The Dilemma of Direct Democracy
|Topics:||Constitution • Politics|
The Federalist Society is pleased to announce its Student Blog Initiative, a project of the Practice Groups and the Student Division. An inaugural group of eight students will contribute to the Federalist Society's blog throughout this academic year. Student contributors accepted into the program are held to the same rigorous standards as the regular and guest contributors to the blog, which exists as a forum for experts to provide thoughtful, balanced commentary in an engaging, accessible manner.
Each student in this select group drafts posts on legal, constitutional, and policy issues, receives feedback and revisions from volunteer experts, and has the opportunity to share his or her work on the Federalist Society's widely viewed platforms.
The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors.
With less than a month until November 3, election-related discussions are nearly unavoidable. While the presidential race has captured the attention of the entire nation, state and local elections are generating plenty of chatter on their own. Eighty-six of the ninety-nine state legislative chambers across the United States are holding elections, and eleven states will be voting in a gubernatorial race.
These statistics highlight our country’s commitment to representative democracy, in which eligible citizens vote to empower a small group of fellow citizens to pass laws that will benefit the common good. The United States Constitution allows states to be creative when structuring their own governments, but it requires that the form still be republican.
But despite this mandate, citizens of thirty-two states will take to the polls on November 3 and engage in direct democracy: an ancient Athenian style of legislating in which the electorate decides on policy issues for themselves directly. These votes are a means for citizens to craft state and local policy without it having to run the legislative gauntlet.
Direct democracy typically requires a percentage of the electorate to sign a petition indicating a desire for an issue to be placed on the ballot—as a “ballot measure” or “question”—for popular vote. Direct democracy measures can take one of three forms: initiatives, which propose a statute or amendment to the state constitution; referenda, which enable citizens to approve or disapprove of a specified legislative act or constitutional amendment; and recalls, which allow constituents to vote on whether an elected official should be allowed to continue to serve.
Direct democracy allows eligible voters to pass policy without going through a complicated system that is designed to be cumbersome, slow, and fatal to most legislative proposals. Direct democracy ballot measures gained significant popularity during the Progressive Era as a tool for engaged citizens to combat corruption in state governments. During the Industrial Revolution, legislating outside of the system became an especially helpful mechanism for enacting labor reforms that would not have survived the influence of wealthy robber barons on state legislatures.
In the modern era, direct democracy votes have been used for a wide variety of important issues. A common subject of state initiatives lately has been criminal justice reform. A ballot measure concerning decriminalization of marijuana or the authorization of the drug for medical or recreational use has been voted on by nearly half of the states. This November, Californians will vote on whether to restore the right to vote for felons serving parole. Oklahomans will decide whether prior convictions for non-violent crimes may be used to enhance future sentences. Citizens of Nebraska and Utah will vote to remove from their constitutions language allowing slavery and involuntary servitude as criminal punishments.
Taxation is also a popular issue for direct democracy—from Alaska’s initiative to increase taxes on oil production to Colorado’s initiative to decrease income taxes. Multiple states have used ballot measures to authorize increases of taxes on tobacco and marijuana, as well as to answer questions regarding property taxation and economic development.
Questions regarding social issues will also appear on state ballots in November. Colorado citizens will vote on whether to prohibit abortion after twenty-two weeks, and Louisiana’s legislature is asking its citizens to vote on a constitutional amendment that would state there is no right to an abortion or abortion funding. South Dakota and Maryland citizens will consider authorizing sports wagering, and Nebraskans will vote on whether to authorize betting on horseraces. Nevada voters will be presented with a constitutional amendment to recognize marriage regardless of gender, while Utah’s electorate will vote on whether to amend the state constitution to have gender-neutral language.
The widespread use of ballot measures raises a question: is legislating through direct democracy good for our republic?
James Madison would certainly and emphatically answer, “no.” In Federalist No. 10, he argued that “such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” Fearing the potential negative effects of majority rule for the rights of all, Madison and his fellow framers designed a system that is replete with vetogates, or points in the legislative process at which a proposed policy can swiftly fail. Empowering an elected minority, Madison thought, would better promote the common good and protect the American experiment. Indeed, he believed “a republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.”
Modern criticisms echo Madison’s wariness of direct democracy. Although initiatives, referenda, and recalls are supposed to represent the voice of the entire state, it’s possible the outcomes often represent the voice of the most populated areas of the state. Without being forced to face the legislative process, proposed initiatives often lead to poorly-drafted laws. Moreover, when the initiatives concern constitutional amendments, legislators are left with little room to correct errors that lead to bad policy or even injustice.
Lastly, even the original purpose of ballot measures—empowering citizens to thwart financial corruption in state politics—has been lost. Complying with statutory procedures and acquiring the requisite signatures to have a measure placed on the ballot is an expensive undertaking, and campaigning for voter approval requires time, money, and manpower. These realities mean that well-financed special-interest groups and political action committees are in the best position to run successful ballot measures.
On the other hand, direct democracy can encourage citizens to engage in state and local politics and drive voters to the polls in midterm or non-gubernatorial election years. Successful initiatives guarantee that important legislation bypasses the vetogates, and referenda aid legislators in discerning the will of the people. For proponents of direct democracy, ballot measures are the solution to the inefficiencies of the Madisonian system.
There is also an argument that Madison himself wouldn’t be wholly opposed to direct democracy at the state level. His concern for dual-federalism, or the idea that the federal government is one of specific, enumerated powers while state governments possess the general police power over citizens, emphasizes that the government closest to the people should have the most control over their daily lives. This idea of vertical separation of powers might leave room for more citizen input in state and local government, so long as the overall structure is primarily republican.
Whether good or bad, 128 different ballot measures will be considered by American citizens in the upcoming election. In an election that’s already captured the attention of the entire nation, citizens of thirty-two states are tasked with voting on their own unique and important slate of issues. November 3’s patchwork of votes—both representative and direct—is an excellent example of our nation’s unique innovations in democratic government.