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The lack of attention to the subject and the relative unfamiliarity with the process on the part of many people who live in states without the initiative would be less troubling if the use of the process was less frequent or widespread, and if the public policy questions dealt with via the process were less important. However, the fact remains that 22 states and the District of Columbia have and use the initiative process. In addition, if other types of direct legislative processes at all levels of government are included, voters in parts or all of the 50 states may encounter ballot propositions.
The initiative is not a recent innovation in that the direct participation of voters in the legislative process predates independence. As Laura Tallian observed:
"For 20 years after the founding of Plymouth colony, lawmaking was done in a primary assembly of freemen every quarter, and when the colony grew so large that it was difficult for people to meet in this way four times a year, every town elected two delegates to join in enacting ordinances, and the whole population met once each year to have general oversight, to repeal all acts ill advised, and to pass any legislation." (Emphasis added)."
In spite of these early uses of direct democracy, however, the trend in the United States was away from it and toward elected representatives. The situation did not change substantially until the late nineteenth century (1898) when the initiative and referendum became a part of South Dakota's constitution. By 1910, eight states had followed South Dakota's lead and had adopted both processes. Although Californians, like residents in most states, had always voted on various types of ballot measures, the initiative did not appear until 1903 when the California state legislature approved the process for the city of Los Angeles. In 1911, California became the tenth state to adopt the initiative and referendum. Since that action, California voters in most elections have expressed their preferences on a variety of policy issues. The number of initiatives that have appeared on the ballot and the judgment of the voters are presented in Table One."
TABLE 1.-THE NUMBER AND PERCENTAGE OF INITIATIVE PROPOSITIONS APPROVED AND REJECTED BY CALIFORNIA VOTERS, 1912-76
The data in Table One indicate that 171 initiative propositions have appeared on the ballot in elections since 1912. Out of that total, 50 or 29.2 percent have been approved by the voters. It also is evident from the data that the number of initiatives qualifying for the ballot has tended to decline since 1952. According to one observer, this pattern is quite consistent with that of other states with the exception of Washington where the use of the initiative has remained relatively constant since 1914. In addition, the adoption rate in California is similar to that of states such as Oregon, but is below that of Washington where 48 percent of the ballot measures between 1914 and 1973 were approved."
The states with the initiative are: Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Maine, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, Wyoming. Tallian, op. cit., p. 45.
5 Ibid., p. 10.
See Ibid., pp. 172-210 for a listing and description of the proposals.
Hugh A. Bone. "The Initiative in Washington: 1914-1974." Washington Public Policy Notes, Institute of Government Research, the University of Washington, 1975, p. 2. Also see Hugh A. Bone and Robert C. Benedict, "Perspectives on Direct Legislation: Washington State's Experience: 1914-1973," The Western Political Quarterly, Vol. XXVII, No. 2, June 1975
In terms of the number of initiative proposals appearing on the ballot since 1912, it should be noted that there have been 38 elections. During the entire period, an average of 4.5 measures appeared on the ballot and an average of 1.3 ultimately were approved by the voters. The reluctance on the part of California voters to approve initiative measures is suggested by the data in Table Two:
TABLE 2.-NUMBER OF INITIATIVE MEASURES APPROVED BY NUMBER OF ELECTIONS, 1912-76
For example, in fourteen elections or better than one-out-of-every-three during the entire period, voters rejected every proposal, and in thirteen other elections they approved only one proposition. In short, in 27 of the 38 elections, not a single proposal or only one became law. In contrast, voters approved six propositions in 1914 and in 1934, four in 1922, and three in 1920, 1948, 1950, 1964, and 1972. Stated somewhat differently, in only five of the 26 elections since 1934, have California voters approved more than one initiative measure. The preceding discussion would seem to indicate that at least in California, voters have not gone on the proverbial "lawmaking binge" that some critics of the initiative process predict will occur if the process is adopted nationwide or in other states. Furthermore, it is widely acknowledged by those who have studied the process that Californians frequently face as many or more initiative ballot propositions than do voters in most states. This should give some indication of the rather small number of state laws across the nation that have been enacted via the initiative process. It certainly wouldn't seem to this author that enacting fifty statutes and amendments over a 54 year period constituted a tyranny of the majority.10 This observation does not apply to the quality or so-called "correctness" of the initiative measures actually enacted, but it does not seem unreasonable to suggest that voters in California, and probably elsewhere for that matter, have been reasonably responsible at least in terms of the frequency they have exercised their direct legislative powers. Table three further illustrates this point in that in 20 of the 38 elections, or more than 50 percent of the time when initiative proposals appeared on the ballot, only three or fewer measures were in fact before the voters.
TABLE 3.-NUMBER AND PERCENTAGE OF ELECTIONS BY GROUPS OF BALLOT PROPOSALS
The years were 1948 (3), 1942 (2), 1950 (3), 1972 (3).
10 It also should be pointed out that six of the 50 initiative measures either amended or repealed previously enacted measures. These six measures are not included in the list cited previously, Tallian, op. cit., p. 172-210, which accounts for the different totals appearing in this paper.
It was implied previously that the evidence suggested the task of persuading a majority of the voters in California to support an initiative proposal is formidable. Table Four illustrates this point from an additional perspective.
TABLE 4-PERCENTAGE OF ALL PETITIONS SEEKING QUALIFICATION APPROVED BY CALIFORNIA VOTERS BY TIME PERIOD, 1916–76 1
1 Records of initiative measures not qualifying for the ballot were not kept prior to 1916.
It is obvious from Table Four that only a small percentage of initiative petitions ever survive the process and become law. The percentage was never particularly high, but the likelihood of success appears to have diminished steadily since the early fifties. It probably is significant to note that during the period since the success percentage of proposals supporters attempted to qualify began to decline, the population of California increased substantially and, therefore, so has the number of signatures required to place a proposition on the ballot. Although it's too early to predict whether this trend will continue in the 1978 election, the office of the California Secretary of State reported in December 1977, that during the year thirteen proposals had failed to qualify for the 1978 ballot. On the same date, five petitions were still being circulated and fifteen petitions were in the Attorney General's Office waiting for titles and descriptions in preparation for circulation. In view of the number of signatures required, and the time limitations for qualifying for the June or November 1978 ballots, the pattern indicated previously appears to be continuing." The data in Table Five illustrates the upward failure ratio up to 1977. If existing figures for 1977 are added, the failure rate would be well over 50 percent.
TABLE 5.-NUMBER OF PETITIONS FAILING TO QUALIFY FOR THE BALLOT AND PERCENTAGE OF TOTAL NUMBER FILED FAILING TO QUALIFY BY TIME PERIOD, 1916–76 1
1 Records of initiative measures not qualifying for the ballot were not kept prior to 1916.
In summary, experience with the initiative in California simply does not support the contention of opponents that permitting the people to participate directly in the legislative process will produce a flood of statutes. The success rate for initiatives is sufficiently low to imply considerable caution on the
"The figures were obtained by the author December 2, 1977, in a telephone conversation with the California Deputy Secretary of State, Michael Gagen. A similar observation on the trend was noted by Thomas D. Elias, "Lack of Initiative: Trend Toward Making Law at Ballot Box Wanes," The Sacramento Bee, July 14, 1977, p. B 8.
part of voters in approving the propositions. Furthermore, opponents should realize that the qualification process is so difficult that most measures never make it to the ballot. This has been the case even though special interests employ firms to circulate petitions for a fee, which usually ranges from 25 to 50 cents per signature." The number of signatures and state provisions required in S.J. Res. 67 appear sufficient to insure that most initiative proposals that ultimately reach the ballot would involve issues and policy questions of substantial national visibility, interest and importance. If the proposed national system operates in a manner similar to that of the states, and there is no evidence to suggest that it will not, most proposals will not qualify for the ballot and the success ratio for those that do go before the voters will be relatively low.
Experience in California also suggests that those critics who charge that the initiative will become the tool of special interests to enact legislation for their direct benefit are not basing their views on factual evidence. There have been numerous examples in California and elsewhere of attempts by narrow and financially well-heeled special interests to secure direct benefits via the initiative. In some cases they have succeeded in qualifying their proposals for the ballot. For example, in 1972 public employees and the California Highway Patrol used the initiative to attempt to gain voter approval of changes in the process of computing their salaries. Some observers called the move a "raid on the state treasury." In any event, large amounts of money were spent to qualify the measures and to campaign for voter approval. Similarly, agriculture interests and unions have spent millions of dollars in the 1970's attempting to deal with each other, as have private corporations and sectors of industry. They have attempted to use the initiative process to gain special advantages. However, an examination of the initiative proposals approved by the voters suggests that regardless of the large amount of money spent in the campaigns, the great percentage of such ballot propositions have failed. In fact, in a number of recent campaigns where special interest spending was high, money was a factor in the defeat of the proposal. This does not mean every such effort has been a failure, but the record is clear that most of the time voters have rejected efforts to obtain special privileges and advantages no matter how much money was spent on the campaign. Public relations firms and signature solicitations firms have profited, but not at the expense of the public treasury. Again, there is no evidence to permit a prediction that a different outcome would occur under a national initiative process. In fact, because of the nature of the national media and the attention that would be focused on any attempt by a narrow special interest to gain its objectives via the national initiative, the chances of success would appear even less. The cost of such an attempt would be exceedingly high and a negative voter response to "buying" such an election would seem to be a reasonable prediction. If they are seldom successful in "buying" privilege at state level, there is no evidence to indicate it would be any less difficult at the national level. In fact, the record suggests it would be less expensive to influence members of elected legislative bodies.13
While it is extremely difficult to "buy" an initiative, the record also suggests that vast amounts of money can be quite successful in defeating one. A recent study of the 1976 election in Colorado indicated that ",,, wildly unequal campaign expenditures clearly seemed to have made the difference in the result" (defeating measures)." The experience in California and other states has been quite similar. However, a relevant question would be whether the problem is with the initiative process or with other aspects of our political system and society. As one political scientist observed, "as long as corporations are as powerful as they are, and have the money that they have, and as long as they face no limitations on the amount of money they can spend in political campaigns, they have a very good chance of preventing legislation
12 Eugene C. Lee and Larry L. Berg, "The Challenge of California" (Boston: Little, Brown, and Co., 1976) p. 10.
13 Larry L. Berg, Harlan H. Hahn, John R. Schmidhauser, "Corruption in the American Political System" (Morristown, N.J.: General Learning Press, 1976) chapters 4, 5, 6, pp. 87-161.
14 John S. Shockley. "The Role of the Initiative in Expanding Democracy: The Case of Colorado, 1976" Unpublished paper presented at the 1977 Annual Meeting of the Southwestern Political Science Association, Dallas, Tex., March 30, 1977, p. 59.
which they do not like." 15 The observation applies not simply to corporations, but to other well-organized interests with a substantial treasury available for political action. In short, the undue influence of unlimited spending is not peculiar to initiative campaigns. It is a fact of political life in the United States and direct democracy also suffers from its influence. However, the same can be said of other institutions of representative democracy such as local, state and federal legislatures, and executive offices from the presidency on down.
Critics of the initiative process also frequently charge that the process would facilitate enactment of anti-civil libertarian measures and would permit the majority to trample on the rights of the minority. An example frequently cited by such critics is the election in California in 1964 when the state's fair housing law was repealed.1 Indeed there have been other examples of similar legislation enacted by the initiative process. For example, the initiative was used in California in 1920 to strengthen a brutal alien land law passed previously by the legislature that was directed generally at Asians and specifically at Chinese. As a proponent of the initiative process, I cannot deny the occasional use of the process as a device to discriminate. However, again the use of the process in such a way is not unique to the initiative. For example, the alien law discussed previously was preceded by various state statutes enacted by the California legislature that had similar objectives. Similarly, the federal immigration laws of the period also were discriminatory, particularly against Asians. Indeed, one of the most reprehensible abuses of the civil liberties of a group of citizens, the internment of Japanese-Americans during World War II, involved action by legislative bodies, the President and, ultimately, the United States Supreme Court. The record suggests clearly that the initiative process does not have a monopoly in the area of discrimination and anti-civil libertarian legislation. In fact, the initiative process was used on three occasions to repeal the discriminatory alien land laws rather than legislative initiative.
It should also be pointed out that while the United States Congress, particularly the House of Representatives, was attempting to overturn decisions of the United States Supreme Court which struck down measures directed at so-called "subversives", California's voters overwhelmingly rejected an initiative on the same subject. Critics of the initiative process also should be reminded that the record of elected officials and representative legislatures throughout much of our history contains numerous examples of highly anti-civil libertarian behavior. In addition, any legislative measure enacted via the initiative must stand the test of the nation's judiciary. The commonly cited measure which repealed the California fair housing law was declared unconstitutional by the courts just as other unconstitutional measures enacted by any state legislature or the Congress have been so declared throughout much of our history. The initiative process is not beyond our important system of checks and balances. As Nicholas von Hoffman states in reference to S.J. Res. 67:
"Thus the Courts would have the power to review citizen-made law and nibble it to death just as they erode congressionally made law. Congress would have the power to repeal or amend a law passed by a national referendum, but for the first two years after passage that could only be done by a two-thirds roll call vote of each house. Thus a simple majority would not be enough to thwart the people's will, and while it could still be done, those doing it would have to do so in full view of their constituents." "
There also are critics who suggest that in addition to the anti-civil libertarian potential of initiative proposals, the process results in numerous frivolous proposals. An examination of the proposals that have appeared on the ballot in California since 1912 indicates that this has occurred. However, this conclusion must be based on a particular definition of the term frivolous. Nevertheless, some of the early measures involving alcohol, horse racing, gambling, boxing and Sunday closure laws, probably are reflective of the type of measures related to the critics' charges. However, as was pointed out previously, most measures have been rejected by the voters. Critics also should be re
15 Ibid., p. 61.
19 For a description of the measure see Tallian, op. cit., p. 204.
17 von Hoffman, op. cit.