Government by Ballot Will Minnesota Learn from Wisconsin and California?

This piece originally appeared last week in Politics in Minnesota.

As Wisconsin goes, so goes Minnesota?  Or perhaps is it California?  The choice of Minnesota’s future and the fate of its two constitutional amendments this fall might lie in the lessons one learns from these two states when it comes to direct democracy and citizen’s initiatives.  But beyond whatever lessons Wisconsin and California offer, there are reasons to question the wisdom of three hallmark reforms of the Progressive Era.

            Wisconsin is a state of political contradictions.  In 1854 the Republican Party was founded in Ripon.  Wisconsin is also the home of Robert “Fighting Bob” Lafollette and the Progressive Party.  The state has produced senators Joe McCarthy and Gaylord Nelson, and governors Patrick Lucey and most recently Scott Walker.  It is a state once at the forefront of union movements and most recently retrenching on these rights.  But it is also the state that gave birth to a movement that eventually trumpeted initiative, referendum, and recall as tools of reform. Yet Wisconsin may also be the state the spells the end of these three reforms.

            Yes the Democrats and labor failed in their efforts to recall Governor Walker.  But the failure was perhaps not for reasons thought.  Exit poll in the June 5, election indicated that 60% of the voters did not support using recall for the purposes of ousting someone because of their political views.  Recall is for malfeasance or misfeasance–doing something illegal–and not to be used lightly to remove people you simply do not like or with whom you disagree.  The failure of the Walker effort in Wisconsin has sparked talk of tightening and reforming the state’s recall process, perhaps requiring grounds to remove someone from office.

            Now consider California–home base to government by ballot measures.  It is the state that recalled Governor Gray Davis in 2003 and replaced him with Arnold Schwarzenegger. They literally pass scores of initiatives, from Proposition 13 in 1978 that froze property taxes and has nearly bankrupted the state, to Proposition187 in 1994 that denied public services to immigrants, to most recently Prop 8 –The California Marriage Protection Act–banning same-sex marriage in the state.  Government by ballot initiative has practically destroyed the state, turning it from a leader in so many areas such as education and environmentalism to one where California is practically ungovernable.

            Will Minnesota learn from experiences of Wisconsin and reject the marriage amendment this November or will it follow the direction of California and use constitutional politics to bypass the normal legislative route to enact legislation?   While opponents of both of these measures have emphasized equality, fairness, and cost as reasons to oppose both, perhaps they should also settle on the arguments from Wisconsin suggesting that the Minnesota Constitution is not the place for legislation such a gay marriage bans and voter ID, or that this is the road of turning the North Star State into California.  Making a vote on these two amendments de facto a referendum on constitutional politics is a strategy opponents should not foreclose.

            But beyond whatever happens in Minnesota this fall, the lessons of Wisconsin and California bring into question the wisdom of initiative, referendum, and recall as tools of democracy.  Once heralded by Progressives as measures to break special interest and entrenched legislative politics by bringing democracy to the people, one can really question the wisdom of these reforms.  There are several problems with these tools.

            Money Spent for Initiatives and Referenda cannot be limited.  In its 1978 decision First National Bank v. Bellotti the United State Supreme Court declared that money on ballot initiatives was core political speech and that efforts to place limits on the amount of money spent or contributed for these purposes was unconstitutional.  More importantly, the Court stated in Bellotti that limits on corporate spending violated the First Amendment, with that message reaffirmed and extended in the 2010 Citizens United decision.

            The importance of Bellotti and Citizens United for Minnesota are twofold.  First, were initiative and referendum enacted, the state could not limit the amount of money spent by any party.  Second, while Minnesota has had a ban on corporate political spending dating back over 80 years, that ban could not be applied to ballot initiatives.  Minnesota is already witnesses this flood of money as it applies to the marriage amendment. Hence, adoption of initiative and referendum would open an even larger hole in out existing campaign finance laws, permitting corporations and any other party to spend unlimited amounts of money to influence the outcome.

            Money Spent on Initiative and Referenda Circumvent Populism.  In perhaps the best study to date on initiative and referenda, Thomas Cronin indicates in his book Direct Democracy that money has a decisive influence on the outcome of ballot measures.  For example, he notes that corporate-backed sponsors win 80% of the ballot initiatives and that when big money opposes a poorly funded ballot measure, “the evidence suggests that the wealthier side has about a 75 percent or better chance of defeating it.” In addition, evidence demonstrates strong correlations between the amount of money spent and the number of votes cast and that while money cannot guarantee victory, the amount of money spent is decisive in defeating a ballot proposition.

            Overall, the evidence suggests that a popular ballot measure is more often than not defeat by corporate and big money and that corporate and special interest money and not the will of the people is what generally prevails in initiative and referendum decisions. Elizabeth Gerber’s book The Populist Paradox sees money as defeating but not passing ballot measures.

            Big Money Distorts Public Deliberation.  What big money buys in debates on ballot measures is media exposure.  According to several studies, media exposure is the single most important factor influencing and swaying voter decisions.  Given the cost of the media, for the most part, the public will be asked to make critical public policy decisions based upon 15 second sound bites financed by interests that have the most money to spend on the media.  Clearly our constitutional framers the original supporters of initiative and referendum did not envision policy making premised upon sound bites and the cash nexus yet the evidence suggests in California and other states that this is exactly what has happened.

            Initiative and Referendum has Little Impact on Voter Turnout.  Advocates of initiative and referendum claim that letting the voters decide increases turnout.  In some cases yes it does, but as a rule it does not. When appropriate variables are held constant, there is little difference in voter turnout in states that have initiative and referendum versus those that do not.  In addition, in some states, such as California, the presence of often 10, 20, or more initiatives on the ballot has lead to voter burnout where citizens, unable to digest the information necessary to make intelligent choices on all the ballot measures, have opted not to vote on them.

            Initiative and Referendum often  hurt Minority Rights.  Thomas Cronin notes in Direct Democracy that minority rights are often targets of initiatives and referenda.  While it is no doubt the case that some ballot measures have supported minority rights, the truth is that more often than not ballot measures have become another measures for special interest groups to push their agenda, often at the expense of individual rights.  It is unlikely that debates on the rights of unpopular or minority groups or other politically salient issues can be adequately undertaken in a media campaign where dollars buy sound bites.  Deliberation of public policy requires more than that.  In sum, democracy and populism stand for more than pure unmediated majority rule.  Democracy requires a careful balance of rights and policy considerations often not adequately suited to initiative and referendum.

            The lessons of direct democracy are not comforting.  They have not necessarily strengthened citizens’ rule or promoted good government.  Instead, they are used often to push special interests and persecute minority rights–as is the case with the two Minnesota constitutional amendments this fall.  Opponents of these amendments should emphasize these lessons in their campaign to defeat both this November.