The Conversation: Rules on Referenda Should be Eased

November 1, 2008 |
True reform in California must be based on the concept of the Legislature and the ballot as one branch of government.

Nearly 100 years ago, California Progressives, in their search for a way to beat political machines, seized upon Switzerland's system of direct democracy and added the initiative, the referendum and the recall to the state constitution.

Today the Swiss, despite having three major national languages and the highest percentage of foreign-born citizens in Europe, still see direct democracy as a pillar of their consensus-based politics and remarkably stable government. But many Californians have come to view direct democracy as a major culprit in turning the most diverse state in the union into a dysfunctional, ungovernable mess.

Why does the same system produce such varied results? Yes, there are cultural and demographic differences between Switzerland and California. But the two places also have structured their systems of direct democracy in different ways. An examination of that difference suggests a new path to reforming the state's politics.

California's direct democracy is dominated by the initiative -- the tool that permits citizens to propose and enact laws directly, without any review or consultation by the Legislature. The initiative was attractive to Progressives such as Gov. Hiram Johnson, who led the campaign to adopt direct democracy in 1911, because they believed the Legislature was fundamentally corrupt. They saw direct democracy not as a check on lawmakers but as a way to fight the existing system. Johnson, who openly admired the Jacobins who terrorized France during the Revolution, liked to say that the initiative was a "gun in a man's hand."

Under initiative-based direct democracy, California politics has become a shooting range that never closes. Dozens of initiatives are filed each year (the record is 152 in 2005). Since Johnson's time, more than 105 initiatives have been approved by voters. In contrast, the referendum -- a ballot measure that allows citizens to reverse an act of the Legislature -- is rare. According to the Secretary of State's Office, only 64 referenda have even been filed in California since 1911.

Why the disparity? The state constitution makes initiatives easier to qualify for the ballot than referenda (the number of signatures required is the same, but sponsors get more time to gather signatures for an initiative) and just as easy to pass at the ballot. A simple majority is all that's needed.

Swiss direct democracy works in the opposite way. It's based not on the initiative but on the referendum. The Swiss constitution makes initiatives twice as hard to qualify as a referendum. A referendum needs only a simple majority of votes to pass, but an initiative must achieve a "double majority" to succeed -- a majority of the national vote, and majorities in a majority of the country's 26 cantons, or provinces. Initiatives are thus much less common than referenda because they so often fail - the success rate of Swiss initiatives is just 9 percent. (In California this decade, a historically difficult time for passing initiatives, voters have approved 30 percent of initiatives).

This referendum-based system promotes consensus. Major legislation often goes to the people multiple times before the public approves. (Women's suffrage, consumer protection legislation, value-added taxes and excise taxes all came to pass this way). Lawmakers and the public are thus partners, kicking ideas back and forth. The handful of initiatives that make the ballot are usually offered simply to make a point. The referenda are the real action, giving voters the chance to approve legislative compromise or ask lawmakers to try again.

"A referendum is a conversation," a Swiss election official explained when I observed the country's referendum elections in 2005. "An initiative is a scream."

In his book "Direct Democracy in Switzerland," the conservative writer Gregory Fossedal argues that the Swiss system "creates a spiritual bond, and a sense of responsibility by the people -- turning them all, in effect, into part-time legislators." In California, where Fossedal lived for several years, direct democracy relies on the initiative and becomes "more of an extension of politics as usual than a reliable process for making the voice of the people felt." Or to put it another way, California initiatives are too indirect -- they provide us not with direct engagement with our state government but with a way to circumvent that government.

Just look at California's system. For all the criticisms of the initiative process -- its costs, its dominance by special interests, the many drafting errors that result in unintended consequences -- the fundamental problem is that the initiative process exists as an institution separate from the Legislature and other checks and balances. As such it is fundamentally wasteful and inefficient, with huge opportunity costs.

Take the 2005 special election. The eight initiatives on the ballot swallowed up media attention, political energy and expertise, and more than $300 million in campaign donations -- and when all eight lost, not a single new law was passed. It was all conflict, but no resolution.

California's self-styled reformers have responded to these political realities by offering old ideas to adjust, mildly, the makeup of the Legislature (redistricting, open primary) or attempt to regulate direct democracy (new campaign finance limits, new rules on signature gatherers). Such ideas, while well-intentioned, consider the Legislature and direct democracy in isolation. True reform in California must be based on the concept of the Legislature and the ballot as one branch of government. We need more ideas for how to make the Legislature and direct democracy mesh.

Switching the state to a referendum-based direct democracy would be the essential first step. To do that, the constitution would have to be changed to make it much easier to qualify a referendum for the ballot. The signature requirement could be dropped from 5 percent of votes cast in the last gubernatorial election to, say, 1 percent, and referendum sponsors could be given an extra month -- 120 days instead of 90 days -- to gather signatures. The barriers to referenda should be so low that grass-roots groups could qualify a referendum with some effort.

At the same time, the initiative game should be made more difficult. Raise the number of signatures to qualify for the ballot and establish a double-majority requirement for passing an initiative -- approval by a majority of voters and by a majority of California counties. The state also should consider bringing the Legislature into the initiative process by permitting lawmakers to place a counterproposal on the ballot next to each initiative. Such counterproposals are common in other countries with the initiative. Voters would then be asked to make three choices on their ballots: whether to vote for or against the initiative, whether to vote for or against the legislative counterproposal and, if both measures pass, whether they prefer that the initiative or the counterproposal be enacted.

Legislators might object that this plan -- call it More Referenda, Fewer Initiatives -- would simply make it easier for voters to overturn their work. That's true, but a referenda-based system also would enshrine the Legislature as the undisputed headquarters of lawmaking. Much of the money, attention and scrutiny that initiatives attract would move to the Legislature. Under the spotlight, lawmakers would have to raise their game. And voters would have to pay more attention to the Legislature; they'd be voting not on initiative abstractions but on legislative deals, with all their trade-offs.

Voters might complain about the decline in their ability to vote on initiatives. But they would still get to vote as often on big policy questions as they do now, and voters would have more opportunities to stop legislative acts they dislike. With incumbents made invulnerable by increasing partisanship and gerrymandered districts, referenda would give voters a way to hold lawmakers accountable for their work.

California wouldn't become Switzerland. (Nor would we want to be. The Swiss, with their penchant for financial secrecy, don't require disclosure of campaign contributions). Our political culture would remain slightly crazy and wide open.

But a referendum-based system would give both voters and legislators more real power than they have now. Each side of California's legislative branch -- the voters and the lawmakers -- would have to engage more directly with the other. Isn't that what direct democracy is supposed to be about?

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