Election day is near. I can tell because my mailbox is beginning to bulge with sample ballots, slate mailers, personalized (as opposed to personal) letters from candidates and other partisan junk mail. The fattest packet of all, however, is something official: the California Voter Information Guide and Ballot Pamphlet, a sort of citizen's guide to the upcoming races.
The secretary of state is required by law to send one of these to every California household with one or more voters. At 128 pages, it is one of the more slender ballot pamphlets in a while, providing among other things a lengthy account of each of the 10 ballot propositions (not counting the two bond propositions, described in a separate supplement).
Welcome to direct democracy, California style. No other state uses the popular initiative and referendum as aggressively as this one, and before still more states and even, God help us, the national government decide to walk on the wild side, they should pay attention to California's experience with these seductive instruments of direct democracy.
The Progressive Party fastened the initiative and referendum on California in 1911. Hiram Johnson, its successful candidate for governor in 1910, had campaigned for the measures in order to "restore absolute sovereignty to the people" in the hope, as he put it quaintly, "that we may yet live in a free republic."
As the Progressives saw it, the problem with representative government in California was that the people were not being represented in the legislature, which was dominated by big corporate interests and the political machines that served them. Besides, California voters were more intelligent and public-spirited than ever before, the Progressives claimed, and it was only natural to give them a greater voice (and their representatives a lesser one) in making and unmaking laws. Direct democracy would be a way of transferring the people's attention from men to measures, and doubtless would have an uplifting, educative effect on the tone of California's political life.
Well, no. It has been a long time since the Union Pacific Railroad dominated the Legislature, and three decades have passed since the Legislature "professionalized" itself in keeping with Progressive ideas of reform. Yet the number of initiatives filed in each election cycle have not gone down but up.
According to Lawrence Brewster and Leonard Kooperman, in California in the 1970s less than 15 initiatives (on average) were filed each year; in the 1980s the filings shot up to almost 30 per year; in this decade almost 80 a year. The number of initiatives qualifying for the ballot was lower, of course, and the number approved lower still, but the increases in these categories were still almost sixfold.
Many factors might explain the increases, but clearly a major factor is that far from expelling special-interest groups from the legislative process, direct democracy has provided a whole new world for them to conquer.
Take Proposition 5, an upcoming initiative that would expand gambling opportunities in casinos on Indian lands. "Californians for Indian Self Reliance" are spending tens of millions of dollars to get Prop. 5 approved; the "Coalition Against Unregulated Gambling," reportedly backed by Nevada casino owners, is shelling out tens of millions more to get it rejected. Could there be a more blatant example of special-interest politics?
Direct democracy has not exactly had a healthy effect on the California Legislature, either. The Progressives wanted to overcome legislative gridlock not by breaking it up but by bypassing it through the initiative process. Perversely, today's legislators are thereby encouraged to stalemate on controversial bills, knowing that the voters may decide the issue directly if they wish.
Besides, is it not foolish to try to improve a deliberative body by curtailing its freedom and responsibility? William Bennett Munro, an early expert on public administration, effectively asked this question in 1912. "A body which can do no harm can, by the same token, do little good," he observed, "and public opinion will not be long in discovering the fact. Constitutional hampers upon legislative discretion have availed, for the most part, only to lower the caliber of men elected to lawmaking bodies."
Perhaps direct democracy's profound effect, however, is on the California Constitution, a document that most Californians probably have never seen. Ten times the length of the U.S. Constitution, California's fundamental law has been amended about 500 times by referendum and about 40 times by initiatives since its adoption in 1879. By contrast, the U.S. Constitution has been amended only 27 times in 210 years. The amendments to California's Constitution have specified such grave matters as a fee schedule for permits during the three-year phase-out of gill-net fishing. As a result, our state Constitution is a small book — a very bizarre, ill-digested, unimpressive book.
The virtual abolition of the distinction between constitutional law and statute law is, however, a predictable consequence of lawmaking by the peoples at large. Yet how can Californians respect a Constitution that has become so obviously a reflection of their short-term passions and interests?
Nonetheless, in defense of the initiative process, I have to admit that Californians like it — a lot. It has eluded capture by either liberals or conservatives; each group has won some and lost some. And occasionally some very good things have been accomplished by it.
Is one of these an uplifting, educative effect on California voters? Let's see. In my ballot pamphlet, I shall certainly not read the 44 pages containing the actual text of the laws proposed in the ballot measures. Only a lawyer or a political consultant could slog through that. The pictures of the candidates for statewide office are mildly disturbing and their personal statements depressing. That leaves the summaries and arguments pro and con over the ballot measures (another 45 pages), which are indeed educational.
Take Proposition 4, for instance. This is an initiative statute that would prohibit certain kinds of "body-gripping" traps in the capture of fur-bearing and non-game mammals. The pro argument (endorsed by the late Doris Day) is straightforward: "Protect pets and wildlife!" The con argument is clever: "Proposition 4 is a wolf in sheep's clothing!"
Much to ponder there, as also in Proposition 6, which would criminalize the slaughter of horses and sale of horse meat for human consumption. "If horse meat is outlawed, only outlaws will eat horse meat," comments the opposition, sensibly. But Robert Redford is pro-Prop. 6, so the issue cannot be so simple.
Yes, Prop. 6, like the whole initiative process, is something a voter can really sink his teeth into. But no one should want to make a steady diet of it.