Making Law At the Ballot Box

Commentators grouse that this is an "issueless" election, but is it really?

In fact, voters today are facing such thorny issues as whether to raise the minimum wage, ban government-sponsored affirmative action, allow the use of marijuana for medical purposes, hike cigarette taxes, prohibit same-sex marriage, limit the number of students per class, bar clear-cutting of timber . . .

Unfortunately, in this campaign season, these issues were rarely the subject of sharply delineated debate between candidates for public office. Instead, they grace the ballots of roughly two-thirds of the states as initiatives and proposed constitutional amendments, to be decided directly by voters.

Politicians find such issues too hot to handle. Instead, they prefer to migrate to the safe center, mouthing platitudes about family values and saving Social Security. The growth of initiatives is the sad result of the deterioration of serious public-policy debate, both at the national and state level.

Initiatives started in more healthy fashion—a response by populists and progressives to the power of business, especially railroads, over western legislatures in the 1890s. After years of declining use, initiatives made a comeback in 1978, when California voters approved Proposition 13, which mandated local tax relief.

Today voters in 44 states and the District of Columbia face 61 citizen-sponsored initiatives and 174 amendments and bond issues, according to M. Dane Waters, president of the Initiative and Referendum Institute. In Oregon alone, there are 14 measures on the ballot; in Florida 13; in California 11.

In many cases, the issues are complex—which is one reason this country was founded as a representative democracy, with voters electing officials who were charged with using their own judgment and expertise in making decisions.

By contrast, voters in Michigan today face a 12-page proposition defining the process by which terminally ill persons can legally obtain drugs to end their lives. In Florida, a single catch-all 10-page measure would amend the constitution in more than three dozen places.

In Colorado, voters confront four amendments and statutes and nine initiatives, including whether to ban "partial-birth" abortions (not an easy procedure even to define), to "require that any of the 3,000 water wells in the San Luis Valley . . . be equipped with a functional water flow meter," to grant a tax credit for education expenses (under absurdly complex rules) and to allow "medical marijuana" (seen by some as a stalking horse for full legalization).

It's not hard to understand why Americans, frustrated with cowardly politicians, are loading ballots with such initiatives, and I generally like the results in recent years, including California's Prop 13. But, overall, the growth of initiatives is not, as Jerry Seinfeld would say, a good thing. It's a bad thing:

First, initiatives let politicians off the hook. Federal and state legislators should squarely face such issues as affirmative action and take a stand, even if it jeopardizes their jobs. The referendum process allows them to duck.

Second, direct democracy is not what the Framers had in mind—and with good reason. In Federalist No. 10, for example, James Madison expressed his fear of "faction"—"a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion."

Factions—many of them spending tens of millions of dollars—are precisely the groups involved in most ballot initiatives, and while they may have good ideas, those ideas should be forced to undergo the slow deliberative process that makes a bill a law. If initial passion became law, we would today have Hillary Clinton's nationalized health care and sweeping tobacco laws and taxes.

It was to tame the passions of factions that the Framers set up a representative democracy. "They protected us from direct democracy at every turn," says Roger Pilon, director of the Cato Institute's Center for Constitutional Studies, through such means as indirect election of the president and senators (repealed in 1913), the bicameral legislature and presidential veto.

They also made no provision for federal initiatives, and they made constitutional amendments difficult to enact. But they did not prohibit states from letting voters legislate directly—and voters are doing it more and more.

A third problem with initiatives is that they often amount to more intrusion into people's lives. While majority rule has a lot going for it, Madison was right when he worried that pure democracy could violate the rights of the "weaker party or obnoxious individual" and that it was often "incompatible with personal security or the rights of property." All legislation is cause for concern; legislation by direct democracy is particularly worrisome.

On the other side, as Pilon argues, "What do you do when the system gets so corrupt that voters are disenfranchised?" Initiatives seem a reasonable last resort in cases where legislators resist a measure that threatens their own self-interest—the best example being term limits.

Another good question is whether times have changed. Are Americans better informed on public policy and less passionate than they were in 1789? Somehow, I doubt it.

Initiatives do allow a better tally of sentiment than opinion polls. So why not put non-binding, instead of binding, questions on the ballot? That might be a way to shame politicians into doing their duty in a representative democracy. But don't hold your breath.