The Battle Over Citizen Lawmaking

Edited by M. Dane Waters


Carolina Academic Press, 294 pages, $28.00

Direct Democracy or Representative Government?

by John Haskell


Westview Press, 212 pages, $29.00 How much direct democracy is enough? If you are one of the contributors to The Battle Over Citizen Lawmaking, we have not even begun to test the limits. If you are John Haskell, author of Direct Democracy or Representative Government? Dispelling the Populist Myth, we already have an unhealthy amount. These two volumes are the latest salvos in the ongoing battle between those who believe initiatives and referenda should play a greater role and those who believe these undermine representative democracy itself. Of the two books, the pro-initiative collection of essays by academics, lawyers, and political pros that M. Dane Waters edited offers a stronger argument, if only because: 1) Its contributors have almost no doubts about the rightness of their positions, and 2) It is hard to argue against letting the public settle issues with a vote.

For his part, Haskell is dealt a bad hand. He has to defend a constitutional system with well-known flaws. But he does nothing to improve his position with elitist arguments that voters, by and large, really don't know what they're doing, and that initiatives, as a result, should be abandoned in favor of letting their wiser elected representatives decide. Haskell notes that just as the Electoral College is tolerated only because it rarely seems to matter (perhaps he should have chosen a different example in the wake of the near meltdown over Florida), "it might be that legislative processes are moving in the same direction-tolerated only so long as they do not stand in the way of the popular will." That's a criticism that will baffle proponents of initiatives and referenda. If the legislative process does not reflect the popular will, why shouldn't there be a way to make sure that it does?

That's the purpose of initiatives and referenda, and examples abound to show how they have been used by the public to kill legislation widely considered suspect, or to keep state lawmakers from doing something an overwhelming number of voters do not want done. The tax limits of the 1980s and the term-limits measures of the 1990s, not to mention the occasional campaign finance law proposal, were all clearly prompted by public anger at, or at least displeasure with, their legislatures. Haskell cites scads of research by political scientists showing that voters don't always mean what people think they mean, but initiatives do have a way of settling disputes. In voting to keep the Confederate battle ensign part of their state flag, Mississippians may have thumbed their collective nose at the 21st century - or perhaps even the 20th - but they certainly settled the issue in a way no legislature could or would.

And, frankly, the evil that Haskell sees in a growing emphasis on the initiative and referendum process is a straw-man argument. The serfs - with or without pitchforks - are not about to storm the castle walls. Barely more than half the states (27) have an initiative and referendum process, and in several, it's a joke because of severe restrictions on when, or even whether, an issue can get on the ballot. Those who oppose the expansion of initiatives and referenda apparently don't realize how difficult it is for the process to spread. No state has adopted the initiative and referendum procedure since 1972, although South Dakota and Mississippi revamped their laws in 1988 and 1992, respectively.

Most of the arguments in the two books provide plenty of fodder for like-minded folks. Even the books' recommendations for improvements are minor and unlikely to ever be realized. For example, among the pro-initiative essays is one by California Secretary of State Bill Jones that clearly nibbles around the edges. He suggests that proposed constitutional amendments be limited to the November general election ballot to ensure the biggest voter participation, and that a greater percentage of voters' signatures be required on petitions for constitutional amendments. They're not bad ideas, but most states already require more signatures for a constitutional amendment than for an initiative, and a hotly contested initiative can sometimes boost low turnout in a primary election. Jones also suggests that something be done to curb "bounty hunter" signature-gatherers, even though the federal courts have made it clear that election officials can't do anything about them.

Haskell's proposed fixes are limited and uninspired as well. Like many congressional boat-rockers, he calls for banning "holds," whereby individual Senators can block action on a bill or a nomination simply by anonymously notifying their party's leaders, and he calls for scrapping the filibuster. Senators have at least begun to curb the former, but generations of reformers have gone to their graves without achieving the latter.

Haskell does offer a novel approach in suggesting that voters be permitted to vote for "none of the above" in congressional elections. Any incumbent who loses twice in a row to "none" would be removed, and the parties would then choose new nominees. It is debatable whether such a threat would inspire a legislator to shape up or whether it would cause him to cozy up even closer to special interests in hopes of winning future employment with them.

Although readers may yearn for more daring conclusions than either Haskell or Waters's stable of writers offers, the books reflect the current public split on ballot initiatives: People either love 'em or hate 'em. Now each side has a fresh serving of opinion with which to bolster its arguments.

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