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Direct Democracy Institutions and the Threat of Tyranny
On November 7, 2006 Michigan voters cast ballots to ban affirmative action programs in the state. That same day, citizens of Colorado voted to amend their constitution to prohibit recognition of same-sex marriages and Arizona voters passed a constitutional amendment to require virtually all government actions to be conducted in English. Each of these policies restricts the rights of minority groups based on their race, ethnicity, gender, sexual orientation, or national origin. Each policy was enacted through citizen legislation rather than through the traditional legislative process. Unfortunately for minority groups in the United States, these three states were not alone in passing policies that restrict minority rights through direct democracy processes like ballot initiatives and referenda. In all, twelve ballot measures in ten states addressed the rights of minority groups in 2006. Eleven of these measures resulted in an anti-minority outcome. These policy enactments and other similar outcomes resulting from citizen legislation in recent years have raised concerns about the security of the rights of minority groups in states with direct democracy institutions. This book examines this matter through a series of analyses of contemporary policies that directly affect minority groups.
So, does direct democracy endanger minority rights? Despite the recent attention to this question, it is not a new concern. Rather, this issue has long been at the center of the debate over whether states should allow citizens to create public policy directly through institutions like the ballot initiative and popular referendum. Advocates of direct democracy institutions argue that citizen legislation protects the public by allowing it to circumvent corrupt lawmakers that are beholden to special interests.1 Though supporters of direct democracy reforms concede that anti-minority outcomes are possible with citizen legislation, they contend that these outcomes are no more prevalent than under traditional representative policymaking institutions.2 The counter-argument asserts that mass participation exposes minority groups to potentially tyrannical policy outcomes favored by only a slim majority of the voters (i.e., 50 percent plus one). Minority rights are put at heightened risk under direct democracy institutions because they allow the majority to circumvent the checks and balances of a representative, separated powers system that is designed to encourage deliberation and minority representation.
Unfortunately, the existing scholarly literature does not give a clear indication as to which side of the debate is supported empirically. Studies have been published that show support for both sides of the debate, but they are limited in their scope and their ability to draw conclusions that apply broadly across different issue areas and political systems.3 In his recent examination of direct democracy and policy congruence, John G. Matsusaka, president of the Initiative and Referendum Institute and a leading direct democracy scholar, succinctly sum marizes the unsettled nature of the debate over direct democracy and minority rights:
In short, we simply do not have compelling evidence yet on whether initiatives or legislatures pose a greater threat to minority rights, or even if there is a difference. The most defensible position is one of agnosticism: pending more evidence, we just donât know.4
This book seeks to address this âagnosticismâ in the debate surrounding the impact of direct democracy on minority rights by taking a more systematic examination of contemporary policies that affect the rights of a variety of minority groups across the United States. This study expands beyond the previous literature by accounting for both the direct and indirect impacts of direct democracy on minority rights through examinations of policy outcomes from both citizen legislation and traditional legislation. It also expands upon the previous literature by directly comparing policy decisions in direct democracy states to decisions in non-direct democracy states while examining both anti-minority policies as well as pro-minority policies. In doing so, the empirical evidence reveals a clear majoritarian effect of direct democracy. In other words, the ability of citizens to directly create public policy increases governmental responsiveness to the preferences of the majority. In cases where the majority prefers policies that restrict the rights of political minorities, this enhanced responsiveness works to the detriment of these groups.
Direct Democracy in the American States
Before exploring the effects that direct democracy may have on minority rights, it is helpful to consider how direct democracy became such a prevalent form of policymaking in the United States. From its founding, American government was designed as a representative democracy. A central tenet for architects of the newly independent nation and its states was that the authority and legitimacy to govern derived from the consent of the citizens. At the same time, these revolutionaries were also concerned with protecting against various forms of tyranny stemming from the ills of factions.5 In designing a representative democratic system of government they were able to link the public, from which the governmentâs authority was derived, to policymakers through regular elections, and thus make elected officials sensitive to public preferences. Any further direct participation by the public was viewed as unwise and even dangerous to the fledgling republic.
Apart from the ratification of constitutional amendments and state constitutions, the first century of governance in the United States was executed solely through representative democracy. By the end of the nineteenth century, however, dissatisfaction with government policies on a range of issues began to sow the seeds of a populist movement to increase public participation in government.6 In an era of rapid industrialization, corporate monopolies, and boom-and-bust cycles in both farming and mining, farmers, laborers, miners and other âplain folkâ advocated for policies such as free silver coinage, graduated income taxes, public ownership of railroads, and single taxes. All of these policies sought to wrest economic power away from moneyed special interests, like trusts and corporations. Unfortunately for populist forces, both the national parties and the legislatures were often controlled by these economic behemoths. Party bosses and machine politics controlled much of the legislative process, especially at the local and state levels. In order to achieve their varied economic reforms, populists soon realized they would first have to pursue political reform.
Populist theories of governance assert that government policy should reflect the âwill of the people.â Furthermore, this public âwillâ or preference can be identified through a public vote.7 In short, populists equated the will of the people with the majority position of the voting public. Most farmers, laborers and single-taxers believed that their positions were supported by the majority of the people, and construed government inaction on their issues as a sign of how government had been captured by special interests. With the public will effectively subverted by representative government, the Populist movement (and later Progressives) sought to increase public participation in government as a way to force government to reflect the public will. The direct democracy tools of initiatives, referenda, and recall elections gained prominence in the Populist platform following the publication of J. W. Sullivanâs Direct Legislation by the Citizenship through the Initiative and Referendum in 1893. Sullivan had traveled to Switzerland and became enamored with their system of direct democracy that was modeled on the ancient tradition of Landsgemeinde, annual open-air meetings where all men of the canton would decide the policies of the local government.8 In addition to Sullivanâs writings, other advocates of direct democracy also touted initiatives and referenda as institutions to circumvent unresponsive legislatures. Nathan Cree claimed that direct democracy would âbreak the crushing and stifling power of our great party machines.â9
Direct democracy reforms were soon viewed as the most viable means to achieve varied economic policy goals of populist groups. By the end of the nineteenth century, direct democracy was also viewed as way to implement social policy. Womenâs suffrage groups and prohibitionists soon took up advocacy of initiatives and referenda. What had once been a working-class issue had now achieved more broad-based support as more and more groups saw direct democracy as an acceptable means to pursue their own policy goals. Despite the egalitarian rhetoric of the initiative and referendum movement, support for these reforms was also undeniably influenced by self-interest and more narrow policy preferences.10
Nonetheless, the Populist and Progressive movements for âgood governmentâ through direct democracy spread throughout the country at the turn of the century, especially in the West and Midwest. Though direct democracy institutions force legislatures to cede policymaking power to citizens, the growing popularity of these reforms created electoral incentives for legislators to support them. Smith and Fridkin find that legislatures in states with the most competitive electoral climate were more likely to pass direct democracy reforms as the two parties fought for control of state government.11 In these states, legislators were willing to relinquish some institutional power in exchange for electoral gains and partisan power.
The 1890s saw the first adoptions of ballot initiatives in cities and states. South Dakota became the first state to adopt initiatives and referenda in 1898. Over the next twenty years, eighteen more states followed (see Figure 1.1). The adoptions of direct legislation institutions then ceased until 1959, when Alaska became a state. Following Alaska, four more states and the District of Columbia have also adopted some form of the initiative. As of 2000, these twenty-four states (and the District of Columbia) comprised almost half of the population of the United States. At the local level, Matsusaka shows that fifteen of the twenty most populous cities in the country have ballot initiatives.12
Though almost half of the American states allow for direct citizen participation in the policy process through some form of citizen legislation, the arrangements of these institutions vary considerably across the states. There are three basic types of citizen legislation: direct initiatives, indirect initiatives, and popular referenda. Direct initiatives are the most analogous to pure democracy: They completely bypass the legislature. Under this institutional arrangement citizens can draft policy proposals, petition to place them on the ballot, and then vote to accept or reject the policy. Indirect initiatives are similar, except that they must be submitted to the legislature for consideration before they are placed on the ballot. This arrangement allows the legislature to craft an alternative measure and place it on the ballot alongside the citizensâ proposal. Popular referenda, meanwhile, do not originate with the citizens. Rather, citizens can gather signatures to place an enacted piece of legislation on the ballot for the people to reject or accept.
FIGURE 1.1 State Adoptions of Direct Democracy Institutions
In addition to these three basic types of citizen legislation, states also vary in the rules and regulations that concern their direct democracy provisions (see Table 1.1). Some states allow citizen legislation for both statutes and constitutional amendments. Others can only use these mechanisms for one or the other. In terms of content, most states have a single-subject rule that limits logrolling phenomena that could occur through the bundling of multiple policies on a single ballot measure. This restriction avoids problems associated with omnibus bills where none of the various components of a bill has majority support, but bundled together can garner enough support to pass. It also addresses the issues of unrelated policy riders that are tacked on to popular measures and pass despite having little support in the electorate. Many states also have further content restrictions. For example, Alaska does not allow ballot measures that concern appropriations or revenues. In Nebraska, the same subject cannot appear on the ballot more than once in three years. Wyoming does not allow ballot measures concerning the judiciary.
Another area of variation is in the petition requirements. Massachusetts only requires the signatures of 3.5 percent of the electorate from the preceding gubernatorial election, while Maine requires 10 percent. Most states base their signature requirements on votes cast in the most recent gubernatorial election, which usually has high turnout, but others use the previous general election, whose
turnout can vary depending on the races at the top of the ballot. North Dakotaâs signature requirements, meanwhile, are based on the resident population. Signature requirements can be further complicated with geographic distribution rules. For example, Alaska requires at least one signature from two-thirds of the electoral districts in the state.
These variations in the institutional arrangements are not trivial. They create minimum thresholds of support that can deter or encourage citizen lawmaking. The difficulty in placing a policy proposal on the ballot can affect how much citizen legislation is used in a state, and thus can affect its impact on public policy.13 The institutional arrangements of direct democracy can also have an impact on the power of the legislature to influence policy relative to its citizens. Bowler and Donovan have shown that both qualification difficulty and the insulation of the legislature in direct democracy states have significant effects on policy outcomes.14
The Impact of Direct Democracy
Undoubtedly, the adoption of direct democracy reforms has added new features to the policy process in many of the American states. By allowing direct citizen participation in the state-level policy process, the direct democracy reforms of the past century have most certainly also altered the policy outcomes in these states. This influence on state policy outcomes has important consequences for public policy in the United States. State governments have long had significant authority over critical policy areas, such as education and elections. In addition, scholars have noted the resurgence of the American states in policy prominence and institutional capacity in the past few decades.15 Recent trends in federal policy, like the devolution of programmatic responsibility of Medicaid and welfare to the states, have further increased the significance of state-level policy in the lives of American citizens. The upshot of all of th...
