Denver Post, January 3, 1999

Taking The Initiative

Petitions underscore people’s right

By Dennis Polhill

Initiative and referendum, or “petition rights,” reinforce the ideal that the people are sovereign. As declared in 1776, “governments are instituted among men, deriving their just powers from the consent of the governed.” While citizens across the country seek to exercise their rights, career politicians have abandoned this basic American principle. Because the initiative is effective at curbing excess, it is under attack by career politicians. Petition opponents evidently subscribe to the philosophy of Benito Mussolini: “Give me the right to nominate and you can vote for whomever you please.” They seek to control outcomes by controlling the process. Lacking the backbone to openly oppose petitions, legislators take away petition rights one piece at a time. Every year legislatures take steps to further restrict petitions.

Last year was a milestone for petition rights. The process was first adopted 100 years ago in South Dakota. One century later, it is a vital and thriving example of citizen participation and self-governance.

Its existence can be credited to the Populist Party. By 1890, political corruption in the U.S. had reached new heights. Railroads and “special interests” found it beneficial to “own” politicians. To calm public outrage, politicians wrote books to clarify which kinds of graft were proper. This arrogant overreaching of the power class was similar to government under King George III. The solution was not to retreat from people-sovereignty, but to enlarge it. The Populist Party included petition rights as a major plank in 1892 to wrest control of their government from moneyed special interests and to enlarge and re-establish the People’s sovereignty. By 1918, they had succeeded in establishing the initiative process in 19 states. Since then, the citizens in only five additional states have been able to persuade their legislatures to subordinate their self-interest to people sovereignty.

Some of the most fundamental and controversial public-policy decisions have been brought about through the petition process: Women gained the right to vote; states can’t fund abortions; the eight-hour workday was created; physician-assisted suicide was legalized; poll taxes were abolished; term limits were approved; and campaign finance reforms were adopted. Clearly, petition reforms represent all ideologies.

Furthermore, because of the diversity of issues, voters in states with initiatives on the ballot are more likely to vote. Voter turnout is consistently higher. In 1998 turnout was nearly 10 percent higher in the 16 states with an initiative on the ballot. People believe that initiatives make a difference. With initiatives they get what they vote for. With candidates it is never certain.

Supporters of the initiative process include such notables as Thomas Jefferson, Teddy Roosevelt, William Jennings Bryan, Richard Gephardt, Dick Armey, Ralph Nader, Ross Perot, George Gallop and Ronald Reagan. Woodrow Wilson opposed the initiative process as a political science professor but reversed his opinion and apologized to his students after serving as governor of New Jersey.

The initiative is a natural extension of people sovereignty. Leaders know that authority — but not responsibility — is delegated. When authority is misused its delegation must be withdrawn. The initiative empowers citizens to hold legislative bodies accountable.

The referendum petition challenges a law made by the legislature, and the initiative petition seeks to create a law that the legislature failed to enact. Teddy Roosevelt stated it perfectly in his 1912 “Charter of Democracy” speech: “I believe in the initiative and referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative.”

Only 61 citizen petitions have yielded laws in all Colorado history. Contrast that with the legislature annually passing about half of 600 laws proposed in the same 88-year period (over 20,000).

The initiative process has been critical to checking unresponsive and unaccountable government in Colorado since 1910. Colorado’s biggest petition years were 1912 and 1914. The number of initiatives on the ballot was 10 in 1992, and 8 in each 1994, 1996 and 1998. The number of issues on the Colorado ballot seems larger because of the number of questions placed on the ballot by the state and nearly 2,000 local governments.

Virtually all initiatives fall into two categories nearly impossible for legislators to address. “Conflict-of-interest” issues deal with structure, form, control, reform or limits such as term limits, tax limits, campaign-finance reform, reapportionment, judicial reform and home rule. “Controversial” issues are those like the two hog-farm issues on the November ballot. Rather than offend powerful special interests there is less risk for legislators to not act.

Probably the most comprehensive study of an initiative election was done by Dr. John S. Shockley of the 1976 Colorado election. He found that voters were more informed and voted more frequently on issues than candidates. He also found that total opposition campaign spending exceeded initiative proponent spending by 10 times. Others have confirmed that opposition spending regularly exceeds proponent spending. Tax limitation was on the ballot nine times over a 26-year period and finally passed in 1992 when opposition spending dropped to 4-1. The 1994 tobacco tax proposal was defeated with a record $7.5 million opposition spending, making 1994 the most expensive issue election in Colorado history. Clearly, interest groups generally find a more friendly reception from legislators as they work hand-in-glove to undermine people sovereignty by limiting petitions in every way possible.

In the power-and-influence business, more is better than less. If securing more means taking powers reserved to the people, that is a price they are willing to extract. It is indisputable that the General Assembly has subverted the people’s sovereignty. Whether they will continue is unclear.

A statesmanly legislature would lead by restoring some of the people’s powers and letting the people be the ultimate sovereigns as envisioned by the Founding Fathers.

Dennis Polhill is a civil engineer and is a board member of the Initiative and Referendum Institute. He may be reached at 303-278-3636 or Dpolhill@aol.com.

Process lacks checks, balances

By Karl T. Kurtz

The Colorado initiative is a flawed process for writing new laws because it lacks the checks and balance of the normal legislative process. A simple remedy of adding a few months to the initiative process to allow the legislature to act on proposed initiatives would reduce the number of issues on which we have to vote and significantly improve the quality of the ones that go on the ballot.

What is wrong with the current initiative process? Imagine for a moment that Colorado’s legislature was radically different from its current setup. To avoid confusion, let’s call this pretend legislature the People’s Assembly.

Our People’s Assembly has one chamber consisting of 100 members who are not elected but instead are randomly selected from among all registered voters. The People’s Assembly meets for a few weeks every other year during the fall general elections. As a result, the members have virtually no experience or knowledge of lawmaking.

Prior to the legislative session, any member of the People’s Assembly can propose a new law. Soon after the member introduces the proposal, lawyers and researchers for the People’s Assembly hold a public hearing to review the proposal, ask questions and offer advice. After the hearing, the member proposing the law — but no one else — can make changes to the proposal. At this point in our make-believe legislative process, the proponent of the law is required to obtain the signatures of five other members of the People s Assembly in support of the proposal.

Once these signatures are obtained, the proposal proceeds to a vote of all the members during the next scheduled legislative session. When the members consider the issue, no one is allowed to change a single word of the proposal. There is only a period for debate followed by one take-it-or-leave-it vote.

No amendments. No correction of mistakes that may become obvious in the course of debate.

No negotiation. No compromises to resolve conflicting views among legitimate competing interests. No governor’s veto as a check against an overreaching legislature.

If this were the Colorado legislature, citizens, the media, businesses and unions would almost certainly attack it as unfair, unwise, irresponsible and inflexible. Aggrieved minorities or other losers in the legislative process would demand checks and balances in the form of multiple decision points such as two chambers, committee deliberations, “readings” of the bill in each chamber and a governor’s veto.

No way that such a “People’s Assembly” could ever exist in Colorado, you say? Think again. Our fictitious legislature is, with only two exceptions, a description of how the Colorado initiative process currently works.

The two exceptions are important and supply the redeeming features of the current initiative process. The first exception is that, unlike our fictional legislature in which a small number of randomly selected voters make decisions, all registered voters who choose to go to the polls cast the votes on any initiated matter. Thus, the initiative process is as representative of the people of the state as it is possible to get.

Second, the initiative process does not substitute for the General Assembly. It supplements the work of the legislature. It serves as a fourth branch of government. It provides a steam valve for when the General Assembly sidesteps significant policy problems or rejects proposals designed to address them.

These two points justify the existence of the initiative process in the Constitution. Yet viewing the initiative as if it were a legislature reveals fundamental flaws in making laws by this means. It shows that the initiative process lacks the checks and balances that make representative democracy work effectively as the basic American form of government.

What can be done to correct the flaws? A simple change in the initiative process to require a delay to allow the legislature to consider an initiative before the people vote on it would combine the value of the people’s power of initiative with the deliberative strengths of the normal legislative process.

How would this idea work? Any proponent of a new law could follow the current practices for qualifying an initiative for the ballot including obtaining signatures from 5 percent of the voters in the last gubernatorial election. The signature deadline would be in late March, 60 days before adjournment of the Colorado General Assembly, instead of the current early August deadline. The legislature would be required to hold a public hearing on the proposal within 20 days and to cast a floor vote on it.

The General Assembly and the proponents of the initiative would have four potential courses of action.1. If the legislature enacted the proposal as originally drafted, the measure would be removed from the ballot.2. If the legislature rejected the proposal, the proponents could submit the original version (or an amended one that takes into account the objections of the legislature) for a vote of the people. The record of action by the legislature would be a part of the information supplied to voters to help inform their decision.3. The legislature could also enact an amended version of the measure, in which case the proponents would have the option of deciding whether to place the original draft on the ballot.4. Finally, as with any proposed legislation, the legislature could choose to refer its own version of the proposal to the people for a vote. This referred measure could compete with the initiative.

The advantages of this change are obvious. It preserves the right of initiative proponents to go directly to the voters if they are not satisfied by the legislature’s action. It draws on the experience of legislators in writing, deliberating, negotiating and amending new laws. It prevents the legislature from avoiding the issue. It saves the expense of a statewide election whenever the proposition is withdrawn as a result of action by the legislature. It relieves the burden on untrained, often apathetic, voters of having to make numerous decisions on complex legislative proposals. It reduces the cost for both sides of an issue, because lobbying the legislature is generally much cheaper than mounting a statewide media campaign designed to reach all voters.

The principal drawback to this idea from the standpoint of proponents of the initiative is that it adds time to the process. The current Colorado Constitution requires completion of the initiative qualification process three months before a general election. This proposal would increase the time lag to seven months.

An additional four months may seem onerous to those who are impatient to enact their idea — and only their idea — into law. But in the course of most legislation it is little more than the time that a traffic light takes to change from yellow to red or green. And like the yellow light of caution that prevents traffic accidents, the time needed to allow the legislature to act on a proposed initiative is a small price to pay for preserving the safety and welfare of the people of the state of Colorado by avoiding ill-considered laws.

Karl T Kurtz is director of state services for the National Conference of State Legislatures headquartered in Denver. His views do not necessarily represent those of NCSL.

Losers in some ballot measures fight back

By Arlene Levinson

Americans decided 235 statewide ballot measures, or thought they did, in the November elections. But no sooner were the votes tallied than the warnings started coming: Voters’ decisions on several major issues may have to wait, held up by legal action and other challenges.

Mining interests immediately went to court to block implementation of Montanans’ vote on an environmental measure targeting gold mines. Opponents who saw Washington voters ban affirmative action echoed warnings of battles to come.

Nevada agreed with Alaska, Arizona and Washington state in approving the medicinal use of marijuana. But Nevada will not have such a pot law unless voters approve another measure in 2000, and even then, the state attorney general’s office says federal law may still stand in the way.

In California, the failure of a ballot measure backed by both parties, who had hoped to catapult California to center stage among presidential primaries, has party officials scrambling.

Voters declined to change rules that allow primary voters to cross party lines, prompting state Democratic Party chairman Art Torres to say he did not want such a “beauty-contest primary” unduly influencing the choice of nominees. Caucuses or a state convention may be held in the months before the scheduled primary, he said.

The Montana Mining Association and two companies filed suit in federal court in Helena to nullify the mine measure. “If we don’t get this initiative invalidated, gold and silver mining in Montana will be essentially gone,” said Jill Andrews, executive director of the industry group.

Cyanide is used to separate gold and silver from ore. The initiative passed in November bans use of the chemical in new mines or expanding those mines already using it. Andrews warned the ban will cost jobs and devastate communities.

But critics say cyanide harms the environment.

“They’re asking the judge to allow them to buy elections and to snub Montana voters,” said Jim Jensen of the Montana Environmental Center, the measure’s chief sponsor.

Washington state voters joined Californians who two years ago barred racial or gender preferences in government hiring and contracting and in college admissions.

Voters were saying, “‘It’s time for us to look beyond what makes us different,’” said John Carlson, a conservative commentator who led the campaign for the measure.

But Marty Larson, a community college student and member of a group that fought the measure, said, “I foresee a lot of court cases and basically a lot of angry people.” Without affirmative action, he said, “cronyism and nepotism will once again flourish.”

Other measures were less contentious.

  • Iowa and Florida became the first states in 22 years to approve measures acknowledging women’s equality with men. Utah got rid of a constitutional provision protecting women’s assets from their husbands’ debts.
  • Voters said they wanted stadiums in Denver, San Diego and Cincinnati.
  • Oregon voters agreed to discard their voting booths: starting next year, all ballots will be cast by mail. The state also agreed to open adoption records for people over 21.
  • South Carolina voters ended the state’s century-old ban on interracial marriages.
  • Utah joined most other states in stripping imprisoned felons of their voting rights. The Utah Chapter of Citizens United for the Rehabilitation of Errants said voter rolls among the state’s 5,000 inmates had swelled from 5 percent to 30 percent since the measure was announced.
  • New Hampshire voters rejected lowering the age of state senators from 30 to 25. They also turned down a proposal to edit the state constitution with gender-neutral alternatives to such phrases as: “His excellency, the governor.”

“I voted no because I know it doesn’t make a bit of difference,” said Jennifer Warren. “We know women are smarter anyway.”

Some of November’s votes were just new chapters in long-running controversies.

Gay marriage, for instance.

Alaskans voted to put a gay-marriage ban in their constitution. And Hawaiians told their Legislature to draft a law against same-sex marriages, the latest response to a 1993 state Supreme Court ruling that Hawaii has no right to ban homosexual marriage, because that would deny some citizens the rights provided others.

That ruling led to gay-marriage bans in at least 30 states and the Defense of Marriage Act enacted by Congress.

“People are taking a stand for traditional marriage,” Mike Gabbard, a leader of the Save Traditional Marriage group in Hawaii, said of November’s outcome.

But Joseph Melillo, who with his partner and two lesbian couples sued the state of Hawaii for denying them marriage licenses in 1990, warned, “It’s putting into our state constitution a discriminatory clause that will distinguish us from other people.”

In Colorado, voters in Fort Collins defeated a measure to protect gays and lesbians from bias. The proposal was especially emotional there sincethe beating death of Matthew Shepard, a gay student from the University of Wyoming who died in a Fort Collins hospital.

“National gay advocacy groups built this up as an important watershed, and I think it was,” said Fort Collins lawyer Jon-Mark Patterson, an ordinance opponent. “It showed most people here don’t want the government to take a side in a controversial moral debate.”

Michigan voters rejected a measure that would have made physician-assisted suicide legal. Dr. Jack Kevorkian, who says he’s attended more than 120 deaths, called the measure “crazy” and too restrictive.

“Michigan wants compassion and comfort for those facing their final days,” said Dr. Cathy Blight of the opposition Citizens for Compassionate Care and president of the Michigan State Medical Society. “They don’t want death bureaucracies or manipulations of vulnerable patients.”

In the continuing back-and-forth over abortion rights, Colorado voters agreed to require parents be notified when minors seek abortion but rejected a ban on late-term procedures, as did Washington voters.

American Indian tribes in California won strong approval to continue running casinos without state control, a measure hard fought by Nevada gambling interests and costing both sides more than $100 million.

Opponents filled the airwaves with warnings that the measure would lead to unregulated, untaxed gambling statewide. The tribes countered that impoverished Indians’ lives were bettered by gambling.

Proposition 5 is “the first time that wealthy business interests have not been allowed to sacrifice the lives of Indians and future Indians to satisfy their greed,” said Anthony Pico, chairman of the Viejas tribe in San Diego County. In animal-related issues, Californians banned horsemeat sales and the use of steel leg traps. Minnesotans passed constitutional protections for hunting and fishing. Utah voters made it harder to change wildlife management practices through citizen initiatives.

California voters narrowly adopted a 50-cent-a-pack cigarette tax hike to pay for social services for families with children under 5. The outcome was not known for several days, after absentee ballots were counted.

“This is wild. Talk about a horse race,” said Rob Reiner, the director-actor who was the measure’s backer.

Arlene Levinson writes on national issues for the Associated Press.