former Massachusetts statute was held unconstitutional in Commonwealth V. Dennis, 329 N.E.2d 706 (Mass. ]975). Media Log Required: Idaho Code 967-6613 (1995) (media); Neb. Rev. Stat. 949-1474.01 (Supp. 1996) (radio, TV); Nev. Rev. Stat. Ann. 9294A.370 (1995)(media); Ohio Rev. Code Ann. S3517.20 (Baldwin Supp. 1997) (radio); S.D. Codified Laws Ann. 912-25-4.1 (1995) (radio); Wash. Rev. Code Ann. 942.17.110 (West 1991) (advertisers). Wyo. Stat. Ann. S22-25-111 (1977) which required media to file advertiser financial data with Secretary of State was repealed by L. 1980, ch. 31, 91. False Statements Prohibited: Colo. Rev. Stat. Ann. 91-13-109 (1989); Mass. Gen. Law Ann. ch. 56, S42 (West 1991); N.D. Cent. Code section 16.1-10-04 (1991); Ohio Rev. Code Ann. 93599.02 (Baldwin 1989); Or. Rev. Stat. 9260.532 (Supp. 1996); Utah Code Ann. 9920A-II-901, -1103 (1995); Wash. Rev. Code Ann. S42.17.530 (West 1991). The false statement parts of Alaska SI5.56.010 (1988) apply only to candidate elections. Earlier statutes in Michigan [Mich. Stat. Ann. 96.1915 (Callaghan 1983)] and Montana [Mont. Rev. Code Ann. 9 234754 (Supp. 1974)] were repealed. Other Provisions: Ark. Stat. Ann. 997-1-103(7)-(8) (1993) (sponsors and payors); Ariz. Rev. Stat. Ann. 919-128 (Supp. 1996) (by-name ID of top 4 lunders); 'Cal. Gov't Code 9984,501 through 84,504 (West Supp. 1997) (by name ID of top 2 funders); Fla. Stat. Ann. 9106.143 (West 1992 & Supp. 1997) (sponsors and payors); Ill. Compo Stat. Ann. ch. 10,9519-9 (West 1993) (political committee solicitations must indicate where disclosure report is filed); Me. Rev. Stat. Ann. tit. 21-A, 91055 (West 1993 & Supp. 1996) (broadpst ads must say report on file with secretary of state); Mich. Stat. Ann. 94.1703(47) (Callaghan 1985) (sponsors and payors); Mont. Code Ann. 91337-210 (1995) (name must identify economic or special interest); Utah Code Ann. 9920A-II-I102, -901 (1995) (no unauthorized endorsements or payments for newspaper supPOrt).

194 LAWMAKINGBY INITIATIVE disclosure

statutes,

but they do not apply to initiative

campaigns.

The federal

government and most other states that do not use the initiative also have statutes of this kind.55 In some instances these non-initiative jurisdictions apply the statutes to issue-oriented campaigns such as those involving state constitutional amendments. Rules issued by the Federal Communications Commission require radio and television stations at the time of broadcast to identify the persons or entities responsible for paid political advertisements. These rules apply to all elections-whether issue or candidate, state or federal.56 Some jurisdictions require disclosure of the "sponsor" of the ad, others the person or organization who paid for it. Some require disclosure of both the sponsor and the payor, if there is a difference between the two. Some states spell out exactly how the disclosure shall be made,57 while others simply state the general requirement. Some states specifically state that the special disclosure rules do not apply to newspaper or broadcast news stories.58 Some states exempt "bumper stickers, pins, buttons, and other small items upon which the required information cannot be conveniently printed.,,59 One state exempts "skywriting, watertowers or other means of displaying of such a nature that the inclusion of the required information would be impractical.,,60

Constitutionality McIntyre v. Ohio Elections Commission, a 1995 decision of the U.S. Supreme Court, casts a shadow over all of these laws.61 This case raises far more questions than it settles, however, and it would be rash to conclude from this opinion that these laws are unconstitutional. In this case, Margaret McIntyre, an Ohio citizen, distributed handbills opposing a local school tax. The handbill was signed "concerned parents and taxpayers," but did not contain Mrs. McIntyre's name and address, as required by Ohio law. Because of this omission, the Ohio Elections Commission fined Mrs. McIntyre $100. A county court found this fine unconsti552 U.S.C. 9441d (1994); McIntyre v. Ohio Elect;ons Commission, 115 S.C!. 1511, 1533 n.2 (1995)(Scalia,J., dissenting)(This list includes some statutesthat have been found unconstitutional.). See also Thomas Leggins, "Note, Invalidationof Illinois' Anonymous Political Literature StatuteThe Unprotected Interest in an Informed Electorate-People v. White,"~ Southern Ill;no;s University Law Journal 12 (1988): 677; and "Developmentsin the Law-Elections," Harvard Law Rev;ew 88 (1975): 1111, 1287n.302. 5647C.P.R. 973.1212 (1994). See also Joint Public Notice by the Federal CommunicationsCommission and the Federal Election Commission,FCC 78-419, 69 F.C.C.2d 1129(1978). As these rules take precedence over any conflicting state statutes, the exact effect of the state statutes on radio and televisionbroadcasts is unclear. 57Cal.Gov't Code Ann. 984,305 (West 1993)requires the identificationin each "mass mailing" to be "no less than 6-pointtype" and to be in a "color or print which contrastswith the background so as to be easily legible." 58TheFirst Amendmentprobablyrequires this result in any event. 590kla. Stat. Ann. tit. 21, 94220 (West Supp. 1996).Michigan, Nebraska, Ohio, and Washington have similar provisions. 6oOkla.Stat. Ann. tit. 21, 94220 (WestSupp. 1996). 61115S.C!. 1511(1995).

Initiative Campaign Finance and Disclosure

195

tutional, but the intermediate appellate court reinstated the fine and its decision was affirmed by an equally divided Ohio Supreme Court. Relying in part on a 1960 decision finding that anonymous publications were important to the nation's founders, have frequently contributed to political dialogue, and are protected by the First Amendment,62 the U.S. Supreme Court struck down the Ohio statute upon which the fine was based. "When a law burdens core political speech," the Court said, that law must be tested with "exacting scrutiny." Applying its exacting scrutiny standard to the Ohio statute, the Court found the Ohio statute wanting. Ohio argued that its interest in preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information were compelling reasons for any abridgment of free speech that might result from its law. The Supreme Court held, however, that neither of these reasons were sufficient. The Court agreed that it was important to prevent fraud and libel in election campaigns, but thought that the required disclosures were not a major weapon in preventing fraud. The disclosures had some value, it found, in preventing fraud and libel but not enough to justify the "extremely broad prohibition" of the statute. The Court gave even less credence to Ohio's desire to provide its citizens with additional information concerning the communication: "[W]e think the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude .... [I]n the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author adds little, if anything, to the reader's ability to evaluate the document's message." The Court recognized that the state can require persons and organizations that distribute political publications to disclose the costs of these publications to federal or state election agencies. The Court also acknowledged that disclosures of this kind undercut to some degree the right of anonymous publication. The Court argued, however, that filings, even of financial information, with a state agency are much less intrusive than a requirement of self-identification in the campaign publication or message itself. Although it left no doubt about the unconstitutionality of extremely broad requirements for self-identification, the Supreme Court took considerable care to indicate that it was not deciding the fate of more narrowly tailored kinds of disclosure requirements. The Ohio law, it indicated: encompasses documents that are not even arguably false or misleading... applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources... not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance... [and] ~plies no matter what the character or strength of the author's interest in anonymity.6 62Talley v. California, 362U.S. 60 (1960).In this case the U.S. Supreme Court struck down a Los Angeles ordinance prohibiting the distribution of handbills that did not identify the person who wrote them and the person who caused the distribution to take place. The Court noted that even The Federalist Papers had been published under fictitious names. 63Mclntyre v. Ohio Elections Commission, pp.

1521-1522.

196

LAWMAKING BY INITIATIVE

The narrow question actually decided by the Mclntyre decision seems clear enough. The state cannot require individuals who personally compose election pamphlets (and who distribute these in ways that obviously do not involve large sums of money) to identify themselves in the pamphlet. Because Mrs. Mcintyre's pamphlet involved only a small amount of money and was personally prepared, the majority's decision in Mclntyre seems clearly correct. Requiring single individuals operating at the community level to comply with complicated laws not only greatly inhibits political speech but does so for no significant purpose. As long ago as 1976 when the Court upheld the portions of the federal campaign finance statute requiring candidates to disclose their contributors and their expenditures to federal election authorities, the Court indicated that there were thresholds below which the government was not allowed to go in imposing its disclosure requirements on minor participants. In this respect, Margaret Mcintyre's case, as Justice Ginsburg indicated in her Mclntyre concurrence, bears a "marked resemblance" to other cases in which the Court has protected the right of lone individuals to display their political views and makes the outcome in Mclntyre one that is "hardly sensational." Had the Court gone no further than to decide these points, its decision would have been a significant clarification of prior law but would not have raised questions about the validity of existing laws requiring political advertisers to identify themselves. Even the Court's conclusion that the First Amendment includes a right to express oneself anonymously in a political campaign and that this right can be abridged only if the state's reasons for abridging the right meet the Court's "exacting scrutiny" test goes little further than previous cases, because these cases had already held that governmentally required disclosures of political activity were required to meet the "exacting scrutiny" test. What is new in this case is language suggesting that there may be a constitutional difference between governmentally compelled disclosure of financial information (and identity) to election authorities and governmentally compelled disclosure of identity in political advertising itself. The Mclntyre majority acknowledged that the Court had previously found constitutional laws that require candidates and other substantial political actors to disclose their contributions and expenditures to state or federal election authorities. The majority argued, however, that disclosure in the advertising itself is far more "intrusive" than disclosure to election authorities, and suggested that the authority to require disclosure to the election authorities did not therefore mean that the government could also require disclosure in the ad itself.

Analysis of the Court's Opinion (1) Overview. The Court's opinion raises many different issues. Does the Court's desire to shield the anonymity of political speech call into question all types of campaign finance disclosure, including disclosure to election officials? If compelled disclosure to election officials remains an option for candidate elections, is it also an option for ballot measures? If compelled disclosure to election officials remains an option for dealing with the problems of campaign finance, is com-

Initiative Campaign Finance and Disclosure

197

pelled self-identification in political advertising also an option? Are there alternative measures that are both effective and less intrusive than compelled disclosure? (2) Anonymity. Justice Thomas, in a powerful concurring opinion, argues that the First Amendment was explicitly intended to protect the right of anonymous speech and that Mrs. McIntyre can therefore not be punished for failing to provide the identification required by Ohio law. Although not willing to go as far as Justice Thomas, the Mclntyre majority nonetheless goes to some lengths to demonstrate its awareness of the ways in which the protection of anonymous political speech reinforces the basic right to free speech. Unless the Court is prepared to reverse its landmark 1976 decision upholding required disclosure of campaign contributions and expenditures in election campaigns, however, it seems obvious that the protection of anonymity is a principle that is not available to the Court in answering issues concerning compelled disclosure of identity in election advertising. In candidate elections, candidates must disclose to election authorities not only their identity but the names and amounts that their supporters have contributed as well as the amounts expended and the names of those receiving the expenditures. Neither the candidates nor those whose names are revealed have any anonymity, particularly as a central justification of the disclosure is to provide "the electorate with information 'as to where political campaign money comes from and how it is spent by the candidate' in order to aid the voters in evaluating candidates.,,64 Although campaign disclosure forms submitted to election authorities make it impossible for the sponsors of campaign advertising to remain anonymous, the forms themselves do not indicate anything other than that the campaign paid a particular vendor for literature or advertising. The mere fact of financial disclosure therefore does not identify any particular piece of literature or advertising, and does not prevent the literature or advertising from being distributed without attribution, if the sponsor so chooses.65 As a practical matter, however, financial disclosures to election authorities make it virtually impossible for large-scale advertisers to distribute unidentifiable advertisements without the use of deception.66 (3) Ballot Measures. Margaret McIntyre's leaflet concerned a ballot measure, however, not a candidate election, and in its decision the Court suggested that the principles governing disclosures in ballot measure elections might be different from those in candidate elections. "(B]allot issues," the Court said, 424 U.S. 1,66-67(1976). 65Thestatute approvedin Buckley v. Valeo goes beyondmere financialdisclosureto election authorities,requiringthat thecommunicationitselfidentifythe personor grouppayingfor the communication.2 U.S.C. ~ 44ld (1994).Theportionof thestatuterequiringidentificationin thecommunicationitselfwasnotdiscussedin thecase,however. 660rdinarycitizensobviouslydo not oftenreaddisclosuresmadeto the electionauthorities.The mediaand campaignopponents,however,do read such disclosuresand generallywhenthey find somethingmaketheirfindingspublic.Deceptivepracticesthat mightpreventlinkageincludenon-filing withelectionauthorities,filingsthatarefalseas to amountor source,or filingsthatare disguised throughtheuseof dummycommitteesas intermediaries. 64Buckley v. Valeo,

198

LAWMAKING

BY INITIATIVE

"present neither a substantial risk of libel nor any potential appearance of corrupt advantage." "In candidate elections," the Court said: the Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures. Disclosure of expenditures lessens the risk that individuals will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office. Curriers of favor will be deterred by the knowledge that all expenditures will be scrutinized by the Federal Election Commission and by the public for just this sort of abuse.67

The line between candidate elections and ballot measure elections is not as clearcut as the Court seems to suggest, however. It is not unusual for statewide initiative election campaigns to be closely connected with the campaigns of candidates in the same election. In 1990, for example, California officeholders sponsored II of the 18 initiatives reaching the baIlot.68 Some of these initiatives were an explicit part of the candidate's campaign strategy, making it difficult to determine which funds belonged to the candidate and which to the initiative campaign.69 In other instances candidates become closely involved with initiatives begun by others. Many observers credit Pete Wilson's come-from-behind victory in the 1994 California gubernatorial election, for example, to his support of an initiative restricting health and education spending for illegal aliens.7° It is also possible for candidates, political parties, and other groups to propose initiatives as a way of draining resources away from rival candidates,?1 and in the 1996

67Mclntyre v. Ohio Elections Commission, pp. 1521,1523. 68California Commission on Campaign Financing, Democracy by Initiative, pp. 275-277. The number in this campaign was unusual, but there is a long history of candidate involvement in initiative campaigns. According to Charles Bell and Charles Price, "elected officials ... [were] proponents of more than one-third of all the initiatives qualifying for the [California] ballot" during the two decades between 1966 and 1986. "Are Ballot Measures the Magic Ride to Success?," California Journal 19 (September 1988): 380, 381; David Magleby, "Let the Voters Decide? An Assessment of the Initiative and Referendum Process," University of Colorado Law Review 66 (1995): 13,28-29; Jim Shultz, The Initiative Cookbook (San Francisco: The Democracy Center, 1996), pp. 85-88; Eugene Lee, "California," in David Butler and Austin Ranney, eds., Referendums: A Comparative Study of Practice and Theory (Washington, D.C.: American Enterprise Institute, 1978), pp. 87, 99. Thirteen percent of all contributions of more than $100 to ballot measure committees in California in 1992 were made by office holders, as compared to 3 percent by individuals, and 2 percent by political parties and transfers. The remaining 82 percent came from political action committees, business and labor. Charlene Simmons, California's Statewide Initiative Process (Sacramento: California Research Bureau, California State Library, 1997), pp. 12-13. 69See, e.g., California Commission on Campaign Financing, Democracy by Initiative, pp. 275-277. During the period when California had contribution limits for candidates, the California Fair Political Practices Commission developed rules attempting to clarify how contributions should be allocated between candidate and initiative campaigns. 2 Cal. Code Regs. 918,538 (1991). These rules were repealed, after the California candidate contribution limits were held unconstitutional. 70See Daniel Weintraub, "Crime, Immigration Issues Helped Wilson, Poll Finds," Los Angeles Times, November 9, 1994, p. AI; Kevin Johnson, "An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race," Washington Law Review 70 (1995): 629,638. 7lShultz, The Initiative Cookbook, p. 84. Compare California Commission ing, Democracy by Initiative, p. 277.

on Campaign Financ-

Initiative Campaign Finance and Disclosure

199

campaign both major national political parties sought to bolster the fortunes of their congressional and presidential candidates by spending millions of "soft money" dollars--the type of political money involved in this campaign's highly publicized scandals--on "issue" ads.72 Initiative proponents also sometimes try to hitch a ride on the money or the coattails of a candidate's race.73 Nor is it true, as the Court argues, that ballot issues present no "potential appearance of corrupt advantage." In fact, there is an extensive history in statewide initiatives of hidden features ("Trojan horses") that have little or nothing to do with the ostensible subject of the initiative. The California lottery initiative discussed in Chapter Nine is a particularly flagrant example of this kind of problem but only a tiny part of the whole history. An early, and generally favorable, assessment of the Oregon initiative chronicled "the first trick bill tried on the Oregon electorate" in 1906, the second election after the initiative was adopted in that state. Although the voters turned down this proposal, a 1910 proposal with hidden features was adopted.74 The Trojan horse problem is not an isolated problem that can easily be cured. It is rather an institutional problem, as insidious in its own way in statewide initiative campaigns as the quid pro quo issue in candidate elections. Neither problem is easily detected, and both are corrosive of public trust in the political process. Both are also difficult issues to reach through traditional remedies such as criminal prohibitions.75 The Trojan horse problem is magnified by the extensive history of deception about sponsorship or opposition to statewide initiative measures. Both initiative sponsors and opponents in California and elsewhere routinely seek to hide their sponsorship of campaign advertising in disclosure statements contained in the advertisement itself. Ads in favor of a "no smoking" initiative in California in 1994, for example, indicated that they were sponsored by "Californians for Statewide Smoking Restrictions.,,76 In fact, however, over 95 percent of the funds for these ads came not from Californians but from out-of-state tobacco companies. Over 65 percent came from the Philip Morris corporation, a large cigarette manufacturer. The initiative itself had some "no smoking" features, but also clearly had as a central purpose the repeal of much stricter local regulations.

n"D'Amato

Converted Donations to Help New York Candidates," New York Times, February 18, Wertheimer, "Stop Soft Money. Now.," New York Times, December

1997,section A, p. 1, col. 1;Fred 22, 1996,section 6, p. 38, col. 1.

73Laura TaIlian, Direct Democracy: An Historical Analysis Recall Process (Los Angeles: People's Lobby, 1977),p. 135.

of the Initiative.

74Allen Eaton, The Oregon System: The Story of Direct Legislation McClurg, 1912),pp. 27,133.

Referendum

and

in Oregon (Chicago: A. C.

75In Austin v. Michigan Chamber of Commerce, 494U.S. 652(1990),the Court recognized that the quid pro quo-type of corruption discussed in the Buckley case was not the only type of corruption warranting regulation. 76The formal name of the committee was "Californians for Statewide Smoking Restrictions-Yes on Proposition 188.A Committee of California, Hotels, Restaurants and Philip Morris, Inc."

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LAWMAKINGBY INITIATIVE

The courts have been somewhat schizophrenic in their recognition of these problems. In a 1981 ballot measure case, the Supreme Court clearly recognized the existence of a deception problem. "[W]hen individuals or corporations speak through committees," the Court said, "they often adopt seductive names that may tend to conceal the true identity of the source."n The Mclntyre majority ignored this recognition, however, repeating an earlier assessment that "corporate advertising, unlike some methods of participation in political campaigns, is likely to be highly visible.,,78 This statement appears to indicate that citizens will have no difficulty identifying the corporate origin of political advertising in ballot measure contests. If that is the Court's meaning,79 the statement is simply inaccurate, at least as applied to statewide initiative campaigns.80 Except for the 1990 campaigns when Proposition lOS was in effect in California and a few unusual campaigns,81 a California citizen, for example, who saw every ad heavily supported by corporations during the last 20 years would rarely have learned anything from the ads themselves about either the involvement of a corporation or who the corporate sponsors were.82 Initiative proponents occupy a unique position in American law. They are not only speakers in the traditional sense of political speech, but they are also in a very real sense the authors of the legislation being proposed. Although bill authors in the legislature have First Amendment rights, they are entitled neither to introduce bills anonymously, nor to avoid disclosures about their personal wealth or those who contributed to their political campaigns.83 Initiative proponents, like legislators, have political power. They make deals, solicit contributions, and seek other sources of support. The proposals that initiative proponents put forward often reflect this support in the same way that the activities of a legislator are affected by large campaign contributors. Even when support is not compensated for directly by the inclusion of specific, contributorsuggested provisions in the initiative proposal,84 numerous other methods of

77Citizens

p. 298. p. 1522n.18, quoting First

Against Rent Control v. City of Berkeley,

National Bank v. Bellotti, p. 792 n.32. 79Ifthe Court's meaning is that corporate advertising is likely to be of such a magnitude that citizens will become aware of the advertising(as opposed to the sp9nsorship),the statement is generally true but not particularlyrelevantto the constitutionalissue. 8<Jorhe authors have not investigatedcampaigns involving legislativelyproposed ballot measures such as the tax measure involved in the Bellotti case. The authors take no position therefore as to whether the Court's statement gives an accurate description of advertiser behavior in ballot measure campaigns involvingproposalsput forwardby the legislature. 81See"An Option for Reform:More PointedDisclosure,"later in this chapter. 82Thisdiscussion has focused on corporations because the Court's statement referred to corporations. If the analysis had focused on other groups and individualactors, it would have made many of the same points. 83Althoughthe personswho sign petitionsare in theory the sponsorsof an initiative,those who pay for the signature gathering or who organize the signature gathering are the real authors of the measure. See Chapter Seven. 78Mclntyre v. Ohio Elections Commission,

Initiative Campaign FiTUlJU:e and Disclosure

20 I

influence may be at work.85 Because the public is aware that large contributors have influence in initiative campaigns, hidden contributions pose much the same threat to public confidence in the political process as hidden contributions in candidate elections. Although initiative proponents are not exact analogues of either legislators or legislative candidates, they are similar enough to justify the same kind of reporting to election officials that is required for candidates.86 The position of initiative opponents is harder to analyze. They are more like purely private persons than are initiative proponents. They are responsible for no Trojan horses, and in some respects it is hard to distinguish their speech from classic political speech in a public forum. Organized opposition groups also frequently solicit contributions, however, and have many of the same qualities as lobbyists.87 They often spend huge amounts of money. They frequently disguise their influence and their identities. Some are repeat players. And even when they are not themselves repeat players, they frequently use campaign consultants who are repeat players. While not as compelling as the justifications for requiring proponent disclosure, these factors seem nonetheless sufficient to justify disclosure for organized opposition groups. Although the Mclntyre majority downplayed the public's need for information concerning the source of campaign funds, the Buckley Court not only recognized its value to voters but explicitly identified the public's need for information as one of the three grounds for its decision upholding compe]]ed disclosure in candidate elections. Information about the source of campaign monies, it said, a]]ows the electorate to place a candidate "more precisely" in the political spectrum "than is often possible solely on the basis of party labels and campaign speeches.,,88 This is also true in the real world of statewide initiative politics. As the Court said in a 1978 ba]]ot measure case, "Identification of the source of advertising may be required as a means of disclosure, so that the people wiJ] be able to evaluate the arguments to which they are being subjected.,,89 84Seethe discussionof the 1990 California"Big Green" initiativein Chapter Nine, "Effects on Log Rolling." See also CaliforniaCommissionon CampaignFinancing,Democracy by Initiative, pp. 281-282. 85The1984Californialotteryinitiative,for example,in additionto the hiddensubstantiveand politicalfeaturesdiscussedin ChapterNine("Trojanhorses"),involveda "deal"betweentheproponentsandNevadagamblinginterests.BecausetheNevadagamblinginterestshadcontributedlargequantitiesof moneyto helpdefeat earlierCalifornialotteryproposals,the lotteryinitiativeproponentsaddedlanguageto the initiativeprohibiting gamblingcasinos"ofthe typecurrentlyoperatingin NevadaandNewJersey"in CaliforniaCal.Const.art.IV, ~19(e).Knowledgeableobserversindicatethat this "deal" involvedexplicitbargainingbetween the parties. Whetherthedealwasexplicitor implicit,however,theNevadagamblinginterestsdidnotopposethe initiative. 86Likelegislative candidates, they are private persons seeking to exercise governmental power. 8? Compare Austin v. Michigan Chamber of Commerce, p. 678 (Stevens, J., concurring). 88Buckley v. Valeo, pp. 66-67. See also Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214,228-229 (1989). 89Although this statement concerned only corporate expenditures, the principle seems applicable to other kinds of expenditures as well. First National Bank v. Bellotti, p. 792 n.32. The Mclntyre majority found this quotation irrelevant because Mrs. McIntyre's handbill was "independent." P. 1523. Although useful in candidate elections, the "independent expenditure" concept does not work well in initiative elections. See "(4) Independent Actors" below. The Mclntyre majority's use of this concept not only fails to distinguish the quotation, but also leads it to distort greatly what the Court said in Bellotti and Buckley about the value of financial information to voters.

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BY INITIATIVE

The huge quantities of money involved in statewide initiative campaigns constitute an enormous political force. Because the realities of the signature gathering process depend primarily on money, the persons and groups who command the ability to employ these funds have the ability to set much of the public agenda. On occasion this power rivals or exceeds that of the major political parties or even that of the legislature itself. It was not simply hyperbole that led the California Commission on Campaign Financing to refer to the initiative process as a "Fourth Branch of Government.,,90 Statewide initiative campaigns are occasionally conducted on a shoestring. More typically, however, they involve thousands or hundreds of thousands of dollars. In states like California the million dollar range is not uncommon. Expenditures for the November 1988 California insurance initiatives, for example, exceeded $95 million, more than the $92.2 million in public funds allocated to George Bush and Michael Dukakis for the presidential election held on the same day.91 And in both 1988 and 1990 more dollars were spent to persuade voters in ballot measure contests than to lobby California state legislators.92 Expenditures on this scale present markedly different issues than Margaret Mcintyre's leaflet. Although the evidence about whether it is possible to buy success or defeat an initiative through the expenditure of huge amounts of money is unclear, the fact that there has been so much research on this issue indicates the serious nature of the concern.93 Many experts believe that with enough money it is not only possible to qualify almost any initiative but also possible to defeat almost any initiative at the election.94 Public opinion polls make it clear that the public is greatly troubled by the issue.95 The effects of large scale spending in statewide initiative elections is magnified by the fact that spending can be extremely one-sided.96 Often the reason that no one has answered a particular argument put forward by a proponent or an 900rhe full title of the report is Democracy Government.

by Initiative: Shaping California's

Fourth Branch of

91The California figures are taken from Appendix Table 5. The federal figures are from a telephone interview with the Federal Election Commission, August 28, 1995,indicating that each of the major candidates was allocated 46.2 million dollars for the general election. 92California Commission on Campaign Financing, Democracy by Initiative, p. 264. Although the original proponents of the initiative and other direct democracy devices thought that these devices would virtually eliminate the role of money in politics, it is obvious that this has not occurred. See, e.g., John Commons, "Direct Legislation in Switzerland and America," The Arena 22 (1899):725, 739 ("With the referendum the use of money, whether honest or corrupt, will be almost abolished."). 93See "Campaign Spending and Initiative Outcomes," pages

181-188herein.

94California Commission on Campaign Financing, Democracy by Initiative, pp.

263-264.

95In his presentation to the California Citizen's Commission on Ballot Initiatives on February 25, 1993,pollster Mervin Field indicated that 86 percent of California citizens believe that "special interest groups gain power by spending money to promote only their side of an issue." P. 3. Mr. Field also indicated that "cleverly contrived thirty-second TV commercials or sound bites used by the side with the most money can usually carry the day" in high salience initiative elections. P. 4. 96Lowenstein, "Campaign Spending and Ballot Propositions;" paign Financing, Democracy by Initiative, Appendix F.

California

Commission

on Cam-

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203

opponent is an absence of funds rather than an absence of good arguments. If citizens are to make intelligent choices with their votes, it is important for them to know which side has the funds to make public arguments and which side lacks such resources.97 The utility to voters of information about the financing of initiative campaigns is sufficiently obvious that all but one of the initiative states now require initiative proponents and opponents to report to election officials the contributions received and the expenditures made.98 Even the McIntyre majority seemed to recognize the validity of requiring disclosure for the major ballot measure proponents and opponents. It argued, for example, that Margaret McIntyre's pamphlet should be free of regulation because it was "independent" of the major campaigns for the ballot proposition. While the Court's statement does not itself say that the major campaigns could be required to disclose, the argument makes no sense unless the major campaigns can be required to disclose.99 Modern political advertising does not rely on intellectual arguments alone. It explicitly seeks to evoke a "trust" factor that is based in part on who is supporting and who is opposing the measure.lOO This is why campaign consultants spend a lot of time and effort choosing their television actors and spokespersons. This is also why campaign consultants choose the people who sign the arguments for their side in ballot pamphlets with care and why Chapter Eleven and other authorities recommend allotting additional space to such information. It is also the reason why the temptation to construct wholesome sounding, but misleading committee names is so great. 101 Although the Court was clearly correct in holding that the "inherent worth" of speech "in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union or individual" and that there is therefore no justification for banning corporations (or any other group) from participating in ballot measure elec971n candidate elections the Court has labeled "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the publ.ic's support for the corporation's political ideas" a "different type of corruption," and has held that this second type of "corruption" justifies a ban not only on corporate contributions to candidates but also a ban on independent expenditures to candidates by profit-making corporations. Austin v. Michigan Chamber of Commerce, pp. 659-660. 98See Table 37. 99See "Independent

Actors" below.

IOOSee, e.g., TaIIian, Direct Democracy, pp. 122-139, particularly pp. 127-129. The Swiss jurist and politician Carl Hilty spoke to this .issue in 1887: "It is therefore not the fieldhand who must judge the commercial code or the stableboy who must study the code of civil procedure. Rather in such cases both should leave this to the judgment of their closest neighbors and friends or to jurists, that they trust to have the necessary understanding." "Das Referendum in schweizerischen Staatsrecht," Archiv des offentlichenen Rechts 2 (1887): 167,367,433. 101 Although ad hominem arguments are considered a fallacy in logic, they have long had a valued place in politics. George Kennedy, Aristotle on Rhetoric, A Theory of Civic Discourse, Newly Translated (New York: Oxford University Press, 1991), pp. 1-12.

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LAWMAKING

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tions,102 citizens seem justified in wanting to know who is proposing the laws on which they are voting (including who paid for the collection of signatures when paid signature gatherers have been used). Citizens also seem justified in wanting to know who is sponsoring the ads (often in great profusion) that ask for their trust and their vote. If modern advertising is based in part on the use of "hidden persuaders," there is good reason to know who is attempting the persuasion. 103 If federal law can legitimately ban all contributions from foreign nationals in candidate elections, I 04 it is hard to see why citizens should not be allowed to learn whether the money supporting (or opposing) an initiative seeking to legalize marijuana, for example, is coming from overseas drug interests. If there are 30 different committees, all with very different sounding names and all running many ads, opposing the building of a nuclear power plant, should citizens not be entitled to know that all 30 committees are in fact being paid for by a single individual rather than the grounds well of public opinion implied by the large number of different committees?105 If out-of-state mail order companies can legitimately spend unlimited amounts of money attacking an initiative seeking to impose a use tax on out-of-state mail order sales, why should voters not be allowed to know where the money for the ads is coming from? Although the Court has been correct in refusing routinely to carryover to ballot measures all the principles of regulation developed for candidate elections without close scrutiny, thoughtful analysis will show that statewide initiative campaigns present many of the same problems as candidate elections, and call for many of the same kinds of legal solutions. This conclusion should not be surprising-because the actors are for the most part the same individuals and groups, and the methods of persuasion available are quite similar.106 As a leading initiative attorney and lobbyist told the authors, "an initiative is just one of the various ways of getting something done. When I talk with a client, I consider everything from a press release to a statute to an initiative.,,107 Until the McIntyre decision it seemed relatively clear that initiative proponents and opponents, like candidates, could be compelled to report their contributions and expenditures to election authorities. In Citizens Against Rent Control v. City of Berkeley, the Court held contribution limits in ballot measure elections to 102First National Bank v. Bellotti, pp.

777.

I030ne does not have to accept all the assertions of works such as Vance Packard, The Hidden Persuaders (New York: O. McKay Co., 1957) and Joe McGinnis, The Selling of the President (New York: Penguin Books, 1988) to recognize the influence of modem advertising concepts on political campaigns. 1042 U.S.c. g441(e) (1994). 105Compare Griset v. Fair Political Practices Commission, 8 Cal.4th 851 (1994), cert. denied, lIS S.Ct. 1794 (1995). 106See Chapter Three, particularly the comments of Betty Zisk and those of V. O. Key, Jr. and Winston Crouch. I07Press releases obviously present different legal issues from statutes and initiatives.

Initiative Campaign Finan£e and Disclosure

205

be unconstitutional. In response to an argument that contribution limits were necessary to protect the integrity of the political system, the Court said that there was "no risk that the Berkeley voters will be in doubt as to the identity of those whose money supports or opposes a given ballot measure since contributors must make their identities known" under the ordinance. 108"The integrity of the political system will be adequately protected," the Court continued, "if contributors are identified in a public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw anonymous contributions.,,109 The Court thus rested its rejection of contribution limits in major part on the city's ability to require disclo1 sure. 10It is puzzling that the Mcintyre Court neither cited nor discussed the Berkeley case, particularly as some of the broad Mcintyre language can clearly be read as casting doubt on the Berkeley holding. There is nothing in the core Mcintyre holding that is necessarily inconsistent with the Berkeley ruling, however, and it is highly doubtful that the Court will in the future go back on its Berkeley conclusion that disclosure to election officials can be required. (4) Independent Actors. A possible exception to the conclusion that initiative proponents and opponents can be compelled to disclose their contributions and expenditures to election officials is activity that is independent of any organized campaign. In Mcintyre, the Court mentions the independence of Mrs. McIntyre's activity numerous times, arguing that there is less justification for requiring disclosure from "independent" actors than from those involved in organized campaigns. In candidate elections the concept of expenditures that are "independent" of the campaigns of the candidates is comprehensible. The concept's principal purpose, however, is not to regulate when disclosure can and cannot be compelled, but to distinguish "contributions," which can be limited, from "expenditures," which cannot. Indeed, the Court has consistently held that independent actors in candidate campaigns can be compelled to disclose their expenditures to the election authorities in order to protect the integrity of the general regulatory scheme.III In initiative contests the concept of "independent expenditures" is murkier and less useful. Even though the sponsors of initiatives often have an organized campaign, it is not always easy to distinguish which expenditures belong to the campaign and which are "independent." In one major initiative campaign in California, for example, an out-of-state donor gave organization A the funds necessary to pay for the signature collection. After organization A had qualified the 108Citizens Against Rent Control v. City of Berkeley, 454 U.S.

290,298(1981).

I09Citizens Against Rent Control v. City of Berkeley, pp. 299-300.The Court found the city's interest in identifying the sources of support for ballot measures through contribution limits "insubstantial," because the ordinance required disclosure. P. 298. II~he Court's discussion of disclosure was essential to its holding. Without this discussion, the Court would have had to face the question of whether contribution limits were unconstitutional even if there were no disclosure. III Buckley

v. Valeo, pp. 74-82.

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measure, the out-of-state donor gave a wholly different organization, organization B, funds for the election battle (which was ultimately successful). In this circumstance, which is the campaign and which is the "independent" effort? With opponents to initiatives, it may be even more difficult to determine which expenditures are "independent" and which are not. Although it is possible to write disclosure laws for ballot measures in terms of the "independence" of the actor, such an approach tends to cloud the real issues. If the desire is to limit disclosure for individuals acting alone or for "personally crafted" statements, it would be better to create specific exemptions for these groups than to try to adapt the "independent expenditure" concept to this purpose. I 12 Even simpler, and more in keeping with First Amendment values, would be an exemption from disclosure and other regulation for all small-scale actors in political campaigns. See "(7) Protection of Small-Scale Actors" below. (5) "Intrusiveness." Assuming that disclosure to election officials can be compelled, the question remains as to whether disclosure can also be compelled in the political advertising itself. In McIntyre, the Court argued that compelled self-identification in one's own political advertising is more "intrusive" than disclosing one's identity and financial activities to election authorities. The Court has a point. If Scientific Games, Inc., has to say in its campaign advertising that it, rather than some amorphous group known as "Californians for Better Education,,,I13 is the sponsor of the California lottery initiative, this disclosure may interfere with the corporation's purpose of persuading Californians that they should vote for the initiative in order to "help education." Similarly, if the out-of-state tobacco companies that put up 18 of the 19 million dollars spent in promoting the 1994 California "no smoking" initiative can be required to identify themselves as the tobacco industry instead of calling themselves "Californians for Statewide Smoking Restrictions," this requirement could well interfere with their attempt to preempt much tougher local smoking restrictions. There is, as the Court says, a difference between requiring disclosure to the election authorities and requiring disclosure in the political advertising itself. Disclosures made to the election authorities are not likely to reach as wide an audience as a disclosure in the political advertising itself. Although disclosures to election authorities get some publicity, they rarely get the same amount of public exposure as the discloser's own political advertising. Whether this practical difference is a difference that should affect the constitutionality of the disclosure required, however, is a different question. In Buckley, the Court said that even disclosure to election authorities interfered with the speaker's right of free speech and that this interference could be justified only if there were strong reasons for the interference. Applying this "exacting scrutiny" 112The "independent expenditure" concept as developed in candidate elections, for example, is not limited to individuals acting alone. Federal Elections Commission v. National Conservative Political Action Committee, 470 U.S. 480 (1985). 113See Chapter Nine.

Initiative Campaign Finance and Disclosure

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standard, the Court upheld disclosure to election authorities, finding three separate grounds that justified disclosure: (1) providing information to voters, (2) deterring "actual corruption and avoid(ing] the appearance of corruption by exposing large contributions and expenditures to the light of publicity," and (3) aiding enforcement.ll4 If disclosure to election authorities provides information to voters, deters "actual corruption and the appearance of corruption by exposing large contributions and expenditures to the light of publicity," and aids enforcement, it seems obvious that disclosure in political advertising is likely to have the same effects, particularly as disclosure in political advertising often reaches more of the voting public. Any objection to compelling disclosure of identity in political advertising (at least in candidate elections) cannot rest therefore on the lack ora justification meeting the "exacting scrutiny" standard. Rather it must rest on an argument that the interference with the speaker's free speech rights is somehow greater when the speaker himself or herself or itself must provide the identification. One possible argument of this kind is that requiring the speaker to identify himself forces the speaker to devote a part of his message on the identification, and thus detracts from his ability to communicate with his audience. From a resource point of view there is some force to this argument. Because disclosure to the election authorities also requires the expenditure of resources, however, and because this expenditure also detracts from the speaker's overall stock of funds, it is hard to see any practical difference between the two forms of disclosure from a resource point of view. In either case if the resources required to make the disclosure are too great, the interference with the speaker's rights cannot be justified. If, on the other hand, the resources required to make the disclosure are not too great, the original justification for the disclosure would seem sufficient without regard to the form of the disclosure. I IS A different kind of objection is that self-identification in the message interferes with the speaker's message more than disclosure to election officials. This is a significant argument, as any interference with the ability of a speaker to get his or her message across is ordinarily a matter of great concern under the First Amendment. In the case of disclosure, however, any diminished ability to communicate or convince comes not from some kind of direct interference with the speaker's speech but from the fact of disclosure itself. Aside from the resource

114Buckley v. Valeo, pp. 66-68. The Mclntyre majority strongly implies that only corruption or the appearance of corruption could justify compelled self-disclosure. In previous cases the Court has indeed found corruption or the appearance of corruption to be the only justifications for imposing contribution limits. The Buckley case clearly recognized a broader array of justifications, however, for disclosure to election authorities. 115The burdens that the state can impose on political advertisers must not be too great and must be proportional to the justification that allows the burden. In Mrs. McIntyre's case no burden was justified. In cases where thousands or millions of dollars are being spent on political advertising, it does not seem unreasonable to require that a small proportion of the communication be devoted to identifying the sponsor.

208 LAWMAKING BYINITIATIVE issue already discussed and the autonomy issue discussed below, the only difference between disclosure in the advertising itself and disclosure to election authorities is the size of the audience and the immediacy of the disclosure. Selfidentification in the advertising, as a practical matter, generally reaches a larger audience and is almost always more immediate than disclosure to election authorities. In principle, however, given the fact that the advertiser must disclose, the election authorities, if they wanted to spend the resources, could reach the same or a larger audience in a not too different time frame. 116The media or election opponents could obviously do the same.117 The greater "intrusiveness" of self-identification is therefore essentially a question of the extent to which the state, the media, or election opponents choose to publicize the disclosure. A third kind of objection is the exposure to possible retaliation and the chilling effect of the fear of possible retaliation. In upholding compelled disclosure to election officials, the Court has been highly sensitive to the problem of retaliation. Citing cases in which Southern states had sought to use disclosure as a weapon for persecuting groups such as the NAACP, the Court has numerous times indicated its willingness to grant exemptions from disclosure to political groups that can show special problems. The Court has refused, however, to grant any blanket exemption from disclosure even for minor political parties or other 1I8 groups that fear harassment but who have made no showing of harassment. The McIntyre majority argued that the danger of retaliation is greater in the case of disclosure in the political advertising than with disclosure to election authorities.1l9 This is not at all self-evident, however, particularly as disclosures to election officials generally contain more detailed information than disclosure in the advertising itself. A fourth kind of objection to self-identification is the interference with the autonomy or dignity of the speaker arising out of the compulsion on the speaker to say something that the speaker does not wish to say.120 This kind of objection was a major concern of the McIntyre majority. Disclosure to the election authorities, it said, "is less specific, less personal, and less provocative" than disclosure in the advertising itself.121 In the case of small-scale actors, whose activity is often quite personal, self-identification in the advertising does arguably create a somewhat greater loss of autonomy than disclosure to election officials. Even here, however, the difference is obviously not great, and in the case of larger scale actors it is nonexistent. In both forms of disclosure the speaker is compelled to provide the identification. In one form the disclosure is generally more immedi1160regonandMontanahavelaws,for example,thatwouldallowthe stateto publicizethe disclosure.SeeChapterEleven.Electronicfilingof campaignfinancereportsandthepostingof theseonthe internetmaymakeinstantdisclosurecommonplace. I 17TheBerkeleyordinancediscussedin Citizens Against Rent Control v. City of Berkeley, p. 294 nA, requiredpublicationof thenamesof contributorsin localnewspapers"twiceduringthelastseven daysof a campaign." 118Buckley v. Valeo, pp.68-74;Mclntyre v. Ohio Elections Commission, p. 1524n.21. 119Mclntyre v. Ohio Elections Commission, p. 1523.

Initiative Campaign Finance and Disclosure

209

ate; in the other it is generally more detailed. In both situations there are generally many people involved in conveying the message. In these circumstances it is hard to see what First Amendment values are served by preferring one form of disclosure over another, at least with larger-scale actors and in situations where some form of disclosure is justified under constitutional principles. If the Court were to conclude that self-identification could not be required in any political advertising, the Court would have to rule unconstitutional not only statutes from every virtually state but also at least three major federal statutes. 122 The Federal Election Campaign Act now requires candidate sponsored communications in federal elections to "clearly state that the communication has been paid for" by the candidate or the candidate's committee and communications sponsored by others to "clearly state" the identity of the sponsor. "Independent" expenditures must "clearly state" not only the "name of the person who paid for the communication" but also that "the communication is not authorized by the candidate." The Federal Communications Act requires all advertisers on radio and television, including political advertisers, to identify the persons who paid for or sponsored the advertising. The federal postal laws require newspapers and periodicals using special classes of postage to print in the periodical not only the names and addresses of their editors, publishers, business managers, and owners but certain other management and ownership information as wen. The Supreme Court found this law constitutional in 1913. Also upheld was another provision requiring each item printed in the periodical for which the periodical was paid a fee to be labeled as an "advertisement." Although dropped in the wide-reaching revision of the postal laws in 1970, this provision was never subsequently challenged and served as the model for the advertising disclosure requirement in the Federal Communications Act.123 These laws serve important purposes. Mail advertising for both candidate 12lJ.rhe First Amendment protects the right not to discuss opinions and facts as well as the right to speak. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.C!. 2338, 23462347 (1995). In many election situations, however, the Supreme Court has already determined that there is justification for requiring disclosure to election authorities of campaign finance information. The question in these situations is whether self-compelled disclosure of identity in the advertising itself is simply another form of the disclosure that must be made to the election authorities or something altogether new and different. Compare Pacific Gas & Elec. Co. v. Public Utilities Commission, 475 U.S. 1,21 (l986)(Marshall, J., concurring). In Riley v. National Federation of the Blind, 487 U.S. 781 (1988), the Court struck down a North Carolina law requiring professional solicitors to disclose the percentage of funds turned over to a charity before making a charitable solicitation. Applying an "exacting scrutiny" standard, the Court found the state's interest not "weighty" enough and the law not "narrowly tailored" to that interest. Much more pertinent to the issue of compelled self-disclosure in political advertising, however, was the Court's ruling with respect to the North Carolina law's requirement that professional solicitors disclose their professional status to potential donors. Despite its holding that the solicitors' speech was "fully protected" rather than commercial speech, the Court upheld this compelled self-disclosure. P. 799 & nJI. l2lMcJntyre v. Ohio Elections Commission, p. 1523. 122McJntyre v. Ohio Elections Commission, pp. 1533 n.2, p. 1535 (Scalia, J., dissenting); 2 U.S.C. g44Id(a) (1994); 47 U.S.c. g317 (1994); 39 U.S.c. g3685 (1988). 123Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913).

210

LAWMAKING BY INITIATIVE

and issue elections is frequently highly deceptive. Much political mail is made to look like it comes from the government. The recipient opens it because it appears to be both official and important. Political mail can also be made to look like a normal newspaper. In a 1992 congressional race one of the authors received several issues of a small newspaper entitled The Valley Messenger. The "news stories" all concerned the congressional campaign. The first several issues criticized the Democratic candidate. The last issue, received only days before the election and in exactly the same format, indicated that the "paper" had reconsidered its position and was now endorsing the Democratic candidate. Even with the current requirements in the Federal Election Campaign Act for self-identification of political advertising, it was difficult for knowledgeable persons to recognize that the first issues of this "newspaper" came from the Republican candidate and the last from the Democratic candidate.124 Without such requirements, it would have been impossible. The federal laws concerning television are particularly important because so many citizens derive their information about statewide initiatives from television. These laws and the implementing rules promulgated by the Federal Communications Commission have long required self-identification in political advertising. Because television and radio present special issues under the First Amendment, the Mclntyre majority specifically excluded any consideration of these rules from its opinion. 125 It seems obvious, however, that the same considerations that make it helpful for citizens to be able to identify the source of the political advertising they see on television and hear on radio apply to other forms of political advertising as well. (6) Alternative Solutions. Are there alternative solutions to the problems of voter information, Trojan horses and misleading names that would raise fewer First Amendment questions? There are certainly steps that could be taken to improve the amount of information made available to voters. Some of these steps, including improved ballot pamphlets and greater efforts to publicize the information available in the ballot pamphlet, are discussed in Chapter Eleven. States could address the Trojan horse problem through increased legislative attention to initiative measures and through much more focused use of the ballot pamphlet, as recommended in Chapters Six and Nine. States could address the problem of deceptive sponsorship through traditional measures such as criminal penalties for fraud and improved ballot pamphlets or through new "truth in advertising" laws that spell out the requirements for the use of names. Montana, for example, has legislation that requires political committees to use names that clearly identify the "economic or other special interest" or the common employer of the majority of its contributors. This name must be disclosed in any media advertisements.126 Federal law includes a similar require124A group of second- and third-year law students in an election law class, for example, unable, after looking at the "newspapers," to explain the shift in "editorial" policy. 125Mclntyre v. Ohio Elections Commission, pp. 1514-1515 n.3. 126Mont.Code

Ann. 913-37-210 (1995).

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129Mclntyre v. Ohio Elections Commission, pp. 1520-1521. 130"Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields ... , Mrs. McIntyre acted independently." McIntyre v. Ohio Elections Commission, p. 1514. Despite the apparent falsity, the trial court found that Mrs. McIntyre did not "mislead the public." P. 1515.

212 LAWMAKING BYINITIATIVE expected the Court to have noted this problem and to have discussed whether the inherent tendency to use phony names, as exemplified by Mrs. McIntyre's own apparent deception, justified the Ohio disclosure law. Unless the Court was prepared to deny the existence of this kind of deception or to conclude that it was unimportant, the Court would then have been forced to discuss the much harder issue of whether there was a basis for exempting the pamphlet from disclosure even though it was arguably deceptive and even though it fell within one of the types of deception that is very common in ballot measure campaigns.l31 The Court also fails to discuss the difficult questions concerning criminal prosecution in this case, including the chilling effects that prosecution poses for free speech. Could Ohio, for example, have prosecuted Mrs. McIntyre because of her deception? Could Ohio have prosecuted the authors of The Federalist Papers because they used the phony name "Publius"? If it is true, as the Court argues, that "the identity of the speaker is no different from other components of the document's contents that the author is free to include or exclude,',l32 Ohio would seem free to punish both Mrs. McIntyre and the authors of The Federalist Papers, if it could show that the writers were aware of the falsity of the identifications, as the writers almost surely were. 133Is criminal prosecution really "less intrusive" on the speaker's rights or less destructive to wide open political debate, however, than compelled self-disclosure? The majority's strong preference for prosecution is illustrated by its attempt to address Justice Scalia's powerful dissenting argument that "a person who is required to put his name to a document is much less likely to lie than one who can lie anonymously." The majority acknowledges, as it should, that disclosure is a "deterrent to the making of false statements by unscrupulous prevaricators." It quickly finds, however, that this is simply an "ancillary" benefit to prosecution. The majority also complains that the "prohibition encompasses documents that are not even arguably false or misleading."l34 The majority never explains, however, how a disclosure requirement aimed only at documents containing false or misleading statements would achieve any greater deterrence than the criminal penalties that already exist. The remedy that the majority has in mind for fraud and deception clearly appears to be that of prosecution and punishment, not prevention and deterrence. In other contexts, the Court has found disclosure to be a superior, and a much less intrusive, form of regulation. Thus, even though it is possible to prohibit corrupt forms of lobbying, the Court long ago approved a requirement that lobbyists register with appropriate agencies, giving not only their own names but also the 13IH is possibleto arguethatbecauseof the small-scaleof her activitiesMrs.McIntyreshouldbe protecteddespiteher apparentdeception. 132McTntyre v. Ohio Elections Commission, p. 1519. 1330n theotherhand,if Ohiois freetopunish"Publius"forusinga falsename,whatis thepointof the Court'sdiscussionof the use of pen namesby famousauthorsand the Foundersof the republic? Perhapsthe principlethe Courthas in mindallowsthe use of "neutral"nameslike "Publius"that obviouslyindicatea hiddenauthorbut doesnot protectmisstatementssuch as thoseapparentlymade byMrs.McIntyre. 134McTntyre v. Ohio Elections Commission, pp. 1536,1521.

Initiative Campaign Finance and Disclosure

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names of their clients and details of the financial arrangements involved.l35 Similarly, even though it is possible to prohibit bribery and corrupt forms of raising money for political campaigns, the Court approved required disclosure of the amounts and the objects of expenditure to election officials. In so doing, the Court said, "we note and agree with appellants' concession that disclosure requirements-certainly in most applications-appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist." The Court also quoted from Justice Brandeis: Publicity is justly commended as a remedy for social and industrial diseases. Sunli€ht is said to be the best of disinfectants; electric light the most efficient policeman. 13

Most of the alternative remedies available for fraud and deception, including deceptive names, are at least as "intrusive" as compelled self-disclosure in the advertising. Many depend on some form of prior disclosure, such as disclosure to election officials, and virtually all are unenforceable without a considerable amount of compelled disclosure in the enforcement process. As the Court recognized in Buckley, the existence of disclosure rules helps immensely in the enforcement process. 137 (7) Protection of Small-Scale Actors. The Court rightly protected Mrs. McIntyre's pamphlet from state-compelled disclosure. The protection that it afforded would have been clearer and better, however, if the Court had based the protection on the small scale of Mrs. McIntyre's political activity instead of a shotgun array of factors. Although it would be wrong for the Court to say that the state can do whatever it wishes with large-scale political players, First Amendment values would be greatly strengthened by a much clearer (and a much larger) exemption for small-scale political participants. A citizen who spends $100 or $500 circulating pamphlets or otherwise participating in political affairs in either candidate races or ballot measure contests should generally be commended instead of being subjected to extensive government regulation. An exemption of this kind would protect most of the "independent," "personally crafted" statements of political viewpoint about which the McIntyre majority was rightly concerned.l38 It would do so, however, without crippling the kinds of disclosure needed to deal with modern political advertising. Small-scale political participants are both more likely to be inhibited by government regulation and less capable of complying with regulatory systems than large-scale political actors.

135United States v. Harriss, 347 U.S. 612 (1954). 136Buckley v. Valeo, pp. 67-68. In his dissent in Austin v. Michigan Chamber of Commerce, Justice Kennedy argues that instead of allowing Michigan to ban corporate independent expenditures in candidate elections, the state should be limited to the "more narrow alternative of recordkeeping and funding disclosure." P. 707. 137Buckley v. Valeo, pp. 67-68. The Mclntyre majority acknowledged tify a more limited identification requirement." P. 1522.

that enforcement

might "jus-

I 38Mclntyre v. Ohio Elections Commission, p. 1523. The post-Mclntyre Ohio disclosure statute follows the approach suggested here. Ohio Rev. Code g3517.20 (Baldwin Supp. 1997)

214

LAWMAKING BY INITIATIVE

There is also less justification for regulation. Citizens are not dying to know the financial details about Mrs. Mcintyre's pamphlets. The injury to the free speech of small-scale political participants is thus greater, and the justification for governmental intrusion less than in the case of larger-scale actors.139 Although the Court has long recognized the principle of protecting small-scale political participants by exempting them from disclosure,140 it has applied this principle without vigor, without clarity, and with little recognition of the importance of this principle for grass roots political activity like that of Margaret Mcintyre's. (8) Future Directions. The reasons discussed above make it highly likely that the Court will eventually reaffirm its Berkeley decision that states can compel disclosure to election officials of financial information related to initiative campaigns. The Court will then be forced to determine whether disclosure of identity can be compelled in political advertising related to a statewide initiative or whether the disclosure can only be compelled to election officials. In answering this question the Court will have at least three possible options as solutions: (1) Allow compelled

disclosure to election officials but prohibit compelled self-disclosure in political advertising. (2) Allow compelled self-disclosure in political advertising in circumstances where disclosure to election officials can be compelled. (3) Allow compelled self-disclosure in political advertising in special situations (for corporationsl41 or initiative proponents,142 for example) but only disclosure to election officials where there are no special circumstances. None of the three solutions protect the anonymity of political speakers. By limiting the disclosure that can be required, however, solution (1) is in some ways the worst of both worlds. In concept it provides no greater protection to the speaker than solution (2), but in practice it provides much less information to the voting public. The best solution would appear to be solution (2): Allow compelled self-disclosure in political advertising but only in circumstances where the state can also 139Itis not at all obvious that "personallycrafted" statementsof political opinion that are communicated through the expenditureof huge sums of money (such as Ross Perot's fascinating television lectures or an initiative campaign counterpart) should be exempt from disclosure requirements, even if "independent." Buckley v. Valeo, pp. 74-82, upheld compelled disclosure to election authorities with respect to this kind of expenditurein candidateelectionsbecause of the relationshipto the general goals of the overall regulatory scheme. "The burden," the Court said, is "a reasonableand minimally restrictive methodof furtheringFirst Amendmentvaluesby openingthe basic processesof our federalelection system to public view."P.82. These same points seem applicableto statewideinitiativecontests. 140Buckley v. Valeo, pp. 82-84. 141Although the Mclntyre majoritydid not rule on the issue, its language suggests that corporations can be requiredto identifythemselvesin their politicaladvertising.Referringto its Buckley decision, the Court says: "[A]lthoughwe commentedin dicta on the prophylacticeffect of requiring identificationof the source of corporate advertising,that footnotedid not necessarilyapply to independentcommunicationsby an individuallike Mrs. McIntyre."Mclntyre v. Ohio Elections Commission, p. 1522. 142TheMclntyre majority distinguished the Bellotti and Buckley cases primarily through the use of the independence concept. The logic of this distinction suggests that initiative proponents and other groups involvedin organizedcampaignscan be compelled to disclose. See notes 88, 98, and 137 supra.

Initiative Campaign Finaru:eand Disclosure

215

compel disclosure to election officials.143 Although the McIntyre Court did not address the question as to whether Ohio could require Mrs. McIntyre to disclose to election officials the amount she expended in fighting the school board's proposed tax, solution (2) would require the Court to rule that she not only could not be compelled to identify herself in her pamphlet but also that she could not be forced to disclose the amounts spent to election officials. Mrs. Mcmtyre would then be protected from all forms of disclosure, not because there is something in principle wrong with compelled self-identification but because there is no justification for requiring small-scale political actors to disclose anything. The McIntyre case deals with a complicated area of law, and it should not be surprising that the Court was cautious about resting its decision too firmly on a single factor. Although the opinion contains language that raises significant questions about required disclosure of identity in political advertising, much that it said supports the ability of states to impose such requirements on substantial political groups and actors. As Justice Ginsburg indicates in her concurring opinion: The Court's decision finds unnecessary, overintrusive, and inconsistent with American ideals the State's imposition of a fine on an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name. We do not thereby hold that the State may not in other, larger circumstances, require the speaker to disclose its interest by disclosing its identity. 144

California By far the most extensive litigation concerning required disclosure of the sponsorship of political ads has taken place in California. Shortly after Talley (the 1960 U.S. Supreme Court case that established the anonymity principle), the California Supreme Court considered a statutory requirement that the author be identified for writings "designed to injure or defeat any candidate for nomination or election to any public office by reflecting upon his personal character or political action.,,145 The court found that the public interest in having more complete election information was in principle sufficient to justify the statute, but struck it down nonetheless because its particular wording violated the free speech rights of nonvoters. 146 Subsequently, the California legislature several times reformulated the state's disclosure statutes. The courts continued, however, to find some of these statutes unconstitutional. 147 143InRiley v. National Federation of the Blind, 487 U.S. 781(1988), the Supreme Court upheld compelled self-identification of the professional status of professional charitable solicitors. The North Carolina law also required disclosure of certain financial information to state officials, but the Court did not discuss the relationship between the two types of disclosure. 144Mclntyre v. Ohio Elections Commission, p. 1524. 145Canon v. Justice Court, 61 Cal.2d 446 (1964). Cal. Elec. Code ~12,047 was first adopted in 1901,1901 Cal. Stat. ~297. See also Huntley v. Public Utilities Commission, 69 Cal.2d 67, 75 (1968). 146Canon v. Justice Court, p. 460. In 1962, a lower court had found unconstitutional a parallel statute applying only to writings "designed to promote either the passage or defeat" of ballot measures. People v. Bongiorni, 205 Cal.App.2d Supp. 856 (San Diego Sup. Ct. 1962). 147Duboisand Feeney, Improving the California Initiative Process, pp. 55-57.

216

LAWMAKING BY INITIATIVE In 1995 the California

Supreme

Court upheld

the candidate

portion

of a dis-

closure statute requiring candidates and ballot measure committees mailing more similar pieces of mail to show the name, street than 200 copies of substantially address, and city of the candidate or committee on both the outside and the inside of the piece of mail. The court concluded that the state's interest in providing information to voters was a compelling interest that justified the interference with the defendant's desire to distribute pamphlets anonymously. The U.S. Supreme Court denied certiorari less than a week after the McIntyre decision. 148

An Option for Reform: More Pointed Disclosure The focus of most contemporary reform proposals concerning campaign finance is improved disclosure of initiative sponsors and campaign contributors. The reformers argue that voters who understand which individuals and organizations are supporting and opposing particular initiatives are in a much better position to evaluate the competing claims advanced by each side, particularly in campaigns where there are often no party labels or other cues to assist votersl49 and where there is not infrequently a great imbalance in the amounts expended by the contending factions. Information about financial participation is especially helpful when an organized interest group that will benefit directly from passage of an initiative measure has helped to qualify the initiative for the ballot through the collection of signatures or the contribution of campaign funds. Many states already require considerable disclosure.

California

law, for

example, requires that committees seeking to promote or oppose initiatives disclose contributions and expenditures of more than $100 to the secretary of state's office. 150 Individuals who contribute or spend more than $10,000 must file similar disclosures.151 Television and radio stations must identify the sponsors of political advertisements at the time of broadcast.152 Committees sending out more

than

200 substantially

similar

pieces

of mail

must

show

the name

and

address of the sponsoring committee. 153 While these requirements provide some information to the voting public, ad sponsors frequently disguise their campaign involvement by giving themselves 148Criset v. Fair Political Practices Commission, 8 Cal.4th 851 (1994), cert. denied, 115 S.C!. 1794 (1995). As this case indicates, the statement in Justice Scalia's Mclntyre dissent indicating that California lacks a required disclosure law is incorrect. Mclntyre v. Ohio Elections Commission, p. 1533. 149Nearly80 percent of the California voters responding to the ballot pamphlet survey discussed in Chapter Eleven found the names of the individuals signing the pro and con arguments a useful guide to voting. 150Cal.Gov't Code SS84,200and 84,203.5 (West 1993 & Supp. 1995). 151Cal.Gov't Code S82,013 (West 1993). 15247C.P.R. S73.J212 (1994). See also Joint Public Notice by the Federal Communications Commission and the Federal Election Commission, FCC 78-419, 69 P.C.C.2d 1129 (1978). I 53Cal.Gov't Code SS82,041.5,84,305 (West 1993). Even more extensive disclosures are required for "slate mailers" (mass mailings that support or oppose four or more candidates or ballot measures). Cal. Gov't Code SS82,048.3, 84,305.5 (West 1993 & Supp. 1997).

Initiative Campaign FilUJJU:e and Disclosure

217

impressive but uninformative names, such as "Citizens for a Better California." Media representatives and others who have the time and energy can generally dig the true story out of the filings required with the secretary of state's office, but there is almost always a delay in making this information available. Moreover, even when sponsorship information is produced, it is rarely disseminated as widely as the political advertising to which it relates. Voters themselves greatly complicate the information problem. Poll data indicate that many voters do not focus on statewide initiative campaigns until the last few weeks of an election. Media consultants and ad sponsors are aware of this data and often concentrate their ads in the last several weeks of the campaign. This is the period, however, when disclosure of financial information to state or federal election officials is least effective because these last minute expenditures (and the contributions that pay for them) often come after the date that the campaign's last regular pre-election campaign finance report must be filed. It is true that campaign committees are obligated in many states to report so-called "late contributions" by fax or telegram within 24 hours, but the media and others who follow these campaigns indicate that it is difficult to keep up with these reports. 154Electronic filing and posting on the internet may solve some of these problems, but is unlikely fully to resolve them. To make matters more difficult, even though many voters get their statewide initiative information almost exclusively from 30-second TV ads,155 television stations rarely report financial disclosure data. Another complicating factor, for both campaigners and regulators, is the increasing tendency of voters to use mail-in ballots. Proposition 105, adopted by California voters in 1988, attempted to address these problems by requiring ad sponsors to identify the industries that were the major funding sources for their particular initiative campaigns. 156Containing the nation's most extensive campaign disclosure law ever,157 this statute required each initiative advertisement to identify an industry as its major funding source if the industry was the largest contributor and supplied $500,000 or more to the campaign, or if it supplied $50,000 or more and constituted 25 percent or more of all contributions. Alternatively, if the largest contributor was an individual who had supplied $100,000 or more, that individual had to be identified as the major funding source. Similarly, the statute required identification of large amounts of support from either corporations or out-of-state contributors as a group. The pen154Even experienced researchers often have major problems tracking "normal" campaign reports. These problems are multiplied during the "late contribution" period. This enables some campaigns to reduce the potential publicity for sensitive contributors by concentrating their contributions in this period. See. e.g., the allegations in Loveday v. FCC, pp. 1445-1446n.l. 155David Magleby, Direct Legislation: Voting on Ballot Propositions more: Johns Hopkins University Press, 1984),pp. 130-136. 156The text was included in Cal. Gov't Code was the basic disclosure requirement. 157Cal. Gov't Code ~S84,50 I through which appeared on the June 1988ballot.

in the United States (Balti-

~~84,501through 84,514(West

Supp. I 991).~84,507

84,514(West Supp. 1991)were included in Proposition 105, ~84,507was the basic disclosure requirement.

218 LAWMAKINGBY INITIATIVE alty for violation was civil liability for three times the cost of the advertisement. This law was in effect during the 1990 election campaign, but was stricken in 1991 because of procedural defects in the initiative that created it.158 Because the principle of providing voters with information about the major funding sources for initiative campaigns seemed valid, both the California Policy Seminar report and the California Commission on Campaign Financing recommended that California reenact a Proposition lOS-type disclosure requirement for ballot measures. By forcing sponsoring organizations to identify the industries and individuals who provide the principal funding for initiative advertisements, Proposition 105 made it more difficult to hide true sponsorship.159 Voters found this kind of information helpful,160 and it seems obvious that one of the best ways to convey information of this kind is at the same time as the advertisement.161 In 1996 California reinstituted Proposition lOS-type disclosure requirements for ballot measure advertising. The electorate adopted Proposition 208, a wideranging new campaign finance measure that requires any advertisement for or against a ballot measure to include a disclosure statement identifying any person or organization whose cumulative contributions amount to $50,000 or more. Any committee that supports or opposes a ballot measure must identify itself using a name or phrase that clearly identifies the economic or other special interest of its major donors of $50,000 or more. 162Failure to comply with the statute subjects the advertiser to civil or administrative law suits for three times the cost of the adver163 tisement. Suits may be brought either by election officials or by any citizen. 227 Ca1.App.3d663 (Ct. App. 1991). 159Although Proposition 105 produced much more information for voters than the previous requirements for disclosure in political advertising, major advertisers often took advantage of loopholes in the law.It was not unusual, for example, for two industries to contribute equal amounts of a campaign so that neither would be the "largest." (Identificationwas required for the "largest.") In other instances major contributors created other committees, who could then be listed as the major donor in the campaign. The "No on Proposition 131 Committee," for example, was a major funding source for "No on Proposition 131 and 140 Committee." This allowed legislative leaders to make large contributionswithout identification. 160See,e.g., Larry Berg and C.B. Holman, 'The Initiative Process and Its Declining Agenda-setting Value,"Law and Policy II (1989):451-469. 161Therequirementfor industryidentificationseems less susceptibleto First Amendmentchallenge than disclosuresof sponsorshipby individualsor groups. The 1988 statute may have been subject to challenge, however,on the ground that the possibilityof substantialpenalties combined with a fairly vagueset of rules had a chillingeffecton the willingnessof sponsorsto put their messagesforward. 162Cal.Gov't Code gg84,501to 84,510 (Supp. 1997).Arizona adopted a statute in 1995 requiring identificationof the top four funding sources. Ariz. Rev.Stat. Ann. g19-128(Supp. 1996). 163propositionlOS contained a similar provision. Because the cost of advertisements in major campaignscan run into millions of dollars, the CaliforniaPolicy Seminarreport recommendeduse of the normal campaign finance machinery for implementation rather than civil fines based on three times the value of the ads. Proposition 105 contained a major loophole, allowing sponsors to avoid disclosure of the major funding source if less than 50 percent of a particular advertisement was devoted "to one initiative."A number of campaignstook advantageof this loophole in the 1990campaign. Dubois and Feeney,Improving the California Initiative Process, p. 158. 158Chem. Specialties Mfrs. Ass'n v. Deukmejian,

Initiative Campaign Finance and Disclosure

2I 9

The disclosure compelled by Proposition 208 differs from that in most laws requiring disclosure in political advertising in two ways: First, it requires disclosure in the political advertising not only of identity but also to some extent financial participation in the ad. Second, because the identity disclosed is tied to the extent of financial participation, the law makes it much more difficult for the sponsors of political advertising to hide their sponsorship behind a committee structure arranged for cosmetic effect. It is no longer possible, for example, for a major ad sponsor, such as the trial lawyers, to bring in a few older citizens, a doctor or two, and a teacher or two and label this group as an "alliance of older citizens and the legal, medical, and teaching professions.HI64 Although the additional information that Proposition 208 requires arguably increases the intrusiveness that was of concern to the McIntyre Court, it does so only for the largest political advertisers. It is unclear therefore whether this kind of law is more subject to McIntyre-type challenges than the older statutes requiring disclosure in political advertisements. The Supreme Court's opinion suggests that the issue concerning both kinds of statute is still open, however, and there are at least hints that laws requiring the identification of substantial interests could be approved. 165

OTHER CAMPAIGN FINANCE RELATED RULES Other campaign finance related rules exist in some jurisdictions. These rules include federal requirements for the maintenance of media logs, rules prohibiting deceptive campaign speech and dirty tricks, and various rules concerning paid signature gatherers.

Media Logs Federal regulations require radio and television stations to have available for public inspection a list of the chief executive officers or boards of directors of entities responsible for political advertisements broadcast by the station.166 Five initiative states impose additional requirements with their own statutes, as shown in Table 38 (page 193).167 One of these states, Idaho, extends the log requirement to other media 164Proposition 105 was poorly drafted and poorly implemented, making compliance difficult because the requirements were not clear. The lag time between the time that an ad is developed and the time that it ran, for example, meant that an industry that was the leading backer of a proposition at the time an ad was developed and placed could easily be well back in the pack at the time the ad was run. Proposition 105 left it unclear as to how this problem should be handled. This problem could have been cured by administrative regulations, but was not. There also were no rules about what an "industry" was or what labels were permissible. To avoid this kind of implementation problem, the California Policy Seminar report recommended the adoption of rules providing campaign participants and officials with clear guidelines on how and when to label campaign advertisements. 165There are obviously limits on the burdens that the state can impose on political advertisers. The burden must not be too great and must be proportional to the justification that allows the burden. In Mrs. McIntyre's case no burden was justified. In ca~es where thousands or millions of do]]ars are being spent on political advertising, it does not seem unreasonable to require that a small portion of the communication be devoted to identifying the sponsor. 16647 C.P.R. 973.1212(e) (l994). These regulations apply to both federal and state elections. 167The effect of these statutes is not clear, since they may be preempted by the federal regulation.

220

LAWMAKING

BY INITIATIVE

outlets such as newspapers. In Washington "commercial advertisers" who accept or provide political advertising must themselves maintain records for public inspection.168 Maine does not require a media log, but does require advertisers to indicate in their ads that a full report is available in the secretary of state's office. 169

Deceptive Campaign Speech In addition to rules requiring disclosure of campaign finance information and the sponsorship of campaign literature, states have adopted a variety of other regulations relating to campaigns. In some instances these rules have an effect on campaign finance issues and in others they do not. Six initiative states, and about an equal number of non-initiative states, have adopted laws prohibiting false campaign speech. 170 Most such statutes appear to prohibit only knowingly false statements, and there would be significant constitutional problems if a statute of this kind were used to punish speech that was neg171 ligently untruthful rather than deliberately or recklessly false. These statutes do not appear to have been used very often, and then almost always in candidate elections. The few appellate decisions decided have frequently taken a narrow view in their interpretations. Despite this, the statutes in the initiative states would appear to apply to initiative as well as candidate campaigns.

Dirty Tricks Circulating falsely attributed literature, placing spies in campaign organizations, attempting to halt campaign speeches, stealing campaign literature, and wiretapping are merely some of the "dirty tricks" that have been used in the past to disrupt political campaigns. In Some of these activities, such as burglary or wiretapping, violate state or federal criminal laws. Other activities are prohibited only if the state has adopted special laws. Most initiative states have not adopted legislation seeking to prohibit this kind of activity. Ohio does have a statute of 173 this kind, but it does not apply to initiative campaigns.

Paid Signature Gatherers Paid signature gatherers make it possible to collect sufficient signatures to qualify an initiative even without great popular support for the proposal. While United States Supreme Court decisions, as discussed in Chapter Seven, forbid the banI68Wash. Rev. Code Ann. SS42.17.11 0 (West 1991). Wyoming formerly required ad sellers and suppliers to file with the Secretary of State's Office. 169Me. Rev. Stat. Ann. title 21-A, SlO55 (West 1993 & Supp. 1994). 170See Table 38 (page 193) for a list of the initiative states. An earlier listing of all states with laws of this kind is included in "Developments in the Law-Elections," Harvard Law Review 88 (1975): 1111,

1273 n.218. I 71While there are no decisions directly on point, the principle enunciated in New York Times v. Sullivan, 376 U.S. 254 (1964) would seem to apply. See "Developments in the Law-Elections," Harvard Law Review 88: 1275-1280. 172See "Developments in the Law-Elections," Harvard Law Review 88: 1294-1298. I730hio

Rev. Code S3599.091 (Baldwin, 1994).

Initiative Campaign Finance QJU/ Disclosure

22 I

ning of paid signature gatherers, they allow states to require proponents to disclose whether or not they have used paid signature gatherers. This information helps voters to identify proposal sponsors and to assess the strength of support shown by the signatures. Oregon law requires proponents to indicate at the time initiative petitions are first submitted to the secretary of state whether paid signature gatherers will be used and to update the report if initial plans change.174 The California Policy Seminar report recommended that California adopt a similar law and that proponents be required to file a financial disclosure statement indicating the amounts contributed and spent in the qualification process at the time signatures are submitted to the secretary of state. The report also recommended that the amount spent and the major contributors to the signature-gathering effort be identified in the ballot pamphlet. Although it also considered the possibility of requiring paid signature gatherers to inform citizens whom they solicit of their paid status, the report did not recommend such a requirement.175

Recordkeeping In many states a number of different state agencies are involved with the initiative process. In California, for example, the group includes the secretary of state, the attorney general, the legislative counsel, and the Fair Political Practices Commission. Generally each of these agencies has its own filing and recordkeeping system and its own system for numbering initiatives. This separate numbering system makes it difficult to connect the financial disclosure records filed with the state's agency for enforcement of the financial disclosure laws with the records maintained by other state agencies. The California Policy Seminar report recommended development of a system for giving each initiative proposal a unique number that could be used to identify that proposal and that each state agency include this number (along with any other identifying numbers it may wish to use) in any fIles or papers it maintains. 176

1740r. Rev. Stat. ~250.045 (1993). 175Dubois and Feeney, Improving the California Initiative Process, pp. 82, 171-172. Cal. Elec. Code ~ 18,600 (West Sp. Pamphlet 1995) makes it a misdemeanor for signature gatherers intentionally to make false statements about whether they are paid or not. The California Commission on Campaign Financing, Democracy by Initiative, p. 163 indicates that other states have this requirement as well. 176Dubois and Feeney, Improving the California Initiative Process, p. 159.

CHAPTER THIRTEEN

SUMMARY AND CONCLUSIONS CITIZENS ARE DISSATISFIED WITH THE INITIATIVE TODAY. Often the measures proposed are long and confusing, the campaigns dominated by meaningless television slogans, and the process itself controlled by very same special interests that the Populists and the Progressives had hoped to bypass. Despite their disappointments with the initiative, however, many citizens continue to feel that it is a useful safety valve for the political process. At a time when they are extremely disappointed with legislatures and legislators, citizens are reluctant to give up on the initiative. They are realistic about its shortcomings but continue to believe in its promise. This book has not sought to evaluate whether the initiative should be continued or not, but rather has developed options for improving the process and helping it to achieve the aims for which it was created. One approach to the current problems with the initiative is to leave the process alone and let the "free market" correct whatever ills there are. For example, if the problem is too many initiatives today, one need not worry because there will be fewer in the future. Citizens will vote against them simply because there are so many. This will lead to fewer initiatives in the future-because potential proponents will not want to fail and will be unwilling to risk their money on such chancy things. Cycles like this do in fact occur. In November 1990, for example, many Californians rebelled at the large number of ballot propositions and voted no on almost everything. Because so many initiatives were defeated, there were no initiatives on the June 1992 ballot and fewer than normal on the November 1992 ballot. The self-correcting capacity of the initiative has distinct limits, however, and the initiative process needs to be significantly improved if it is to achieve its aims in the years ahead. This book describes the major features of the initiative in the twenty-five American jurisdictions that use the process, discusses the major options for change, and makes recommendations for improvement of the initiaMANY

222

Summary and Conclusions

tive process. In making recommendations, principles:

223

we have been guided by four basic

• The concept that laws should normally be developed through the legislative process and that the initiative is a device to be used primarily when the legislative process is blocked. I • The belief that it is possible to have too many initiatives on the ballot but that in most American jurisdictions the number of initiatives should be neither greatly increased nor greatly decreased. • The principle that most issues of everyday policy should be enacted as statutes, and that only matters of great principle should be embodied in constitutional form. • Recognition of the obvious differences between the initiative and the legislative process and the need to develop rules and safeguards for the initiative that are appropriate to its separate, distinctive character.

BASIC STRUCTURE OF THE INITIATIVE PROCESS Constitutional Amendments The normal method for adopting constitutional amendments is proposal by the legislature and adoption by the electorate. Although some initiative states allow constitutional amendments to be proposed by a majority of the legislature, most require some kind of supermajority. California, for example, requires a two-thirds vote of each house of the legislature as well as approval by a majority of the electorate. An alternative procedure is amendment through use of the initiative. In California this requires the gathering of signatures equal to at least 8 percent of those who voted in the last election, and in some states as many as 20 percent. Signature gathering is an extremely difficult task for grassroots organizations in large states that must depend on volunteer signature gatherers. For proponents with ample resources, however, the collection of the number of signatures required is much less difficult; it is simply a matter of being willing to spend enough money to collect the necessary signatures. This means that in many instances it is easier for proponents with resources to use the initiative than to use the legislative process to secure consideration of proposed constitutional amendments. Any structure that makes it easier to amend the state constitution through the initiative than through the legislature is unsound. We therefore recommend that the number of signatures required for initiative constitutional amendments be made high enough to encourage proponents to seek amendment first through the legislative process. In California, for example, the number of signatures should be increased from 8 to at least 10 percent of the voters at the last gubernatorial 1 Although Hiram Johnson and other early proponents of the initiative saw it primarily as a way of bypassing the legislative process when that process was blocked, a recent German observer found the central feature of the American initiative to be its routine nature. He titled his book Direct Democracy as a Routine Political Procedure. Ulrich Glaser, Direkte Demokratie als politisches Routine-verfahren (diss., University of Erlangen, 1997).

224

LAWMAKING

BY INITIATIVE

election. While it is no doubt true that some proponents will still find it easier to spend money to satisfy a 10 percent signature requirement than to get a twothirds vote in the legislature, raising the signature requirement would encourage sponsors to seek amendments in the legislature first. In other states the number required to obtain the proper balance might be different. An increase in the number of signatures required for amendments to the state constitution would have the additional positive effect of creating an additional incentive for proponents to propose statutory changes rather than constitutional amendments. This is in keeping with the general policy that change should be placed in constitutional form only if it is of a fundamental nature.

Initiative Statutes Statutes enacted by the legislature may be amended or repealed at any time by the legislature. Initiative statutes in some states, however, may be changed only by very difficult procedures, such as a two-thirds vote of both houses of the legislature. These highly restrictive rules make it very difficult to change initiative statutes and in effect give initiative statutes some of the qualities of constitutional amendments. We recommend that all statutes be treated alike and that initiative statutes be subject to amendment and repeal by the legislature just as legislatively adopted statutes are. While there may have once been fears that legislatures would hastily tear down what the people have enacted through the initiative process, the general experience in the United States is that legislatures are reluctant to change laws that have been adopted through the initiative process. There is no valid reason, therefore, for significantly limiting the legislature's ability to amend and repeal initiative statutes.

Indirect Initiatives About a third of the initiative states require all initiatives to be submitted to the legislature in some way. We believe this procedure is superior both in theory and in practice to that in the states that do not require submission to the legislature. We recommend therefore that all statutory initiatives be submitted to the legislature, and if they are substantially adopted by the legislature that they not be submitted to the voters. The theory of the initiative is that it is a way of adopting legislation when the legislature refuses to act. Allowing the legislature the option of acting on initiatives gives practical meaning to this theory. It forces the legislature to be accountable, saves the electorate from voting on matters unnecessarily, and need not be harmful to proponents' interests.

Budget Matters Many states prohibit use of the initiative to levy taxes or make appropriations. Other states allow use of the initiative for these purposes. Good arguments can be made for both positions. Good arguments cannot be made, however, for proce-

Summary and CondJlSiom

225

dures that make it easier to levy taxes or make appropriations through the initiative process. In California, for example, normal budgetary appropriations are subject to a number of important limitations. The budget must be balanced. Appropriations, except those for the public schools, must be passed by two-thirds of the membership of each house. And all appropriations are subject to an item veto by the governor, as well as the normal veto process. No bill except the budget bill may contain more than one item of appropriation, "and that for one certain, expressed purpose.,,2 Appropriations contained in initiative measures are currently subject to none of these limitations. While it might be unduly restrictive to allow no appropriations to be made through the initiative process, it seems unduly lax to subject initiative measures to none of the normal appropriations limitations. Because the appropriations process necessarily involves comparisons among programs, it also seems unwise to allow a very high percentage of the state's resources to be committed through the initiative process.

Rules About the Initiative Process The initiative is just one of many governmental processes and arguably should itself, like other governmental processes, be subject to change through the initiative. The initiative should not be used, however, to change the rules concerning the initiative in the middle of the game. It is one thing to use an initiative to change the general rules about the initiative process in order to improve the initiative process. It is a totally different thing, however, to allow proponents to propose initiatives that violate the rules about how initiatives should be written and then in the same initiative propose retroactive changes to the initiative rule violated in order to cure their own violation. Proponents should not be allowed to propose statutes that violate the single subject rule, for example, and in the same initiative propose a retroactive constitutional amendment broadening the single subject rule so as to cure the defect. This kind of change is basically an end run around the state constitution, and subverts constitutional government. We recommend, therefore, that initiatives not be allowed to change the rules concerning their own passage or effect.

Effective Date Legislatively adopted statutes in many states are effective on January I of the next year unless adopted through urgency procedures that require a two-thirds vote. Initiative statutes, on the other hand, are often now effective upon adoption. In keeping with the general concept that all statutes should be treated similarly, we recommend that initiative statutes be effective on January 1 of the year following their adoption. Procedures should also exist for making initiative statutes effective immediately, but, like their legislative counterparts, these should require a higher proportion of the vote for passage.

2CaI. Cons!. ar!. IV,

* 12.

226

LAWMAKING

BY INITIATIVE

QUALIFYING FOR THE BALLOT In any initiative process there must be some method for determining which proposals should be placed on the ballot and which should not. The method used for this purpose in the past is the gathering of signatures, the idea being that gathering the threshold number of signatures is a sufficient demonstration of citizen interest in a particular proposal to warrant placing it on the ballot. Both expert opinion and available research, however, indicate that many voters are willing to sign petitions without evaluating or even paying much attention to the proposals that they concern. Because the number of signatures needed in large states is very great, virtually all initiative proponents in large states, and many in the smaller states, today use paid signature gatherers rather than volunteers. As a consequence of these two factors, the signature-gathering process today is more a test of how much money the proponent has than of citizen support for the proponent's legislative ideas. Despite its drawbacks there appears to be no practical alternative, other than permitting proponents to pay an extremely large filing fee, to continuing to rely on signature gathering as the method for qualifying initiatives for the ballot. Current court rulings also make it impossible to ban the use of paid signature gatherers. One useful possibility that does exist is to separate the soliciting of signatures from the process of signing and collecting signatures. By removing some of the social pressure that citizens now feel when approached by signature gatherers, this kind of separation would make it easier for citizens to consider the merits of each proposal before signing. While such a separation would not guarantee that citizens would consider the merits of proposals before signing, it would make consideration on the merits more likely. Because it provides citizens with the time to reflect on proposals outside the presence of a signature gatherer, direct mail is one method of separating the process of solicitation from that of signing and collecting signatures. Because of costs and other considerations, limiting solicitations to direct mail is not recommended. The process of solicitation, however, should be separated from the process of signing and signature collection.

REDUCING COMPLEXITY The Number and Complexity of Initiatives One critical problem with initiatives today is whether it is possible for the average voter, or even the extremely sophisticated voter, to understand the issues and the policy choices presented. There is a practical limit to the number of issues to which voters can intelligently respond. Initiatives are not the only matters that add to the length of the ballot, however. Candidate elections, matters placed on the ballot by the legislature (bond issues, legislation, constitutional amendments), and local elections all add to length and complexity. Methods that might limit the length of the ballot include: (I) limiting the

Summary and Conclusions

227

number of initiatives that are allowed to appear on the ballot, (2) make it more difficult to place initiatives (or other measures) on the ballot, and (3) let the "free market" work. Historically, the legislatures have placed far more proposals on the statewide ballot than have initiative proponents. Control of the length of the statewide ballot is thus largely in the hands of the legislature. We recommend nonetheless that there be no more than six statewide initiatives on any single ballot. Even this number taxes the capacity of the electorate when there is a large number of legislative ballot measures. Initiatives should continue to go on the ballot in the order in which they qualify. If more than six initiatives qualify for a ballot, the first six to qualify should go on the ballot and the remainder should be held for the next ballot. The number of initiative measures appearing on the ballot is only part of the problem of voter understanding. Many opponents of initiatives are no longer content simply to argue against the initiatives they oppose. Frequently they propose initiatives of their own, creating a situation in which conflicting measures appear on the same ballot. At present conflicting measures in most states simply appear on the ballot in the order in which they qualify and with relatively little guidance to the voters about the conflicts involved. All sorts of confusion results. Sometimes both measures are adopted. Sometimes voters are uncertain about whether they should vote for one or both measures. The courts have also had considerable difficulty with these kinds of proposals. To give voters fair notice of conflicting ballot measures, the secretary of state (or some other appropriate official) should be given authority to group initiative and legislative ballot measures dealing with the same subject together on the ballot and in the ballot pamphlet. The secretary of state should also be authorized to point out to the voters that these proposals deal with the same subject and may be in conflict with each other, and to indicate how the voters may express their policy preferences. Ballot pamphlets should explicitly compare the competing proposals. Voters sometimes approve two propositions on the same ballot concerning the same subject. State constitutions typically provide that the proposal with the higher number of votes controls. State constitutions generally do not, however, discuss the extent to which the parts of the proposition with the lower number of votes that are not in direct conflict with the higher vote proposition should be preserved. By severing the parts of the lesser vote proposition that are in direct conflict, it is often possible to preserve parts of the lesser vote proposition. Some courts have aggressively sought to preserve both propositions, while others have ruled that, if both propositions seek to comprehensively regulate the subject, the proposition with the lower number of votes should be totally ignored. We believe that the will of the voters and legislative comprehensibility are generally better served by exclusive recognition of the higher vote initiative, resolving any doubts about the severability of parts of the lower-vote initiative against survival of that initiative.

228

LAWMAKING BY INITIATIVE

Better Drafting of Individual Proposals A persistent complaint about initiative proposals is that many are poorly drafted. Poor drafting in California's well-known tax-limit initiative, Proposition 13, for example, prevented the use of general obligation bonds by local governments in many circumstances, costing local government hundreds of millions of dollars between 1978 and 1986. In seven jurisdictions proponents are required to submit proposals for a drafting review prior to circulation for signatures. While proponents are not required to adopt any suggestions made, comments on the draft are made public in five states. To improve the quality of drafting, we recommend that all jurisdictions require all initiatives to be automatically referred to a legislative drafting office for review and that the legislative drafting office's comments and suggestions be made a part of the public record. Initiative proponents should continue to be free to make their own decisions about whether to adopt or reject any suggestions made. In the normal legislative process, drafting problems are frequently identified in the course of hearings and normal legislative consideration. Problems of this kind are generally cured by amending the bill to eliminate the problem. While no state allows initiative proponents to change the underlying policy embodied in an initiative proposal once the signature-gathering process has started, several states do allow proponents to make technical amendments during the signature-gathering process. Because the authority to make amendments of this kind would assist in improving the technical quality of proposals presented to the electorate, we recommend that proponents be allowed to make amendments to proposals during the signature-gathering process if the attorney general (or another appropriate official) certifies that the amendments are of a technical rather than a policy nature.

Understanding Each Proposal Every citizen in an initiative jurisdiction who has conscientiously tried to study the initiatives for any recent election knows how lengthy and complicated these proposals can be. Careful analysis indicates that many proposals have included hidden issues, making the proposals even more complicated than they appeared to be. The problems of communicating with a large number of voters and the limited time that the public has to devote to public issues make complexity a greater problem for initiatives than for legislative bills. The take-it-or-leave-it quality and the reduced scrutiny afforded initiatives also make them far more vulnerable to hidden consequences. If the initiative is to serve its function of allowing the public to bypass the legislature when that is necessary or desirable, it is crucial that the initiative be recognized as a process that is different and distinct from the normal legislative process. Because it is different and distinct, it must have its own procedures and safeguards. It is not sufficient simply to assume that the procedures and rules

Swnmary and Conclusions

229

used to safeguard the legislative process will work for the initiative. At a minimum, ordinary citizens should not be asked to vote on proposals that are so complex that even the experts cannot understand them.

Narrow the Single-Subject Rule Most states now have rules limiting both legislative statutes and initiatives to a single subject. While the single-subject rule probably lacks the intellectual fire power to eliminate complexity completely, a rule that defined "single subject" more narrowly for initiatives than for legislation would eliminate a great deal of complexity. Florida initiatives appear to be shorter and much more comprehensible than those in California, for example. The narrower interpretation used by Florida has not been unduly restrictive, however, and its initiative remains robust. Even more robust is the initiative in Switzerland, where a relatively narrow single subject rule for initiatives is viewed as a necessary and basic guarantee of the citizen's right to cast a meaningful vote. We therefore recommend that states adopt rules, applicable only to initiatives, that define single subject more narrowly than the present rule. This rule should apply both to initiative statutes and initiative constitutional amendments. This narrower rule should seek to reduce complexity and improve understandability as well as prevent log rolling.

Eliminate Trojan Horses It will be difficult to eliminate hidden provisions and "cosmetic" provisions that are not necessary for the subject but thrown in because of their political appeal. The most important step is to recognize that these provisions present a serious problem. Specific recommendations are: • Adopt a rule that provisions not strictly necessary to the purpose stated in the title of an initiative statute or an initiative constitutional amendment are invalid. This would be an extension and a much stricter interpretation of the present rule requiring that the subject matter of a statute be expressed in the title, in effect adopting a different standard for initiative titles than for legislative titles. • Create a three-member board, composed of the attorney general, the secretary of state, and the legislative counsel (or other appropriate officials), to review initiative proposals that have qualified and publicly identify any serious constitutional questions that they contain. Many of the hidden consequences presently contained in initiatives arise out of attempts to push constitutional limits. One solution is to mandate preelection review of proposals by the courts. This is not recommended because time factors make it difficult to have meaningful hearings. Identifying the serious constitutional issues in initiatives, however, is much easier than adjudicating these issues. Such an identification would assist voters in assessing the merits of an initiative. The knowledge that identification was going to take place might also cause proponents to exercise a little caution about includ-

230

LAWMAKING BY INITIATIVE

ing questionable provisions that are not central to their purpose. Perhaps the best way to carry out this recommendation is to include comments on constitutionality in the drafting assistance recommended earlier.

Yes-No Vote A number of propositions in several states have been worded so confusingly that many voters wound up voting against proposals they were for and for proposals they were against. This is intolerable and unnecessary. This problem can be reduced by requiring that the ballot itself contain a brief statement about the effect of a "yes" or "no" vote, as is now required in a number of states. We recommend that all states adopt such a requirement. Initiative propositions should also be required to be worded so that an affirmative vote is a vote to adopt the proposal.

Role of the Media The media have long played a critical role in educating the public about ballot measure issues. Generally the media has sought to present information about the pros and cons of individual measures. The media could usefully enhance this traditional role by commenting on the clarity and complexity of proposals. We believe also that the media and other public leaders should routinely urge the defeat of proposals that are unclear or too complex.

IMPROVING VOTER UNDERSTANDING: THE BALLOT PAMPHLET A number of states have long provided an information pamphlet to assist voters. Comparison of ballot pamphlets from these states indicates that many of the ballot pamphlets are already very good. Comparisons also suggest, however, that most ballot pamphlets could be made more attractive, more readable, and more relevant to voters than they now are. Such revisions would assist those who already use the pamphlet and encourage others to do so.

Reduce the Length of Explanatory Material The length of some present ballot pamphlets is intimidating. Actions are necessary to help voters deal with the large amount of complex material. Generally, the text of measures should be moved to the rear of the pamphlet. Other possibilities for reducing the length of the pamphlet and making it less intimidating are to: (I) reduce the length of the pro and con arguments to 400 words each, (2) eliminate the rebuttal arguments, and (3) set a nonbinding guideline of 1,000 words for any official legislative analysis. These actions would make it possible to reduce both the length and the complexity of the ballot pamphlet with little or no sacrifice of informational content. Since one of the most important cues that voters now use from the ballot pamphlet is the identity of a proposal's supporters and opponents, we also recommend that proponents and opponents be authorized to list the endorsement or opposition of up to ten individuals or organizations.

Summary and Conclusions

231

Improve the Format Some states now use color-coded pages, colored ink, and different type sizes and styles to make their ballot pamphlets more readable and understandable. All states should consider use of these techniques.

Readability One of the most important parts of the ballot pamphlet in a number of states is the analysis of initiatives by the legislative analyst. We recommend that this analysis be written so as to be understandable by the average high school graduate. The office writing the analysis should make a formal determination of the grade level of the analysis and consider the results of this test in preparing its final analysis.

Ballot Pamphlet Position Initiatives in some states now appear on the ballot after bond acts, legislativelyproposed constitutional amendments, and other legislatively-proposed legislation. In these states the same order is used for the ballot pamphlet. We recommend that initiatives appear first in both the ballot and the ballot pamphlet. Initiatives are not necessarily more important than other kinds of ballot measures, but are the only kind of ballot measure that has not been subject to legislative scrutiny. A more prominent place in the ballot pamphlet could help ensure that voters give their attention to these measures.

Disseminate Information More Widely In states that use it, the ballot pamphlet is now mailed to every household. Many voters, however, rely primarily on television for information. We recommend that the secretary of state develop two kinds of television spots: one calling attention to the ballot pamphlet and urging voters to look at it before they vote, and another conveying the information contained in the legislative analyst's analysis. These spots should be broadcast using free public-service announcements and television time purchased through the use of state funds. Similar spots should be aired on the radio and be available on free audiotapes that could be played by commuters and others who spend a lot of time in their cars. Consideration should also be given to making ballot pamphlets available through computer and electronic mail linkages.

CAMPAIGN FINANCE AND DISCLOSURE Present law in most states requires that committees seeking to promote or oppose initiatives disclose contributions and expenditures of more than $100 to an independent state agency. In some states, individuals who contribute or spend large sums must file similar disclosures. Most states also require sponsors of political advertisements to identify themselves in the advertisement itself, while federal law requires television and radio stations to identify the sponsors of political advertisements at the time of broadcast.

232

LAWMAKING BY INITIATIVE

While these requirements provide some information to the voting public, ad sponsors frequently disguise their campaign involvement by giving themselves impressive, but uninformative, names such as "Citizens for a Better California" or "Floridians for Tax Reform." Legislation in some states has attempted to address this problem by making it more difficult to hide true sponsorship. Montana, for example, requires that political committees use names that clearly identify the "economic or other special interest" or the common employer of the majority of its contributors. This name must be disclosed in any media advertisement. A California attempt to address this problem requires ad sponsors to identify the industries that are the major funding sources for their particular initiative campaign. Although it is possible to criticize the drafting of this legislation, the principle of providing voters with information about the major funding sources for initiative campaigns seems valid. Voters find this kind of information helpful, and it seems obvious that one of the best ways to convey information of this kind is at the same time as the advertisement. Supreme Court decisions make it clear that laws requiring ad sponsors to disclose their identity can easily violate the ad sponsor's rights of free speech, and the authors have concerns about applying onerous disclosure requirements to grass roots political activity. The authors also believe, however, that laws requiring honest identification of sponsorship, if carefully drafted and applied primarily to persons and groups that are spending large sums of money, enhance both democratic principles and freedom of speech.

Paid Signature Gatherers Paid signature gatherers make it possible to collect sufficient signatures to qualify an initiative, even without great popular support for the proposal. Although United States Supreme Court decisions have declared state laws banning paid signature gatherers to be unconstitutional, states may require proponents to disclose whether they have used paid signature gatherers or not. This information helps voters to identify the sponsors of the proposal and to assess the strength of support shown by the signatures. Oregon law requires proponents to indicate at the time initiative petitions are first submitted to the secretary of state whether paid signature gatherers will be used and to update the report if the initial plans change. We recommend that other states adopt similar laws. Proponents should also be required to file a financial disclosure statement indicating the amounts contributed and spent in the qualification process at the time signatures are submitted to the secretary of state. The amount spent and the major contributors to the signature-gathering effort should also be identified in the ballot pamphlet.

THE PROCESS OF REFORM Although 19 of the 25 American jurisdictions that use the initiative today had adopted the procedure by 1918, there has been relatively little systematic review

Swnmaryand Conclusions

233

of the initiative procedure. Having adopted the procedure, most states have simply continued to use the basic procedures originally adopted.3 In 75 plus years since most states adopted the procedure, however, the world has changed dramatically. Not only have the population and character of the states that use the initiative changed enormously, but there have also been mindboggling technological and social changes in the election process itself. Television, radio, public opinion polls, campaign consultants, the widespread use of direct mail, and the internet did not exist when most states adopted the initiative process. Even more changes are on the horizon as electronic mail, interactive television, and other forms of new technology create the possibility that all citizens may one day be able to instantly record their individual views on any almost any issue. Changes of this kind require the citizenry to reexamine periodically all their institutions of government. The initiative is no exception. Examining and reforming the initiative process will not be an easy task, however. Some interests have never favored the initiative, while other powerful interests are likely to oppose virtually any change. Some regard the legislature itself as something of a competitor with the initiative, making legislatively proposed changes in the initiative process somewhat suspect. The development of an "initiative industry" that has a self-interest in maintaining and expanding the initiative process also complicates the process of review. These factors suggest that in many jurisdictions the vital process of conducting a searching review and examination can best be carried out by a broadly based, bipartisan commission. This commission should be appointed by the governor or the governor and the legislature together, and should include representatives of business, labor, public interest groups, the initiative industry, the legislature, and other groups with an interest in the legislative process. Only a broadly based commission of this kind will command the respect and authority necessary to recommend persuasively the changes needed to ensure that the initiative can continue to be an effective way to voice the will of the people in the years ahead.

3Many states have of course made incremental changes in the procedures applicable to the initiative.

APPENDIX A

TABLE 1. Canton Zurich Initiative Petitions 1869-1970 Number

Result

Percent

15

14

8

8

38

37

31

30

-Simple

5

5

Invalid

4

4

Other

2

2

Total

104

Approved by voters Rejected by voters -Counterproposal

approved

-Simple Withdrawn by proponents -Counterproposal

approved

-Counterproposal

rejected

100a

aAdds to more than 100 due to rounding error. Source: Kurt Btitikofer-Johanni, Die Initiative im Kanton Zurich 1869-1969, Entstehung, Funktion und Wirkung (diss" University of Zurich, 1982), pp, 194-195. Initiatives proposed by governmental authorities and (through a complicated procedure) by single individuals are not included in the table.

235

236

LAWMAKING BY INITIATIVE

TABLE 2. Subject Matter of California Initiatives

1912-1996

Subject

Number Titled

Number Voted On

Number Passed

Bond issues

22

11

4

Campaign reform

24

8

5

Courts, law and order

83

18

10

Education

82

17

7

Elected officials and civil service

43

9

3

Elections

57

15

7

Energy

19

5

0

Enviromental

55

22

7

Fiscal matters

47

13

5

Gambling

60

11

3

105

21

6

Health, medicine, science

76

27

4

Labor issues

50

16

4

7

4

Prohibition, alcohol, drugs

70

20

Reapportionment

27

9

Welfare and pensions

40

14

5

Societal issues

64

11

5

165

44

10

70

17

8

Government regulation and formation

Municipal government

Taxation Miscellaneous

5

Source: California Secretary of State, A History of the California Initiative Process (Dec. 1996). Some initiatives are classified in more than one category. The totals may therefore differ from those in other tables.

Appendix A

TABLE 3. Number of Ballot Measures California 1912-1996 Election Year

Number Legislature

Number Initiatives

1912-1919

59

30

1920-1929

71

1930-1939

Number Referendums

Total

Percent Initiatives

11

100

30

35

11

117

30

96

36a

13

145

25

1940-1949

75

20

96

21

1950-1959

82

12

95

13

1960-1969

87

9

0

96

9

1970-1979

120

22

0

142

15

1980-1989

90

44a

4

138

32

1990-1996

66

49

0

115

43

746

257

41

1044

25

Total

aBased on the number of measures appearing on the ballot. Excludes one indirect initiative adopted by the legislature (1936) and two measures removed from the ballot by California Supreme Court (1984). Source: California Secretary of State, A Study of Ballot Measures: 1884-1980 (Sacramento: undated); California Ballot Pamphlets, 1980-1996. This table is based on the year an initiative appears on the ballot. Table 28 is based on the year that an initiative qualifies. In many instances an initiative that qualfies in one year will not appear on the ballot until a later year.

237

Subject of measures published in newspapers; text displayed at polling place

Pamphlet available to voters at Sponsors, opponents preceding primary election and (must pay proportionate share of costs )(300 wds) to all registrants at county recorder's office prior to general election Text published in newspapers; abstract on display at polling place; list of ballot initiatives to be posted at courthouse doors prior to election Pamphlet mailed to all registered voters and distributed to various public outlets (e.g., libraries, high schools) Title and text published in newspapers; pamphlet mailed to all registered voters

No

No

I pro, 1 con (500 wds each); 1 250-wd rebuttal per side Summary; for bond or tax measures (1 pro, I con--500 wds each)

No

Leg. Council

No

Leg. Analyst

Leg. Council

Lt. Gov. with asst. of Atty. Gen. (100 wds)

Sec. of State (descriptive title)

Atty. Gen. ("concise abstract")

Atty. Gen. (100 wds)

Sec. of State, Atty. Gen., and Dir. of Office of Leg. Legal Services (ballot title and" clear, concise summary," summary may include fiscal impact)

No

Yes

No

Yes

Yes

Arizona

Arkansas

California

Colorado

Alaska

Distribution

Pro/Con Arguments

Analysis

State

Ballot Abstract or Summary

Voter Pamphlet

TABLE 4. State Provisions for Voter Information and the Initiative

~ ~ ~

Z

><:

Z Cl to

~ ~ ;l> ~

c-

00

tv w

No

No

Yes

Yes

No

Yes

No

Florida

Idaho

Illinois

Maine

Massachusetts

Michigan

Voter Pamphlet

District of Columbia

State

Table 4 (continued)

Analysis

No

Bd. of State Canvassers (lOO-wd statement of purpose for ballot)

No

Atty. Gen. (concise summary) and No Sec. of State (one sentence describing "effect of a yes or no vote")

Sec. of State (places questions on Atty. Gen. (brief ballot "concisely and intelligibly") explanatory statement)

Proponents (with approval of Atty. No Gen. "for accuracy and fairness")

Atty. Gen. (20-wd short title, 200- No wd gen. title)

Sponsor with approval of Sec. of State (15-wd title, 75-wd summary)

Bd. of Elections (15-wd short title, No 1OO-wdsummary)

Ballot Abstract or Summary

No

1 pro, 1 con (150 wds each for pamphlet; 500 wds each on file with Sec. of State "open to public inspection")

No

Pro, con (with approval of Atty. Gen. "for accuracy and fairness")

1 pro, 1 con (500 wds each); 1 250-wd rebuttal per side

No

No

Pro/Con Arguments

Newspapers requested to publish statement; text and statement posted at polls

Pamphlet mailed to all residential addresses; form of ballot questions published in new spapers

Atty. Gen. statement published in daily newspapers

Pamphlet containing text and arguments mailed to all registered voters; text published in newspapers;

Pamphlet mailed to every household in state

Text published in newspapers 6 and 10 weeks prior to election; posted at polls

Text published in newspapers

Distribution

'0

u.,

N

,,'"-:..

~ ""~

No

Sec. of State in consultation with Fiscal analysis div. Pro, con arguments (On sample ballots, prepared Atty. Gen. ("in easily understood (fiscal note) by Sec. of State) language of reasonable length")

Text, explanation, pro, con arguments, and fiscal note published in newspapers

Title and text published in newspapers No

No

Atty. Gen. (lOO-wd ballot title plus "clear and concise" explanation of vote for and against)

Yes

Montana

Nevada

Pamphlet mailed to each registered voter and available at polling place. Text published in newspaper. Sec. of State may arrange for Atty. Gen.'s summary to be distributed by newspaper, radio, TV I pro, I con (500 wds each); I 250-wd rebuttal per side

No

Atty. Gen. with advice from proponents and opponents (lOO-wd statement of purpose; 25-wd statement of implications of yes and no vote; 50-wd fisc!!l note)

No

Missouri

No

Text published in newspapers; posted at polls

No

No

Sec. of State (lOO-wd ballot title); Oversight Dir. of Comm. on Leg. Research (35-wd fiscal note); Comm. on Leg. Research (35-wd fiscal note summary)

Nebraska

Fiscal analysis in ballot; publish in newspaper; Sec of State holds public hearing in each district

I pro, I con (300 wds each)

Legis. Budget Officer (fiscal analysis)

Atty. Gen (20-wd "concise" question; 75-wd summary)

Yes

Mississippi

Distribution

Pro/Con Arguments

State

Analysis

Ballot Abstract or Summary

Voter Pamphlet

Table 4 (continued)

~ ~ =2 tn

><

Cl to

~ ~ ~

t'""

~

N

No

No (repealed in 1974)

No

Yes

No

Ohio

Oklahoma

Oregon

South Dakota

Voter Pamphlet

North Dakota

State

Table 4 (continued)

Sec. of State after consult. with Atty. Gen.

Analysis

Atty. Gen. (200-wd explanatory statement for ballot)

Atty. Gen. (lO-wd ballot title, 20wd question, 85-wd "concise and impartial" statement of purpose); Comm. of proponents and opponents (500-wd "impartial, simple and understandable" statement)

Proponents with review by Atty. Gen. (200-wd ballot title)

No

Leg. Counsel Comm. (500 wds); financial impact by Sec. of State with asst. of various agencies

No

Sec. of State (ballot title); propo- Tax Commissioner nents (300-wd explanation) (estimate of expend. and tax yield from measure)

Sec. of State after consult with Atty. Gen. ("short concise statement" of effect of "yes" vote)

Ballot Abstract or Summary

No

Any person with $300 fee or 1,000 names on petition

No

Pro, con (300 wds each)

No

Pro/Con Arguments

Text published in newspapers; explanatory statement on ballot

Pamphlet sent to each mailing address in state. Sec. of State may provide for radio and TV broadcasts of ballot titles and summaries of explanatory statements

Sample ballot published in newspapers

Text, explanations, and arguments to be published in new spapers

Sample ballot printed in newspaper; analysis published in columns with sample ballot

Distribution

•.. '"....

:..

~

:g

Yes

No*

Utah

Washington

Wyoming

Sec. of State with asst. of Atty. Gen. (ballot title and proposition summarizing proposed law)

Atty. Gen. (20-wd ballot title, 75wd summary; if possible yes is vote to change law)

Office of Leg. Res. and Gen. Counsel (lOO-wd statement of purpose)

Ballot Abstract or Summary

No

Atty. Gen. (brief stmnt. of current law, effect of measure)

Dir. of Leg. Res. and Gen. Counsel (analysis to be in language understandable by average voter; includes fiscal impact; 1,000 wds)

Analysis

~

Pamphlet distributed to newspapers and county clerks for distribution on request; posted at polling places

Pamphlet mailed to each voter and to various public outlets (inc\. libraries, educ. institutions, and at the polls); text published in newspaper Text published in newspaper

1 pro, I con (500 wds each); I 250-wd rebuttal per side

1 pro, 1 con (250 wds each); 1 75-wd rebuttal per side

No

(Michie 1993 & Supp. 1995); Cal. Elec. Codd~9050, 9051, 9081 through 9096 (West 1996 & Supp. 1997); Colo. Canst. art. V, ~I, art. X, ~20(3)(b), art. XXIII, Rev. Stat. Ann. ~~1-4O-106, -124, -124.5, -125 (West Supp. 1996); D.C. Code Ann. ~ 1-1320(c), -(p)(2) (1992); Fla. Canst. art. XI, ~5, Stat. Ann. ~~ 101.20, -.161, -.171 (West 1982 & Supp. 1997); Idaho Code ~34-1809, 1812(A)-(C) (1981 & Supp. 1995); lll. Camp. Stat. Ann. ch. 5, ~20/2 (Smith-Hurd 1993); Me. Canst. art. IV, pt. 3, ~20, Rev. Stat. Ann. tit. I, ~353 (West Supp. 1996); Mass. Canst. Amend. art. XLVIII, Gen. Prov., pt. 4., Gen. Laws Ann. ch. 54, ~~52-54 (West 1991 & Supp. 1997); Mich. Canst. art. XII, ~ 2, Stat. Ann. ~~6.1474, -.1477, -.1480 (Callaghan 1993); Miss. Code Ann. ~~23-17-9, -31, -45 (Supp. 1996); Mo. Ann. Stat. ~~ 116.170, -.260, -.290, -.334 (Vernon Supp. 1997); Mont. Code Ann. ~~ \3-27-311, -312, -401, -402, 407, -410 (1995); Neb. Rev. Stat. ~~32-141O, -1413 (Supp. 1996); Nev. Canst. art. 19, ~2, Rev. Stat. ~~218.276, 293.250, -.251, -.253 (1995); N.D. Cent. Code ~~16.I-OI-07, -0609, -\3-05 (1991 & Supp. 1995); Ohio Canst. art. II, ~ l(g), Rev. Code Ann. ~~3519.03, -.04, -.21 (Baldwin 1994); Okla. Stat. tit. 34, ~~9, 17 (Supp. 1997); Or. Rev. Stat. ~~250.035, -.065, -.125, and 251.165, -175, -.185, -.205, -.215, -.225, -.255 (1995); S.D. Codified Laws Ann. ~~ 12-13-3, -9 (1995); Utah Canst. art. XXIII, ~1, Code Ann. ~~20A-7-701 to -706 (1995 & Supp. 1996); Wash. Canst. art. 2, ~ I(e), Rev. Code Ann. ~~29.27.060, 29.79.040, 29.81.010 to -.180 (West 1993 & Supp. 1997); Wyo. Canst. art. 3, ~ 52, Stat. ~~22-24117, -118 (Supp. 1996) (voter pamphlet provided for in ~22-20-105 (1992) does not include initiatives).

<:m

~

::l

Z

>-<

til

Gl

~

;I>

l'

Distribution

;!3

tv

Pro/Con Arguments

Sources: Alaska Stat. ~~ 15.15.070, 15.45.180, -.200 (1996); Ariz. Rev. Stat. Ann. ~19-123, -124 (Supp. 1996); Ark. Code Ann. ~~7-5-206, 7-9-113,7-9-114

for initiatives.

Yes

State

* Not

Voter Pamphlet

Table 4 (continued)

Appendix A

TABLE 5. Total Expenditures in California Initiative Campaigns 1974-1988 Month! Year

Title

June 1974

Political Reform

Nov. 1974

Prop. Total No. Expenditures 9

$810,537

Wild and Scenic Rivers

17

$694,755

June 1976

Nuclear Power Plants

15

$3,788,560

Nov. 1976

Greyhound Dog Racing

13

$1,904,529

Nov. 1976

Agricultural Labor Relations

14

$3,179,810

June 1978

Tax Limitation

13

$4,153,078

Nov. 1978

Regulation of Smoking

5

$7,004,069

Nov. 1978

School Employees-Homosexuality

6

$2,288,238

Nov. 1978

Murder-Penalty

7

$668,156

Nov. 1979

Limitation of Government Appropriations

4

$1,725,056

June 1980

Taxation-Income

9

$5,411,305

June 1980

Rent

10

$6,833,483

June 1980

Taxation-Surtax

11

$6,067,356

Nov. 1980

Smoking and No-Smoking Sections

10

$3,756,769

June 1982

Gift and Inheritance Tax

5

$79,945

June 1982

Gift and Inheritance Tax

6

$949,561

June 1982

Income Tax Indexing

7

$1,022,476

June 1982

Criminal Justice

8

$1,082,240

Nov. 1982

Beverage Containers

II

$6,385,153

Nov. 1982

Nuclear Weapons

12

$3,489,646

Nov. 1982

Water Resources

13

$3,053,549

Nov. 1982

Reapportionment Supreme Court

14

$589,580

15

$9,896,101

24

$1,204,374

by Districting Commission or

Nov. 1982

Guns

June 1984

Legislature-Rules,

Nov. 1984

Taxation

36 $10,433,669

Nov. 1984

State Lottery

37

Procedures, Powers, Funding

$5,976,494

243

244

LAWMAKING BY INITIATIVE

Table 5 (continued) Month! Year

Title

Prop. No.

Total Expenditures

Nov. 1984

Voting Materials in English Only

38

$120,633

Nov. 1984

Reapportionment

39 $10,321,507

Nov. 1984

Campaign Contribution Limits-Elective Offices

Nov. 1984

40

$1,452,800

Public Aid and Medical Assistance Programs

41

$4,079,933

June 1986

Multiple Defendants Tort Damage Liability

51 $10,957,234

June 1986

Compensation of Public Officials, Employees, Individual Public Contractors

61

$7,780,453

Nov. 1986

Taxation-Local

62

$3,625,038

Nov. 1986

Official State Language

63

$899,909

Nov. 1986

Acquired Immune Deficiency Syndrome (AIDS)

64

$3,139,543

Nov. 1986

Restrictions on Toxic Discharges into Drinking Water

65

$7,103,011

Legislative Campaign Spending and Contribution Limits-Partial Public Funding

68

$2,174,090

June 1988

Acquired Immune Deficiency Syndrome (AIDS)

69

$450,221

June 1988

Wildlife, Coastal, and Park Land Conservation

70

$1,177,488

June 1988

Appropriations

71

$2,764,082

June 1988

Emergency Reserve-Dedication Taxes to Transportation

72

$3,005,157a $335,136b

June 1988

State

Governments and Districts

Limit Adjustment of Certain

June 1988

Campaign Funding, Prohibition of Public Funding

73

Nov. 1988

Hunger and Homelessness Funding

95

$2,897,570

Nov. 1988

Communicable Disease Tests

96

$606,326

Nov. 1988

State Occupational Safety and Health Plan

97

$1,683,326

Nov. 1988

School Funding

98

$6,298,017

Nov. 1988

Cigarette and Tobacco Tax-Benefit

Nov. 1988

Insurance Rates, Regulation

100 $31,524,513

Nov. 1988

Automobile Accident Claims and Insurance Rates

101

$5,520,189

Reporting Exposure to AIDS Virus

102

$1,611,292c

Nov. 1988

Fund

99 $23,086,053

Appendix A

Table 5 (continued) Month! Year

Title

Nov. 1988

Prop. No.

Total Expenditures

Insurance Rates, Regulation

103

$3,017,279d

Nov. 1988

Automobile and Other Insurance

104 $55,889,008e

Nov. 1988

Disclosures to Consumers, Voters, Investors

105

$410,585

Nov.1988

Attorney Fees Limit for Tort Claims

106

$4,875,652f

aDoes not include opposition committee expenditures (1988).

made jointly to support Proposition 71

bDoes not include opposition committee expenditures made jointly to oppose Proposition 68 (1988). eDoes not include opposition committee expenditures (1988).

made jointly to oppose Proposition 96

dDoes not include opposition committee 100 (1988).

expenditures

made jointly to oppose Proposition

eDoes not include opposition 100 (1988).

expenditures

made jointly to support Proposition

committee

[Does not include opposition committee expenditures made jointly to oppose Proposition (1988).

106

Sources: California Fair Political Practices Commission, Historical Overview of Receipts and Expenditures by Ballot Measure Committees (covering 1976-1986) (April 1988), pp. 1729; 1988 Primary Election Campaign Receipts and Expenditures (Nov. 1988), pp. F-2-F-6; and Receipts and Expenditures by Committees Primarily Formed to Qualify, Support, or Oppose a California State Ballot Measure Voted Upon in the 1988 California General Election (undated), pp. A-2-A-ll. Data for 1988 exclude expenditures made as transfers between committees that supported or opposed the same proposition. Slight variations from FPPC reports may exist due to minor errors found in those reports or different ways of attributing expenditure data by proposition. Data for 1974 are from David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore: Johns Hopkins University Press, 1984), p. 210. Figure for 1979 is from Daniel Lowenstein, "Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment," UCLA Law Review 29 (1982): 630.

245

246

LAWMAKING BY INITIATIVE

TABLE 6. Proponents' Qualification Spending for California Initiatives 1974-1988

MonthlYear

Title

June 1974

Political Reform

Nov. 1974

Wild and Scenic Rivers

Prop. No.

(A)

(B)

Percent

Total *

To Qualify*

(BIA)

$536,795

N/A

N/A

17

$179,834

N/A

N/A

N/A

N/A

9

June 1976

Nuclear Power Plants

15

$1,255,199

Nov. 1976

Greyhound Dog Racing

13

$652,677

N/A

N/A

Nov. 1976

Agricultural Labor Relations

14

$1,362,431

N/A

N/A

June 1978

Tax Limitation

13

$2,152,874

N/A

N/A

Nov. 1978

Regulation of Smoking

5

$653,581

$61,624

9.4%

Nov. 1978

School EmployeesHomosexuality

6

$1,033,722

$859,487

83.1%

Nov. 1978

Murder-Penalty

7

$657,885

$451,208

68.6%

Nov. 1979

Limitation of Government Appropriations

4

$1,725,056

$500,000+

29.0%

9

$3,633,565

$2,075,287

10

$6,655,212

$1,902,013

28.6%

June 1980

Taxation-Income

June 1980

Rent

57.1%

June 1980

Taxation-Surtax

11

$455,899

$262,942

57.7%

Nov. 1980

Smoking and No-Smoking Sections

10

$1,024,764

$227,631

22.2%

June 1982

Gift and Inheritance Tax

5

$22,572

$18,448

81.7%

June 1982

Gift and Inheritance Tax

6

$892,188

$371,122

41.6%

June 1982

Income Tax Indexing

7

$1,021,402

$545,738

53.4%

June 1982

Criminal Justice

8

$1,027,954

$937,112

91.2%

$1,251,293

$584,318

46.7%

Nov. 1982

Beverage Containers

11

Nov. 1982

Nuclear Weapons

12

$3,483,605

$856,365

24.6%

Nov. 1982

Water Resources

13

$1,024,789

$400,182

39.1%

Nov. 1982

Reapportionment by Districting Commission or Supreme Court

14

$589,580

$366,926

62.2%

$3,528.63

$1,747,361

49.5%

Nov. 1982

Guns

June 1984

Legislature-Rules, Procedures, Powers, Funding

Nov. 1984

Taxation

15

24

$874,651

$778,041

89.0%

36

$8,771,140

$2,215,780

25.3%

Appendix A

247

Table 6 (continued Prop.N o.

(A)

(B)

Percent

Total

To Qualify

(BfA)

MonthlYear

Title

Nov. 1984

State Lottery

37

$2,563,207

$1,188,553

46.4%

Nov. 1984

Voting Materials in English Only

38

$120,633

$63,976

53.0%

Nov. 1984

Reapportionment

39

$5,996,708

$1,255,859

20.9%

Nov. 1984

Campaign Contribution Limits-Elective State Offices

40

$299,313

$288,446

96.4%

Nov. 1984

Public Aid and Medical Assistance Programs

41

$1,115,474

$836,101

75.0%

June 1986

Multiple Defendants Tort Damage Liability

51

$6,027,189

$1,148,360

19.1 %

June 1986

Compensation of Public Officials, Employees, Individual Public Contractors

61

$1,136,742

$898,747

79.0%

Nov. 1986

Taxation-Local Governments and Districts

62

$3,611,144

$1,823,125

50.5%

Nov. 1986

Official State Language

63

$785,461

$661,083

84.2%

Nov. 1986

Acquired Immune Deficiency Syndrome (AIDS)

64

$367,995

$230,373

62.6%

Nov. 1986

Restrictions on Toxic Discharges into Drinking Water

65

$2,219,474

$368,844

16.6%

June 1988

Legislative Campaign Spending and Contribution Limits-Partial Public Funding

68

$1,038,761

$113,698

10.9%

June 1988

Acquired Immune Deficiency Syndrome (AIDS)

69

$170,377

$154,848

90.9%

June 1988

Wildlife, Coastal, and Park Land Conservation

70

$1,068,796

$436,112

40.8%

Appropriations Limit Adjustment

71

$2,519,518

$1,147,350

45.6%

Emergency ReserveDedication of Certain Taxes to Transportation

72

$2,832,815

$1,890,381

66.7%

June 1988

June 1988

248

LAWMAKING BY INITIATIVE

Table 6 (continued) MonthlYear

Prop. No.

Title

June 1988

Campaign Funding, Prohibition of Public Funding

Nov. 1988 Nov. 1988

(A)

(B)

Percent

Total

To Qualify

(BIA)

73

$335,136

$290,701

86.7%

Hunger and Homelessness Funding

95

$1,003,131

$655,065

65.3%

Communicable Tests

96

$481,677

$384,861

79.9%

Disease

State Occupational Safety and Health Plan

97

$1,681,326

$770,332

45.8%

Nov. 1988

School Funding

98

$5,807,106

$1,347,080

23.2%

Nov. 1988

Cigarette and Tobacco Tax-Benefit Fund

99

$1,840,612

$795,012

43.2%

Nov. 1988

Nov. 1988

Insurance Rates, Regulation

100

$16,535,527

$2,248,038

13.6%

Nov. 1988

Automobile Accident Claims and Insurance Rates

101

$5,493,967

$1,812,892

33.0%

Nov. 1988

Reporting Exposure to AIDS Virus

102

$655,425

$504,866

77.0%

Insurance Rates, Regulation

103

$3,017,279

$1,416,543

46.9%

Automobile and Other Insurance

104

$55,866,087

$17,407,541

31.2%

Nov. 1988

Disclosures to Consumers, Voters, Investors

105

$410,585

$337,518

82.2%

Nov. 1988

Attorney Fees Limit for Tort Claims

106

$3,682,293

$2,091,455

56.8%

Nov. 1988 Nov. 1988

*"Total Expenditures" includes all spending by sponsoring committees. "To Qualify" includes expenditures identified by the California Fair Political Practices Commission as having been made during the "qualification period." Sources: California Fair Political Practices Commission, Historical Overview of Receipts and Expenditures by Ballot Measure Committees (covering 1976-1986) (April 1988), pp. 17-29; 1988 Primary Election Campaign Receipts and Expenditures (Nov. 1988), pp. F-2-F-6; 1988 Primary Election Campaign Receipts and Expenditures (Nov. 1988), pp. F-2-F-6; and Receipts and Expenditures by Committees Primarily Formed to Qualify, Support, or Oppose a California State Ballot Measure Voted Upon in the 1988 California General Election (undated), pp. A-2-A-1I. Data for

1988 exclude expenditures made as transfers between committees that supported or opposed the same proposition. Proponents' expenditure data for 1974 and 1979 are from Lowenstein, "Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment," UCLA Law Review 29 (1982): 622, 624, 630. Because the FPPC did not separately report expenditures during the qualification period until November 1980, additional sources were utilized where available. Qualification expenditures for Propositions 5 and 6 (1978) are reported in an FPPC press release dated July II, 1978. Qualification expenditures for all other propositions prior to November 1980 are from Lowenstein, "Campaign Spending and Ballot Propositions," pp. 524, 540, 628 n.160.

APPENDIX B Example of Massachusetts Voter Pamphlet "The Official Massachusetts Information for Voters: The 1994 Ballot Questions" INFORMATION FOR VOTERS 1994

Table of Contents Offices on the Ballot in 1994

Dear Voter: The table of contents to tbe rigbt lists nine very significant issues facing Massacbusetts voters tbis year. All of these questions will appear on your ballot on Election Day, November 8. As a result, the 1994 election is a very important one for all of us. Not only will we be choosing representatives on Capitol Hill and Beacon Hill and some county officials, we will also be determining public policy with our answers to these ballot questions. The 1994 Information for Voters booklet, as constitutionally required, lists nine questions witb summaries, as well as brief arguments for and against eacb issue. Tbis information will assist you in maklng a thougbtful decision before you enter your polling place. The petitioners who placed these questions on the ballot have done their jobs. It's your turn now. I strongly urge you to read carefully the enclosed material and even take it into the voting booth if you wish. But, by all means, exercise that most essential right of our democratic system, and vote on Tuesday, November 8.

hd1J~~ Michael Joseph Connolly Secretary of the Commonwealth

2900M-8-94.

Publication

of this

document

as they will appear on the ballot, a summary of each proposal, what your "yes" or "no" vote will do, and arguments for and against: Question 1: Regulating Spending on Ballot Question Campaigns

paper

@

249

. 3

Question.2: Seat Belt Law 5 Question 3: Changing the Law Regarding Student Fees 7 Question 4: Term Limits.... . 9 Question 5: Opening of Retail Stores on Sunday Morning and Certain Holidays Question Question Question Question

12

6: Graduated Income Tax 13 7: Personal Income Tax Changes .. 16 8: State Highway Fund Changes 27 9: Prohihiting Rent Control. . 32

Full Texts of the ballot questions

34

How to Register to Vote.

... 50

How to Vote

... 51

How to Apply for an Absentee Ballot .....

....52

Services of the Office of the Secretary of State

. 53

Tear-out CheckList

. 54

approved by Philrnore Anderson Estimated Cost Per Copy $,077 Printed on recycled

1

About the 1994 Ballot Questions .. 2 The Ballot Questions

111,Slale

Purchasing

Agent.

250

LAWMAKING

BY INITIATIVE

INFORMATION FOR VOTERS 1994

OffICeson the Ballot in 1994 This year the following offices will appear on the ballot: • United States Senator (6 years) • Governor & Lieutenant Governor (4 years) • Attorney Genera! (4 years) • • • • •

Secretary of State (4 years) Treasurer (4 years) Auditor (4 years) United States Representative (2 years) Governor's Council (2 years)

• State Senator (2 years) • State Representative (2 years) • District Attorney (4 years) • Clerk of Courts (6 years) • Register of Deeds (6 years) • County Commissioner (4 years) ('to be elected in each county except Dukes, Hampshire, Nantucket, and Suffolk)

'Dukes County: Voters in Dukes County approved a county manager plan for county government. A board of seven county commissioners will be elected this November for non-concu"ent terms. Commissioners will be elected at large with the proviso that not more than two members may be elected and serve from anyone town. In 1994, four commissioners will be elected for four year terms and three commissioners for two year terms . Hampshire County: Voters in Hampshire County approved a county charter. The board of commissioners is composed of members chosen at every municipal general election in the county; the term of office is two years . Nantucket County: Business for the County of Nantucket is conducted by the Board of Selectmen in the Town of Nantucket . Suffolk County: Business for Suffolk County is conducted by the City Council of the City of Boston. To learn who is running for these offices, consult your local newspaper, or call your city or town clerk or election commission.

Attention, Spanish-speaking citizens! This booklet has been published in Spanish by the Secretary of State. To request free copies of the Spanish Information for Voters including the full text, please call the Elections Division at 727-2828 in the Boston Metropolitan area or toll-free at 1-800-462-VOTE.

jAtencion, ciudadanos de habla hispana! La Secretaria de Estado ha publicado este folleto en castellano. Para solicitar ejemplares gratuitos de la version castellana intitulada Informacion para votantes, que incluye el texto completo de las propuestas, sirvase llamar a la Division de Elecciones a! telefono 617-7277030 si se encuentra en Boston 0, si esti fuera del area metropolitana de Boston, sirvase llamar a! 1-800-392-6090 (esta llamada es gratuita).

Appendix B

INFORMATION FOR VOTERS 1994

2

About the 1994 Ballot Questions STATEWIDE QUESTIONS There are three kinds of statewide questions that will appear on the 1994 statewide ballot. This booklet gives you detailed information on these questions only.

Initiative Petition for a Constitutional Amendment Question Six: Graduated Income Tax A constitutional amendment proposed by initiative petition may be brought before the legislature by citizens who obtain the required number of signatures from Massachusetts voters. An initiative amendment must be approved by one fourth of the members of two consecutively elected legislatures in order to appear on the ballot for voter approval or disapproval.

Initiative Petition for a Law Question One: Regulating Spending on Ballot Question Campaigns Question F(JUr:Term Limits Question Five: Opening of Retail Stores on Sunday Morning and Certain Holidays Question Seven: Personal Income Tax Changes Question Eight: State Highway Fund Changes Queston Nine: Prohibiting Rent Control These are initiative petitions for a law proposed by citizens who have obtained the required number of signatures from Massachusetts voters to place the law on the November 8 ballot. If such a measure receives more "yes" votes than "no" votes, and also receives "yes" votes from at least 30 percent of those voting in the election, it will become law.

Referendum Petition Question Two: Seat Belt Law Question Three: Changing the Law Regarding Student Fees These are referendum petitions. The Legislature has already passed these laws, but citizens have obtained the required number of signatures from Massachusetts voters to place the laws on the November 8 ballot for voter approval or disapproval. If at least as many voters vote "no" as vote "yes" on this question and if at least 30 percent of those voting in the election vote "no", this law will be repealed. OTHER TYPES OF QUESTIONS WHICH MAY APPEAR ON YOUR BALLOT

Public Opinion Advisory Questions These questions are placed on a ballot in a senatorial district by voters who collect 1200 signatures or in a representative district by voters who collect 200 signatures. These questions are used to inform legislators of their constituent.~' opinion. There can be no more than three public policy questions on the state ballot in any district. The same question cannot be placed on the ballot in two consecutive state elections in the same district.

County Questions There is an array of county questions which may be placed on the state ballot in that county. Voters must gather signatures to do so. The number of signatures varies with the type of question.

Local Questions Alcoholic beverage questions, racing questions, Proposition 2t/2 override questions, nonbinding advisory questions and binding or nonbinding questions placed on a local ballot by a special act of the legislature at the request of local officials are some of the local questions which may appear on the state ballot.

251

252

LAWMAKING

BY INITIATIVE

QUESTION

1: LAW PROPOSED

3

BY INITIATIVE PETITION

Regulating ~l!endingon Ballot QuestIon Campaigns Do you approve of a law summarized below,

SUMMARY As required by law,

~ This proposed law would limit the way in which business and certain nonprofit corporations could contribute to and spend money on cam~

w~::~~n~~ ~:n~~~~ summaries

are

on which no vote was taken

paigns involving an initiative, referendum

or

other question submitted to the voters at a state or local election. The proposed law would require ballot committees organized to support or oppose any question submitted to the voters to disclose promptly certain contributions made late in the campaign; would establish procedures that business and certain nonprofit corporations would have to follow in order to spend money on ballot question campaigns; and would establish voluntary spending limits for ballot committees. The proposed law would require a ballot committee to report to the state Office of Campaign and Political Finance, within one business day of receipt, the name, address, occupation and employer of any person or organization making a contribution of $1,000 or more, if the contribution was made before the date of the election but after the closing date of the last official campaign contribution report. Under the proposed law, business and certain nonprofit corporations would be prohibited from making contributions or expenditures to support or oppose a ballot question, but would be permitted to create and solicit contributions to a separate fund to be used to support or oppose a ballot question, A separate fund would be required for each ballot question on which the corporation intended to solicit contributions. The corporation would be required to report all amounts spent to establish and administer the fund to the

and Ihe statemenls o~:~~~~~n~rI~:o;~~~; are wlillen by Ihe Secretary of Slale.

WHAT YOUR ~ A.YES VOmwould limit the way in which busiVOTE WILL DO ness and certain nonprofit corporations contribute to and spend money on ballot question campaigns.

, III ARGUMENTS 'I

I'

I

I

I,

I •

~

by

the Senate

or the House of Representatives

before May

4, 1994?

Office of Campaign and Political Finance, and to a city or town if the fund were established to influence the vote on a local ballot question. Contributions to the separate fund could be solicited only from members or stockholders, officers and directors, and employees at a policymaking, managerial or professional level. Coercion, job discrimination and financial reprisals as methods of soliciting contributions would be prohibited, Nonprofit corporations that are formed for the purpose of promoting political ideas, do not engage in business activities, have no shareholders, and do not have business corporations as members or accept more than one percent of their revenues from such corporations would be exempt from these provisions. A business organization that violated these requirements could be fined up to $50,000, and any director or agent of a business organization who violates or authorizes the violation of these requirements could be fined up to $10,000 and/or imprisoned for up to one year, The proposed law would establish voluntary spending limits for ballot committees at $1,000,000 in the year of an election, and $250,000 in the years immediately before and after an election. Ballot committees agreeing 10 observe these voluntary limits would be permitted to announce their compliance on advertisements and campaign materials. Ballot committees that agreed to observe the spending limits and later exceeded the limits could be fined up to $10,000, The proposed law states that if any of its provisions were declared invalld, the other provisions would remain in effect.

A NO

vom

would make no change in the way corporations may contribute to and spend money on ballot question campaigns,

IN FAVOR:

Vote Yes to take Big Money out of AGAINST: Question I is an extreme, deceptive measure that prohibits businesses - and hospitals, politics, universities and many other non-profits.- from efIn a democracy, for-profit companies shouldn't be allowed to spend millions of dollars to influ- fectivelyspeaking out on ballot questions even when these questions affect them directly. No other state eoce how people vote. continued on next page continued

on next page

Appendix B

QUESTION 1: LAW PROPOSED BY INITIATIVE PETITION

ARGUMENTS ~ IMPORTANT; As provided by law, the 150-wordargumenls are written by

proponents and opponents of each queslion,

and reflect

their opinions. The Commonwealth of Massachusellsdoes nol endorsethess arguments, and does not cartify lhe Irulh or accuracy of any slatemenl made

intheseargumenls. The narnes of the individuals

and

organizations who wroleeach

argument, and any comments by others about each

written

argument,

are on file

in the Office of lhe Secretary of State.

IN FAVOR:

continued from pre,;ou, page

AGAINST:

253

4

continued

from previous

page

A multinational tobacco company executive shouldn't be able to write a million dollar check for mudslinging political TVcommercials.

imposes such a han. This measure creates an anti-business, anti-jobs climate that will make it harder for Massachusetts to attract employers.

In 1992, corporations spent $13 million opposing citizen ballot questions. This year, they're at it again, spending millions to fight hallot questions just like this one. There's finally a uew law to limit spending on politician's election campaigns. Now it's time to limit special interest spending on ballot questions.

Question 1 • makes it a crime for employers, including many non-profits, to talk about ballot questions to civic groups and citizens; it could even be illegal for newspapers to editorialize ahout questions • imposes fines up to $50,000 and 1 year prison terms - harsher punishment than for many real crimes • allows unlimited campaign spending by special interest groups like MassPIRG • will make it easier to pass laws raising taxes, because employers will no longer be able to effectively fight such ballot measures Question 1 limits your right to bear all sides of important issues. Vote NO!

Question I is the firsi step. It simply prevents corporations from spending money from their company treasnries on ballot questions. Instead, corporations will have to raise their campaign money the old fashioned way: they'll have to ask for it...from their shareholders, employees and consumers. Take Big Money out of politics. Vote Yes on 1.

APPENDIX C-California Ballot Pamphlet Summary November

8, 1994 Ballot Measures WHAT

SUMMARY

YOUR

YES

181 PASSENGER RAIL AND CLEAN AIR BOND ACT

OF 1994.

A No vote on this measure means: The state would not be authorized to issue $1 billion in general obligation bonds to construct rai11ines and related facilities and to acquire rights-or-way, rail cars, and locomotives.

' A Yes vote on this measure means: Recall elections could be consolidated with the next regularly scheduled election under certain circumstances, avoiding the need for a special election.

A No vote on this measure means: Recall elections would continue to be held 60 10 80 days after the Secretary of State certifies the recall petitions, thus requiring Ihat a special election be held if no other election is scheduled.

Increases sentences for convicted felons who have previous convictions for certain serious or violent felonies. Includes as prior convictions certain felonies committed by older juveniles. Fiscal Impact: Reaffirms existing law, which results in annual state costs initially of hundreds of millions increasing to multibillion dollars. Unknown net impact on local governments. Unknown state and local savings for costs of crimes not committed. No direct fiscal impact resulting from measure.

A Yes vote on this measure means: There would be no change to existing law. Rather. this vote would reaffirm the law enacted in March 1994 which provides longer prison sentences for repeat offenders.

A No vote on this mea~ure means: There would be no change to existing law. Rather. this vote would not reaffirm the law enacted in March 1994 which provides longer prison sentences for repeat offenders.

Provides for an additional 4% tax on gasoline sales. Revenues for electric rail and clean fuel buses, light rail. commuter and intercity rail systems. and other transportation-related programs, including wetlands, riparian habitat and parks. Fiscal Impact: Increased gasoline sales tax revenues of about $630 million annually. Multimillion dollar annual increases in state and local costs for mass transportation services, potentially offset by unknown amount of revenues.

A Yes vote on this measure means: The state would raise the sales tax on gasoline by 4 percent and use the resulting revenues to pay for (I) capital and operating improvements to passenger rail and mass transit bus services and (2) safety and operating improvements to streets and highways.

A No vote on this measure means: The state would not raise the sales tax on gasoline to pay for (I) capital and operating improvements to passenger rail and mass transit bus services and (2) safety and operating improvements to streets and highways.

Establishes health services system, defined benefits, for California residents to replace existing health insurance, premiums, programs. Costs/provider payments funded by employer, individual, tobacco taxes. Elected Health Commissioner administers fund/system. Fiscal Impact: Potentially over $75 billion in government funds to provide health insurance. Costs could be greater or less than funds. Potential government savings over time. Impact on state revenues over time, uncertain, probably not major.

A Yes vote on this measure means: The state would administer a system of health care coverage for California residents, financed by new taxes and, potentially, a transfer of existing government funds for health care programs. The system would replace most privately financed health insurance.

A No vote on this measure means: The existing system of heallh care coverage would be retained, whereby most persons arc insured through their employers or privately purchase insurance while others may receive health care through governmenl programs or charitable care from private hospitals.

Makes illegal aliens ineligible for public social services, public health care servicC5 (unless emergency under federal law), and attendance at public schools. Requires statel10cal agencies report suspected illegal aliens. Fiscal Impact: Annual state/local program savings of roughly $200 million, offset by administrative costs of tens of millions (potentially more than $100 million in first year). Places at possible risk billions of dollars in federal funding for California.

A Yes vote on this measure means: Only persons who could show they arc citizens or in this counlry legally could receive certain education, health, or welfare services.

A No vote on this measure means: There would be no new requirements for persons to show they are citizens or in this country legally in order to receive education, health, or welfare services.

Preempts local smoking laws. Replaces existing regulations with limited public smoking ban. Permits regulated smoking in most public places. Increases penalties for tobacco purchases by, and sales to, minors. Fiscal Impact: Likely, but unknown, annual increase in state and local government health care costs and state tobacco tax revenues. State enforcemenl costs of less than $1 million annually.

A Yes vote on this measure means: A statewide smoking law would go into effect that is generally tess restrictive than currenllaw.

A No vote on this measure means: Current statewide laws regulating smoking (which generally are more restrictive than the provisions of this measure) would remain in effect.

Put on the Ballot by the Legislature

183 Legislative

Constitutional Amendment

Put on the Ballot by the Legislature

184 INCREASED REPEAT

SENTENCES. OFFENDERS.

Initiative

Statute

Put on the Ballot by Petition Signatures

185 PUBLIC TRANSPORTATION TRUST FUNDS. GASOLINE SALES TAX. Initiative

Statute

Put on the Ballot by Petition Signatures

186 HEALTH

SERVICES. TAXES,

Initiative Constitutional Amendment and Statute Put on the Ballot by Petition Signatures

187 ILLEGAL ALIENS. INELIGIBILITY FOR PUBLIC SERVICES. VERIFICATION AND

REPORTING. Initiative

Stalute

Put on the Ballot by Petition Signatures

188 SMOKING AND PRODUCTS. TOBACCO LOCAL PREEMPTION. STATEWIDE REGULATION. Initiative

Statute

PUI on the Ballot by Petition Signatures

MEANS

A Yes vote on this measure means: The state would be authori7..ed to issue $1 billion in general obligation bonds to construct rail lines and related facilities and to acquire rights-or-way, rail cars, and locomotives.

This act provides for a bond issue of one billion dollars {S I ,000,000,000) to provide funds for acquisition of rights-or-way. capital expenditures, and acquisitions of rolling stock for intercity rail, commuter rail, and rail transit programs.

Bond Act

RECALL ELECTIONS. STATE OFFICERS.

VOTE NO

Auth0r11.es recall elections to be held within i80 days of certification of sufficient signatures to enable consolidation of recall elections with regularly scheduled elections. Current law provides that recall elections must be held between 60 and 80 days of the date of certification of sufficient signatures. Fiscal Impact: Potentially significant savings to state and local governments.

G94

4

254

Appendix C

255

NoveIllber 8, 1994 Ballot Measures-Continued PRO

ARGUMENTS CON

A YES vote on Proposition 181 will: • Expand rail service throughout California • Reduce traffic congestion • Improve air quality • Help stimulate California's economy This isn't a new tax. Rather, it authorizes the sale of $1 billion in state bonds to improve and expand intercity. commuter and urban rail systems in California.

This is a billion dollar boondoggle that even the measure's author, Assemblyman Jim Costa, agrees should not be on the ballot. Taxpayers shouldn't pay for more rail projects--eurrent ridership still lags behind capacity. Voters rejected red ink-generating bond measur.es in June. They should do it again.

Proposition 183 improves the recall process by making it easier to combin~ recall elections with regularly scheduled elections. More voters wiJl participate and taxpayers can sav~ millions of dollars by avoiding special, stand-alone elections. The League of Women Voters supports Proposition 183.

Recall is your constitutional RIGHT to remove elected officers before their terms expire. Recalling a dishonest politician SAVES taxpayers money and cuts off greedy special interests. Don't allow politicians to delay recalls while they continue to waste tax dollars. VOTE NO to keep your right to stop political corruption.

WHOM TO CONTACT FOR MORE INFORMATION AGAINST FOR NOT PROVIDED

Senator Millon Marks State Capitol, Room 5035 Sacmmento, CA 95814 (916) 445-1412 Attention: Darren Chesin

McClintock for Controller 1107 Second Street, Suite 210 Sacramento, CA 95814 (916) 446-7300

Assemblyman Mickey Conroy CA State Capitol, Room #4102 Sacramento, CA 95814

and You're Out Committee 325 Pollasky Clovis, CA 93612 (209) 322-8646

Taxpayers for Effective Crime Prevention 6380 Wilshire Blvd., Suite 123 Los Angeles, CA 90048 (213) 937-7622

and Conservation League 926 J Street, #612 Sacramento, CA 95814 (916) 444-8726, ext. 86

Californians Against the $700 Million Tax Increase 11444 W. Olympic Blvd., #1018 Los Angeles, CA 90064 (310) 445-8885

Law enforcement and crime victims . say this version of "three strikes" is bad law. Three oul of four given life sentences under this law will be non-violent offenders. Punishing non.violent criminals like violent ones doesn't make sense and will cost taxpayers billions of dollars. Vote No on Proposition 184!

3 Strikes

Slash transportation waste and bureaucracy. Stop the Legislature from raiding transportation funds. Develop electric and clean fuel bus and rail systems. CI~an our air and save energy. Make roads and bridges earthquake-safe. Provide transit for disabled and ~enior citi7.en~. Restart California's economy. Create jobs. Vote YES on 185.

Another TAX INCREASE! A $700 million annual SALES TAX INCREASE on gasoline. 185 is double taxation! 185 also creates an All-POWERFUL, Sacramento COMMITTEE of three POLmCAL APPOINTEES with the SOLE AUTHORITY to spend billions of our taxpayer dollars. Our taxes already are TOO HIGH. VOTE NO on 185

Planning

YES means all legal California residents get LIFETIME MEDICAL COVERAGE, including LONG TERM CARE and PRESCRIPTIONS. You choose your doctor. You will no longer pay any insurance premiums and deductibles. Only a smaller health tax-with vastly better coverage. Your life saving~ will be safe from medical bills forever.

186 hurts families. taxpayers, businesses. Government takes over health care. Huge bureaucracies. $40 billion in new taxes. $30 billion-plus shortfalls: even higher taxes, rationing, or cuts in school, crime, other programs. No guarantee of physician choice. Consumers. seniors. nurses, physicians, businesses: "NO" on 186-a bankrupt, false promise.

Californian~ for Health Security 5208 Claremont Avenue Oakland. CA 946] 8 ]-800.525.0101

Taxpayers Against the Government Takeover, No on Proposition 186, a Coalition of Nurse~, Business, Seniors, Taxpayers. Insurers and Hospitals 915 L Street, #C240 Sacramento, CA 95814 (916) 852-6494 or 1-800-220-3232

It excludes ILLEGAL ALIENS from receiving public social services, publicly funded health care (except for emergency care required by federal law), educational benefits from elementary, secondary schools, and higher education. Makes it a felony to manufacture, distribute, sell or use false documents to obtain benefits reserved for I~gal residents.

Proposition 187 makes a bad situation WORSE. It WON'T SOLVE our illegal immigration problem. 187 does ABSOLUTELY NOTIllNG to beef up enforcement at the border. But because it's POORLY DRAFTED. 187 could END UP COSTING TAXPAYERS $10 BILUON. LAW ENFORCEMENT, EDUCATION and MEDICAL officials OPPOSE 187. VOTE NO on 1871

Ronald Prince Save Our State Headquaners (714) 544-1514

Taxpayers Against I 87-It Makes a Bad Situation Worse! 111 Anza Blvd., #406 Burlingame, CA 94010 (415) 340-0470

Proposition 188 (I) helps protect nonsmokers by regulating smoking in public and helps keep tobacco away from minors; (2) prohibits smoking in restaurants and workplaces except in separate smoking areas meeting tough ventilation standards; (3) is a reasonable and fair solution balancing interests of nonsmokers and smokers, employers and employees.

NO on 188! The tobacco industry wants 188 to eliminate smoke-free areas and overturn tough local laws discouraging tobacco sales to childreno 188 will cost taxpayers billions because of disease from smoking and secondhand smoke. OPPOSE.o by American Cancer Society, American Lung Association, American Heart Association, and PTA.

Californians for Statewide Smoking Restrictions 10866 Wilshire Blvd., Suite 550 Los Angeles, CA 90024 (310) 475-9494

Proposition 184 keeps rapists, murderers and child molesters behind bars where they helong. Police, taXpayer, crime victim and prosecutor organizations support 184. Let's make California safe for children, families and seniors again. 3 STRIKES SAVES LIVES AND TAXPAYER DOLLARS! Let's tell serious/violent career criminals "3 Strikes and You're Out!"

G94

Coalition

for a Healthy California 1-8OQ-ACS.2345

5

APPENDIX

D

Swiss Initiatives: Problems of Counting, Landesgemeinde, Sources (1) Counting Initiatives Initiatives can be counted in several different ways. The number of initiatives submitted is generally quite different from the number voted on. Table 15 indicates the number voted on. It does not include initiatives that failed to secure enough signatures, those found invalid when submitted to the authorities, or those withdrawn by the proponents. Initiatives accepted by the parliament are included, if they resulted in a vote by the people. Such a vote is almost always required for constitutional amendments. The cantons differ greatly, however, as to whether such a vote is required for statutes. In some cantons such votes are almost always required. In others such votes are not automatically required, but may be required in particular circumstances. Counting is also complicated by the fact that some initiatives are submitted to the people as general concepts rather than as specific legal texts. This was particularly common in the early years of the initiative. When citizens approve an initiative of this kind, the next step is to prepare a specific legal text embodying the general concept. In some cantons and circumstances, the citizens must vote again on the more specific legal text. (2) Landesgemeinde Cantons At one time or another during their long history, most of the landesgemeinde cantons allowed individual citizens to propose laws to the annual assembly. By the 1830s (after the defeat of Napoleon and the restoration of traditional Swiss democracy), citizens in most landesgemeinde cantons were no longer able to do this. All of the landesgemeinde cantons except canton Schwyz required that proposals first be approved by the cantonal councilor imposed other significant restrictions. Eduard His, Geschichte des neuern Schweizerischen Staatsrechts

256

Appendix D

257

(Basle: Helbing & Lichtenhahn, 1929),2: 241. Because the history of the initiative in the landesgemeinde cantons is extremely complicated and because presenting a proposal to a landesgemeinde is significantly different from presenting a proposal for a normal secret ballot vote, no attempt has been made to include initiative totals for the landesgemeinde cantons in Tables 15 and 16. Cantons Schwyz and Zug gave up the landesgemeinde in 1848; canton Uri in 1928. In canton Uri the proposal to give up the landesgemeinde was made through an initiative. In canton Obwalden between 1919 and 1973 four initiatives proposing termination of the landesgemeinde were voted on, but all were defeated. Silvano Mockli, Die schweizerischen Landsgemeinde-Demokratien (Bern: Paul Haupt, 1987), pp. 50-55. (3) Sources for Tables 15 and 16 Aargau: Wilhelm Ruppert, Die Unterscheidung von Verjassungsinitiative und Gesetzinitiative in den schweizerischen Kantonen (diss., University of Zurich, 1933)(to 1931); Rechenschaftsbericht des Regierungsrates (1932-1994). Basel City: Ruppert (to 1921); Statistisches Jahrbuch des Kantons Basel-Stadt (1921-1994). Basel Land: Ruppert (to 1931); Amtsbericht (1932- 1976); Statistisches Jahrbuch des Kantons Basel-Landschaft (1977 - 1994). Bern: Ruppert (to 1931); Bericht uber die Staatsverwaltung des Kantons Bern (1932-1994). Fribourg: Ruppert (to 1931); Ernest Weibel, Institutions politiques romandes (Fribourg: Editions Universitaires Fribourg Suisse, 1990), pp. 34-44 (19201988); Statistisches Jahrbuch des Kantons Freiburg (1988-1994). Geneva: Ruppert (to 1931); Weibel, Institutions politiques romandes, pp. 86-104 (1928- 1986); Annuaire statistique du canton de Geneve (1986-1994). Graubunden: Ivo Caviezel, Die Volksinitiative im allgemeinen und unter besonderer Berucksichtigung des Kantons Graubunden (lnstitut du Federalisme Fribourg Suisse, 1990) (1881-1988); Statistisches Jahrbuch (1989-1992); Amtsblatt (1993-1994); Ruppert (supplementary). Jura: Weibel, Institutions politiques romandes, pp. 142-143 (1978-1987); Rapport du Gouvernement sur la Legislature (1988-1994). Luzern: Ruppert (to 1931); Bericht des Regierungsrates (1932-1969); Kantonsblatt (1970-1994). Neuchatel: Ruppert (to 1931); Weibel, Institutions politiques romandes, pp. 210224 (1919-1988); Rapport du Conseil d'Etat au Grand Conseil (1988-1991); Bulletin du Grand Conseil (1992-1993). St. Gallen: H. Gmur, Der St. Galler Burger an den Urnen: Referendum und Initiative im Kanton St. Gallen, 1831-1952 (Kantonsbibliothek, St. Gallen, 1953)(1831-1952); "Der Kanton St. Gallen heute und Morgen Nr. 8" (Schriftenreihe Staatskanzlei St. Gallen, 1982)(1953-1980); Amtsbericht des Grossen Rates des Kantons St. Gallen (1981-1994). The information in O. Mueller,

258

LAWMAKING BY INITIATIVE

"Die kantonalen und eidgenossischen Volksabstimmungen im Kanton St. Gallen" (St. Gallen: Staats-Archiv, 1914) and in Ruppert is covered fully by H. Gmur's work. The data in Alois Riklin and Roland Kley, Stimmabstinenz und direkte Demokratie (Bern: 1981) are covered by H. Gmur's work and by "Der Kanton St. Gallen heute und Morgen Nr. 8." Schaffhausen: Ruppert (to 1931); Verwaltungsbericht des Regierungsrates (1932-1994). Christian Schneider, "Die Volksrechte der Schaffhauser Kantonsverfassung-Entwicklung und Perspektiven," Schweizer Zentralblatt 96 (1995): 389, 396, says that only two of these initiatives were constitutional amendments. Schwyz: Ruppert (to 1931); Rechenschaftsbericht des Regierungsrates (19321994). Friedrich Huwyler, Gesetz und Verordnung im Kanton Schwyz (diss., University of Zurich, 1970), p. 70, indicates that 10 initiatives were filed between 1848 and 1969. Solothurn: Ruppert (to 1931); Amtsblatt (1932-1994). Thurgau: Ruppert (to 1931); Rechenschaftsbericht des Regierungsrates (19321987); Amtsblatt (1988-1994). Ticino: Ruppert (to 1931); Statistical Yearbook (1932-1994). Uri: Rechenschaftsbericht (1928-1993); Amtsblatt (1994). Valais: Ruppert (to 1920); Weibel, Institutions politiques romandes, pp. 260-276 (1920-1987); Annuaire statistique du canton du Valais (1988-1994); MarieClaire Pont Veuthey, Le pouvoir legislatif dans le canton du Valais (diss., University of Geneva, 1992), pp. 139-141. Vaud: Ruppert (to 1900); Weibel, Institutions politiques romandes, pp. 322-333 (1900-1987); Annuaire statistique du canton de Vaud (1988-1994). Zug: Ruppert (to 1931); Amtsblatt (1932-1955); Rechenschaftsbericht des Regierungsrates (1956-1994). Zurich: Kurt Btitikofer-Johanni, Die Initiative in Kanton Zurich 1869-1969, Entstehung, Funktion und Wirkung (diss., University of Zurich, 1982)(18691969); Statistisches Handbuch des Kantons Zurich (1972-1994). Data concerning two special kinds of initiatives (by single individuals and by government entities) are excluded, as these do not require the collection of signatures and are processed quite differently from ordinary initiatives. Data are also contained in Ruppert and in Hans Peter Gasser, Die Volksrechte in der Zurcher Verfassung (Zurich: Schultheiss, 1966).

INDEX Ballot position (effect on voting), 131, 153-54,170-71 Ballot summary, ballot caption, 40 Bally Corporation. See Scientific Games, Inc. Banks, 10, 16, 141, 191 Basel, 52 Bavaria, 63-65 Beard, Charles, 124 Bell, Charles, 27, 198 Bellotti decision. See First National Bank v. Bellotti. Berg, Larry, 5, 103-04, 181, 187,218 Berkeley decision, 188, 191,200,204-05, 208,211,214 Berlin, 63 Bern, 46, 50 Bill of Rights, 71, 82 (Mississippi) Bird, Rose, 133 Bonds, bond indebtedness, bond measures, 3,13,113,145,166,171,186,228 Brandeis, Louis, 213 Brazil, 71 Bremen, 63, 65 Broadcasts. See Radio and television; Television. Broussard, Allen, 133 Buckley v. Valeo, 161, 188, 197, 199, 205-08,210,213-14 Budget, budget matters, 3,13,83-84,125, 139,224-25 Buerkli, Karl, 48-49 Bush, George, 202 Butler, David, 7-8,46,60,62,68-69,198

Abortion, 68,89 Absinthe, 56 Adams, John, 15 Administrative review, 37-42,55,229 Advertisements (political), 5, 55,167,182, 192,194,197,199-200,203-04, 209-10,215-20,231 Affirmative action, 1 Alabama, 72, 124 Alaska, 27, 31, 33, 36-37, 40, 78, 82, 85, 90,117,120,138,177,192 Allen, Ronald, 183, 185, 187 Amendment and repeal of initiatives, 60, 78-81, 224. See also Repeal. Amendments to state constitutions. See Constitutional amendments. Anonymity, 194-97,205,212,214-15 Appropriations, 3,25,83-84, 126-27,224 Arena, The, 18,202 Arkansas, 40, 79,120,154 Arizona, 35, 39, 78,119-20,138,174,191 Athens, 7, 15, 147 Attorney General, 4, 14,37,39,45,115, 120,131,141,143,150,162,165, 170,172,175-77,179,191,221, 228-29 Aubert, Jean-Francois, 46, 52 Audiotapes, 179-80, 231 Auer, Andreas, 22, 57 Austria, 62, 66-67, 69 Automobile insurance. See Insurance. Baden- Wiirttemberg, 63 Ballot access, 21, 33-35, 94, 98, 101, 106, 156. See also Qualification; Signatures. Ballot issues; ballot measures, 5, 20, 80, 93-94,98-100,102,105,107,147-48, 153-58,164-66,169-71,175,180, 181,183,188,197-204,206,215-16, 218,227,231,237

California, 1-5,9, 11-14, 18, 19,21,22-24, 31,42,72,73-77,79,80,82,83-85, 87,91- 92,100,115,117-18,125, 129-36,132-33,140-42,144,153-54, 155-58, 161-63, 165-80,215-19, 223-29-assessment, 22-26; budget

259

260

LAWMAKING BY INITIATIVE

matters, 83-84; campaign finance disclosure, 215-19; campaign spending, 182-88,243-48; conflicting ballot propositions, 161-63; drafting assistance, 115; effect of yes vote, 118-20; history of initiative, 3-6, 11-14; indirect initiative, 87, 91-92; initiative constitutional amendments, 73-78; initiative statutes: amendment and repeal, 78-81; legislative process, 124-26; legislative review, 117-18; log rolling, 144-45; number of initiatives, 155-58; political candidates and initiative, 192, 198-99; public opinion, 4-6; recordkeeping, 221; requirements for passage, 111-12; severability, 161-62; signature requirements, 96-99, 109-11; single subject rule, 129-36; spending, 243-45; subject matter, 236; title, 140-42; Trojan horses, 143-44, 199-200; understandability, 121-23; voter information pamphlets, 165-78. See also Los Angeles; Propositions; Sacramento; San Francisco. California Commission on Campaign Financing, 76,80,85,92, 101, 104, 109,117,148-49,161,165-67,170, 172-73, 175-76, 178-80, 182, 192, 198,200,202,218,221 California Constitutional Revision Commission, 72 California Policy Seminar, 4, 76, 80, 92, 117, 120, 155-58, 162-63, 174, 177-78,218,221 California propositions. See Propositions (California). California Trial Lawyers' Association, 22 Californians for Statewide Smoking Restrictions, 199,206 Campaign consultants; campaign management firms, 187,201,203, 217,233 Campaign finance; campaign spending, 3, 5,14,20-21,60-61,65,84,89,103, 105, 131, 181-221, 231-32--effecton election outcomes, 182-89; finance

rules, 189-92. See also Disclosure. Campaign spending. See Campaign finance. Canada, 68-69-Alberta, 68-69; British Columbia, 68-69; Manitoba, 68-69; Saskatchewan, 68-69 Candidates and initiatives, 24,192, 198-99, 204 Chamber of Commerce, 113, 199,201, 203,213 Citizens Against Rent Control v. City of Berkeley. See Berkeley decision. Clark, William, 131-32 Coastal Commission (California), 3, 147 Coastal Conservation Initiative (California), 3, 14 Colorado, 31, 33, 35,42, 74,102,104, 114-16,119,138,149,154,184-85, 198 Commonwealth Club, 13 Complexity, 3-5, 19,99, 105, 113-20, 121-52,153-63,174,226. See also Number of initiatives; Conflicting ballot propositions. Conclusions, 222-33 Condorcet, 8, 47 Conflicting ballot propositions, 59,158-63, 227. See also Counterproposals. Confusion, 19,21, ]]4,118,124,131,133, 141, 161, 16~ 165-66, 185 Connecticut, 9 Constitutional amendments, 8-9, 12-13,80, 85,194,223-24,226,229,231amendment procedures, 72-77; initiative constitutional amendments, 27-31,34-37,71-78,82,9697, 100-OJ, 109-12; indirect initiative constitutional amendments, 90-91; Switzerland, 47-62; other countries, 63-70 Constitutional revision, 47, 71, 73, 82,129, 134,137, 143. See also Total revision. Constitutionality; unconstitutionali ty, 14, 16,27,39,42-45,64,104-06,122, 125,127,129,138-39,141,148,150, 154-55,160,165,174,181,188,191, 194-206,209,215,229,232

Index

Constitutions, 8-9, 12,46-47,62,66-67, 69-70, 111. See also U.S. Constitution. Contribution limits. See Campaign finance. Corporations, 105, 184, 187-88, 191, 199-201,203,206,214,217 Corruption, 17, 188, 191, 198-99,202-03, 207,211-13 Costs, 3, 24, 65, 67, 76,100-03,109,113, 134,139,156,172-73,181-82,195, 202,218,228 Counterproposals, 50-52,55,57,64-65,70, 88, 161, 163. See also Conflicting ballot propositions. Courts, 43-45, 89-90, 122, 129-46California, 129-36, 140-46, 161-62; Florida, 136-38; Switzerland, 138-40. See also Judicial review. Cree, Nathan, 10, 147 Crime Victims Justice Reform Act, 134, 141 Criminal justice, 3, 14, 132 Cronin, Thomas, 10, 15-17,21-22,95-96, 102,112,114,146,153-54,164-66, 168-69,171,189 Crouch, Winston, 22-24, 113, 148,204 Dahl, Robert, 20 Dakota Ruralist, II Death penalty, 3, 14 Deception, 21-22, 105,123,133,143,197, 199-200,211-13,216-17,220,231-32 Declaration of Independence, 15 Democratic Party, 210 Delaware, 73 Denmark,62 Deploige, Simon, 18,46-47,49,56 Deukmejian, George, 3, 83 Dickinson, Edwin, 12 Direct democracy; direct legislation, 7-9, 16,18-19,21-22,47-48,50,61,66, 69-70,109,112,147,185,202 Direct election of senators, 10, 11, 17 Direct initiative, 27-28, 33, 35-37, 42, 77, 85,87-88. See also Indirect initiative. Direct legislation. See Direct democracy. Direct Legislation by the Citizenship

261

through the Initiative and Referendum, 10 Direct mail, 22, 24, 106, 108, 187,226,233. See also Qualification; Signatures. Dirty tricks, 219-20 Disclosure, 5,60,65,102-03,131,181, 189,192-221,231-32 District of Columbia, 31, 33, 39,42,45, 115-16 Divorce, 68 Drafting (of initiatives and bills), 20-21, 42, 92,125,127,137,144,147,150,187, 227- 29, 232-drafting assistance, 113-18; Switzerland, 59 Dukakis, Michael, 202 Eaton, Allen, 144, 199 Education of voters, 165, 167-68, 172, 175-77 Effective date, 85-86, 225 Electronic filing; electronic mail, 208, 233. See also Internet. Endorsements, 60-61, 173,230 Environmental issues, 14,25, 144-45, 147, 186 Eule, Julian, 16, 114 Evaluations (ofthe initiative), 18-26,61-62 Executive (branch), 21, 25-26, 69, 71, 91, 155-review by Germany, 63-64; review by Switzerland, 56 Experience with the initiative. See Evaluations. Fair housing, 14 Fair Political Practices Commission (California), 3, 84, 131, 143, 145, 161, 192,198,204,216,218,221 Fairness doctrine, 189 Farmers, 10, 16 Federal Communications Act (U.S.), 209 Federal Communications Commission (U.S.), 189, 194,210-11,216 Federal Election Campaign Act (U.S.), 209-10 FederalistPapers, The, 15-16,72,195,212 Fianna Fail, 69 Field, Mervin, 4-6,154,177,202

262

LAWMAKING BY INITIATIVE

Financial disclosure. See Disclosure. Fine v. Firestone, 136-37 First amendment. See Free speech. First National Bank v. Bellotti, 188, 191, 200-01,204,214 Flesch readability index, 176-77 Florida, 31,35,39,45,58,136-39,142-43, 148-49, 191-92, 229-single subject rule, 142- 43; title rules, 148-49 Framers, 16,69 France, 8,46-47,62 Franklin, Benjamin, 124 Free market, 156-57,222,226 Free speech, 82,104-06,182,188,191, 194-219,232 Fresno Republican, 12 Gambling, 56, 133, 143,201 Geneva, 47-48, 52, 139 Georgia, 124 Germany, 62-66, 94 Gerrymandering, 20 Ginsburg, Ruth Bader, 196,215 Glaser, Ulrich, 22 Governor, 25, 83,160,162,171,225,233 Grassroots groups, 87, 104, 108, 188,223 Greenback Party, 9 Grodin, Joseph, 45, 114 Guarantee clause, 16 Guatemala, 70 Haire, Robert, 9, 11 Haiti,72 Ham and eggs (California initiative), 129, 133 Hamilton, Alexander, 72 Haynes, John, 11 Henry VIII, 123 Hidden consequences, 123, 126, 142, 147, 150, 174,228-29. See also Trojan horses. Holman, C.B., 6, 103-04, 181, 187,218 Home rule, 11, 12 Hungary, 70 Idaho, 33,42, 115, 127, 173, 189,219 Identity of speaker, 195-219,230,232

Illegal immigrants, 1,3, 198 Illinois, 31, 82, 154, 194 Independent expenditures, 189, 201, 203, 205-06,209,213-14 Indirect initiative, 6, 27-28, 33,35-37,42, 51,64,77,85-92,96,115,117,224legislative response, 88- 90; Switzerland, 56-57; types, 36 Initiative (in general), 1-3,7, 10-12, 16-18, 21-23,30,55,61-62,112,152,222adoption, 28; invention of in Switzerland, 46-48; rules concerning, 84-85,225; use of, 30-32 Initiative and Referendum: The Power of the People!, 20 Initiative industry, 157, 187,233 Initiative petitions. See Qualification; Signatures. Initiative statute. See Statutes. Initiative title. See Title. Insurance, 3,121-23, 141, 143, 145, 149, 162,181,202 Interest groups. See Special interests. Internet, 180,208,233 Intrusiveness of self-identification, 206-10, 212-13,219 Iowa, 9 Ireland, 62, 69 Italy, 62, 67-68 Jacobins,8 Jarvis, Howard, 73, 105, 116, 130-31 Jefferson, Thomas, 8 Johnson, Hiram, 12-13, 17, 20,148 Johnson, Kevin, 198 Judicial review, 14,39,43-45, 115Switzerland, 57; other countries, 64, 68-69. See also Constitutionality. Jurgens, Gunther, 62-65 Just compensation, 82 Kalin, Walter, 50, 59, 61 Key, v.a., Jr., 22-24, 204 Kidd, Walter, 11 Kobach, Kris, 46,57,59-61, La Follette, Robert, 11

147

Index

263

Landesgemeinde,46-47 League of Women Voters (California), 92, 181,189 Legislative Alternatives. See Counterproposals. Legislative analyst (California), 121-22, 142,144,163,166-68,172-77, 179-80,231 Legislative committee, 124 Legislative ethics, 143-44 Legislative process, 3,19-21,25,76-79,84, 96,116-17,123-27,134,140-48,152, 223, 228, 233. See also Legislative ethics; Legislative review; Legislatures. Legislative review, 42-43, 56-57, 64,88-92 Legislatures, 6, 21,26,42,47,49-52,54, 56-57,60-64,66-70,80, 117, 155-58, 222,227 Lee, Eugene, 24-26, 93,103,111-12,155, 174,198 Length (of initiatives), 3,121-23,149-50, 153-55, 158,226-27 Liberia, 70 Liechtenstein, 70 Lincoln-Roosevelt League, 12 Linde, Hans, 16 Linder, Wolf, 52, 60-61 Lobbying, 20, 22, 24, 143,201-02,212 Log rolling, 20,126-27,131-33,135,137, 143-45, 150, 200 Los Angeles, 12, 195 Los Angeles Express, 12 Los Angeles Times, 3, 4, 118, 155, 177,198 Lottery, 3, 137, 143, 199,201,206 Low income voters, 165 Lowenstein, Daniel, 5, 93-96, 99, 101-06, 108-09,129,135-36,145,148, 182-89,202 Lydenberg, Steven, 184

Maine, 11,36,56,85,89,160-61,220 Manuel, Wiley, 131-32, 149 Martin Luther King, 151 Maryland, 9 Massachusetts, 9,19,21,34-37,39,47,82, 84-85,89-90, 114, 117, 119, 124, 154-55,160-61,163,169,173,183, 191-92,249 Mayflower Compact, 8 McGinnis, Joe, 204 McIntyre, Margaret, 194, 196-97,202-03, 205,212,214-15 McIntyre v. Ohio Elections Commission, 194-219 Media, 20-23, 42, 99,101,132,144,152, 165-66, 178-82, 184, 188-89, 197, 208,210,217,219-20,230 Merit systems, 14, 17 Metz,62 Mexico, 71 Meyer v. Grant, 104 Meyers, Michael, 186, 188 Michigan, 19,33,35-36,39,56,79,85, 87-89,120,138,183,189,191-92, 194,199,201,203,213 Miners, 10 Minger, Marilyn, 134-35 Minorities; minority rights, 16,23 Mississippi, 1-2,27,31,35,37,42,82-84, 90,111,115,124,138,154,160-61, 163, 192 Missouri, 35, 39,40,45, 138 Mockli, Silvano, 70 Money, influence of, 60, 76, 145, 156-57, 179,181-89,198-205,213-14, 222-23, 226, 232 Monopolies, 16,25, 143 Montana, 35,42,45, 58,82, 102, 115, 119, 173,179,183,191,208,210,231-32 Mosk, Stanley, 133

Maastrict treaty, 62 Madison, James, 2,15-16,72 Magleby, David, 3, 5, 18-19, 33, 45, 93-94, 96-97,101-03,112,114, 118, 148, 153-54,164-66,171,173,175-78, 183,198,217

NAACP, 208 Napoleon, 46 National Direct Legislation League, 10 National initiative, 1-2, 18,20,27. See also Austria; Germany; Italy; Switzerland. Nazi party, 62

264

LAWMAKING BY INITIATIVE

Nebraska, 11,35,39,49, 119, 192, 194 Nevada, 33,35-36,39,45, 56, 78,83,85, 88-91, 127,201 New England town meetings. See Town meetings. New Hampshire, 9, 47 New Yark, 124 Newspaper, 167,210,220 Niedersachsen, 65 No fault (insurance), 122 Norris, George, 11 North Dakota, 11,31,33,35,79,110,119, 191-92 Nuclear energy, 68,118, 139 Number of initiatives, 5, 11, 13,75,96, 105-06, 153-58,223, 226-27--by state, 30-32; Austria, 67; Germany, 63-65; Switzerland, 48-54; other countries, 67-69, Ohio, 33-36, 39, 82, 85, 87, 89, 118, 120, 127,189,191,194-216,220 Oklahoma, 33, 35, 39, 138, 160, 177, 191 Oregon, 1, 11, 16, 19,31,35,40,58,113, 120,127,138-39,152,160,162, 173-74,177,179,183,189,192,199, 208,221,232 Owens, John, 170, 181, 185, 188 Packard, Vance, 204 Packet revisions, 85 Paid petition circulators, 3, 5,21,56,76-77, 94, 103-04, 108, 143-44, 182,200, 204,219-21,232. See also Ballot access; Signatures. Palombara, Joseph, 113 Parliament. See Legislatures. Patten, Roland, 11 Penn, William, 124 Pennsylvania, 124 Pensions, 130, 134 Perot, Ross, 214 Perry v. Jordan, 130-31, 135-36 Pesticides, 162 Petitions. See Paid petition circulators; Signatures. Philip Morris, 199

Philippines, 70 Plain English, 149 Plebiscite, 8 Pilgrims, 8 Political advertising. See Advertisements. Political parties, 10, 16,25,90,167,198, 202, 208--Switzerland, 52, 61, 65, 68; Canada, 69; Ireland, 69. See also Democratic Party; Populist Party; Progressives; Republican Party. Political Reform Act (California), 131-32, 135,173 Poll tax, 13 Populist Party (People's Party); Populists, 2,10-11,16-17,222 Postal laws, 209 Pre-election administrative review. See Administrative review. Pre-election judicial review. See Judicial review. Pre-election legislative review. See Legislative review. Price, Charles M., 26, 76 Primaries, 1, 11, 18,90,112,157-58,167 Privy Council (British), 69 Probate Code, 130, 132-33 Progressives; Progressive movement; Progressive Party, 2, 11, 13, 17,20, 25,222 Prohibition, 13-14,56 Proportional representation; proportional voting, 60, 81 Propositions (California): 4--133,162; 8--132-33,145,162; 9--145; 10-118; 13--14,113,116,130-31, 145-46,227;15--118;36--143,174; 63--174;70--145;99--181; 100-121-22,162; 101--121-22,162; 103--121-22,162;104--103, 121-22,162;105--200,211,217-19; 115--141, 145; 126--84, 162; 128 ("Big Green")--144; 130--162; 134--162; 136--84; 138--162; 208--218- 19 Public financing (of election campaigns), 188-89, 191-92 Public housing, 14, 151

Index

Public opinion polls, 4-6, 155, 183-84,202, 233 Public support (for initiatives), 4, 103, 107-08 Publius,212 Qualification for ballot, 4, 19,33-35,39, 42,49,74-78,94-111,156,186-87, 221, 226, 232-constitutional amendments, 74-76; constitutional amendments vs. statutes, 77-78; expense of, 24, 186-89; geographic distribution requirements, 100-01; indirect initiatives, 35-37, 87, 89-91; other countries: Austria, 66-67; Canada, 68-69; Germany, 63, 65; Hungary, 70; Ireland, 69; Italy, 66-67; Spain, 69-70; Switzerland, 49, 51, 55-56; qualification spending, 246-48. See also Ballot access; Signatures. Radio and television, 64, 67,165,167, 178-80,189,192,194,209-11,216, 219,233. See also Television. Railroads, 2, 3,10, 12, 16,25 Ranney, Austin, 7-9, 26, 46, 60, 62, 68-69, 198 Ray, Steven, 134 Readability, 172-78, 231 Reapportionment, 11,13,133,143-44,171 Rebuttal arguments, 165, 167, 172-73, 175, 230 Recall, 2, 7,11-13,16-18,21-22 Recordkeeping, 213, 221 Referendum, 2, 7-10,12,16-18,20-22,35, 46-47,49,51,56-57,59-62,67-68,70, 82-83,202 Registration. See Voter registration. Rent control, 118 Repeal, 8,14,60,67,68,78-81,85,89,120, 122, 130,224 Representative principle; representative government, 2,16-18,21,25 Republican form of government, 16 Republican Party, 13, 143-44,210 Review of initiative. See Judicial review;

265

Legislative review. Rhode Island, 9 "Riders," 126, 145 Right to work, 82 Roosevelt, Theodore, 17 Rousseau, 46 Rowell, Chester, 12 Rules about the initiative process, 84-85, 225 Sacramento, 12 Salzburg (Austria), 66-67 San Francisco, 11-13 San Francisco Examiner, 144 Saxon tribes, 7 Scalia, Antonin, 194,209,212,216 Schleswig-Holstein, 64-65 Schmidt, David, 20-21, 48, 95, 114, 183 School tax, 194 Schools, 3, 9, 14,64-65,67,83-84,89, 132-33,225 Scientific Games, Inc., 143,206 Secretary of state, 33, 35, 37, 39, 55, 80, 87, Ill, 113, 1I5, 122, 138, 150, 160, 166-67,170,172-73,175,177, 179-80,216-17,220-21,227,229, 231-32 Self-identification (of political ad sponsors), 194-219,232 Senators, direct election of, 10, II, 17 Severability, 162,227 Shockley, John, 114, 184-85 Shultz, Jim, 198 Signature verification, 43, 109 Signatures on petitions; voter signatures, 5, 21,34-37,39,43,47,87,89-91, 93-112,116-17,127,140,200,202, 228-purpose, 93-94; number by state, 34; reform, 99-106. See also Ballot access; Paid petition circulators; Qualification; Signature verification. Simmons, Charlene, 191, 198 Single issue groups. See Special interests. Single subject rule, 43,52,58,81-82, 84-85,116,123,127-49,225,229; Switzerland, 58, 138-40

266

LAWMAKING

BY INITIATIVE

Small-scale actors, 206, 208, 213-14 Smoking, 84, 199-206,211 Solid waste, 64 South Carolina, 72 South Dakota, 9-10, 27, 30,35,39,42-43, 81,119,127,147,191 Southern Pacific. See Railroads. Soviet Union, 71 Spain, 69-70 Special interests; single issue groups; interest groups, 2-3, 5-6, 10, 17, 20-25,36-37,52,61,63,83,114,146, 233 Sponsors; sponsorship, 76, 83, 91, 94-96, 100-04,114,156,187,189,192,194, 197,199-200,204-05,210-11, 215-21,223,231-32 State constitutions. See Constitutional amendments. State legislatures. See Legislatures. Statutes; initiative statutes; statutory initiatives, 18,27-31,33-37,77-92, 109-11,117,122,127,129,141-42, 223-25, 229-Germany, 63-66; Switzerland, 50-60; other countries, 66-70. See also Amendment and repeal of initiatives; Indirect initiatives; Repeal. Steirmark (Austria), 66 Stern, Robert, 93-96,99, 101-06, 108-09, 113, 163, 188 Subject matter restrictions, 58, 81-84 Suicide (physician-assisted), 111 Suksi, Markku, 70 Sullivan, l.W., 10,49, 147 Summary, 222-33 Supermajorities, 80, 85, 157,223 Supreme Court (U.S.). See U.S. Supreme Court. Switzerland, 2, 7, 8, 10-11, 18, 45-62, 64, 66,80,91,94,118,138-40,147,149, 156,161,163,202-03,229,235cantonal law, 50; counterproposals, 50; single subject rule, 52, 138-40 Tallian, Laura, 12, 199,203 Tally decision, 195,215

Taxation; tax incentives; tax reform measures, 1,9-10,14,21,70,83-84, 113,116,118,130-31,144-46,162, 181,184,189,192,194,200,204,215 Teledemocracy, 22 Television, 24, 107, 155,167,178-80,194, 203,209-11,214,216-17,219,222, 231, 233--other countries, 60, 64, 67 Term limits, 1, 3, 56, 80, 162 Texas, 9 Thomas, Clarence, 197 Three strikes (California proposition), 3 Timing, 55, 57, 90, 179 Title, 37, 39,43,55,107,115,118-20, 123-27,129-31,140-44,149-50,165, 167,170,172,176-77,179,202,229 Total revision, 8, 40, 47, 50, 58. See also Constitutional revision. Town meetings, 8, 15, 147 Trojan horses, 126, 143-46, 148, 150,199, 201,210,229. See also Hidden consequences. Trusts, 16 Twentieth Century Fund, 21 Ueland, Lars, 11 Unconstitutional. See Constitutionality. Understanding (voter), 94, 100, 102, 118, 121-52,164-80,203,227-28,230 U.s. Congress, 1,3,16, 18,213 U.S. Constitution, 1-2, 15-16,71,82, 121-22 U.S. Supreme Court, 16,82,104, 188, 191, 194,199-200,209,220,232 Unity of form (Switzerland), 58 Unity of matter (Switzerland). See Single subject rule. U'Ren, William S., 11 Urner, Benjamin, 9 Utah, 10,30,33-34,36-37,40,45,85,87, 90-91,127,143,160,162,173,192 Valley Messenger, 210 Vaud (Switzerland), 8, 47, 49 Victim's bill of rights, 132-33, 145 Vorarlberg (Austria), 66 Vote structuring, 150-52,217

Index

Voter confusion, 118 Voterdropoff,falloff, 19,111,153 Voter information pamphlets, 60, 63, 65, 80,84,112-13,121-22,127,132, 141-42,144,146-47,150, 158, 164-80,203,210,216,221,227, 230-32-by state, 238-42; quality of voter participation, 164-65; who uses and how, 165-69; reform, 169-78 Voter participation. See Voter turnout. Voter registration, 11, 107, 110-11, 118 Voter signatures. See Signatures; Paid petition circulators. Voter turnout, 1, 19, 21, 68, 109-12, 146-47,164-65, 171-Switzerland, 60,65 Voter understanding. See Understanding. Voters, educated, 165, 167-68, 172, 175-77-10w income, 165 Votes, needed for passage, 111-12 Wade, Larry, 170, 181, 185, 188 Washington, D.C. See District of Columbia. Washington Post, 176

267

Washington (state), 31,33, 37,42,78, 85, 87,90-91,104,115,153,160-61,163, 169,173,189,194,220 Weimar republic, 62, 66, 69 Weizacker, Richard Von, 66 Welfare, 1, 14, 130 Western Pacific. See Railroads. Wildhaber, Luzius, 49, 52, 56, 58-59, 140, 152 Wili, Hans Urs, 5 1,55-56,58, 81, 161 Wilson, Pete, 198 Wilson, Woodrow, II, 16-17 Wisconsin, 9 Withdrawal of initiative, 54, 91 Women's suffrage, I 1,13,17 World War; World War II, 13,62,64, 66-67,69 Wyoming, 31-34, 36-37,78,81-82,85,90, 115, 117,220 Yazoo land scandal, 123, 126 Yes votes (effect of), 118-20, 170,230 Zisk, Betty H., 19-20, 113- 14, 148, 153, 171,183-84,188,204 Zurich, 48, 52, 54-55,235

ABOUT THE AUTHORS PHILIPL. DUBOISbecame the twenty-second President of the University of Wyoming on April 1, 1997. Dubois came to Wyoming from the University of North Carolina at Charlotte, where he served as professor of political science as well as Provost and Vice Chancellor Academic Affairs from 1991-1997. He earned a bachelor's degree in political science (1972) from the University of California, Davis; and master's (1974) and doctoral (1978) degrees in political science from the University of Wisconsin-Madison. From 1976 to 1991, Dubois taught political science at UC Davis, advancing from assistant professor to professor. Dubois is the author of From Ballot Bench: Judicial Elections and the Quest for Accountability (1978), two edited volumes on court reform, and a host of articles on judicial selection and court administration. His work has appeared in the Journal of Politics, Judicature, Justice System Journal, Publius, and the Western Political Quarterly, among others. FLOYD FEENEYis professor of law at the University of California, Davis. From 1968 to 1986, he also served as Executive Director for the Center on Administration of Criminal Justice. He is a graduate of Davidson College (1955) and the New York University School of Law (1960). He was president of the student body at Davidson, and a Root- Tilden scholar, editor in chief of the law review, and recipient of the annual award given to the outstanding law school graduate at New York University. After law school, he clerked for U.S. Supreme Court Justice Hugo Black (1961-62), served as deputy special counsel for the President's Committee on Equal Employment Opportunity (1962-63), special assistant to the Administrator of the Agency for International Development (1963-66), and as Assistant Director of the President's Crime Commission (1966-67). During 1983-84, he was director of the London office of the Vera Institute of Justice and in 1995-96 was a Fulbright professor at the University of Augsburg in Germany. Professor Feeney is the author of three books and numerous articles on criminal justice and court reform. He is a co-recipient of national and California awards for his work with juvenile delinquents. In 1992 he and Professor Dubois authored a monograph for the California Policy Seminar entitled Improving the California Initiative Process: Options for Change. 268