Seizing the Initiative

The Florida Constitution guarantees freedom of speech and freedom of religion. It also protects life, liberty and the pursuit of happiness. And it defends the...
by | September 30, 2008

The Florida Constitution guarantees freedom of speech and freedom of religion. It also protects life, liberty and the pursuit of happiness. And it defends the rights of pregnant pigs.

According to Article X, Section 21, pigs aren't to be tethered during pregnancy. They can't be confined in a space where they have difficulty turning around. Violating the rules is a first-degree misdemeanor, punished by fines as high as $5,000.

Pregnant pigs weren't included in the state's original constitution in 1845, or the one in 1885, or even the revised 1968 version. Article X, Section 21 is the result of a 2002 ballot initiative pushed by the Humane Society. Florida voters approved it with 55 percent of the vote.

Not surprisingly, state legislators in Florida tend to think that pregnant-pig policy isn't something that belongs in the constitution. They believe they should be the ones making this sort of esoteric policy decision, not the voters.

What is surprising, however, is that Florida legislators did something about it. They placed an amendment on the 2006 ballot to raise the threshold of approval for any future changes to the constitution from 50 percent of the vote to 60 percent. The message: If the public is going to make an end run around its elected representatives, it better have a very good, or very popular, reason for doing so. Voters approved the higher threshold in 2006 with, ironically, only 58 percent of the vote.

Although the particulars differ, what's happening in Florida is happening in many of the 23 other states that allow ballot initiatives. Legislators are looking for ways to rein in the process. There's some hypocrisy in this, since they frequently use it themselves as a way of getting around opposition from colleagues or from the governor. In Florida, in the past 40 years, three times as many measures have been placed on the ballot by the legislature as by citizen activists. So it might be best to say that lawmakers have a love-hate relationship with initiatives. But there's no question that many of them genuinely believe turning complicated or arcane questions over to the public is a bad idea.

They have grown frustrated with the clumsy, unpredictable policy and political complications that come from direct democracy. So even as many of them promote their own pet ballot proposals, lawmakers are waging an under-the-radar war on initiatives, with new rules designed to make it tougher to place measures before the public. Whether they'll win that war remains to be seen.

Lessons from TABOR

The primary argument against initiatives runs like this: Legislators have the ability to draft and redraft laws and consider amendments, so that compromises and improvements can be made. Ballot initiatives simply face up-or-down votes. Legislators also know what laws already are on the books. "When voters consider an initiative on the ballot, they're just considering that issue," says Jennie Drage Bowser, of the National Conference of State Legislatures. "They're not presented with information on how it interacts with state policy as a whole and how it impacts the state budget. It's not a very holistic approach."

Nowhere is that more obvious than in Colorado. In 1992, voters there approved a Taxpayer's Bill of Rights (TABOR), the strongest such law in the nation, which limited year-over-year state revenue increases to a formula based on population growth plus inflation. In 2000, Colorado voters approved another initiative, which mandated that per-pupil education spending increase at the rate of inflation or faster, regardless of the state budget situation. Together, those initiatives create rigid requirements and conflicting priorities that drive state budgeters crazy. "We're one of the only states," says Andrew Romanoff, the speaker of the Colorado House, "where the constitution requires simultaneous revenue reductions and spending increases."

Initiatives, it's often contended, also add to the divisiveness of a state's politics. In Colorado this year, business groups are pushing an anti-union "right-to-work" initiative, while unions are backing measures that would force employers to spend more on health insurance, make it harder to fire workers and toughen corporate fraud standards. Sensing a needlessly hostile confrontation, Governor Bill Ritter has spent months trying to get both sides to back down. Neither is budging, so Ritter is opposing all of the initiatives.

Messy Signatures

Problems such as these have been around almost as long as the initiative process itself. The 2006 election cycle, however, represented a turning point. That's when conservative activists, including wealthy New Yorker Howard Rich, aimed to turn Colorado's Taxpayer's Bill of Rights into a national phenomenon. At one point, it appeared that eight states would vote on the proposals. In the end, though, only three did.

The reason, generally, was signature fraud. In Michigan, election officials estimated that of the 500,000 signatures that supporters of the tax measure turned in, 200,000 were duplicates or otherwise invalid -- one man had signed 19 times. In Montana, a court found pervasive "deceit, fraud and procedural non-compliance." Signature gatherers, or "circulators," had done everything from making up fake addresses to tricking Montanans into signing three petitions for three different initiatives at once. In Oklahoma, a court ruled that the petitioners had illegally made use of out-of-state signature gatherers.

The rulings drew attention to the messy process by which initiatives land on the ballot. They played into complaints that lawmakers in many states tend to raise: that initiatives are championed by out-of-state activists, that they are frequently the creation of big-money interests, not regular citizens, and that shady tactics are all too common in the quest to meet signature requirements.

A flurry of legislative activity followed. In 2007, legislatures approved 33 bills regulating the initiative process -- easily the most this decade. Among the new laws are a ban on signature gathering at polling places in North Dakota; the imposition of penalties if circulators in Arizona lie about the subject matter; and training requirements for circulators in Oregon.

One of the farthest-reaching bills was in Montana, where Attorney General Mike McGrath, a Democrat, teamed up with Secretary of State Brad Johnson, a Republican, to push a law that bans all out-of-state circulators, prohibits paying gatherers by the signature, and limits the time petitions can be in the field to one year. "The pay issue is an invitation to fraud," McGrath says. "If you're paid by the signature, you're going to want to get as many signatures as you can." That logic also led Nebraska to ban per-signature payments earlier this year, along with requiring that circulators be Nebraska residents.

Supporters of these measures say their aim isn't to kill the initiative process. The Montana law, for example, included technical changes that will make it less likely for initiatives to land in court. But even subtle changes to the rules can make it harder to place an initiative on the ballot.

Nevada, for example, approved rules last year that require petitioners to gather signatures from every county in the state -- with exact requirements dependent on the population of the county. This requirement was designed to give rural areas more of a voice in the initiative process. Before, says Nevada Senator Dean Rhoads, the bill's sponsor, "You could probably stand in front of a Wal-Mart grocery store and put it on the ballot." Now, petitioners have to troll for signatures from places such as remote Esmeralda County, population 695.

Migrant Gatherers

For people who still consider initiatives a force for good, the response has ranged from bemusement to anger. Bill Sublette, a former state representative, led the unsuccessful fight against the 60-percent rule in Florida. Sublette knows by heart all of the initiatives that his state has approved. Floridians have banned smoking in public places, reduced school class sizes, cut property taxes and required more open government -- all through the ballot box and without the approval of the legislature.

In this context, Sublette says, the pregnant-pigs rule is more an aberration than anything else. The anti-initiative forces used it rather successfully to ridicule the whole system and get the 60-percent rule passed. But in Sublette's view, they actually had other concerns in mind.

Most notably, a group called Hometown Democracy is pushing to require citizen votes when localities approve land-use plans. Development and real estate interests complain that this will stifle economic growth. Those interests have backed efforts to make it harder to get measures on the ballot. To Sublette, there's a lesson in all of this: Citizen initiatives do serve the purpose for which they were intended. Powerful interests and elected officials don't like them because they're hard to control. "Blocking efforts in the legislature," he says, "is a lot easier and a lot less expensive."

The people who work in the petition industry see things a bit differently. They don't try to hide the fact that the "citizen" initiative is largely a myth. Rarely does an initiative end up on the ballot without the help of paid signature gatherers. A handful of companies nationwide do most of the work to collect signatures. And those companies aren't too concerned about all the new rules. In a weird way, they're enthusiastic about them. Say a state bans out-of-state petitioners. That means any group that wants to get an initiative on the ballot will need the skill to find and train in-state workers -- or hire someone who knows how to train them. "Every time they make the process more difficult," says Michael Arno, who heads a leading signature-gathering firm, "they make our job more necessary."

Of course, the in-state petitioners might demand more pay than the migrant signature gatherers whom many of these companies employ. For the signature companies, the cost of doing business goes up, but that cost is passed on to the advocates of the initiative -- be it an individual or an interest group.

In this way, efforts to take the money and professionalization out of the initiative process and return it to "the people" may end up having the exact opposite effect. If it costs more to get an initiative on the ballot, only interests with a lot of money will be able to do it. "Make it as hard as you possibly can," says Fred Kimball of Kimball Petition Management. "You can send that message out to every legislature in the United States. By making it harder, you can take the citizen away."

Meanwhile, critics of the initiative system are using the system itself to add new restrictions. Romanoff, the Colorado House speaker, advocated legislation this year to disentangle his state's budget bind. He wanted to remove some of the provisions from both the Taxpayer's Bill of Rights and the education spending mandate, with the goal of giving budgeters more flexibility. The legislature wasn't interested in wading into this politically perilous subject in an election year. So Romanoff started an initiative drive. He personally led the campaign to place his proposal on the ballot. And he succeeded. Colorado will vote this fall on what could be described as an initiative to fix the messes left by previous initiatives.

Then there is the tactic of elected officials using one initiative to fight off another. Case in point: In California last year, the Howard Jarvis Taxpayers Association, a group that agitates for smaller government, entered into negotiations with the California League of Cities and the California Redevelopment Association to try to reach agreement on new eminent-domain restrictions. The talks broke down, and the Jarvis people went forward with an initiative that included far-reaching eminent-domain restrictions, as well as a ban on rent-control laws.

The government groups didn't just oppose that measure. They fired back with their own initiative, with more modest eminent-domain limits and no mention of rent control. The initiative also included a "poison pill" provision: If both measures passed, only the government-sponsored one would go into effect, provided that it received more votes. The poison pill turned out to be unnecessary. The stronger Jarvis measure was defeated by the voters, leaving the government-sponsored initiative as the only one left standing.

"Legislating at Gunpoint"

Examples such as those seem to suggest that public officials are succeeding, one way or another, at bringing initiatives under tight control. However, that's not entirely clear.

Even with all the new regulations, the number of ballot initiatives nationwide has not dropped substantially this year. Upwards of 60 will appear on state ballots November 4. That's down from the 76 that made the ballot two years ago, but more than in either 2004 or 2002.

There are places where initiative politics seems to be more potent then ever. In 2007, for example, the Arizona legislature approved a bill that went further than any law in the country to require punishment of employers who hire illegal immigrants. Lawmakers said they'd been pushed to act by the urgent problem of illegal workers.

What most didn't say, however, was that their hand had been forced by a ballot initiative that would have gone even further than the law the legislature supported. "There were like six people in the House who really wanted that employer-sanction law," says Kyrsten Sinema, an Arizona state representative. "There were 54 people who did not. The bill was rammed down our throats with the threat of the initiative. We were legislating at gunpoint."

On the other hand, the legislature gained leverage for itself by acting on its own. Had the initiative made the ballot, it almost certainly would have passed. Instead, lawmakers got to claim credit for writing the law and were able to shape it more to their own liking. They also kept alive their ability to make changes later -- which would have been difficult under the initiative. This year, the legislature did rewrite portions of the law.

Something similar happened in Michigan in 2006. Unions tried to use the initiative process to pass a constitutional amendment raising the minimum wage and indexing it to inflation. Republicans, who controlled both houses of the Michigan legislature, had never favored a higher minimum wage, but, almost overnight, they passed one -- a higher one, in fact, than the ballot campaign was advocating. That successfully undermined the initiative, but it also did away with the indexing language, which was more significant in the long run.

Some of these actions smack of political survival rather than thoughtful lawmaking. Legislators see no choice but to give in to the currents of public opinion that are reflected in initiative efforts. Late last year, the Washington State Supreme Court threw out limits on property taxes that voters had approved by initiative. Democrats, most of whom are ideologically unsympathetic to the tax limits, control both houses of the Washington legislature. But, fearing voters' wrath, they rushed into special session and passed the limits themselves.

What all of this shows is that, when pushing back against initiatives, lawmakers are playing a dangerous game. It's not easy to tell the voters that they are incompetent at making their own laws. That, more than anything else, explains why, even if most elected officials believe direct democracy leads to bad public policy, they are opting for subtle maneuvers over direct confrontation. "They're not out in the open saying the initiative process doesn't work," says Angelo Paparella, who runs a signature-gathering company. "They know the public supports the initiative process."

Five Initiatives to Watch

California: Gay Marriage

A California Supreme Court ruling legalized gay marriage in the Golden State earlier this year. Now, voters will decide whether to ban same-sex nuptials in the state constitution or allow that ruling to stand. Florida and Arizona also will vote on gay-marriage bans.

South Dakota: Abortion

An initiative in South Dakota would ban abortion, except in cases of rape or incest, or if the life or health of the mother is at stake. If it passes, the law could set up a new challenge to Roe v. Wade.

Colorado: Right to Work

Business groups are working for a measure that would end mandatory union dues. Labor groups are fighting against the initiative -- and pushing three initiatives of their own in Colorado.

Washington State: Assisted Suicide

Former Governor Booth Gardner is working to allow terminally ill adults to take their own lives, with the help of physicians. If the initiative passes, Washington would join Oregon as the only states to allow assisted suicide.

Colorado and Nebraska: Affirmative Action

Both states will vote on initiatives that would ban preferential treatment on the basis of race or gender in public employment, education and contracting. The initiatives are the brainchild of Ward Connerly, a well-known affirmative action foe who has succeeded in getting similar measures passed in other states.

Josh Goodman
Josh Goodman | Former Staff Writer |