Referendum Fever

Recourse to “direct democracy” goes back to the New England town meeting in the early days of the Republic. It is very much the rage again, as California’s referendum on Proposition 13 dramatizes.

In this era of alienation, one flickering life sign still animates the body politic. Public confidence in all branches and levels of government is eroding. For the first time, a plurality of the electorate refuses to identify itself with either party. Election turnout has dwindled to such an extent that a quarter of the eligible voters may choose the next President, and of those who did bother to vote in 1978, fully 40 percent, according to an NBC/Associated Press survey, believed it made no real difference who was elected. Yet, in the face of this apathy and cynicism, the referendum is booming.

In the 1978 elections, California’s Proposition 13 received more media attention and had greater national impact than any senatorial or gubernatorial race, perhaps more than any nonpresidential contest since Lincoln confronted Douglas in 1858. American voters decided more than 350 other statewide referenda—a record for offyear elections—and thousands of local questions. Some of these were measures routinely submitted to the electorate after legislative approval, but many came from the grass roots through the initiative process.

Proponents of “direct democracy” are pushing hard in every arena to extend its use. California Governor Jerry Brown, leading the crusade for a balanced budget amendment, is trying an end run on the Washington political establishment by calling for the first constitutional convention since 1787. In Texas and New York, the only large states without referenda, movements are afoot to implement them. Minnesota’s new governor, Albert Quie, wants to require voter approval for any new taxes. A federal referendum is the goal of Initiative America, a Washington-based group dominated by leftliberal veterans of the antiwar movement; it is also favored three to one by readers of Nation’s Business. Advocates wave friendly polls: Pat Caddell reports that 74 percent of Americans would be “more inclined to go to vote if they could vote on issues as well as candidates.”

Like its religious counterpart, this political revivalism offers the promise of renewal for a tired faith, but the proselytizing zeal of its converts tends to polarize more than persuade. The obvious appeal of direct democracy, the people’s recourse against corruption, special interests, and bureaucracy, is set against the claims of republican pluralism. On the level of expediency, liberal and conservative camps alike are divided between optimists who are sure the vox populi will speak their language and pessimists who live in fear of the unrestrained Yahoos.

Amid the polemics, we have heard little reasoned analysis of the referendum as an integral element of our constitutional structure. Direct democracy, after all, has a long history in our political life, with roots going back to the New England town meeting. The earliest statewide referendum took place in 1778, when Massachusetts voters rejected a proposed constitution. Two years later they approved the present version, and the right of Americans to participate directly in formulating their fundamental laws was established. The referendum also has a recognized function as a device to keep politicians responsive to the public will by allowing citizens an alternative means of expression. In Woodrow Wilson’s phrase, it is “the gun behind the door.” Thus its popularity in these cynical and apathetic times is no paradox—these are the precise circumstances under which Americans have a need for its distinctive constitutional role.

Because of its sporadic remedial use, and because it does not exist at the national level, we have never fully assimilated direct democracy into our political consciousness. Though as ancient as the other components of our polity, it has not passed through the same process of evolution and refinement. Even the electoral reforms of the past decade, themselves a product of the conditions that revived direct democracy, have left referendum procedures virtually untouched.

For a telling illustration of some of the unresolved problems, we need look no further than the 1978 Massachusetts ballot, the bicentennial edition, as it were, of America’s first venture into large-scale direct democracy. As in most states, voters had to wade through a clutter of trivia to find the important questions. In addition to purely local issues, and nonbinding instructions to legislators on subjects ranging from tax reform and nuclear power to sanitary landfill, four inconsequential matters of governmental housekeeping appeared in the impressive guise of amendments to the state constitution. Revisions of census and informational mailing procedures passed easily; 73 percent of the voters approved granting incoming governors more time to submit a budget, but only 52 percent were similarly lenient with city charter commissions. When the issues are technical and interest is low, the public can be cranky.

The most hotly debated question on the ballot was a property tax classification amendment, authorizing higher rates for businesses than for residences. Boston Mayor Kevin White commandeered more than a million dollars in city funds to stump for the measure, while a well-financed opposition warned that the plan would drive away industry, throw people out of work, fuel inflation, and actually increase taxes for homeowners.

Although more money was spent on this question than on any race for elective office, little light was shed on the real issues. Indeed, the basic tactic of the opponents seemed to be to scare voters by confusing them about the proposition’s implications; however, proponents managed to make the consequences of non-passage seem equally unpredictable, and the amendment was approved. Courts subsequently rejected White’s use of public funds in the campaign, but upheld the result of the vote. The Mayor’s exploitation of the referendum to enhance his own image and build his organization may signal a new kind of political coattailing which evades campaign finance laws. Howard Jarvis may have been the wrong man in the right place.

A separate statewide question raised similar issues, but somehow escaped public debate. Massachusetts voters were asked to consider a proposed constitutional amendment which, according to the ballot summary, would permit lower property taxes “for land which is used for recreation purposes and for land preserved in its natural state.” The summary reminded voters that owners of “wild and forest land” already enjoyed tax relief, and added that the new provision’s purpose was “to develop and conserve natural resources and the environmental benefits of recreational land.”

By better than three to two, citizens cast their ballots for rolling hills, sparkling water, and white sand. Few realized that the law had been conceived and promoted by the Massachusetts Golf Association as a special tax break for country clubs and private golf course owners. Club members can now enjoy lower dues while everyone else in town, even those who have been blackballed by the admissions committee, must pick up the slack. Perhaps golf courses are community assets, but any tax subsidy for private interests should be proposed forthrightly. That supporters of the amendment felt compelled to mask its true purpose suggests that they knew it could not survive open debate.

A related referendum tactic is to seek support for self-serving measures by sweetening them with promised public benefits. In 1976 proponents of greyhound racing in California tried to seduce various voting blocs by phrasing the proposition to suggest that added state revenues would be dispersed to high school athletics and aid to the blind, senior citizens, and working mothers.

The most pernicious proposition on the Massachusetts ballot was one which, like the pro-golf amendment, has appeared in several other states. It offered a constitutional amendment which, according to the summary, “would provide that a student could neither be assigned nor denied admittance to a public school on the basis of race, color, national origin or creed.” The language deliberately mimicked antidiscrimination laws, but its actual purpose was to ban busing for school desegregation. This ambiguity may have cut both ways, but in any case, the amendment passed overwhelmingly. The deceptive wording aside, the proposition patently violates civil rights guarantees of the federal constitution, and thus cannot be of any legal force.

The increasing popularity of direct democracy, particularly in matters of broad social policy, has resulted in a growing number of such unconstitutional referendum questions. Most of the controversial initiatives approved by California voters in recent years have been invalidated, wholly or in part, by the courts. Some commentators have argued that a protest vote is justifiable as an outlet for political anger or as a way to “send a message” to Washington or the State House, but neither of these is an appropriate function for the referendum. If the voters unwittingly adopt a measure later declared unconstitutional, frustration and alienation will be heightened. If voters do so deliberately, the exercise can hardly be deemed the considered act of responsible citizens.

Use of the referendum for purposes best left to public opinion polls and letters to elected representatives can only devalue the process of direct democracy and justify the fears of those who claim that the American voter does not take his or her politics seriously enough to be trusted with unlimited power.

In a political world seemingly seized with inertia, it is seductive to think we can solve our most pressing social and economic problems with a simple yes or no vote. When voters feel more and more distant from their representatives, it is not surprising that people want to take power into their own hands. Unfortunately, the most obvious recourse, the referendum, is a very crude implement for policy-making in a complex society.

At a town meeting, with all the voters face-to-face in a single room, proposals can be explained, debated, revised, even tabled pending further discussion. Here, direct democracy works. On the state level, let alone on a national scale, we cannot hope to reproduce this same flexibility. There are, however, certain steps we should take to ensure that the results of future referenda represent as clear an expression of carefully considered voter opinion as possible.

First, we must clean up our ballots.

As referendum questions proliferate, voter confusion increases, and matters of the greatest long-term importance may be lost among the trivia or overshadowed by momentarily more controversial issues. When one of the ballot questions is whether dental technicians should be allowed to fit false teeth (as was the case in Oregon), citizens may be tempted to write off the whole process as either silly or technical.

To reduce the number of propositions by increasing the number of petitioners required to place questions on the ballot would simply reinforce the power of the richest and best organized interest groups; stricter requirements would not stop the flow’ of questions sent to the voters by the legislatures. Since many of these are amendments to our over-detailed state constitutions, they cannot be removed from the ballot entirely. Perhaps, however, questions could be segregated according to the degree of controversy attached to them. Statewide initiatives and referenda approved by relatively close legislative votes might be placed on the general election ballots, w’hile routine matters could be presented in the primaries.

This raises a second point—the timing of referenda. Nothing could be worse than the widespread practice of deciding controversial ballot questions in state primaries when the voters are few and are often skewed by unequal interest in party contests. Moreover, high participation by supporters of a single referendum question might easily affect candidate selection. Special referendum elections can allow fuller consideration of the issues, but may be exploited by well-organized interest groups if turnout is low. No solution is perfect, but it is clear that the general election ballot is the place for important referendum questions.

Third, we must clarify the meaning of referendum questions. Some recent consumer legislation requires insurance companies to write their policies in “plain English.” It is absurd that we do not require at least as much for ballot questions. Bipartisan commissions should certify questions and oversee voter information programs. We castigate George Gallup and his ilk whenever they ask slanted questions, but at least their polls do not become law. Allowing private country clubs to masquerade as environmentalists is little different from letting candidates run under assumed names.

Fourth, referendum questions should be screened for constitutionality before they are placed on the ballot. In some states, courts can render advisory opinions on pending legislation; the same mechanism could be used for plebiscites. Although an ultimate ruling on a proposal’s validity might have to wait for an actual case, a preliminary reading could guide voters and sharpen debate.

Finally, while simplifying the questions, we should consider allowing more precise answers. At present, voters who are undecided about a proposal, or who favor it only with modifications, are trapped by the yes-or-no format of the ballot. If they refrain from voting, their opinions, however strong, count for nothing; if they vote no, they express a commitment they do not feel. A third, “none of the above” option, or the requirement that a proposition receive a majority of all ballots cast, including blanks, would allow voters to call for further alternatives while freeing legislatures from the incubus of an ill-considered or unintended public “mandate.”

Reform is all the more urgent because First Amendment safeguards may well preclude regulation of referendum campaign finance. Last year, the Supreme Court struck down a prohibition against corporate spending to influence such elections. Fortunately, the danger of corruption here is not bribery, but voter ignorance and the use of modern publicity techniques to confuse instead of enlighten. □