The Tyranny of Direct Democracy

EDITOR’S NOTE: This article was co-authored by Adam J. Fowler. 

Remember when the biggest thing arriving in your mailbox over the course of the year was the massive old Sears catalog? Times have changed. For many, this year’s heftiest arrival was probably the 2016 California Voter Guide, which came in at over 200 pages. The number of statewide ballot measures in California continue to reach record and near record highs, and seek to legislate on topics as varied as plastic bags, Federal election law, and marijuana legalization. There are also a raft of local initiatives, at the county and city level.

In 1911 California adopted the initiative, referendum, and recall processes in an attempt to regulate the stranglehold special interests had on the state’s legislative process. Underlying that reform was a blind faith in the popular will (and knowledge) of “the people” and a more subtle belief that government institutions were part of the problem. So in other words, if Southern Pacific Railroad is believed to be in control of the state legislature, then appealing directly to the citizens of California would provide better public policy for the majority of the state’s population.

Except that it doesn’t. At the heart of the problem are what author Richard J. Ellis called the “democratic delusions that shroud the initiative process in a sacrosanct veil.”

Just think about how many of California’s current problems stem not from laws passed by the legislature, but from measures put on the ballot through citizen initiatives. Think of Prop 13 and the excessive reliance on hyper cyclical income taxes that has resulted. Think of Prop 98 and the budgets that are on autopilot because of it—even in the midst of a major economic downturn. Think of prison overcrowding, think of the diminishment of experience among our politicians due to term limits. We may not like the sausage making process of governing, but it is clear that resorting to direct democracy has not solved any of the major problems facing the state and arguably has made many problems worse.

This year’s mass of competing propositions is only the latest symptom of a system out of control.

Crafting legislation to form good public policy in a large and diverse state like California is a messy and complicated process. There are competing interests. There are often winners and losers. And, realistically, there are rarely good answers—only less bad ones.

Law making via the ballot box effectively cuts legislative institutions out of the equation and in doing so removes the deliberative process. Legislation by initiative eliminates the important debates, hearings, and various stakeholder expertise that accompany the work of the legislature. State laws have to be passed by two legislative chambers and then be signed by the governor—each step requiring compromise and substantive discourse.

Just as we rely on specialists to run our computer networks, perform medical surgery, or teach our children, the traditional legislative process also relies on a team of specialists to craft and refine the letter of the law. Admittedly, in our world of term limits (an initiative passed via the ballot box), most state politicians don’t have the time to develop policy expertise, but this neglects the important role that professional legislative staffers play.

And there is another very troubling dynamic that has become part of California’s system of direct democracy in recent years: Big moneyed interests fund initiatives in the state. Collecting the necessary signatures and running a campaign to promote a ballot measure is an expensive proposition—one that only groups with very specific monetary interests in the outcome will take on.

There have been occasions where lobbyists in the state capital have written the text of lawmaker proposed legislation or regulation – and people have been typically outraged when they hear about it. But in the initiative process that is exactly what happens almost every time. The interest group(s) funding a citizen proposition will often craft the wording with plenty of fine print. Voters are given the option of an up or down vote, with no opportunity to negotiate the underlying dynamics—assuming they have examined and understand them.

The majoritarian initiative process usurps the deliberative legislative process—and the impact to California’s public services and state infrastructure is, and has been, enormous.

Moreover, once passed, initiatives are very difficult to amend when problems arise. In contrast, laws passed directly by the state legislative bodies are far easier to edit and update. The reason for this is that many citizen propositions are run as amendments to the state constitution, rather than as basic statutes. It takes a full two-thirds of the state legislature to change an amendment, but only a simple majority to change a statute.

The impact is clear—once an initiative is put in place it is very difficult to alter it in any way. This makes it much harder if not impossible for the state to deal with the unintended consequences of a law, something that has led to many of the very real structural problems California faces today.

California can do better. We have a blueprint – three equal branches of government laid out in our founding documents. These three branches work in a deliberative fashion and include a laundry list of checks and balances that the initiative process does not. The legislative process has incentives built in to reach necessary compromises and attempt to integrate and address as many interests as possible.

While the lack of faith and distrust in government runs deep in the state and across the nation, when you consider the outcomes, the case for direct democracy is becoming very difficult to defend.