Text Of Speech As Delivered

Below is the text of my keynote speech tonight, as delivered, at the World of Direct Democracy global seminar in Aarau, Switzerland.

Is American Direct Democracy An Endangered Species?:

 I know it’s late, but I’m from Hollywood, and I’ve loaded this up with sex and violence to keep you awake.  I think I was Bruno’s 7^th choice to give this speech. I must beg your forgiveness in advance, because I’m a hack -- a newspaper reporter -- who has been asked to do an academic’s job here tonight. Yes, I covered ballot initiatives for years in California and Gov. Schwarzenegger’s campaigns, but I must confess that I wrote up this news, more often than not, not as history but as comedy.  

Technically, I’m a recovering newspaper reporter now. I’m six months into a position I don’t completely understand--I’m a senior fellow at a non-partisan think tank called the New America Foundation. This is an odd posting for a reporter because as a reporter, I was trained to write and not to think. Thinking is bad because it gets in the way of making deadline. So far, I’ve learned that being at a think tank is exactly the same as being a reporter -- I report and write stories -- except that now people think I’m more thoughtful than I really am, and make the mistake of inviting me to speech at occasions such as this.

I was asked to give a speech about a century of American direct democracy. It’s hard because I’m not sure any of the terms -- NOT CENTURY, NOT AMERICAN, NOT DIRECT DEMOCRACY -- is exactly right. It’s the same problem we have with Holy Roman Empire--not quite holy, not quite Roman, not quite an empire. As a term, American direct democracy might be called an oxymoron, like, for example, political science.

(Pause). Wrong crowd, I guess.

            Let’s start with one Century. The historians will tell you it’s been something closer to 4 centuries of direct democracy in America. Male citizens of New England held town hall meetings in the 1600s during which laws and other issues were put up directly for votes of the people. Thomas Jefferson advocated the legislative referendum for the 1775 Virginia State constitution, but couldn’t get it enacted because he was out of town on an unpaid freelance writing assignment. You may know it better as the Declaration of Independence.

Then, the word AMERICAN. Our federal constitution has never permitted direct democracy. And the form of direct democracy enacted by our states, beginning with South Dakota, in 1898, was European. Our states adopted -- and in some cases, perverted -- the Swiss model of direct democracy. So tonight I feel as though I’ve returned to the scene of the crime. In, 1888, James W. Sullivan, a member of the New York typogrpaher’s union took a leave of absence and visited Switzerland. His pamphlet, Direct Legislation by the Citizenship Through the Initiative and Referendum, was read closely by the Populists -- these were farmers, labors and debtors in the prairie states -- and the Progressives -- businessmen, many of them angry at the extortionate shipping rates charged by railroad monopolies. They were battling political machines that controlled legislatures at a not very democrat time, and saw their salvation in public opinion. The early 20^th century California journalist Lincoln Steffens, a Progressive mover and shaker who would have loved an event like this, called public opinion “a jury that could not be fixed.”

Many of these reformers were themselves Europeans, who had immigrated to our country. In Oregon, an immigrant from Cornwall, England named William Simon U’Ren -- Referendum U’Ren -- led the charge for direct democracy. And this blacksmith and lawyer succeeded beyond his wildest dreams. Oregon holds the record for most statewide ballot initiative and the most statewide initiatives on a ballot in a single year.

And in our own time, the American political figure who has -- for better and for worse -- most advanced the use of direct democracy as a tool of governance is a citizen of Austria. Elected in the most prominent recall in American history, Schwarzenegger has used ballot initiatives as a way around the legislature. Sometimes the threat of initiative has given him leverage to produce a compromise. (This is called The Clint Eastwood strategy. You point the initiative -- the gun -- at the legislature and ask, ‘Do you feel lucky?’) And sometimes they have led to bitter defeat as in 2005, when all 8 initiatives on the ballot went down, then the most expensive election in our state’s history, $350 million, all for nothing.

This leads me to the third difficulty with the title. DIRECT DEMOCRACY. It is hard to describe the style of direct democracy in our states as very direct. It would be better to call the U.S. a country with indirect democracy. The referendum -- and by this I mean the act of reversing a law --  allows people to engage directly with their legislature or their Congress or their Parliament, to pass judgment on the work of those lawmakers, to say yeah or nay, But American direct democracy does not often use it. Ours is a direct democracy based on the initiative, not the referendum. As such, we are not engaging directly with our legislatures. We are often attempting to circumvent them, to make laws without interference from the lawmakers. Since most initiatives lose, and even many of the initiatives that pass are later overturned by the courts or never implemented by elected officials who don’t like being circumvented, we rarely get DIRECT action from our initiatives. We get big spending on campaigns -- in California, we’ve seen $100 million battles over prescription drug and environmental policy in just the last 3 years. We get wonderful drama that even we reporters can understand. But I don’t think the democracy we get can be called, in any honest sense, direct.

If anything, our system of initiatives in the Western states is very much at war with America’s larger system, a system based on republican government. Initiatives don’t fit into that system of checks and balances. And thus the initiative process, while an institution, is fundamentally unstable. It is under attack. And in many ways, the initiative process -- and much of American direct democracy (which might be more accurately called European-inspired indirect democracy) -- may be an endangered species.

That may sound funny when you look at the sheer numbers. Twenty-two of the 50 American states permit popular initiative and referendum. Three allow only popular referenda. Two allow initiative constitutional amendments. This November, voters will face 139 ballot propositions in 33 states. 63 are initiatives. Only one is a popular referendum; the rest come from legislatures or commissions. Those numbers sound impressive. Perhaps they even suggest that we Americans are overdoing it. A shocking notion to your ears, I’m sure. But these numbers also suggest that use of direct democracy has reached a plateau. They are down from the previous two election cycles. The Initiative & Referendum Institute, in a report updated just two weeks ago, said this is a “down year” for direct democracy.

OK, you say. That’s still a lot. So what makes it endangered? There are three problems. 1. There is no momentum or constituency for making national direct democracy a part of the U.S. constitution, and thus reconciling it with our republican form of government. 2.  Direct democracy is losing ground in the states where it is most often practiced. 3. Direct democracy has failed to adapt and change to the Internet world, instead relying on a largely discredited industry of mail firms, signature gathering firms and political consultants.

Let’s look at #1 first. Nationally, the leading proponent of adding direct democracy to the constitution is the former U.S. Senator from Alaska, Mike Gravel. A few years ago, I had the privilege to interview Mr. Gravel--I briefly lived on the same street as him in Arlington, Virginia, and respect his commitment to his cause. But in the limited time he had (Clinton and Obama and Edwards got most of the questions), he did not use the high--profile presidential debates to attract attention to the cause of the national initiative. At this moment, the idea of national direct democracy is not part of the agenda of any national political leader -- either in office or out of office -- and is not part of the platform of either major political party. The notion of federal direct democracy is a dead issue. If it were to be raised tomorrow, it’s a safe assumption that it would be dismissed out of hand, if it was even considered for a moment at all.

Why is direct democracy such a non-starter? Because it’s become a non-starter at the state level. Yes, Connecticut is considering a ballot measure to call a constitutional convention that would include consideration of adding a referendum and initiative to the constitution. But in that state, public opinion and media commentary suggest it’s a longshot. In fact, what’s notable about American direct democracy is how little territory it has gained in the last 80 years. Since the early 20^th century burst that spread the initiative and referendum across the United States, few states have added direct democracy. The last one to do so was Mississippi in 1992, which -- 80 years after it had discarded democracy -- permitted the initiative only for constitutional amendments. That initiative power is very restricted, and thus only 2 statewide initiatives -- both to establish term limits -- have made the ballot in Mississippi. Both were defeated.

Ask Americans about the idea of national direct democracy, and they’re likely to point out that it’s not working particularly well in states such as California, where it’s practiced. That leads us to Problem #2.  Direct democracy is very much under attack in the states where it’s popular. The public, while cherishing the right to vote on issues, is uncomfortable with the costs, specific interest dominance and dishonest TV ads that are part of such campaigns. And so the public has been willing to limit the power of initiative & referendum in recent years.

A few examples. In Oregon, labor unions have fought, with some success, to restrict initiative rights. In 2002, they convinced voters to adopt an initiative that would ban the payment of signature gatherers by signature. Such an idea might sound appealing, but its practical impact is to raise the cost of signature gathering to the point where it is harder to qualify measures for the ballot.

            In Florida, then-Gov. Jeb Bush -- our president’s brother-- declared war on the initiative process. First, he vetoed funding for a high-speed rail system adopted by voters. Then, in 2006, he placed an amendment on the ballot requiring a supermajority--60 percent of the vote-- to approve initiative constitutional amendments. Florida is now one of only two states in the nation with such a requirement. The courts have turned aggressive in Florida as well, striking down several measures that had enough signatures to qualify. Direct democracy has never been weaker in that state.

There’s more. In Oklahoma, the attorney general is seeking to make the act of gathering signatures for initiatives and referenda a crime. He has brought criminal charges against Paul Jacob, the term limits movement founder, and two folks in the signature gathering effort essentially for the use of gatherers who came in from other states. That’s standard practice in the business. I suspect Jacob will prevail ultimately, but the chilling effect -- combined with a very restrictive time limit in Oklahoma (just 90 days to gather signatures) -- has all but eliminated referendum and initiative rights there.

In Nevada, the state has adopted new regulations governing initiative qualification that are so restrictive and complicated that a dozen initiative measures that had enough signatures to qualify for the ballot were removed from the ballot. That’s unprecedented. The only bit of good news there--a group of tip-earning casino employees in Vegas -- filed a legal challenge in September arguing the rules were unconstitutional. So perhaps the cocktail waitresses will save direct democracy there.

The outlook for the future isn’t good either. In Colorado, the busiest state for referendum and initiatives this fall, a constitutional revision commission has recommended changes that will make it harder to qualify initiatives for the ballot. In Arizona, there’s a criminal investigation of the signature gathering industry after widespread fraud -- forged signatures and the like -- was found that led to the removal of three initiatives from the ballot (and problems for at least two others). There’s talk of reform, which will take the form of new restrictions in the process. There have been serious signature problems reported in Missouri, Washington state, and Michigan this year.

Also in Arizona this fall, voters are considering a ballot initiative, called Majority Rules, that would effectively end the use of ballot initiatives in the state. Majority rules would require any measure that raised taxes or mandated a spending increase (and almost every possible initiative has some cost to the state) to achieve not only a majority of those voting in the election -- but a majority of all registered voters in the state. Such a standard means that initiatives would need to 75 to 80 percent of those voting in an election to pass.

Even in my state, California, the initiative process is under attack. Initiatives -- especially spending and bond measures -- have become a key contributor to a multibillion dollar persistent budget gap that has paralyzed state policymakers, damaged the state’s credit rating and added to persistent debt. Business and labor leaders around the state are so frustrated that some are calling for a constitutional convention to remake the state’s constitution. It’s a good bet that such a convention would likely result in new limits on direct democracy.

            On its current trajectory, it is possible to imagine that, a generation from now, direct democracy will shrivel in the states and be practiced broadly in the U.S. only on a local level. It doesn’t have to be this way. To say that, gets me to my third point, about the failure of those who practice direct democracy to adapt to the moment we’re in.

            In the United States, the work of qualifying initiatives has changed little in recent years, even with the advent of the Internet. Yes, campaigns now use web sites and video and email to communicate with voters as they try to win support for initiatives. But much of the initiative process is no different. Signature gathering firms, mail firms, consultants and others have an established business model that allows them to make money from a process that involves mail and face-to-face contact between paid petition circulators and the public. The laws and constitutions of the state are still based on a model of pen and paper signature gathering. It is this model that has produced the fraud that is hurting  direct democracy in Arizona and other states.

The Internet -- and especially social networking sites -- offer an opportunity that has not been seized for cheaper circulation and campaigns that promote more and more direct civic engagement. Initiatives and referenda could be passed around by email and through social networking for signatures -- if laws were changed to permit it. But the initiative industry, worried about its own revenues, is not discussing such changes in the law (And likely would fight anyone who proposed such changes). The conduct of this initiative industry has become harder and harder to defend. Validity rates are declining. And even in the face of clear signature fraud in Arizona and severe problems in other states, the industry has been silent, arguing that such problems are part and parcel of gathering signatures, a very inexact business. That’s simply not good enough.

This initiative industry -- indeed anyone who cares about direct democracy advocates in the U.S. -- need to embrace new technology and new ways. Signatures could be gathered on-line. Money for signature gathering and campaigns could be raised in small amounts -- Obama-style -- through such social networking. And campaign organizing and communication could take place on such sites.

Among the few groups that understand this potential is the Humane Society of the United States. They’re known as an animal rights organization, but they’ve also fought hard for the rights of initiative and referendum. They’ve used the initiative to battle agricultural and hunting interests in various states.  This year, a measure qualified for the ballot in California in which a significant number of signatures gathered were not part of a paid mail or street campaign. (We haven’t had a successful, all-volunteer signature gathering effort since 1982). Prop 2, on farm animal confinement, used the Internet to organize and in some limited ways, circulate petitions. Perhaps there will be more of this in the future. 

BREAK

            But technology alone won’t fix what ails U.S. direct democracy. The entire structure of our direct democracy needs to be reconsidered with one goal in mind: reconciling the methods and institutions of direct democracy with American’s now two-century old system of constitutional, republican government.

            As I stand here in Switzerland, I can’t help but think of the paradox. The system that we borrowed from you has brought you a remarkably stable politics and government. In my state and some others, direct democracy is clearly a big reason for our dysfunction, political craziness, and governmental chaos.

            What happened? The answer may lie in our history, and the fact that we Americans are too aggressive, too eager to fight.

Consider a story from my state.

            In San Francisco in November 1908, the corruption trial of a notorious political and labor boss was underway. It was the last of a series of corruption trials, known as the San Francisco graft trials. During a break in the preceding, a saloon keeper, wearing a long coat, approached the district attorney. He drew his gun from his coat and fired once. The bullet pierced the front, right side of the prosecutor’s skull and lodged in the back of his jaw. Miraculously, he would live.

The gunman was immediately captured, but his intentions would never be made clear. Three days later, before he could be put on trial, the saloon owner was found dead in his jail cell, a bullet through his brain.

A colorful local attorney named Hiram Johnson stepped into the breach. A hot-tempered man, Johnson initially suggested that a vigilante squad avenge the courtroom crime. Instead, he was persuaded to take over the prosecution of the political boss.  Johnson’s own investigators told him that the defendant had bought the loyalty of four jurors, but Johnson refused to seek a mistrial. In his summation, he all but urged public retribution against jurors if they acquitted the boss. Johnson won a conviction.

The victory made him famous. Less than two years after the trial, Johnson ran for governor of California. He won. He didn’t know much about initiative and referendum--in his papers, there’s a wonderful bit where he has to ask his advisors to explain this initiative and referendum thing that he won by campaigning for -- but was convinced that the initiative in particular would allow him to go around the legislature. In his first year in office, he convinced the legislature and voters to add the initiative, referendum and recall added to the state constitution. Johnson, who openly admired the Jacobins in France (despite their sometimes heady excesses), liked to call the initiative “a gun in a man’s hand.”

            That system he created favored the initiative. In California, it’s just as easy to qualify an initiative as it is to qualify a referendum. And they’re just as easy to pass -- a simple majority of voters is all that’s required . As a result, my state’s politics now resemble a shooting range than never closes. And in general, arming Americans with anything can cause as many problems as it solves. I think we may be at a moment where we can reconsider direct democracy, fix it so it meshes with our governing institutions, and give it new life.

The particulars of how to do that -- to make direct democracy work with republican government, beginning of course at the state level -- may be debated.

I, for one, believe the problem lies in the American preference for the ballot initiative at the expense of the referendum.  

            The Swiss system, which makes it easier to qualify and pass a referendum than an initiative, appeals to me. Maybe we need to copy it again, only better. On my last visit to Switzerland, an elections official told me, “A referendum is a conversation. An initiative is a scream.”

We Americans, in direct democracy and perhaps other matters, need to have more conversations -- and do less screaming.

So with that, let me lower my own voice, and thank you for giving me your ears and your time.