National Journal -- Book Reviews
August 8, 2001
A review of The Battle Over Citizen Lawmaking
and Direct Democracy or
Representative Government?
by Keith White
How much direct democracy is enough? If you are one of the contributors to
The Battle Over Citizen Lawmaking, we have not even begun to test the
limits. If you are John Haskell, author of Direct Democracy or
Representative Government? Dispelling the Populist Myth, we already have an
unhealthy amount.
These two volumes are the latest salvos in the ongoing
battle between those who believe initiatives and referenda should play a
greater role and those who believe these undermine representative democracy
itself. Of the two books, the pro-initiative collection of essays by
academics, lawyers, and political pros that M. Dane Waters edited offers a
stronger argument, if only because: 1) Its contributors have almost no
doubts about the rightness of their positions, and 2) It is hard to argue
against letting the public settle issues with a vote.
For his part, Haskell is dealt a bad hand. He has to defend a constitutional
system with well-known flaws. But he does nothing to improve his position
with elitist arguments that voters, by and large, really don't know what
they're doing, and that initiatives, as a result, should be abandoned in
favor of letting their wiser elected representatives decide. Haskell notes
that just as the Electoral College is tolerated only because it rarely seems
to matter (perhaps he should have chosen a different example in the wake of
the near meltdown over Florida), "it might be that legislative processes are
moving in the same direction-tolerated only so long as they do not stand in
the way of the popular will." That's a criticism that will baffle proponents
of initiatives and referenda. If the legislative process does not reflect
the popular will, why shouldn't there be a way to make sure that it does?
That's the purpose of initiatives and referenda, and examples abound to show
how they have been used by the public to kill legislation widely considered
suspect, or to keep state lawmakers from doing something an overwhelming
number of voters do not want done. The tax limits of the 1980s and the
term-limits measures of the 1990s, not to mention the occasional campaign
finance law proposal, were all clearly prompted by public anger at, or at
least displeasure with, their legislatures. Haskell cites scads of research
by political scientists showing that voters don't always mean what people
think they mean, but initiatives do have a way of settling disputes. In
voting to keep the Confederate battle ensign part of their state flag,
Mississippians may have thumbed their collective nose at the 21st century-or
perhaps even the 20th-but they certainly settled the issue in a way no
legislature could or would.
And, frankly, the evil that Haskell sees in a growing emphasis on the
initiative and referendum process is a straw-man argument. The serfs-with or
without pitchforks-are not about to storm the castle walls. Barely more than
half the states (27) have an initiative and referendum process, and in
several, it's a joke because of severe restrictions on when, or even
whether, an issue can get on the ballot. Those who oppose the expansion of
initiatives and referenda apparently don't realize how difficult it is for
the process to spread. No state has adopted the initiative and referendum
procedure since 1972, although South Dakota and Mississippi revamped their
laws in 1988 and 1992, respectively.
Most of the arguments in the two books provide plenty of fodder for
like-minded folks. Even the books' recommendations for improvements are
minor and unlikely to ever be realized. For example, among the
pro-initiative essays is one by California Secretary of State Bill Jones
that clearly nibbles around the edges. He suggests that proposed
constitutional amendments be limited to the November general election ballot
to ensure the biggest voter participation, and that a greater percentage of
voters' signatures be required on petitions for constitutional amendments.
They're not bad ideas, but most states already require more signatures for a
constitutional amendment than for an initiative, and a hotly contested
initiative can sometimes boost low turnout in a primary election. Jones also
suggests that something be done to curb "bounty hunter" signature-gatherers,
even though the federal courts have made it clear that election officials
can't do anything about them.
Haskell's proposed fixes are limited and uninspired as well. Like many
congressional boat-rockers, he calls for banning "holds," whereby individual
Senators can block action on a bill or a nomination simply by anonymously
notifying their party's leaders, and he calls for scrapping the filibuster.
Senators have at least begun to curb the former, but generations of
reformers have gone to their graves without achieving the latter.
Haskell does offer a novel approach in suggesting that voters be permitted
to vote for "none of the above" in congressional elections. Any incumbent
who loses twice in a row to "none" would be removed, and the parties would
then choose new nominees. It is debatable whether such a threat would
inspire a legislator to shape up or whether it would cause him to cozy up
even closer to special interests in hopes of winning future employment with
them.
Although readers may yearn for more daring conclusions than either Haskell
or Waters's stable of writers offers, the books reflect the current public
split on ballot initiatives: People either love 'em or hate 'em. Now each
side has a fresh serving of opinion with which to bolster its arguments.
Links to purchase the books
The Battle Over Citizen Lawmaking
Edited by M. Dane Waters
Carolina Academic Press, 294 pages, $28.00
http://www.amazon.com/exec/obidos/ISBN%3D0890899681/theatlanticmonthA/104-68 36021-7609513
Direct Democracy or Representative Democracy
by John Haskell
Westview Press, 212 pages, $29.00
http://www.amazon.com/exec/obidos/ISBN%3D0813397839/theatlanticmonthA/104-68 36021-7609513
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