Academic journal article Albany Law Review

Out of the Bottle: The Genie of Direct Democracy

Academic journal article Albany Law Review

Out of the Bottle: The Genie of Direct Democracy

Article excerpt

   There is a radical difference between a democracy and a
   representative government. In a democracy, the citizens themselves
   make the law and superintend its administration; in a
   representative government, the citizens empower legislators and
   executive officers to make the law and carry it out.... In other
   words, democracy is direct rule by the majority, while in a
   representative government rule is by a succession of
   quasi-oligarchies, indirectly and remotely responsible to the
   majority. (1)

In the late 1800s, the Progressives unleashed the genie of direct democracy--the citizen-initiated referendum or initiative (2)--as an alternative method of amending a state constitution or creating state-level legislation. South Dakota became the first state to allow statewide initiatives, (3) and between 1898 and 1918, (4) over half of the states in the Union at the time followed South Dakota's lead and adopted similar initiative and referendum processes. (5) Currently, every state except Delaware provides for some form of state-level direct citizen voting in addition to the election of representatives, (6) and twenty-four states offer their citizens the citizen initiative method of bypassing their legislatures completely in creating new laws. (7)

When they introduced the initiative process, the Progressives believed that representative government had failed because legislatures were controlled by special interests. (8) Through the initiative genie, citizens hoped to flex their muscle and regain control of their governments. Because the initiative process allowed citizens to register their opinions by direct votes, it promised to be a valuable alternative to representative government, which had become tainted by the influences of privileged interests and partisan politics.

Genie magic, however, tends to come with unintended consequences, and modern initiative practice has not lived up to the promise of being corruption free. Because initiatives are drafted by individuals or small groups, rather than by bodies of representatives elected by the people, they are often controlled by special interests. (9) Some examples from Colorado include gambling investors drafting initiatives legalizing "gaming" in specific locations throughout the state (10) and the religious group Focus on the Family's drafting of Amendment 2, which passed in 1992 and prohibited rights for gays. (11)

Similarly, the 2006 election could be viewed as a victory for suburban developers nationwide. (12) In Kelo v. City of New London, the United States Supreme Court upheld the authority of governments to condemn land for urban renewal projects. (13) The most common topic for initiative measures in the 2006 election was eminent domain. Nine states passed initiatives that prevented redevelopment by local governments through such condemnations, effectively transferring future growth to suburban locations. (14)

Money may also play at least as corrosive a role in initiative campaigns as it does in representative elections. (15) Well-funded individuals or organizations that do not have enough voluntary support to qualify an initiative for the ballot may pay petitioners to gather signatures. The use of paid petitioners to collect signatures dates back to the first state-level initiative in the United States in 1904. (16) Although states have tried to restrict paid signature collection, (17) the United States Supreme Court reinforced the practice when, in Meyer v. Grant, it struck down as a violation of the First Amendment a Colorado law that criminalized all payment for petition circulators. (18)

Furthermore, initiatives are susceptible to lobbyist influence. A California study showed that sixty-eight percent of all initiative campaign contributions come from lobbying interests. (19) Although there is no guarantee that the party contributing the most money will prevail in an initiative campaign, (20) additional resources play a significant role in exposure and how the public perceives an issue. …

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