As published in the Oct. 16, 2005, issue of The Spokesman-Review.
Some citizen participation goes too far
Following is the second installment of "Supreme Court Watch," a periodic column in which attorney and Whitworth University professor Julia Stronks analyzes legal questions facing the nation.
Julia K. Stronks J.D. Ph.D.
The upcoming election in Washington State will ask us to vote on a minimum of five initiatives with issues ranging from medical malpractice and tort reform, to taxes, and smoking in public places. Although 24 states and many more cities allow initiatives, Washington, Oregon and California lead the nation in direct democracy. In Washington, the state Constitution protects the right of initiative but this past summer our state Supreme Court upheld a legislative process designed to prevent referendum from undercutting recently enacted laws. In our state as well as others, initiative and referendum often act as tools in a battle between a group of people and the elected representatives.
Just what is this right of initiative supposed to allow? How does it fit into a democratic framework? These questions are important as we approach Election Day.
The strongest argument in favor of the initiative process is that initiatives encourage citizen participation. People who care about an issue research it, craft a law and work through a grassroots process toward success. The rest of us actively choose to accept or reject a proposed law.
The problem is that this type of citizen involvement has three weaknesses. First, it encourages a single issue approach to politics---an approach we already have too much of in communities that are filled with single issue interest groups rather than discussions about what makes for good government overall. While it is true that monied special interests can impact the work of legislators, it is also true that these same interests will be found behind proposed initiatives.
Second, many argue that the initiative process undercuts the budget that legislators work to put together. This argument seems powerful, especially in states like Washington and California where initiatives often cut or limit taxes. But, in a study of voter initiatives over the last century, researcher John Matsusaka found that with few exceptions initiatives placed only minimal constraints on the budget of legislators.
Third, many argue that the people who draft initiatives are rarely sufficiently schooled in Constitutional law. In Washington State we have had initiatives drafted by the people that were then held to be unconstitutional by the state or U.S. Supreme Court. So, then we have a situation in which the people vote for a law, the Court says it is unconstitutional, and the people are angry with the Court for being elitist and not caring about democracy. This process is harmful to our sense of self-government and to our respect for the courts.
These are all important points, but for democracy the biggest problem with the initiative process is that it undercuts the concerns our Founding Fathers had for the political minority. The Framers rejected direct democracy, saying that we need tools to balance the interests of the majority with the interests of the minority. The whole purpose of representative government is that representatives we select are not supposed to do exactly what the majority wants but rather are to filter through the passions of the people to determine what is best for the whole community (Federalist Papers #10). Single-issue politics by the people skips this step.
The Washington State Constitution protects our right to engage in the initiative process but that doesn’t mean that initiatives are wise political tools. They might be necessary when the legislative body has refused to deal with an important political issue, but for the most part the law making power belongs in the hands of our representatives.
When I first arrived in Washington, unused to the initiative process, I used to sign initiative petitions because I believed that the people should be allowed to vote on laws that affected them. On Election Day, if I didn’t know how I felt about an issue, I left it blank. But now, after watching the process and reading as much as I can about democracy, I vote initiatives down. Even when I support an issue, especially when I support an issue, I believe that the initiative process is harmful in the long run. If I feel strongly about something, I write to the legislators - not just my own but to lots of them. It surprises me that they listen, and it surprises me that they will change their minds about things when the people speak to them. Over the course of my life I have become convinced that the people have so much more power than we exercise. But, the initiative is not the best use of this power.
Note: The opinions expressed in works written by Whitworth faculty and staff do not necessarily represent the views of Whitworth University or members of its community. They are, however, symbolic of Whitworth’s commitment as a Christian college to the free exchange of ideas.