The Future of the Initiative and Referendum Process

Paul M. Weyrich, President, The Free Congress Foundation

A century ago the people of South Dakota were able to get their legislature to enact a statute giving them the right to directly vote on laws. That was a revolutionary move back then. The people actually getting to vote up or down on the laws they would have to live with. The idea spread, especially in the upper Midwest, fueled by the success of the Progressive Movement.

The Progressives, such as Governor Robert LaFollette of Wisconsin, argued that legislatures, rather than being instruments of the people, could often be bought and paid for by special interests. Thus, allowing the people to circumvent the legislature was an appropriate part of the system of checks and balances. It would prevent a legislature from becoming corrupted because the people could always override the legislature.

The system has worked. Those states that have the initiative and referendum process have tended to have less scandals and more honest state government than those states without that process. Slightly less than half the states in the country have the process, but the movement to enact it in more of the states is growing. In many states the initiative and referendum process has come within a hair of being enacted. Its defeat was usually at the hands of the very special interests that the LaFollette Progressives worried about. They don't want the people to speak.

The Supreme Court, in its fall term, will consider a case that has national implications as to the future of the initiative and referendum process. In recent years, state legislatures have struck back, attempting to make it more and more difficult for the people to override their legislatures. Colorado is a good case in point. When he was a State Senator, Terry Considine tried to get the legislature to enact term limits. He wasn't just defeated by his colleagues. Although most of them were not religious, they would have made good Mennonites. Considine was shunned for his efforts. Considine went out and organized a group called Coloradans Back in Charge which promoted the idea of term limits in a statewide referendum. State legislators may not have liked the idea, but the voters backed it overwhelmingly. The issue carried by more than two-thirds of the vote. The demographics of the pro-term limits vote crossed every line. People of all parties, races, creeds and income groups voted for term limits for the Colorado legislature.

Three years after that vote, the legislature struck back. Not only did their statute provide that those who circulated the petitions to get an issue on the ballot had to be residents of the state and registered voters, but petition circulators were required to wear a badge declaring if they were a volunteer or someone who was paid to circulate the petition. If they were paid, they had to have, in addition to the words "PAID CIRCULATOR," their name and address on their badge.

All of that was too much for the Tenth Circuit Court of Appeals, which ruled that this imposition of regulations by the legislature violated the Constitution. That ruling is now before the Supreme Court and what the Court does with it will determine the fate of not just the statute in Colorado, but similar attempts by virtually all other state legislatures to restrict the rights of the people to enact their own laws.

Clearly legislators feel threatened by the people. After all, it is the people who started a tax revolt in California after the legislature didn't get it. It is the people who overrode the legislature in attempting to cut off welfare for illegal aliens. It is the people who told the legislature just a few weeks ago that bilingual education had to go. The legislature had insisted that it had to be continued.

Interestingly, the restrictions which Colorado and most other states have imposed on the people in restricting their right to get a measure on the ballot are not applied to lobbyists and other special interests, who often control what the legislature does.

When states make it more and more difficult to get items on the ballot, by raising the number of valid signatures necessary to qualify, or restricting who and under what circumstances petitions can be circulated, they are attempting to restrict the right of the people to decide important issues.

The Initiative and Referendum Institute has filed an amicus brief asking the Supreme Court to uphold the ruling by the Tenth Circuit. In its brief, the Institute outlines the lengths to which different states have gone to restrict the right of the people. Wyoming, for example, requires that an outright majority of the state's registered voters must vote in the affirmative to enact a statute, not just a majority of those who turn out to vote. Those who claim the states can enact these restrictions say that since states don't have to grant the right for the initiative and referendum process in the first place, it is logical that states can restrict how such elections are regulated.

The Initiative and Referendum Institute, on whose advisory board I serve, contends that once a state has enacted such a statute, it must conduct the process in a way that conforms with the United States Constitution. The Tenth Circuit agrees with that view. Which way the Supreme Court rules in this case will determine if the people in the various states will still be able to express their will, especially when legislatures refuse to hear what the people are saying. This will be a landmark decision. The result may not fall precisely along ideological lines.

The division on the court will be between those Justices who want to uphold the right of the people to be heard and those who think it is perfectly permissible to make it next to impossible for the voters to have a say in how their state governments are run. It will be most interesting to see if the majority of the Supreme Court is on the side of the people.

Contact: Michael Riley @ Free Congress Foundation 202.546.3000