Give the people what they want

& & analysis by Ted S. McGregor, Jr. & & & &





The myth of the citizens' initiative goes something like this: An idea is hatched. Maybe it's radical or outside-the-norm, but it has the power to improve society. Trouble is, it's ahead of its time, so it's hard to gain support for it in the legislature. Undaunted, the originators of the idea call together all their like-minded friends and they take to the streets, working day and night to gather the signatures needed to bypass the legislature and take the idea directly to the people. Once qualified for the ballot, the sheer wisdom of the idea spreads across the state by word of mouth and through the media. Come Election Day, the idea is adopted by a majority, and the people's sovereignty over their own affairs is reaffirmed.


But that's a mirage. The reality is much different: An idea is hatched, almost exclusively by a millionaire or someone who can raise the more than $1 million needed to get the idea in front of voters in the form of an initiative. The idea may be progressive or it may be a product of raw self-interest, but it's not the kind of idea the legislature is keen on taking up. So the millionaire or the fund-raiser hires a firm, probably from California, where initiatives have become both an art and a science, to come gather signatures. Once they get enough signatures to put the idea on the ballot, the campaigning begins, with as much spin as you'll find in any political race. If the idea is easily boiled down to a quick notion that seems to be in the voters' best interests, it will probably pass, and the millionaire or the fund-raiser will immediately declare it a victory for the little guy.


This lag between the myth and the reality of initiatives has come into sharper relief as initiatives have recently made the segue from social issues to budgetary matters in many of the 24 states that grant their people the power of initiative. In Washington state, the passage of I-695, the so-called $30 car tab initiative was followed by a sharp pain in the pocketbook in municipalities across the state. The state's record surplus is no help because another initiative -- 601 -- prevents it from being tapped for such shortfalls (although some are trying to tap it anyway, through, you guessed it, more initiatives).


With another handful of initiatives on the ballot in Washington and other Western states this fall (but none in Idaho), there's one initiative a growing number of citizens and political pundits would like to see: an initiative against running the state by initiative.


While the people who support the use of initiatives are emboldened by recent successes, the critics are saying we're losing our Republic -- which Ben Franklin remarked so famously that he hoped we could keep just after the adoption of the Constitution. As major policy decisions are now made by special interests and voted on by individuals, legislators who have been relied upon to run the government since the founding of the nation are being left out of the loop. To many, that's a good thing, since government may have never been held in lower esteem than it is today (there's even a movement to create a national initiative process). But to those who believe the Founding Fathers created perhaps the most perfect political system yet devised by humankind, it is a tragedy in the making.


David Broder, perhaps the nation's most respected journalist, is among those who see it that way. He's covered politics for the Washington Post for more than 30 years, and in the last few years, while many of his colleagues were writing about interns and what the meaning of the word "is" is, he actually got outside the Beltway and looked into the issue of initiatives. What he found, and reported in his recent book Democracy Derailed: Initiative Campaigns and the Power of Money (Harcourt Books), disturbed him.


"Government by initiative is not only a radical departure from the Constitution's system of checks and balances," writes Broder, "it is also a big business, in which lawyers and campaign consultants, signature-gathering firms and other players sell their services to affluent interest groups or millionaire do-gooders with private policy and political agendas.


"These players -- often not even residents of the states whose laws and constitutions they are rewriting -- have learned that the initiative is a far more efficient way of achieving their ends than the cumbersome process of supporting candidates for public office and then lobbying them to pass or sign the measures they seek."


Broder believes that the true story of how initiatives show up on the ballot isn't widely understood. And he reports that many are worried about the increasing reliance on initiatives, or lawmaking without government. In Arizona, where New York multi-millionaire George Soros recently funded an initiative legalizing the medicinal use of marijuana, the aftertaste has been bitter.


"The initiative was part of our constitution when we became a state, because it was supposed to offer people a way of overriding special-interest groups," Broder quotes Mike Gardner, the Republican chairman of the Arizona Statehouse's judiciary committee. "But it's turned one-hundred-eighty degrees and now the special-interest groups use the initiative process for their own purposes."


While history shows initiatives can play an important part in creating social progress, it also appears that Broder's thesis is true: Initiatives, as they are currently used, are no longer the tool of the little guy, and they are usurping the traditional role of the state legislatures.





& & Populism for sale & &


Initiatives have a proud history of pushing progressive change. Contrary to what many might think, the power of initiative came late to the states that allow it, more than 100 years after the nation gained its independence. Brought to the United States from Switzerland in the form of a pamphlet by Nathan Cree called "Direct Legislation by the People," the idea intrigued Progressives who were fighting an uphill battle against entrenched politicians wedded to the status quo. Before the turn of the century, huge corporations had their way with legislatures in the states where they did business, and nowhere were the abuses more audacious than in the West, where politicians were literally bought and sold by corporate interests.


To counteract these forces, Progressives earned seats in statehouses, and finally, in Oregon in 1899, brought the power of initiative to the people. Eventually, 23 other states and many municipalities would follow suit. In Oregon, within the first few years, the results were impressive, with a variety of changes made via initiative or simply because of the threat of initiative. Railroads were taxed for the first time, freight rates were regulated, U.S. senators were elected by the people rather than by the legislatures, the eight-hour workday was implemented and worker's compensation was created.


While world wars and the Depression ended the Progressive political movement, the initiative remained but was never the behemoth it has become today. In Washington state (which adopted the initiative process in 1912), some 400 initiatives were registered by 1980 (including all those that didn't earn enough signatures to qualify for the ballot). But in the next 20 years, these past two decades, another 350 were filed. The explosion coincides with the event that revived the initiative for modern times: Proposition 13 in California.


In 1978, a few men angry about property tax increases in California got together and wrote a petition to cut back the state's take. It was a grassroots effort, with everyday citizens gathering signatures, and it won by a wide margin, effectively slashing the following year's budget by two-thirds. As services were cut and a series of recessions hit the state, many wondered what they had done. The state's school system, once the nation's best, still hasn't recovered, and now ranks 42nd in spending nationwide. Along with cutting their taxes, the voters of California also spawned a cottage industry that has turned initiatives into a quarter-billion-dollar-a-year business nationwide.


While California has become famous for ballots crammed with initiatives, the phenomenon has spread to other states like Washington and Oregon, where the past few years have seen a variety of high-stakes initiatives. A quick look at a few of those initiatives seems to confirm Broder's notion that the initiative has strayed far from its little-guy roots.


To begin with, most initiative consultants will tell you it costs $1 million -- minimum -- to get an initiative on the ballot these days. So you either need somebody who feels really strongly about an issue and has the money to push it or you need somebody who has something to gain from an issue, or both. Let's look at Soros, the New York businessman who, along with a couple other multi-millionaires, is pushing for the decriminalization of marijuana in the United States. As you can imagine, very few elected officials are willing to take up the issue, so Soros has bypassed them and taken the issue straight to the states. Starting in 1996, Soros launched his effort in Arizona. Ultimately, he would succeed in having the law changed to allow for medical use of marijuana in five states, including Washington.


Whether you agree or disagree with the issue, the image of a multi-millionaire manipulating the laws of five states from his estate in New York without oversight by the local elected officials doesn't exactly fit the popular notion of American Democracy. Of course there are those who disagree, including Soros and his friends, as they believe that they are righting a wrong (the war on drugs) that knows no state boundaries and is no less urgent than the issues facing the Progressives at the turn of the century.


Other initiatives, however, rise from a less altruistic foundation. When the Washington state legislature was still smarting over criticism for funding a new stadium for the Seattle Mariners, Paul Allen, one of the richest men on the planet, was given the go-ahead by that same legislature to gather signatures for an initiative to fund a second stadium, this time for the Seahawks. Allen spent more than $10 million of his own money to gather the signatures and run a media campaign to convince voters to support his plan. While that may sound like a lot of money, the measure -- Referendum 48 -- passed narrowly, ensuring the team would get $300 million from the public for its stadium project. The $10 million expenditure doesn't look so costly when you consider the pot of gold at the end of the rainbow.


Then there's this year's batch of initiatives. Of them, one stands out for the amount of money being spent on it: I-745. This proposal would call for efficiency audits on all transportation-related state programs and for the reallocation of 90 percent of the state's transportation budget to road construction and maintenance. Alternative transportation programs, including buses, ferries and light rail lines, are expected to suffer. Now who would benefit from such a proposal? If you guessed companies that pour concrete or asphalt, you would be right. So far, nearly $2 million have been raised to get I-745 passed in November, and although its chief benefactor is called the Washington Citizens for Congestion Relief, the group doesn't seem to count many actual citizens among its members.


The most recent state Public Disclosure Commission reports show that donations (which are unlimited in all initiative campaigns) are coming from companies that would stand to benefit if $2 billion more dollars were spent on roads every two years, as some studies show would happen under I-745. Many are not even from this state, including companies in Nashville, San Antonio, Lewiston, Portland and Albuquerque. The Asphalt Paving Association of Washington has been loaning the campaign hundreds of thousands of dollars (money that may or may not be repaid later), as has been Yakima businessman Al De Atley, who owns a paving company.


What does the Washington Citizens for Congestion Relief spend its money on? Signature gathering via California's Arno Consultants (to the tune of about $700,000), which either ships signature gatherers north or hires them locally, sometimes paying as much as $1.50 per valid signature to those people you see outside Safeway every summer. (They also hired a Washington state-based company for some of the signature gathering.) Some legislatures have tried to curb the spectacle of out-of-state signature gatherers essentially posing as gung-ho volunteers, but the courts haven't allowed much of it.


The opponents to I-745, who now count about $200,000 in their war chest, include the Association of Rail Passengers, the state Labor Council, the iron workers' union and the National Audubon Society as well as individuals giving in chunks of about $50. But when you compare these givers to the supporters' list, which even includes California-based Chevron to the tune of $10,000, it's not even close. Those opposing I-745 will be badly outspent.





& & Outlegislated & &


While the role of money and power in initiative campaigns mirrors the controversy over the way all campaigns in this country are financed, what is more alarming to some is how the initiatives seem to be threatening the form of government the U.S. has relied upon since the 18th century.


Human nature suggests that people may feel more free to act out of self-interest from behind the polling booth's curtain than they would, say, from the floor of the statehouse. While a legislator may have a hard time choosing cheaper car tabs over keeping a public library open on Saturdays in front of his or her peers and constituents, the decision may be much simpler for a single voter in the privacy of the polling booth.


The Founding Fathers were well aware of this side of human nature, which is why they settled on a republic -- a deliberative, representative body that conducted business in the open. One thing that worried those men, for whom protecting against religious intolerance was a priority, was a concept known as "the tyranny of the majority." It's true that the majority rules, but under the system they devised, not usually without the consent of the minority (as we see in filibusters in the U.S. Senate). Such a political reality practically ensures compromise, which can take time, but often yields fairer laws.


The initiative process practically guarantees the tyranny of the majority, and the fact that voting is done behind closed doors makes such tyranny harder to resist. The potential for tyranny is further exacerbated by the fact that in a legislative body, every citizen has a representative, while initiatives are decided by that fraction of people who actually choose to vote.


The perfect example of the tyranny of the majority came to Washington state in the form of Initiative 200, which was referred to the people by the state legislature. Initiative 200 was a replay of the measure that ended Affirmative Action in California. Promoted by current gubernatorial candidate John Carlson, the issue was opposed by Gary Locke and a litany of politicos who came through the state to lobby against the measure, from Colin Powell to Jesse Jackson to Al Gore. Nonetheless, a clear majority voted to end the program. Or did they?


More important to the election than any endorsement was the actual wording of the initiative that appeared on the ballot. When polling showed that the California wording (which didn't mention "affirmative action" at all and instead asked voters to eliminate any "discrimination") would win but wording that included the phrase "eliminate affirmative action" would fail, opponents of I-200 sued to change the wording on the ballot. Their suit failed, but it underscored the point that style often trumps substance when it comes to initiatives.


So was the state tricked? How many people who voted to supposedly end "discrimination" knew that their vote would actually end the program that has been largely credited with leading the way to reverse discrimination against minorities and women? It's hard to say, but it's obvious that such an issue would have had a much different hearing in the state legislature. Not only would all involved know exactly what the effects of the measure would be, but everyone would also have to live with a vote that could be construed as elitist at best. I-200 seems to show that the style of lawmaking favored by the Founding Fathers and the style of lawmaking implicit in initiatives are two very different things.





& & Power to the people & &


Regardless of the wisdom of any of the above initiatives, those who support the initiative process (and that is most people, as polls show the power of initiative to be wildly popular) admit it can be ugly. But most are quick to add that it wouldn't be necessary at all if the legislature would simply do the job they think it is shirking.


"The whole reason [initiatives] pop up is when politicians fail," says Tim Eyman, sponsor of 1999's 1-695 and this fall's I-722 and I-745. "When the leaders don't lead, the people step forward and say, 'Let's give the voters another option.' "


Eyman, who has been called a Pez dispenser of initiatives and received a pie in the face after he delivered the signatures for I-745 to Olympia, points out how few initiatives make it and says the people show their wisdom when they sign or don't sign a petition and when they vote. Only about 15 percent of the initiatives filed ever get on the ballot, and of those, fewer than half become law.


Eyman says initiatives are healthy as they provide competition for the legislature, which he calls a monopoly. And despite the fact that nobody ever elected him, many state Republicans have embraced the man and the message as they would a folk hero. The party endorsed I-695, which essentially gutted their own transportation plan, R-49, which voters supported only the year before. While it may seem like collaborating with the enemy, state Sen. Jim West, a Republican from Spokane, agrees that competition is good for the legislature. He points to the issue of charter schools, which he says has been blocked by one legislator for a few years. Now it's an initiative (I-729), and the message to legislators is clear: If you don't work with us, we can go over your heads.


"Sometimes you need the initiative to break the logjam," says West, who adds that in Washington the legislature can change initiatives two years after they are adopted. And the legislature has exercised that power, essentially overturning the cougar hunting initiative from a few years ago, and by tinkering with the spending cap from 601 a few times.


Washington's Secretary of State Ralph Munro, a former Republican legislator, agrees with many in his own party when he says initiatives are the result of a void in leadership. Still, the veteran legislator seems offended by the process, which he says asks the people to make major decisions without all the necessary information. He favors a full financial impact statement to go with every initiative in the Voter's Pamphlet.


But he thinks people are starting to understand the game, and he predicts future initiatives may not enjoy the level of support seen in the recent past. "The public is waking up to this, that they're trying to run state government through the initiative process. I think we're going to see some changes."


Jerry Hughes, now a political science professor at Gonzaga University, served in the Washington legislature with Munro, and he agrees that the public may not be equipped to make the kind of complex decisions they have been asked to make in recent years. "It's not an insult to their intelligence, it's just a very complex process."


But it's just such comments that Eyman takes as an insult and is ready to pounce on: "[Opponents of the initiative process] always say people are basically stupid and we need really, really smart guys to decide these quote-unquote, complex problems. If we had solved these things by now, we wouldn't have the initiatives."


And therein lies the nub of the debate that has been waged for more than 100 years over direct democracy: Is the people's business best taken care of by themselves or by their elected representatives? Taken to its ridiculous extreme, why do we even need a state legislature? It's a question that has occurred to state Sen. Lisa Brown, a Democrat from Spokane, at budget writing time.


"Initiatives are a part of the process that's never going to go away," she says. "But our current system is so complex, that when you present these people with such simple notions, well, it's very appealing when you take these things one at a time, but as a budget they all have to add up."


Brown points to I-695, which she says has created budgeting problems that are complicated further by how reserves can be used, as dictated by a previous initiative. Now there are initiatives that want to direct the legislature on general fund obligations and reserve spending. After awhile, it becomes difficult to succeed at writing a budget.


"The reason we have a legislature in the first place is to be deliberative and go through so many hurdles so that everybody has a clear idea of what the consequences of any law would be. What we're trying to do now is put our foot on the gas and brakes at the same time, and it just doesn't work. This wasn't the original intent of the process."


Despite Eyman's indignation, Hughes continues to believe the voters are simply not prepared to make such big decisions. He likens it to letting a bus driver or a lawyer come in and do your brain surgery because to not allow him in the operating room would be an insult. Good politicians are professionals, he says, and their experience and sense of duty allow them to make better decisions.


"People have a right to be involved," Hughes says, "but to draft major legislation and micromanage the budget is neither fiscally wise nor socially responsible."


Hughes adds that in the old days people would have encouraged Eyman to parlay his obvious interest in politics into a seat in the statehouse -- a suggestion Eyman answers with a simple groan. Why would he want to run for state rep when he's already one of the most powerful politicians in the state?


But even some in the Republican party are growing weary of him and have an opinion of why he won't just run for office. "He doesn't want to do the research," says Renee Radcliff, a Republican state representative from Eyman's hometown of Mukilteo. "He prefers to do things in sound bites."


Munro says a better informed populace would make people like Eyman irrelevant, and he has a simple suggestion. "One of the problems we're running into, and it's coming through to me in the last few months, is we're really missing high school civics," says Munro. "People have no idea about government, and they have no idea where our money comes from or how we spend it."


Sounds like the subject of a future initiative: All state high school students shall complete a semester of civics before graduation. Better call George Soros, or maybe Paul Allen: This is going to be expensive.