Oregon has had Initiative and Referendum (I&R) in its constitution since 1902. As a recent immigrant to Oregon (from Maryland, which has reserved no such rights for its people) I have been impressed, pleased and dismayed by seeing the I&R process in action.
I have been impressed by the immense potential for good intrinsic in I&R.
I have been pleased that some measures (e.g., those limiting the taxing power of state and local governments) that would probably never have been enacted otherwise have become law as a direct result of ballot initiatives.
I have been dismayed, however by the frailty, and ultimately the weakness, of the I&R process as it is practiced in this state. Here are some of the things that concern me about that process:
- First and foremost, the integrity of the ballot initiative process is being compromised by well-organized and monied special interests, to the potential detriment of the rest of us.
- The Oregon constitution requires at least 4% of registered voters (which at present translates to about 100,000 people) to have signed a petition endorsing an initiative in order for that initiative to appear on the state ballot. Similar requirements are imposed at the local level. Neither I nor any of my friends and neighbors are sufficiently well-connected or wealthy that we can either persuade or hire the tens or hundreds of signature collectors needed to obtain the tens of thousands of required signatures. On the other hand, big business, trade and government associations, religious institutions, and unions have both the organization and funds necessary to pull this off. Consider this: In Oregon’s November 1996 election, 15 of the 16 citizen-initiated measures on the ballot appeared there as a result of signatures gathered by paid collectors, many of whom had been recruited from other states. I understand that signature collectors were paid about $2.00 for each signature collected. I don’t know about you, but $200,000 is more than I keep around the house. In fact it’s more than I have invested in my house.
- Ballot initiatives are frequently undercut or undone by government and other institutions resistant to change. For example:
- In 1994, a ballot initiative making physician-assisted suicide legal under certain circumstances was enacted by the citizens of Oregon. It was immediately challenged in court by a variety of religious and medical organizations, and (surprise!) the court issued a restraining order that, at this writing, continues to prevent this measure from taking effect.
- In 1996 a ballot initiative (Measure 47) was enacted reducing property taxes by about 20% and capping the rate of future property tax increases at 3% per year. In early 1997, the state legislature placed another measure on the ballot (Measure 50) that replaced the 1996 measure, resulting in a 17%, rather than 20% reduction in taxes, and opening loopholes for additional taxes that would not have been possible under Measure 47. Remarkably, the author of Measure 47, seemingly bowing to some combination of co-option and threats from the Attorney General regarding the interpretation of Measure 47, repudiated his own initiative (47) and urged voters to approve Measure 50. Not surprisingly, Measure 50 was enacted.
- In 1992, voters passed a ballot initiative that placed term limits on state legislators. These limits were to take effect following the state legislative session that ended in July 1997. Days before the end of that session, legislators passed, without public input, a bill that will facilitate court challenges to that law. At least two legislators, deposed by the term-limits measure, have stated that they will be challenging that law in court.
- A May 1990 ballot initiative amended the Josephine County, Oregon charter, limiting annual compensation of County Commissioners to $30,000, inclusive of benefits. Remarkably, the County Commissioners’ annual compensation now exceeds $50,000 plus benefits. How is this possible, you ask? The charter amendment was overturned by an appeals court. Of course, nothing in the court ruling prevented the County Commissioners, who determine their own salaries, from complying with the wishes of the people. They simply elected (pun intended) to ignore those wishes. What is perhaps most remarkable about this story is that those same Commissioners were subsequently re-elected to office. Apparently the people don’t much care that their elected representatives don’t comply with their wishes.
- The legislature uses the referendum process to confound the citizenry, avoid its responsibilities, and subvert the democratic process. For example:
- In its most recent session, the Republican legislature placed a measure on the ballot to require governments to notify individual landowners of any zoning changes that might affect the value of their properties. This was originally passed in both houses as a bill for a law. But when it was discovered that the bill would be vetoed by the Democratic governor, the legislature retooled it into a referendum, thereby avoiding the veto and circumventing the intent of the state constitution.
- Measure 50, mentioned above, was referred to the people by the legislature in its effort to undo the citizens’ ballot initiative Measure 47. Two additional aspects of Measure 50 are worth noting here:
- Measure 50, as written, was incomprehensible to ordinary citizens, and even to extraordinary citizens, amongst which I count myself and charitably include the legislators who wrote and approved the measure, because (now follow this carefully)…
- Midway through the mail-in balloting period (this election was conducted entirely by mail), after hundreds of thousands of votes had already been cast, the legislature substantially modified the measure. Amazingly (except perhaps in Oregon), votes cast in favor of Measure 50 prior to its being modified were counted in the election as votes cast in favor of Measure 50 after it had been modified.
- Citizens are using the initiative process to manipulate and confound themselves. There are three aspects of this process that I would like to discuss:
- Many initiatives, especially at the local level, are written in language that is poorly constructed and ambiguous, and often deal with multiple, only peripherally-related, topics. This leads to several undesirable outcomes, including:
- Citizens voting for a measure that they would have voted against if they had correctly understood its legal interpretation, and vice versa.
- Citizens voting against a measure that they generally favor, because it also contains an unrelated element that they oppose, and vice versa.
- In the county in which I live, the November 1996 ballot included about thirty initiatives. One of these, for example, specified the distance from a source of noise at which sound measurements should be taken when attempting to enforce local "disturbing the peace" ordinances. One can infer that the petitioner’s neighbor lived too close for the petitioner’s comfort, or vice versa.
- As a consequence of the large number of initiatives on that ballot, the Voters’ Pamphlet had to be expanded into two, thick Voter’s Pamphlets, which many of my neighbors judged to be too voluminous for them to read.
- Television and radio sound bites.
- Newspaper advertisements.
- Arguments presented in the Voters Pamphlet.
Note that all of the above, even entries in the Voters’ Pamphlet, require the expenditures of substantial sums, which sums are much less likely to be paid by organizations concerned with achieving balanced consideration of the issues than they are by those interested in persuading voters to a particular viewpoint. Note too (again) that only the well-organized and/or well-heeled can participate significantly in this "educational" process.
Various interest groups in Oregon have recognized one or more of these, and other, problems with the I&R process as it has been implemented in the state, and have suggested "solutions" to these problems. Unfortunately, all of the solutions that I have seen advanced create or exacerbate problems at least as great as those they purport to mitigate. For example:
- The Portland Oregonian newspaper, by far the largest in the state, has advocated increasing the number of signatures required before an initiative can be placed on the ballot. While this would certainly tend to reduce the number of such ballot initiatives, thereby reducing the thought-burden that such initiatives place on voters, it would also have the unintended (?) consequence of increasing the already considerable advantage that monied special interests have, vis a vis the rest of us, in the democratic process.
- Similarly, in an effort to improve the clarity and ultimate legality of citizen-initiated ballot measures, legislators have introduced bills to require judicial review of such measures before they can be placed on the ballot. This, of course, has the unintended (?) consequence of further concentrating power in the hands of government institutions at the expense of the people.
- And so forth.
The upshot of all this for me is that, while some I&R is better than none, a well-crafted I&R system, which considers and satisfactorily addresses in its design the kinds of implementation problems discussed above (plus, of course, the many other such problems not discussed above), is what we need to strive for. Voting by phone or by computer will resolve several of the aforementioned problems with few or no unintended consequences. How to deal with these problems while we work and wait for the institutionalization of phone and computer-voting remains, for me, a perplexing dilemma.