Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, where she teaches the campaign finance seminar. She writes about the intersection of law and politics at She Tweets @LevinsonJessica.

Viewpoints: Initiatives are controlled by backers with bankrolls

Published: Sunday, Nov. 25, 2012 - 12:00 am | Page 5E
Last Modified: Sunday, Nov. 25, 2012 - 10:49 am

As we enter a state commonly known as campaign withdrawal, we can look back and sigh, knowing, with few exceptions, who we elected to represent us. But we didn't just elect representatives; we also enacted laws, on our own.

While the candidates we elected will eventually leave office, many of the laws we just enacted through the ballot initiative process will endure for decades and decades to come. It is taking worth a moment to look back and ask ourselves what we just did and why.

On Election Day, voters in 38 states weighed in on 176 ballot measures. Many of us live in a hybrid state, in which we are both represented by elected officials and have the opportunity to directly enact legislation through the initiative or referendum.

Ballot measures run the gamut from the banal to highly controversial. This election, voters from across the nation weighed in on laws ranging from animal rights to hunting and fishing to restrictions on gun ownership to immigrant rights to food labeling to gay marriage to budgetary and tax issues.

Liberals can point to some victories when looking at laws passed and defeated through the initiative process. Three states – Maine, Maryland and Washington – endorsed same-sex marriage, and one state – Minnesota – rejected a measure banning those marriages. Voters in two states – Colorado and Washington – opted to legalize the recreational use of marijuana.

In California, voters declined to adopt a measure that would have significantly reduced the political power of unions in the state and successfully passed a measure that relaxed the punishments given under the state's now-famous "three-strikes" law.

In Minnesota, voters declined to adopt a ballot initiative that would have required voters to show government-issued photo identification prior to voting.

But conservatives also had some victories at the ballot box. In California, voters declined to repeal the death penalty. In Oklahoma, voters outlawed stated affirmative-action programs. In Montana, voters approved of a parental-notification law.

Put another way, both liberals and conservatives can rejoice and bemoan the ballot initiatives passed and defeated this election cycle. So how did we get here?

Direct democracy was originally envisioned as a way to give lawmaking power directly to the majority of voters, lest the legislature be controlled by special interests. The sad irony of the history of direct democracy is that the very interests the mechanisms were meant to guard against now control the initiative and the referendum. This is in large part because in 1988 the Supreme Court ruled that laws prohibiting paid signature gatherers violated the First Amendment.

Moneyed interests now run the show, creating a sort of shadow government through which groups can propose laws benefiting their interests, but not necessarily those of the electorate.

But while all one needs is money to qualify an initiative for the ballot, money hardly guarantees success. As we just saw, it often all but guarantees defeat.

This is a terribly risky way to make laws. Initiatives and referenda are not debated, discussed and deliberated the way legislatures measures are – or at least the way they should be. Ballot measures give voters a binary choice:

They can vote only yes or no on a single issue without regard to the consequences of that decision on other areas such as the economy, the budget, the criminal justice system, education and health care.

This assumes that ballot-measure proponents and opponents have not so obscured their identities and the true consequences of the measures that voters can even make an informed choice.

Further, when voters weigh in on initiatives they vote for themselves, they are not accountable to a group of constituents for their decisions. It is entirely rational for members of the electorate to vote in their self-interest – or at least what they regard as their self-interest based on sometimes-deceptive advertising.

Moving forward, we should consider a combination of reforms to the initiative process.

First, we should have more robust disclosure. The public must know what they are voting on and who supports and opposes those measures.

Second, we should limit the reach of ballot initiatives and prohibit initiatives that affect budgetary matters.

Third, we should make it harder to amend state constitutions.

Fourth, we should require that some initiatives pass by a supermajority of the voters.

Fifth, we should enact sunset provisions and make it easier for legislatures to amend initiatives if it serves the purpose of the initiative. Initiatives should not be etched in stone.

As election 2012 fades into our collective memories, we should take this opportunity to reform the mechanisms that have added to the length and complexity of ballots across the country. The devices of direct democracy are broken and must be repaired.

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