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May 17, 2001

Ballot initiatives: The wrong way to create laws, columnist insists

Unquestionably, there is distrust and cynicism toward the U.S. system of representative government, according to a prominent national political pundit. But the most popular "solution" to this problem is moving the country in the wrong direction, away from its founding principles and potentially into a system of unjust laws.

"The widespread preference for writing laws by ballot initiatives, rather than the mechanism we all learned from our high school civic class of passing a bill in one legislative house and then in another and having it reviewed by the governor before it becomes law," risks undermining the authority and legitimacy of the electoral process, said David S. Broder, in a lecture titled "Democracy Derailed: The Degradation of the American Electoral System."

Broder, a national political correspondent for The Washington Post and a Pulitzer Prize winner for distinguished commentary, spoke to a packed house at Benedum Auditorium May 15 as part of the University Honors College American Experience lecture series.

"The founders of this country had an enormous respect for law," Broder said. "They believed that this country should have government of laws and not of persons. They recognized that this was essential to organized society. But they also recognized that law can, and often does, restrict our range of individual freedoms. And they made it deliberately very difficult to pass additional laws without consensus."

Direct ballot initiatives, which appear to be responsible on the surface, ignore the system of checks and balances fundamental to this country's overall strength, Broder said.

Spawned during the populist and progressive movements in the latter half of the 19th century, the mechanism of ballot initiatives quickly was adopted by half the states and many cities, he said.

"Initially, the mechanism worked as the reformers had hoped," including regulating monopolies, railroads and banks; limiting taxation; enfranchising women and, especially, circumnavigating corrupt legislators.

"After World War I, the practice fell into disuse," Broder said. "But Proposition 13 in California" — where two private citizens wanted to keep legislators from spending the state's surplus — "brought it back to life and today it is wildly, wildly popular in the states where it is available."

Broder said most polls indicate that 70-80 percent of Americans favor having laws made by ballot initiatives rather than politicians. Some 60-plus percent favor a national ballot initiative process.

In Oregon alone, Broder said, there were 26 separate ballot initiatives in the last election. The process is so popular that it has branched out into an industry, including lawyers who draft the initiatives into statutory language; pollsters who explore public attitudes to see what kind of appeal would be most effective in passing or defeating an initiative, and campaign consultants, who, Broder said, " love it, even more than they enjoy candidate campaigning." As one consultant told Broder, "The wonderful thing about it is that initiatives don't have spouses."

With this initiative industry has come an enormous growth in spending to support it. The consequence of this, he said, is that the only people who can use the initiative process effectively are special interest groups that have access to large amounts of money, or individual millionaires.

Broder offered three other reasons that the ballot initiative process caused him concern.

"First of all, the history of initiatives is filled with unintended consequences. Courts have said there must be only one subject per initiative. In the political world, we rarely have the luxury of voting on a single subject. With legislation, almost all the choices are trade-off choices."

The difference is significant, he said, citing one of the most popular ballot initiatives, the "three-strike" issue. "Anyone who commits three felonies, you lock the doors, and never see him on the outside again. Everywhere, it passed overwhelmingly, and why not? If you have the choice to say a guy is going to be in jail the rest of his life or back out on the street to threaten your family, you would prefer jail. The unintended consequence of that is that if you're going to lock them up for life, you're going to need a helluva lot of jail cells," requiring the state to build jails with money that cannot then go to schools or highways.

"Voters were never asked: 'Would you rather build jails or schools and highways?'" Broder pointed out.

"Secondly: Is a narrow majority on a particular day as good as broad consensus over a long period of time? This was brought forcibly to my attention in Oregon on the issue of physician-assisted suicide. Talking with people on both sides of that issue, I got a pretty clear sense of how deeply felt the intellectual debates and the emotional arguments are. It really tested people's fundamental views of themselves, of their relationship to their Creator. Is it a question of individual autonomy or beyond our capacity to decide?"

The vote was decided 51-49 percent in favor of allowing physician-assisted suicide.

"I don't know of any legislative body, which knew that their constituents were as evenly divided on an issue that cut as deeply as that issue, that would not find a way of postponing that decision until there was greater agreement in the society."

Thirdly, Broder said, the rights and legal protections of minorities are in danger. "Racial minorities are at-risk. In California a ballot initiative repealed the California open-housing law. White Californians were not ready for that law, and minorities were denied the protection of their state's open-housing law."

Ethnic minorities also are potentially at-risk, he said. "California passed an initiative outlawing bi-lingual education, even though Latinos, who were most affected by that, were opposed to it." Furthermore, state-wide ballot initiatives can pit geographic areas against one another. "In Colorado, a legislator in the rural areas told me he was concerned that almost any environmental initiative on the ballot passes automatically." In the legislature, the likelihood is that compromises could be reached to make such measures more palatable for his constituents or be balanced with measures beneficial to them, Broder said. In short, bargaining disappears with ballot initiatives.

The cynicism of the traditional legislative process that ballot initiatives represent and that is characterized by voter apathy and the popularity of term limits should not be ignored, Broder stressed.

Reflecting on last year's presidential campaign, he said he thought there would have been more turmoil in the aftermath of the drawn-out election. "I thought there would have been a genuine crisis of credibility about our election process, whether people who want to vote are able to vote and whether everybody's vote gets counted. I thought there would be a lot of turmoil about that and about the way the Supreme Court ended that process. It seems the country has gotten past that. Instead, what I hear is that this election was probably no more crooked, no more contrived, no worse than ever."

But this cynicism "is a kind of cancer eating away at the nation and at a fundamental building block of this blessed nation and at the procedural process of law. We should write laws when needed, but also protect minorities and freedoms."

–Peter Hart

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