Are Initiatives Un-Democratic?

According to Marci Hamilton, a respected law professor at Yeshiva University (spending this year at Princeton), the provision for state initiative, which allow citizens to directly enact law or change their constitutions, is not a good idea.

In a thoughtful and interesting article she describes how the anger, bitterness, and bad behavior of a group of BAMN demonstrators at a Federalist Society panel at the University of Michigan supports her dislike of direct democracy. (By the way, there is either a serious typo or a serious misstatement in the article: “… Grutter … held that the University of Michigan’s affirmative action program could not use race as a factor in its admissions decisions.” Grutter, of course, held the opposite.)

The protesters were members of a group that strongly opposed Connerly’s efforts to end affirmative action on the basis of race (and opposed, as well, the Supreme Court’s decision in Grutter). The group goes by the name BANM–By Any Means Necessary – an unfortunate choice as it connotes extremism and even violence, but also one that conveys quite clearly their sense of frustration with the Prop 2 process and result.

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… [O]n the whole, this was a very bitter group, and part of that bitterness seemed to rest in their sense that they had been betrayed by the initiative process. More than one BANM speaker charged that those canvassing voters in favor of the initiative told them that it was not, in fact, a “ban on affirmative action.” Its title as a “civil rights initiative,” also was a betrayal of first principles for them. They said that many had voted in favor of the initiative thinking it was simply a ban on discrimination, instead.

Connerly responded that his canvassers had been active and clear: You could still have affirmative action on the basis of socio-economic and other factors, but race or gender or ethnicity could not be among the criteria. Unfortunately, his formalistic response did absolutely nothing to assuage BANM’s frustrations. When their community heard the phrase “affirmative action,” they explained, its members understood that it involved preferences for race. Accordingly, they reaffirmed that the canvassers’ statements were in fact misleading, even if that was not their intent.

“One of the most common criticisms of direct democracy is that voters are ill-informed and easily misled,” Hamilton writes. “This seems like a core, commonsense insight.” In other words, she believes initiatives are a bad idea because, in this case, a) voters could not be trusted to read the wording of the proposed initiative itself, wording that could not have been clearer, and b) accurate statements by canvassers that the measure would not ban all affirmative action, only affirmative action based on racially preferential treatment, were understood by some voters to ban all affirmative action.

The controversy over affirmative action is obviously a social problem that is hyper-charged with emotion and that plays into deeply-held beliefs and values, and the lawmaking process that ended over one and a half years ago had not succeeded in resolving public tensions. To the contrary, it had only reinforced those disagreements and resentments. The result was a frustrated group of citizens — calling itself By Any Means Necessary in no small part because its members felt disenfranchised by the routine means by which the process operated.

The purpose of initiatives, however, is not to resolve public tensions or eliminate disagreements and resentments. It is to change the law. But even if their purpose were to resolve tensions and reduce resentments, this would hardly seem to provide a good basis for criticizing initiatives. After all, if there had been no Prop. 2 in Michigan and race and ethnic preferences were allowed to continue, the rabble rousers in BAMN would have been pleased but 58% of the voters in Michigan who wanted to end race preferences would have been been left bitter and resentful over the continuing racial discrimination. Why would that have been better?

Hamilton’s preferred solution is subject to similar criticisms, and thus is no solution to the problem she sees with initiatives.

Had this issue worked its way through the legislative process, Michigan might well have reached the same result, but at least the legislators could not have criticized the resulting legislation on the ground that they had been deceived – as ordinary voters could do, quite persuasively. It is legislators’ job, after all, not to be deceived, but rather to do their homework to understand the proposals with which they are faced. Moreover, as legislators are approached by a wide variety of interests, especially on such a hot-button issue, they would have heard many sides before casting a vote; individual voters typically only hear the pre-packaged messages the interest groups concoct. Finally, had the initiative instead been a bill in the state legislature, and had it still passed, the members of BANM might have disliked the result, but they would not have the same sense of disenfranchisement and fraudulent manipulation of the process. Instead of now having to deal with the fact that their state Constitution had just been amended by fellow citizens not fully understanding what was at stake, they would have a clear choice: work to unseat those elected representatives who had betrayed their interests. That is the system of accountability that the Framers put into place at the federal and state levels.

No one, of course, proposes direct democracy through initiative as a substitute for legislatures — or, for that matter, for courts. It is of course better for legislature to do their job and enact legislation that would preclude large numbers of citizens feeling that, on certain important matters, they must take action when legislatures don’t, or when courts construe state constitutions in a manner that provokes enough people to undertake the laborious initiative process. But sometimes legislatures don’t act, and sometimes courts act too much.

Initiatives, it seems to me, are thus rough analogues of the courts’ power of judicial review and the executive’s veto power. If they were easy to launch and easy to enact, Hamilton might have a valid point. As it stands in most states, and certainly in Michigan, she doesn’t.