A new form of government is sweeping across America: the initiative process, available in half the states and hundreds of cities. Where once most state laws were passed by legislatures, now voters decide directly on such explosive issues as drugs, affirmative action, casino gambling, assisted suicide, and human rights. Ostensibly driven by public opinion, the initiative process is, in reality, manipulated by moneyed interests, often funded by out-of-state millionaires pursuing their own agendas. In this highly controversial book David Broder tells how this revolution came about. A movement that started with Proposition 13 in California is now a multimillion-dollar business in which lawyers, campaign consultants, signature gatherers, and advertising agencies sell their expertise to interest groups or to do-gooders with private agendas. Broder takes the reader into the heart of these battles as he talks with the field operatives, lobbyists, PR spinners, labor leaders, and business executives, all of whom can manipulate the political process. A James H. Silberman Book
|Publisher:||Houghton Mifflin Harcourt|
|Product dimensions:||5.50(w) x 8.25(h) x (d)|
About the Author
David S. Broder, the Pulitzer-Prize-winning reporter and columnist, writers twice weekly for the Washington Post and is syndicated in more than 300 newspapers. He is a regular on NBC's Meet the Press, CNN's Inside Politics, and PBS's Washington Week in Review. He grew up in Chicago Heights, Illinois, and worked on the Bloomington (illinois) Pantagraph, Congressional Quarterly, the Washington Star, and the New York Times before joining the Post in 1966. He has covered every presidential election campagin since 1960. He is the author or coauthor of six previous books, most recetnly The Sysyten and the best-seller, Changing of the Guard. He lives in Arlington, Virginia.
Table of Contents
|Introduction: a Republic Subverted||1|
|Chapter 1||Power to the People||23|
|Chapter 2||The Initiative Industry||43|
|Chapter 3||Initiative War in Close-up||91|
|Chapter 4||The Money Game||163|
|Chapter 5||Laws without Government||199|
A Republic Subverted
At the start of a new century- and millennium -a new form of government is spreading in the United States. It is alien to the spirit of the Constitution and its careful system of checks and balances. Though derived from a reform favored by Populists and Progressives as a cure for special-interest influence, this method of lawmaking has become the favored tool of millionaires and interest groups that use their wealth to achieve their own policy goals -a lucrative business for a new set of political entrepreneurs.
Exploiting the public's disdain for politics and distrust of politicians, it is now the most uncontrolled and unexamined arena of power politics. It has given the United States something that seems unthinkable -not a government of laws but laws without government. The initiative process, an import now just over one hundred years old, threatens to challenge or even subvert the American system of government in the next few decades.
To be sure, change is the order of the day in the United States and elsewhere in the advanced countries of the world. The computer and the Internet are revolutionizing the economy. The speed of communications and the reduction in barriers to trade are making national boundaries less and less meaningful. The end of the Cold War has brought an outbreak of ethnic warfare and has heightened awareness of the dangers of terrorism by extremist groups on every continent.
Amid these changes, American life looks like an island of strength and stability. One reason-in addition to the vitality of our business and entrepreneurial culture, the incredible productivity of our farms, the quality of our great research universities, and the energy and vigor of our people -is the time- tested solidity and flexibility of our system of government. The United States Constitution, in this third century of our national life, continues to provide a durable foundation for our governing institutions. The presidency, Congress, the Supreme Court, the federal system, the rule of law, have been tested by many challenges. Twice in the twentieth century we fought world wars. Twice we faced efforts to impeach and remove our chief executive. We overcame the Great Depression and led the reconstruction of Europe. Repeatedly we wrestled with the terrible legacy of the almost indelible moral stain left by slavery. And we have managed to absorb and integrate waves of immigration from lands. far distant from our European roots, giving this nation a richer variety of ethnic and racial groups than ever before.
But even as the system of government invented by the founders- a system based on the separation of powers and a complex matrix of procedures designed to require the creation of consensus before the enactment of laws- has proved its worth in crisis after crisis, public impatience with "the system" has grown. Some argue that the science of public-opinion sampling and the speed of electronic communications make the political arrangements of the eighteenth-century Constitution as out-of-date as the one-horse shay. With journalism focused on the foibles in the private lives of political leaders, disdain for those in government has mounted with each new scandal. Political campaigns have become demolition derbies, in which even the winners emerge with ruined reputations. The trust between governors and governed, on which representative democracy depends, has been badly depleted. Polls consistently show an alarmingly small percentage of Americans believe the government in Washington will do what is right all - or even most - of the time. With the end of the Cold War, that distrust of Washington has brought about a significant shift in political power. Fewer of the decisions that determine the quality and character of our lives and communities are being made in Washington, D.C. Responsibilities are being transferred to state capitols and city halls. Except for Social Security and Medicare, federal spending is smaller than that of state and local governments. Only 13 percent of public employees are on the federal payroll. And states have become the innovators in vital areas of domestic policy, from welfare to education to growth policies.
In half our states- including the giant of them all, California- and in hundreds of municipalities, from New York City to Nome, policies are being made not by government but by initiative. In a single year, 1998, voters across America used the initiative process to pass laws or to amend state constitutions, achieving a wide variety of goals. They ended affirmative action, raised the minimum wage, banned billboards, decriminalized a wide range of hard drugs and permitted thousands of patients to obtain prescriptions for marijuana, restricted campaign spending and contributions, expanded casino gambling, banned many forms of hunting, prohibited some abortions, and allowed adopted children to obtain the names of their biological parents.
At the local level, things were even busier. No less than 226 conservation measures -for parks and greenways, open space, zoning, land-use and "smart growth" regulations- were on local ballots, and 163 of them were approved. That was a 50 percent increase over 1996 and committed more than a billion dollars in local revenues. Voters in New York tried to force a referendum on building a new Yankee Stadium, and Cincinnati voted on the location of its own new ballpark. The ballpark issue was also put to a vote in Round Rock, Texas, while Kenosha, Wisconsin, voters decided on a proposed gambling initiative. Nude dancing and thong bathing suits were the issues in Seminole County, Florida. And in August of 1999, voters in Beverly Hills decided on an initiative promoted by animal-rights advocates that would have required fur shops on Rodeo Drive, and other swank venues, to place on each garment a tag saying it was "made with far from animals that may have been killed by electrocution, gassing, neck breaking, poisoning, clubbing, stomping, or drowning and may have been trapped in steel-jaw leghold traps." Backers, including Sid Caesar, Jack Lemmon, and Buddy Hackett, raised $75,000 and distributed 5,000 videotapes of hidden-camera scenes in which merchants assured customers the animals had died humanely. But the fur makers, bolstered by the city council and the Beverly Hills Chamber of Commerce, spent even more- $81,000. It was the only issue in an election that cost the city $6o,ooo, and it failed, 3,363 to 1,908, with barely more than a quarter of the registered voters participating.
Not one of these decisions was made through the time-consuming process of passing and signing bills into laws- the method prescribed by the Constitution, which guaranteed the nation and each of the states "the republican form of government." Rather, they were made by the voters themselves - or whatever fraction of them constituted the majority on Election Day. This is the new form of government-an increasingly popular one.
Government by initiative is not only a radical departure from the Constitution's system of checks and balances, it is also a big business, in which lawyers and campaign consultants, signature-gathering firms and other players sell their services to affluent interest groups or millionaire do-gooders with private policy and political agendas. These players- often not even residents of the states whose laws and constitutions they are rewriting -have learned that the initiative is a far more efficient way of achieving their ends than the cumbersome process of supporting candidates for public office and then lobbying them to pass or sign the measures they seek.
The process had its roots in the beginning of the last century, when Populist and Progressive reformers promoted the initiative -along with its cousin, the referendum; popular primaries; direct election of senators; and recall of errant officeholders- as a remedy for the corruption rampant in the legislatures, the state capitols, and the city halls of their day. The initiative let voters, by petition, place legislation or constitutional amendments of their own devising on the ballot. The referendum made enactments of the legislature subject to up-or-down votes by the public.
A spate of reform legislation resulted, including measures regulating business practices and working conditions, and laws anticipating the federal constitutional amendments for the enfranchisement of women and the direct election of senators. But after World War I, interest in the initiative lagged. In 1977 Laura Tallian, a publicist for the People's Lobby, headquartered in Los Angeles, could lament that the school texts of her day "scarcely mentioned direct legislation, when they should have taught it as a democratic process important as the right to vote. The history of direct legislation, which lies unnoticed in the clippings from old newspapers of seventy years ago in the Haynes collection at the University of California in Los Angeles, should have been recited as a rich legacy... An entire generation must learn again what these early reformers taught."
A year later the lesson Tallian so passionately desired was taught. The modern-day romance with the initiative began on June 6, 1978, when two old geezers restructured California government and arguably changed the course of public policy across the nation. Howard Jarvis, described by the San Francisco Chronicle as "a choleric seventy-five-year-old gadfly who saw taxes as government-licensed theft," and Paul Gann, a retired, sixty-six-year-old Sacramento real-estate man, started and ran a successful campaign to roll back and cap property taxes in California.
The battle over their Proposition 13 cost each side almost $2 million- exceptional at the time, but small change in California initiative fights -but the victory was lopsided. A remarkable voter turnout of 69 percent, testimony to widespread public frustration with the legislature, approved the initiative by a 65 percent to 35 percent margin, despite the opposition of Democratic Governor Edmund G. (Jerry) Brown Jr.; the two Republicans who would succeed him in office, George Deukmejian (then minority leader of the state senate) and Pete Wilson (then mayor of San Diego); and virtually the entire political establishment of the state.
Jarvis and Gann had no formal power base. But they had available to them a tool Hiram Johnson and the Progressives had written into the California constitution three quarters of a century earlier as a device that would let the people override interest groups (especially business) that controlled the legislature in Sacramento.
Prop. 13 struck some people as the antithesis of Progressivism. As the University of Denver's Daniel A. Smith, one of the students of this celebrated initiative, has written, "Prop. 13 can be better understood as a faux populist movement.... Using direct democracy, populist entrepreneurs, such as Howard Jarvis, offer citizens populist-sounding solutions as antidotes to societal problems.... Populist entrepreneurs seize an opportunity, tap into an ill-defined public mood and couple their pet solution to it. The role of the populist entrepreneur is to craft a popular message, place it on the ballot via the initiative process, and put it forward as the solution to a widely perceived public problem."
Whether true or false populism, Prop. 13 revived interest in the initiative process. After Prop. 13, use of the initiative became much more frequent in the twenty-four states, plus the District of Columbia, where it is available. In the decade before the United States entered World War 1, there were more than fifty initiatives per two-year election cycle. In the next decade the average dropped below forty, held there through 1936, then dropped to thirty-two, and in the decade ending in 1966, to twenty-nine. Then it fell to under twenty. But it revived late in the 1970s, and from 1976 through 1998, the average has been an astonishing sixty-one initiatives per cycle. In 1997- 1998, the number was sixty-six. And thirty-nine of the sixty- six became law, boosting the success rate for the decade to 50 percent -by far the highest for any period since the initiative was introduced.
The initiative game has become a big - and very lucrative - business for those who collect petition signatures and run the ballot campaigns. And it also has produced great controversy, with some praising it as the purest form of democracy and others taking the view expressed in the headline on a 1998 San Francisco Chronicle series, marking the twentieth anniversary of Prop. 13: DEMOCRACY GONE AWRY.
I was agnostic on the subject myself when, in 1997, I made a West Coast reporting trip for my paper, the Washington Post. I started in Oregon, one of the pioneer states in use of the initiative, and the state with the largest number of ballot propositions in the 1990s. In late summer of 1997, Oregon voters were preparing to cast ballots - for the second time - on the deeply divisive issue of physician-assisted suicide. In the first vote, on Measure 16, held in 1994, physician-supervised access to a lethal mix of drugs for terminally ill patients was approved by the narrowest of margins, 51 percent to 419 percent. The legislature, responding to pleas and pressures from the losing side, ordered a second ballot on the identical proposition, Measure 51, in a vote-by-mail special election in November of 1997.
As I interviewed activists on both sides of the issue, I came to understand the depth of the moral, ethical, and religious beliefs that brought them to their opposing positions. For some, the sanctity of life meant that no one but God should determine the date of anyone's death. For others, the individual's freedom to choose to end suffering when there is no hope of recovery was as fundamental a right as freedom of speech or freedom of worship. Doctors felt the dilemma intensely. Their mission is to heal and to reduce suffering. Now they were being asked to make judgments that would permit some of their patients -though not the doctors themselves -to administer lethal chemicals. In many instances, inevitably, the doctors would be asked to supervise and witness the process. Some saw it as a final service they could render. More found the prospect repugnant.
Interviewing leaders on both sides of the issue, I found myself asking, toward the end of each conversation, "Is this a good issue to decide by majority vote of the people?" Almost without exception, they looked as if it were the most stupid question they had ever heard. The response was some variation of the same two rhetorical questions: "Who better than the people? You want to leave it to the politicians?"
My private reaction to their responses was that in any legislature I had ever covered, politicians who sensed (or learned from the polls) that their constituents were so closely divided on an issue of that weight would find some convenient way not to make a decision. Simple self-preservation, to say nothing of the checks and balances built into the legislative process, would keep them from imposing a judgment so deeply offensive to such a sizable minority of the people - whichever way it went. But in Oregon, I quickly learned, the legislators were seen as interlopers, busybodies who had interfered with the sovereign right of the people to make their own laws. A flyer distributed by Oregon Right to Die said, "Three years ago, over 600,000 Oregon voters passed Measure 16 [the 1994 physician- assisted suicide initiative]. This year, 52 legislators voted to send it back to the ballot. It was a bad vote. A wrong vote. Almost every Oregon newspaper said so. But still we have to vote again. Much is at stake." Along with the question "Who controls end-of-life decisions?", the flyer said voters must ask, "Can the legislature usurp our initiative process with such impunity?"
For many people, the second question was at least as important as the first. Governor John Kitzhaber, himself a physician who had opposed assisted suicide during the 1994 fight, because of his personal doubts, came out against Measure 51, the 1997 repeal measure, in large part because he thought the legislature had overstepped itself.
I saw something else in the 1997 initiative campaign that disturbed me. While the debate covered much of the same ground as the earlier battle, there was an added element of religious antagonism and prejudice. An article in Willamette Week, a widely read "alternative" paper in Portland, talked about how "church dollars flowed in" and almost defeated assisted suicide in 11394. It was particularly critical of the Portland Oregonian's handling of the issue. It found fault with the reporting of Mark O'Keefe, described as "a clean-shaven Episcopalian who attended Pat Robertson's Regent University school of communications." It noted that "longtime Oregonian publisher Fred Stickel, a Catholic, has strongly opposed Measure 16 since the beginning and has used his editorial page to push his crusade against assisted suicide." The Weeks article blamed "Catholic and Right to Life activists" for instigating lawsuits against Measure 16 and for the lobbying that led to the legislature's sending it back to the voters.
I went on to California, where an arresting spectacle was unfolding. In previous elections, the people of California had approved three ballot initiatives that fundamentally recast the political and governmental structure of their state. One imposed some of the strictest term limits anywhere on members of the legislature - six years in the assembly, eight years in the state senate, and never again. A second initiative put the tightest controls anyone had seen on campaign contributions to state and local candidates. And the third changed the system of nominating candidates for state offices. Instead of having separate primary ballots for Republicans, Democrats, and the minor parties, it placed all candidates of all parties on a blanket primary ballot, allowing any voter of whatever persuasion to pick anyone from any party for any particular office. All three of these initiatives were being challenged in federal court; two of the cases were being argued before district judges in Sacramento; the third, before an appeals court panel in San Francisco.
Interviewing in the state capitol, I was struck by the frustration of both Republicans and Democrats waiting to learn whether they could run for reelection or would be term-limited out; whether they could raise money, as they had in the past, or would be severely constrained; and whether their nominations would depend on their appeal to their fellow partisans or be subject to the vagaries of influence by members of the other party- or no party at all.
In court the issue pitted the voice of the people of California, who had spoken through the initiative process, against the opinions of unelected judges, who had the power and the responsibility to measure the initiatives against the guarantees and protections of the Constitution. The only people who had no voice in the outcome were the elected officials of the state. They were mere spectators on the sidelines, waiting for the verdicts.
I filed news stories and columns about what I had seen, and when I got back to the newsroom, suggested to my editors that what was taking place in these states - and the many others with initiative process - deserved more examination than we had given it. This book is an effort to carry that discussion from the academic arena, where it has largely been confined until now, into the arena of public discussion and political debate.