The Latest Front in the Republican War on Democracy

Posted in: Election Law

While progressives have taken some comfort from the election and early months of the Biden presidency, Republicans have been hard at work on a well-documented campaign against democracy. If they cannot develop a political program to appeal to and persuade a majority of Americans to vote for them, Republicans seem determined to change election rules to ensure that those who turn out to vote will be tilted in their favor.

The latest front in this ever-expanding guerilla war on democracy involves efforts to limit voters’ ability to use the initiative and referendum process, which constitute key levers of direct democracy, for fear that they might enact policies that Republicans oppose.

On May 21, The New York Times reported that “so far in 2021, Republicans have introduced 144 bills to restrict the ballot initiative processes in 32 states…Of those bills, 19 have been signed into law by nine Republican governors. In three states, Republican lawmakers have asked voters to approve ballot initiatives that in fact limit their own right to bring and pass future ballot initiatives.”

Attacks on the mechanisms of direct democracy include broad campaigns designed to undo state laws that allow for voters to put policy proposals on the ballot as well as new legislation detailing a minimum type size of 14 points on ballot initiative petitions, a measure designed to limit the information that can appear on them.

While the initiative and referendum process is not without its flaws, the new measures are not designed to improve that process, but instead to diminish its potential. Preserving this means of getting access to the ballot should be part of the battle to save democracy in America.

History shows that the introduction of such mechanisms was prompted precisely by a desire to expand democratic accountability. Such a desire propelled reformers in the 1890s to introduce measures to allow citizens to use initiative and referendum during an era of political uncertainty.

At that time, Americans were struggling with what the historian Steven Piott calls “the harsh economic transformations of an emerging industrial society,” and workers, farmers, consumers, and taxpayers felt increasingly neglected by politicians and legislators. They were suspicious of powerful interests, which worked to preclude any discussion of vital social, economic, and political changes. Many Americans worried that the government served those powerful interests rather than the needs of the people.

Progressive reformers sought to use democratic processes to circumvent, or check, political institutions, which they felt were dominated by corporations and their lobbyists. They saw direct legislation as a way to supplement institutional politics. Their stated aim was to return sovereignty to the American people. Progressives framed their reforms “as efforts to curtail corruption, weaken party bosses, and restore power to ordinary people.”

In fact, debates about direct democracy are as old as the Constitution itself. From the start, American leaders felt anxious about giving too much power to the people.

In Federalist No. 10, James Madison observes that political regimes built on direct democracy “have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have been in general as short in their lives as they have been violent in their deaths.”

Madison argued for a republic built on representative democracy, in which it would be possible to “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” This view prevailed in the constitution that emerged from the Philadelphia Convention in 1787.

Forty years later, the so-called “Jacksonian” period was marked by a push for greater democracy and popular participation than the Constitution provided. In his farewell address to the American people, President Jackson declared, “In your hands is rightfully placed the sovereignty of the country, and to you everyone placed in authority is ultimately responsible.” He urged elected officials to “see that the wishes of the people are carried into faithful execution.”

The principles of Jacksonian democracy were reiterated by the populist movement in the latter half of the nineteenth century. Populists, a group of agrarian reformers largely concentrated in the South and Midwest, shared the same fear of corporate charters, special privileges, franchises, and monopolies that animated the Jacksonians.

They embraced direct democracy as a means of “restoring the economic and political independence of the American farmer” and circumventing elites. They advocated initiatives and referenda to restore sovereignty to the American people and to help achieve a government that is actually democratic.

Inspired by populism, the progressive movement of the early 20th century took up the cause of direct legislation in conjunction with other social issues, including the extension of the vote to women, legislative reapportionment, and direct election of U.S. senators. Progressives saw initiatives and referenda as creating a parallel, democratic system less corrupted by the presence of professional politicians and entrenched interests.

It would be inaccurate, however, to frame early uses of the initiative and referendum process as untainted expressions of democratic will. Scholars have shown that proponents of direct legislation often were more interested in symbolic reforms than in changes that would actually upset the social and political hierarchies of the day. Current critics of initiatives and referenda also worry about the distorting influence of money and special interest groups.

Despite these problems, initiative and referenda campaigns offer citizens valuable ways to exert control over policy when they believe that legislatures, executives, and courts are not representing their interests.

This has allowed red-state voters in recent years to use initiatives and referenda to enact progressive policies, raising the minimum wage, legalizing marijuana, expanding Medicaid, introducing nonpartisan redistricting and no-excuse absentee voting, and restoring voting rights to people with felony convictions. They have gone to the ballot box to resist control of their states by politicians who are out of step with the voters on key issues.

It is not surprising that Republicans today want to put a stop to such expressions of democratic will. Any number of hot-button issues find Republican officials skewing far more conservative than the voters who put them into office, and those officials must surely regard with suspicion the organizing powers manifest by grassroots ballot initiatives.

While the ballot initiative process does not always favor progressive policies, the movement to defend democracy in the United States would be remiss if it did not take up the defense of initiatives and referenda. While there are indeed many fronts to defend and battles to fight if this country’s democratic traditions are to be preserved, retaining the opportunity for citizens to vote directly on the policies that affect their lives is among the most important.

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