Advisory Initiatives as a Cure for the Ills of Direct Democracy? A Case Study of Montana Initiative 166
Sawhney, Neil K., Stanford Law & Policy Review
TABLE OF CONTENTS INTRODUCTION I. EXPLAINING ADVISORY INITIATIVES AND EVALUATING THEIR USE II. CHARTING THE DEVELOPMENT OF MONTANA I-166 III. ADVISORY INITIATIVES--A CURE FOR THE ILLS OF DIRECT DEMOCRACY?
On November 6, 2012, Montana voters overwhelmingly approved Initiative 166, (1) the Prohibition on Corporate Contributions and Expenditures in Montana Elections Act, by an almost three-to-one margin. (2) This voter-submitted initiative, establishing a state policy against corporate campaign contributions and charging Montana's congressional delegation to work towards overturning the U.S. Supreme Court's ruling in Citizens United v. Federal Election Commission, (3) was hailed by a wide array of politicians and citizen groups. After the initiative's passage, for instance, Montana Governor Brian Schweitzer claimed that, "Montanans stood up and took the first step, sending a clear message to the nation that corporations are not people and money does not equal speech." (4) National newspapers like the New York Times joined Montana media outlets in praising the "bold" passage of I-166, stating that it "gave voters the chance to say they want to control how political campaigns are run in their state." (5) Pointing to the passage of similar voter initiatives in Colorado and many local jurisdictions, (6) good government activists argued that I-166 would have a "ripple effect" across the country, leading to a full-scale reform of the nation's campaign finance system. (7)
Despite this heaping praise, a question immediately arises after reading the text of the initiative--put simply, will I-166 have any concrete effect on state law? While the majority of ballot measures in the 2012 state elections amended or added to their respective state's existing constitutional or statutory framework, I-166 merely sets a new state "policy" for Montana by instructing its legislators to work towards national campaign finance reform, a measure with apparently no real legal or political effect. Yet if the theory underlying voter initiatives is that they are primarily used to empower the public to bypass their representatives in enacting legislation (an assumption challenged later in this Note), how then to explain the seemingly disproportionate attention aimed at 1166, at least as compared to other Montana measures on the ballot that would have a practical legislative impact? Or more succinctly, why should we--as voters or as scholars--care about a merely advisory ballot measure?
This Note seeks to grapple with I-166 within this broader question highly relevant to modern American direct democracy. As voter initiatives and legislative referenda have played an increasingly important role in state government, commentators have levied a host of criticisms against direct democracy, ranging from objections over its inefficacy to more broad-based concerns regarding the subversion of our constitutional system of republican government. (8) While comprehensively addressing such criticism is far outside the scope of this Note, I-166 provides an illuminating opening into the possibility of advisory ballot measures--whether initiative or referendum--in bridging the "gap" between direct democracy and representative government. Indeed, despite the general absence of advisory initiatives in the American democratic system outside of the hyper-local context, political scientists like Thomas Cronin have claimed that "an advisory referendum is the next logical development in American democracy, or at least that it is an idea worthy of serious debate and examination." (9)
I. EXPLAINING ADVISORY INITIATIVES AND EVALUATING THEIR USE
The advisory initiative--sometimes denoted interchangeably as the advisory or consultative referendum by political scientists (10)--has not played a significant a role in state or national government in the United States. (11) Binding voter initiatives, on the hand, are employed in twenty-four states, (12) and are playing an increasingly important role in shaping public policy, primarily due to the "staggering" increase in the number of initiatives on state ballots. …