Direct Democracy
National Initiative for Direct DemocracyBy Krista J. Dunzweiler Copyright © 2001 by University of the Pacific McGeorge School of Law J.D., University of
the Pacific, McGeorge School of Law |
Table of ContentsII. Background to the Direct Democracy Act and Amendment
III. The Legality of a National Initiative System
IV. Content of the National Initiative for Direct Democracy
V. Similarities and Differences to the California Initiative Process VI. Additional Differing Provisions |
I. Introduction
The purpose of this article is to examine the proposed National Initiative for Direct Democracy, which would establish a nationwide initiative process that can be utilized by all citizens, regardless of whether their state has accepted an initiative program. This report will examine a number of the issues that would develop from the passage of the National Initiative for Direct Democracy.
The concept of direct democracy has existed for centuries and was most prominently displayed in the ancient Greco-Roman societies. Many ancient civilizations used forms of direct democracy where the people were permitted to participate directly in the creation and implementation of their laws. Direct democracy systems were considered by the Framers of the United States Constitution during the Constitutional Convention. However, due to a number of considerations, the Framers decided to adopt a representative form of government. The initiative form of direct democracy was introduced into state governments starting in the late 1800s, and currently most states have some form of direct democracy, typically in the form of initiative and referendum.
In the late 1980s and early 1990s a grass roots movement
to establish a national initiative process was started by
former Senator Mike Gravel. Gravel believed that Congress
no longer represented the people, rather Congressional members
represented the organizations who contributed most to their
finances. In response, he established two organizations, Philadelphia
II and Direct Democracy, as vehicles for gaining support for
the idea of a national initiative process. The result of Gravel's
efforts has been the National Initiative for Direct Democracy.
This report will provide a description of the National Initiative
for Direct Democracy. Through the description, the presence
of strengths and weakness of the National Initiative for Direct
Democracy will become apparent. Additionally, contradictions
and ambiguities in the implementation of the National Initiative
into the current government structure will be examined.
II. Background to the Direct Democracy Act and Amendment
A. The Theory of Direct Democracy
Direct democracy is essentially a legislature made up of
all citizens where the citizens are directly engaged in their
own self-governance. In a pure direct democracy system, the
laws passed by the masses are the laws of the land and there
are no other law making branches of the government. The idea
of a direct democracy has existed for centuries and was most
clearly represented in ancient civilizations. In ancient Greece,
the male adult citizens of Athens, as a single assembly, approved
and initiated laws for their city. Additionally, in Rome,
all male citizens were permitted to participate directly by
direct vote in one of the four assemblies that had been established
for the purpose of legislation.
Direct democracy as a legislative principle was not introduced
into the United States Constitution, however the theory of
direct democracy has been developed into practice in a number
of states. The movement towards direct democracy began in
the United States in the late 1800s due to an generalized
distrust by the people of the local governments. Cynthia L.
Fountaine, Lousy Lawmaking: Questioning the Desireability
and Constitutionality of Legislating by Initiative, 61 S.
Cal. L. Rev. 733, 736 (1988). The people believed that the
local governments had become corrupted by corporations. Id.
The movement was supported by the Progressive movement as
a way to battle the power of the corporations; it was believed
that initiatives would reflect the free decisions of the popular
will. Id.
The theory and practice that is introduced in the Direct Democracy Act is different from the ancient practice of direct democracy because the initiative process proposed would not be the sole lawmaking body, but will work in conjunction with the state and federal legislatures, essentially creating a fourth branch of government. In a pure direct democracy system, and in the proposed system, the existing government is not permitted to determine the process of self-governance and is not able to influence the content of the initiatives that are voted on by the people.
B. Mike Gravel, Founder of Direct Democracy and Philadelphia II.
Mike Gravel began his political career in the Alaska state House of Representatives where he served from 1962 to 1966. In 1968 he was elected to the United States Senate where he remained until 1980. While a member of the Senate, Gravel served on both the Finance Committee and the Public Works Committee, and was the chairman of a sub-committee on water resources. The Gale Group, The Blue Book - Leaders of the English Speaking World (St. James Press, 1976). In addition to Gravel's committee work, in 1971 he wrote the "Pentagon Papers" in response to the inaction of the government in investigating Pentagon activities. This publication brought him a significant amount of notoriety in the political arena. The Gale Group, Almanac of Famous People (Jennifer Mossman, Ed., 7th ed., Gale Group, 2001).
During his years in the U.S. Senate, and the time after his departure from the Senate, he came to believe that in Congress the people's interests are subordinate to those forwarded by large corporations and other organizations that were able to finance members of Congress. Based on his beliefs, and political observations, in 1990, Gravel established both Direct Democracy and Philadelphia II to promote the idea that the American people should be permitted to govern themselves through a nationwide initiative system. Philadelphia II, About Us, <http://www.p2dd.org> (accessed Sept. 28, 2001).
Direct Democracy and Philadelphia II are non-profit corporations whose purpose is to establish a nationwide initiative system, and thereby bring democracy to the people. Gravel and the members of the organizations hope that through a nationwide initiative system they will be able to empower the people to take control of their own legislative system. The members also believe that it is the natural right of all United States citizens to engage in their own self-governance. Lastly, the members hold that a nationwide initiative system is needed because the states that have enacted initiative programs have diluted the people's power by involving the government and the courts in the creation and processing of initiatives. They also hold in this respect that if the people of the United States do not act now to establish a system that implements their rights to self-governance, then the state legislatures or Congress will take further action that will dilute the power of the people to legislate through initiatives and referenda. Philadelphia II, Why We Need Direct Democracy, <http://www.p2dd.org/whydd.htm> (accessed Sept. 28, 2001).
III. The Legality of a National Initiative System
A. The legal ground for the act asserted by Direct Democracy and Philadelphia II.
The supporters of the National Initiative for Direct Democracy assert that the legal basis for the act is grounded in the Constitution, as well as, what they label, the "First Principles." The supporters recite the preamble of the Constitution in support of the legality of the Act, stating that the preamble unambiguously states that the Constitution is ordained and established by "We the People of the United States," which proclaimed that the government was done by and for the people. Philadelphia II, Is the National Initiative Legal? <http://www.p2dd.org/is it legal.htm> (accessed Sept. 28, 2001). They further assert that a careful reading of the Constitution shows that there has been nothing more that a limited delegation of authority by the people to branches of the federal government. Id. Additionally, the supporters assert that in the Bill of Rights it is clear that the people have reserved all un-enumerated rights for themselves, and that the Constitution is not to be interpreted to deny rights that were reserved to the states or to the people. Id. Based on the language in the Constitution and Bill of Rights, the advocates of the National Initiative for Direct Democracy conclude that any power not mentioned in the federal documents will be retained by the people. Id.
The supporters of the National Initiative also base their conclusion that the National Initiative for Direct Democracy is legal based also on what they call the "First Principles." Philadelphia II, First Principles <http://www.p2dd.ord/firstprinciples.htm> (accessed Sept. 28, 2001). According the supporters, "First Principles" consists of the authority to, and the exercise of the legislative power of the people to create and alter governments, constitutions, charters, and laws. First Principles is the very essence of the action of individuals organizing the masses for integration into the political process. Id. The First Principles are used whenever people come together to establish or re-establish a society, and, according to the supporters, has been used extensively throughout history in the colonization of America. Id.
According to the supporters and members of Direct Democracy and Philadelphia II, the First Principles were used to create the United States government. The Framers wanted to establish a government where all the power is originally in the people and should be exercised by them in person. Id. The supporters alleged that the First Principles are at the core of the voluntary electoral process that would permit citizens to amend the Constitution, and through this amendment the people can exercise their legislative power in an orderly and deliberative manner. Id. According to the supporters, the implementation of the nationwide initiative process would do nothing more than fulfill the intentions of the Framers, and therefore it is not against the intentions of the Constitution. Id.
B. Other perspectives on the legality of a nationwide initiative system.
The issue as to whether a state initiative system is Constitutional has never been decided by the U.S. Supreme Court. However, there is the possibility that if ever required to answer the question of an initiative system's Constitutionality, the Court may hold that the system violates the Constitution. Article IV, Section 4 of the United States Constitution provides that the United States shall guarantee every state a "republican form of government;" this clause is commonly referred to as the Guarantee clause. The issue centers around whether a direct democracy initiative system can be classified as a republican form of government, and if it cannot, does that necessarily mean that the system is unconstitutional.
1. Opposition to the legality of the initiative process.
The basic argument of those who oppose the initiative system, is that the Constitution calls for a republican style of government, and republican necessarily means representative system, not direct democracy. Fountaine, 61 S. Cal. L. Rev. at 772. Opponents argue that a direct democracy system violates the Constitution's guarantee of a republican form of government. These arguments are based on the definition of a republican government and the policies surrounding the Guarantee clause. Id.
a. The definition of "republican"
Opponents of direct democracy argue that during the Constitutional Convention there was a debate as to the meaning of the term "republican." James Madison described his republican form of government as a government that derives its power from the great body of society and that power was administered by people holding office as representatives. Id. Alternatively, Thomas Jefferson argued that a republic was a government ruled by the majority of its citizens en masse. Id. However, Jefferson, and those who followed his line of thought, conceded that their form of a republic would not be feasible and that the government would be republican through representation. Id. From this concession, it can be inferred that, for the purpose of drafting the Constitution, the Framers intended that a republican government mean a representative government.
Additionally, opponents acknowledge that when the Supreme Court has indirectly addressed the issue of republicanism, the Court stated that the systems of government that the states had at the time of the adoption of the Constitution were what was defined as republican under the Constitution. Id. At that time the state governmental structures were based on popular vote, however, they were ruled by representatives elected by popular vote. Furthermore, the Supreme Court has held that by the Constitution:
"a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies . . . while the people are this the source of political power, their governments . . . have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities."
In re Duncan, 139 U.S. 449, 461 (1891)
Finally, opponents argue that the plain meaning of republicanism precludes a direct democracy form of government. Fountaine at 774. Opponents argue that the dictionary defines a republican form of government as one where the supreme power resides with the people, but it is exercised through the election of representatives. Id. They contend that the distinguishing characteristic in a republican government is that it is representative. Id. If a direct democracy is included in the definition of republicanism, that distinguishing characteristic will no longer be a distinguishing characteristic and the word "republican" will lose all its meaning. Id.
b. The policies behind the Guarantee clause.
Additionally, opponents argue that the policies behind the Guarantee clause necessarily preclude the adoption of a direct democracy into the definition of a republican form of government. Id. at 775. According to opponents, the Framers were attempting to accomplish two goals by including the guarantee of a republican system of government in the Constitution. First, the Framers intended to protect the people from abusive state governments, and direct democracy is precisely the kind of oppressive practice that the Guarantee clause should protect the people from. Id. Because of voter ignorance, procedural defects and voter apathy, it is argued that direct democracy can often infringe on an individual's rights because they are subjected to laws created by the ignorant majority. Id.
A second purpose of the Guarantee clause is to ensure that all the states maintain a uniform governmental structure. Id. at 776. To define republican as to allow some jurisdictions to incorporate direct democracy into their governmental structure, when other jurisdictions do not use direct democracy defeats the goal of uniformity. Id. Additionally, because direct democracy can come in so many forms, generally permitting a nationwide initiative system will not necessarily result in a uniform system of government, thereby negating the goal of the Guarantee clause.
2. Support for the legality of direct democracy.
Conversely, it has been argued that a direct democracy can be part of a republican form of government. Some supporters have briefly argued that the Framers had a democratic form of government in mind when they wrote the Constitution. Robert G. Natelson, Initiative and Referendum and the "Republican Form of Government," <http://www.iandrinstitute.org/indepth.document12/natelson.htm> (accessed July 15, 2001). Proponents of direct democracy argue that the Framers of the Constitution did not believe that for a system of government to be republican in nature that it had to be wholly representative in nature. Id. Some proponents hold first, that simply because the framers preferred a representative form of government does not necessarily determine their definition of what a republican government is. Second, proponents assert that the governments that the Framers held to be republican often incorporated aspects of other forms of government, thereby not precluding the influence of other forms of government on a republican form of government. Id.
First, it is recognized that there were desired and undesired aspects of government that the Framers never addressed in the Constitution, therefore it is an "inadmissible leap to conclude that because some Framers disliked democracy they intended the Guarantee clause to abolish it." Id. According to some proponents, the Guarantee clause has a significant amount of latitude and ambiguity in it because the Framers were not able to agree on precisely what republicanism meant. Id. Additionally, because the Framers indicated that the representative form of government would work best for the time, does not necessarily mean that the only form of government acceptable was representative. Madison is quoted as saying "As long, therefore, as the existing republican forms are continued by the states, they are guaranteed by the federal constitution. Whenever the states may choose to substitute other republican forms, they have a right to do so and to claim the federal guarantee." Id.
Secondly, the Framers' understanding of what a republican government was permitted the incorporation of direct democracy. The Framers based their understanding of republican and democratic governments on the classical Greco-Roman establishments. Id. The vast majority of the republican civilizations referenced by Alexander Hamilton had prominent aspects of a direct democracy functioning in their governmental scheme. Id. Most prominent were the Romans who were classified as a republican society, however their governmental structure involved the right of all male citizens to vote directly in one of the four assemblies that were established to create laws. Id. Proponents argue that because these societies were prominent in the Framer's understanding of a republican form of government, and because each of the societies featured direct democracy at some level, then the Framers' understanding and meaning of republicanism necessarily incorporated elements of direct democracy. Id. In support of this proposition, proponents make much use of statements by Adams who believed that a republican government was the affair of the people, and that for a government to be well managed it must feature checks and balances, and elements of monarchy, aristocracy and democracy. Id.
As stated previously, there is not clear answer as to whether the Supreme Court would hold that systems of government that are clearly direct democracies are unconstitutional. The Supreme Court has been able to avoid reaching these issues in previous cases by holding that determining whether direct democracy violates the Guarantee clause is political in nature. Fountaine at 759. By holding that the question is political in nature, the Court asserts that it is a political question, and is within the scope of Congress to determine and is not in the reach of the judicial power. Id. Until there is a decision by the Court, the argument will continue over what the Framers meant by the use of the word "republican" in writing the Guarantee clause of the Constitution. However, should the Direct Democracy Act and Amendment be passed, the Court may be forced into making a determination as to whether a direct democracy violates the Guarantee clause. The passage of the Act and Amendment would create a new lawmaking body, similar in purpose to Congress, and their actions would serve the same function as Congress. Participating in actions similar to those of Congress would subject the Act and the Amendment to judicial review, just as other laws passed by the country's lawmaking bodies are subjected to judicial review.
IV. Content of the National Initiative for Direct Democracy
A. The Direct Democracy Amendment
The National Initiative contains an amendment to the United States Constitution that establishes the right of the people to self-governance. The Amendment grants the citizens of the United States the power to create and alter governments, constitutions, charters and laws of the United States or any state therein, and denies the government the right to abridge such a power. The amendment also establishes the Legislature of the People that can operate nationally and in every state and local government, and the Direct Democracy Act establishes the procedures for the creation and support of the national initiative system. It is also stated that the amendment to the U.S. Constitution will be approved by the citizens of the United States in a single, nationwide vote not involving the state legislatures.
The Direct Democracy Act (Act) consists of four major sections: The Preamble, Procedures, The Electoral Trust, and Self-Enactment. The Preamble to the Act basically reiterates the Amendment to the Constitution by stating that the people have the right to self-governance, and then goes on to state that with modern technology there is no longer a need to delegate powers to representatives, and that the people can choose to exercise their legislative power directly through the initiative system of governance.
1. Procedures
The procedures outlined in the Act consist of a wide array of generalized topic areas. First, it is outlined in the Act what the format, subject and word limit requirements of the act will be. Basically, all initiatives must have a title, a summary that accurately depicts the content of the initiative, a preamble that provides the purpose and the reason for the initiative, and the complete text. The initiative must pertain to a matter of public policy that is relevant to the jurisdiction to which it will apply, and it can only address one subject (however, it may include related or mutually dependant parts). Lastly, the initiative can contain no more than five thousand words of text.
Second, outlined in the Act are three ways in which an initiative can qualify for election in the jurisdiction in which it is to be enacted. An initiative can qualify by legislative resolution, meaning that the legislative body of the affected jurisdiction may qualify an initiative for the people by first submitting it to a vote of the legislative body. Initiatives can also be qualified via citizen petition. A petition can be signed either by hand or electronically. An initiative that proposes laws, changes laws, or is an expression of public policy will qualify if signed by at least two percent of those voting in the immediately preceding Presidential election. If the initiative will propose changes to constitutions or charters of the jurisdiction, then the petition must be signed by at least five percent of those voting in the previous Presidential election to qualify the initiative. Lastly, an initiative can be qualified through a public opinion poll. Initiatives that propose changes to constitutions, charters, laws or expressions of public policy will be qualified for election if at least fifty percent of those questioned in a public opinion poll express as desire that the initiative qualify for an election.
After an initiative qualifies for election, the Electoral Trust (see description below) is to appoint a hearing officer who is to conduct a public hearing on the initiative. The public hearing is to incorporate the sponsors and representatives of the legislative body of the affected jurisdiction; the testimony of citizens, proponents, opponents and experts will be solicited and heard, and their testimony will be published for later reference. In addition to the public hearing, initiatives will also be subjected to review by a deliberative committee. The committee will be made up of citizens from the affected jurisdiction who will be randomly selected from voter registration lists. The deliberative committee will review the hearing record and must deliberate the merits of the initiative, and prepare a written report of the deliberation that includes recommendations. Additionally, the deliberative committee can amend the parts of the initiative so long as the amendments are consistent with the stated purposes of the initiative.
Upon the conclusion of the deliberative committee's meeting, the initiative will be given to the legislative body of the affected jurisdiction (i.e city council, state legislatures, Congress) for review. The legislative body must conduct a public vote of the initiative, however, this vote by the legislative body is not binding and is to serve only as a recommendation to the electorate.
Once the initiative reaches the public for a vote, an initiative that does not modify a constitution or charter will be enacted of approved by a simple majority of the voters. However, if the initiative modifies a constitution or charter, the initiative will not be enacted unless it has received a majority vote in 2 elections. If the initiative received fifty percent of the votes in the first election, it will be put forth for a second election. If the initiative receives a majority vote in the second election the initiative will be enacted. If there is not an effective date in the initiative, it will be effective 45 days after the Electoral Trust certifies the election.
Next, the Act stipulates that the courts are not permitted to review the initiative prior to the initiative being put before the people for a vote. However, after an initiative has been enacted, the courts may determine the constitutionality of any law. Absent fraud, an initiative that changes the United States Constitution is not subject to any judicial review.
The Act directs that all people who are registered as sponsors of the initiative must have their name, organizational affiliations, and city and state of residence appear on the face of the initiative, and on any printed matter or other media advocating the initiative, and shall be announced or displayed in any qualifying poll. Additionally, any communication that promotes or opposes an initiative shall conspicuously identify any person who contributed substantially, directly or indirectly, to the payment for the communication.
The Act also dictates that only individual people may contribute funds, services, or property in support of or in opposition to an initiative. Corporations, industry groups, labor unions, political action committees, and associations are strictly prohibited from contributing. Additionally, those organizations are forbidden from coercing employees, members, customers, clients, or stockholders into voting a specific way on an initiative. Any violation of these rules is a felony punishable by imprisonment or a fine. Any financing obtained above a threshold amount must be reported to the Electoral Trust, who will then make all financial reports available to the public upon receipt of the report. Failure to report is also punishable by imprisonment or by a fine.
Lastly, the procedural section of the act dictates that information about the initiative must be provided to the electorate of the affected jurisdiction through a pamphlet or Internet Web site. The information provided must include a balanced pro and con analysis of the subject, its societal, environmental, and economic implications, costs and benefits, a summary of the Hearing Record, the deliberative committee report, the results of the legislative advisory vote, and statements prepared by proponents and opponents.
2. Electoral Trust
The third major section of the Act is the establishment of the Electoral Trust (Trust). The Electoral Trust is a body whose duty it is to administer the initiative procedure so as to facilitate the exercise of the people's power. The Trust is responsible for registering voters, and for making the registration process as simple and automatic as possible. Additionally, the Trust is to provide information on each initiative in the affected jurisdiction. They are also responsible for trying to make the voting process as convenient and easy as possible for all citizens. Lastly, the Trust is prohibited from influencing the content of any initiative.
The Trust is to comply with all existing laws and where existing law and the law of the Act conflict, the law of the Act is to supersede. In fulfilling all of their duties and abiding by the laws, the Trust is also to establish the Legislative Drafting Service where citizens who seek to write initiatives can go to for assistance in drafting the text of the initiative.
To ensure that the Electoral Trust is accomplishing its goals nationwide, the Act establishes a Board of Trustees and a Director to govern over the Trust. The Board of Trustees is to be made up of delegates from nationally recognized civic organizations that are enumerated in the Act; each trustee is to serve for a term of 4 years. The Board of Trustees primary purpose is to establish and oversee the policies for the Electoral Trust, to establish the procedures that govern the Trust's activities, and is responsible for the passage of a budget every year.
The Director of the Electoral Trust serves as the chair for the Board of Trustees for a four year term, and may be re-appointed for an additional four year term. The first Director is to be appointed by the President of the Board of Directors for Philadelphia II and confirmed by a majority of the Trustees. After the first director has been appointed, the President of the United States will appoint all subsequent directors, and the director must be confirmed by a majority of the Board of Trustees. All officers of the Board of Trustees and the Director must take an oath swearing that they will uphold and defend the Constitution of the United States and the sovereign authority of the People to exercise their power of initiative.
The Act declares that the financing for the activities of the Director, Board of Trustees, and Electoral Trust is to be obtained from the Treasury of the United States. The funds are to be used to enable the trust to organize itself, repay debts incurred from fulfilling their duties, and further their performance of their duties.
3. Self-Enactment
The last portion of the Act provides for the self-enactment of the Amendment and Act. They are to be concurrently presented to the people for their decision and voted on by executing a ballot which is to carry all the data that has been disseminated to the public. If the number of "yes" votes is greater than fifty percent of the total number of those ballots cast in the immediately preceding Presidential election then the Amendment shall be ratified and the Act will become federal law.
V. Similarities and Differences to the California Initiative Process
The Direct Democracy Act is modeled after the systems that are already in place in a number of states. One of those states is California, and there are a number of similarities between the California initiative process and those outlined in the Direct Democracy Act. One such similarity is that both the Act and the California statutes provide for a service that is to assist citizens in drafting the language of the initiative. As stated previously, the Act provides for the establishment of the Legislative Drafting Service that is to help any citizen who wishes to prepare an initiative. Similarly, California law provides that any proponent of the initiative may receive assistance from the Legislative Counsel in drafting the language of an initiative. Cal. Govt. Code § 10243 (2001). The California rule, however provides for more standards and is more restrictive on which initiatives will have the assistance of the Counsel. The Act states that any citizen may obtain the assistance of the drafting service, however, in California the proponent of the initiative must present the idea for the initiative to the Counsel with a request signed by at least 25 voters. If the Counsel determines that the initiative may have a reasonable probability of qualifying for election, then the Counsel will draft the proposed law for the citizens. Cal. Govt. Code § 10243. The California system has the effect of limiting whose initiative gets the assistance of the Counsel and because of that it may discourage citizens from attempting to create initiatives. However, the Act's provision has the effect of potential abuse of time on initiatives that are not likely to qualify and consumes the time of the Service, rather than allowing the Service to focus on initiatives that are likely to appear on the ballot.
The Act and the California laws are also similar in that they both require that the initiative have a title and summary written to assist the voters in understanding the purpose and text of the initiative. What differs in these two areas is how the title and summary are written. Under California law, after an initiative measure has been written, a draft of the initiative must be submitted to the state Attorney General's office with a written request for title and summary of the initiative be prepared by the Attorney General's office. Cal. Elections Code § 9002 (2001). However, because the existing government has been entirely taken out of the process under the Act, the author of the initiative measure writes the title and summary for the initiative, or has another citizen or the Drafting Service write it. The advantage of the Attorney General's office overseeing the drafting of the title and summary is that it is more likely to be objective and free from prejudice.
The procedures for qualifying an initiative for election are also very similar under the two systems. California law requires that in order to qualify for the ballot, the initiative must be signed by a specified number of registered voters depending on the type of the initiative measure. If the Initiative is a statute or a change to a statute the petition must be signed by at least five percent of the total votes cast for Governor at the last gubernatorial election. If the initiative will change the state constitution, the initiative must be signed by eight percent of the total votes cast for Governor at the last gubernatorial election. Cal. Const. art II, § 8(b); Cal Elections Code § 9035 (2001). Additionally, initiatives can be qualified by vote of the state legislature and be put to the people for a general election. Similarly, the Act allows for qualification by the affected jurisdiction's legislature and qualification by petition containing signatures equal to a percentage of votes cast in the last Presidential election. The major difference between the two systems is that the Act permits qualification via opinion poll. There is no counter to qualification by opinion poll in the California laws. The opinion poll may serve as a problem for qualification only because poll takers will be able to target areas who are more sympathetic to their cause thereby making the qualification process more simple. Additionally, it may be more difficult to ensure that those working on the qualification are not fabricating their polling results; this problem could be served by asking for the contact information of those polled. However, it is often difficult to commit people to signatures on a petition that will become part of the public record. People may be more willing to simply respond to the poll.
The last important similarity between the two initiative systems is the requirement of a disclosure to the public of monies used in the campaign. In California any person or group of people will be classified as a recipient committee if they have received contributions of more than $1,000 for the purpose of influencing the election system. Cal. Govt Code §82013(a). Additionally, the committee must file a Statement of Organization with the Secretary of State, and must file quarterly reports of contributions totaling $1,000 or more. Cal. Govt. Code §§ 84215, 84202.3. The manner in which the Act uses the reporting information is allegedly more likely to alert the public as to who is behind the initiative campaigns, thereby allowing voters to be more informed about the sponsors. The reporting and disclosure report forwarded in the Act will do nothing to solve the problem of informing the public of who the financial supporters of the initiative are, and what their political and organizational affiliations are. Similar to California, only organizations receiving money must report, but they do not need to report who has given the money. Even though the Act only allows individuals to contribute, special interest groups will be able to contribute to the campaign through multiple individual contributions, and the public will be entirely unaware if a special interest group is financing the campaign.
VI. Additional Differing Provisions
There are a number of differences between the two systems beside from those briefly outlined above. One of the largest criticisms of most existing initiative processes is that there is no deliberation among the people regarding the advantages and disadvantages to the initiative. Unlike California rules, the Act establishes a system for deliberating the initiative by establishing a public hearing process and a deliberative committee to examine issues that are presented by the initiative. The system proposed by the drafters of the Act facially appears to solve the problem of deliberation. The problem with this process is that it will no doubt take a long time to get through all the issues on an initiative, and the system depends on the citizens thoroughly examining all issues. The manner in which the deliberative committee is selected is similar to that of how jurors are called for jury duty. Under the Act there is no way for citizens to opt-out of serving on deliberative committees that could continue for long periods of time. The Deliberative Committee process is also dependent on citizens actually being interested in the initiative and discussing the issues as opposed to simply concluding the initiative is acceptable so that they may be dismissed from their service. There are no procedural safeguards to ensure the Deliberative Committee performs its duties. Because of this factor, the existence of the Deliberative Committee may not alleviate the problem that there is not sufficient deliberation in the existing initiative processes.
Another major difference between the two systems is that the Act provides for a review by the affected jurisdictions legislature and an advisory vote on the initiative. This, too, is undoubtedly an attempt to cure the criticism that initiatives are not deliberated, and that the legislature has more experience in thoughtful lawmaking. It is ironic, however, that the authors of the Act have in every other way worked diligently at keeping the opinions and influence of government out of the initiative process, but allow for the legislature to provide an advisory vote on an initiative. The legislature's advice on a vote will undoubtedly affect the opinions of the voters. Additionally, by making an initiative subject to an advisory vote, if the legislature votes that they would not pass the initiative, the initiative may be doomed without ever truly having a chance to survive. While the advisory vote may solve the problem of a lack of deliberation, the legislature's advisory vote may heavily influence the public, thereby basically negating the theory that the people are to govern themselves. A further problem with the legislative advisory vote is that state and federal legislatures are often compacted with fulfilling their own lawmaking duties, and they may not be motivated to take the time to discuss the initiative so as to make an informed advisory vote. This problem, when working in conjunction with the influence the advisory vote, may result in a negative undeliberated advisory vote of the legislature, which may doom an important initiative.
Another major difference is the level of review of the initiative prior to election by the courts and the scope of the court's review. It is provided in the Act that the courts will not have jurisdiction to review initiatives prior to enactment. After the initiative has been enacted by the people, then the court is permitted to review the initiative, when requested to do so, to examine the constitutionality of the initiative. However, if the initiative is a Constitutional amendment, the court will only be permitted to examine the amendment if fraud can be proven. This is different from the California process where the courts have held that they have the right to a pre-election review of an initiative under certain circumstances. American Federation of Labor-Congress of Industrial Organizations v. Eu, 36 Cal.3d 687, 695 (1984). The California Supreme Court has held that when an initiative clearly violates the federal or state constitutions, or when the people lack the power to accomplish what the initiative seeks to accomplish, then it is acceptable for the courts to review the initiative prior to the election and declare it void. Id. The system advocated under the Act is clearly designed to allow the people to deliberate and decide their own law, thereby supporting the theory of self-governance. However, if an initiative is clearly unconstitutional or the people lack the authority to accomplish what they hope to accomplish, then it is likely to be an ineffective use of time for the people conducting the hearing, those serving on the deliberative committees, the legislatures who spend time casting an advisory vote, and those who advocate for or against an initiative, when the court is going to declare the initiative void after it is passed. While a bar on pre-election judicial review does further the purpose of allowing people to govern themselves, it has very serious disadvantages, as well.
There is also a disadvantage to the judicial review methodology outlined in the Amendment because it supports majority rule, and sometimes majority tyranny. Under the Amendment, the courts may only review a Constitutional amendment if there is evidence of fraud in its passage. This free-for-all of Constitutional revisionism runs directly contrary to all that the Founders' worked to protect the country from. While the courts cannot review Constitutional amendments, written into the Constitution are procedural safeguards to prevent the changing of the Constitution by a simple majority. A Constitutional amendment must pass through both houses of Congress by a supermajority and must be ratified by three-fourths of the states in order to ensure that the rights of minority groups are not diminished. Under the Act and the Amendment, these procedural safeguards are not present and a simple majority of the voters may subject the entire nation to a potentially oppressive Constitutional Amendment. Direct democracy allows the majority opinion to infringe on minorities' rights, and there is no check, especially under the Act and the Amendment, on the actions of the majority. Fountaine at 747. Minorities, whether they are based on race, sex, political or religious affiliation, etc., may be subject to the prejudices of the majority. Id. For example, in 1986 voters in California passed a law making it illegal to use any other language than English, thereby oppressing all those who spoke other languages only. Id. at 748. Under the system proposed by the Act and the Amendment, where there can be no judicial review of Constitutional amendments that are passed by a simple majority absent fraud, minority populations of the country will be subjected to the potentially prejudicial sentiments of fifty-one percent of the population. A simple majority will be permitted through this process to do such things as destroy the First Amendment rights of a section of the population by repealing the Fourteenth and First Amendments.
The manner in which campaign finances may be obtained also differs in a very unique manner. Under California law there is no prohibition on who can give money to the campaign. The Act restricts who is permitted to make contributions to an initiative campaign; only individual people may contribute, corporations and other organizations are prohibited from contributing. Both of these measures are an attempt to keep the influence of special interest groups out of the initiative process. The authors of the Act believe that special interest groups and moneyed groups have gained control over legislatures, and it is for this very reason that they are attempting to establish the national initiative process. It can be inferred that it is because of this reason that they have placed such restrictions on the contribution of funds because they are merely attempting to allow people to govern themselves without the undue influence of moneyed organizations. A disadvantage to this policy is that campaigns cannot survive without money. To restrict the manner in which the proponents and opponents can obtain financing may mean an initiative's death. Additionally, it may be very simple for the restricted organizations to get around this provision by funneling money through individuals rather than giving the money as an organization.
It can also be argued that a restriction on allowing contributions may be a violation of the first amendment rights of those in the organization. California Profile Counsel Political Action Committee v. Scully, 989 F.Supp. 1282, 1293 (E.D. Cal. 1998). Limits on campaign contributions can arguably be a restriction on the freedoms of speech and association. Id. Limiting how people may contribute to campaigns by restricting their ability to contribute through an organization may result in a restriction on who people associate with. Id. Additionally, people are free to speak through their political contributions and through the organizations they associate with. Id. By restricting contributions of organizations, an individual's freedom of association and speech may be violated. Id.
The last important difference in the systems is that California law requires that if the initiative has a financial impact on the society that a fiscal analysis be performed under the direction of the Attorney General's office and be included in the informational material on the initiative. Cal. Elections Code § 9005. The Act requires a fiscal impact statement, however there is no mandate as to who performs it. Under the Act the proponents of the initiative could be responsible for the preparation of the fiscal impact statement and skew it so that it depicts the costs as being lower than they might actually be. The California system allows voters to make an informed decision based partially on how much money they are willing to spend for a program that has been proposed. This approach would be beneficial in the Act because the initiatives that will be proposed under the Act could affect only a small community, but has the potential to affect national spending.
VII. Concerns in the Implementation of the Act
This report has provided an overview of the legislation that is proposed and discussed whether the Act is legal. Throughout the discussion of the Act and the comparisons made, a number of issues have come to light, as well as potential problems with the Act. In addition to the problems discussed throughout the report, there are a number of other concerns about implementing a nationwide initiative system. The first group of concerns centers around the ambiguities of the Act, the second group centers around potential conflict with the United States Constitution.
The first group of concerns centers around the uncertain language of the Act. The Act provides little in the way of procedures for the processing and implementation of the initiative system. The goals are outlined in the Act, however the direct procedures for accomplishing those goals are left to the Board of Trustees and the Electoral Trust, and at a local level it is left solely to the Electoral Trust. Additionally, it is unclear if the Act will be used to create laws locally, or just nationally. From the language of the Act, it appears as though the initiative process can be used nationally or locally. If it is to be used locally, that poses another problem for states that already have initiative systems in place. The language of the Act states that if any local laws conflict with the Act, then the laws of the Act prevail. The practical effect of this provision is that any state that has an initiative process will have its initiative laws superceded by the ambiguities of the Act. In light of the fact that many states have well-established initiative and referendum procedures, it makes little sense to require those states to abandon these procedures for the procedures that will be later established in accordance with those broadly outlined in the Amendment.
The second group of concerns center around the potential conflicts that arise with the established United States Constitution. The first of the concerns is that within the Constitution the sole responsibility for making laws regarding national matters has been assigned to Congress. The Act would run directly contrary to Article I of the Constitution. The Act would create a new lawmaking body made up of the average person, and this body is not subjected to the same restrictions and qualifications as Congress. Additionally, the Act requires that the national budget provide for the implementation of the system. The effect of this provision is that it dictates to Congress and the President what they must spend money on, a power that has been reserved in the Constitution for the Congress and the President. Lastly, the ratification procedures for the Constitutional Amendment are a direct contradiction to the ratification procedures outlined in the Constitution. The Constitution requires that any Constitutional amendment be ratified by three-fourths of the states; the Act requires only a simple majority of the general public to change the United States Constitution. As stated previously, the Framers of the Constitution diligently worked to ensure that an oppressive majority was not permitted to change the fundamental rights laws of the country. Fountaine at 747. This contradiction to the standing United States Constitution is one of the most pressing because the passage of the Act and the Amendment would permit one of the fundamental purposes behind the Constitution to be violated.
This report has provided a history of the role of direct democracy in civilization in general, as well as its use in current government. Because of a frustration with the functioning of government, Mike Gravel, in conjunction with Direct Democracy and Philadelphia II, has established the National Initiative for Direct Democracy in an attempt to establish a nationwide system of direct democracy.
The theory of a direct democracy was developed and practiced by the ancient Greeks and Romans and was implemented in some American states in the late 1800s. Fountaine at 736. Through the Direct Democracy Act, Philadelphia II and Direct Democracy seek to create a nationwide initiative system that can be used to create laws and change constitutions in local and federal governments. However, a nationwide initiative system may not be constitutional. The Supreme Court has yet to declare initiative systems constitutional, and there are persuasive arguments on each side of the constitutionality argument. Fountaine at 774; Natelson.
The nationwide initiative system proposed in the Direct Democracy Act has some similarities to the California initiative system in the way that initiatives are qualified and presented to the public. However, Philadelphia II and Direct Democracy have attempted to cure a few of the problems with existing initiative systems like California's. One of the chief criticisms of existing initiative systems is lack of deliberation by the populous before passing an initiative. The Direct Democracy Act attempts to compensate for this shortcoming by creating a series of hearings and committees on an initiative before it is put to a popular vote. However, in ensuring that the initiative is deliberated, the authors of the Act require that the initiative go to the legislature of the jurisdiction where the law will be enacted for an advisory vote. This process places the legislature back in the process of lawmaking, and gives the legislature the ability to tell the voters whether the initiative should be passed.
Another major difference between the system outlined in the Act and existing systems is that only individuals can contribute to the campaign under the Act. While this may solve the problem of special interest groups being able to purchase votes, this approach may be unconstitutional. It can be argued that by restricting contributions to individual people, those individuals' first amendment rights of free association and speech are infringed upon. The final significant difference between the system advocated in the Direct Democracy Act and existing systems is the court's ability to review the initiative. The approach in the Act will permit the populous to make decisions before the court is permitted to interfere. However, not permitting the court to review initiatives that amend the Constitution may result in the passage of an amendment that discriminates against a minority group.
Lastly, there are concerns that emerge in considering a nationwide initiative system. The first concern is that the system outlined in the act is ambiguous. The language in the Act would permit the ambiguous system provided for in the Act to supercede the well-developed initiative systems that some states have implemented. The second concern is that the implementation of the Act may conflict with the existing United States Constitution. An example of the conflicts that emerge is the declaration in the Constitution that all lawmaking responsibilities lie with Congress, and the Act provides that the people can create their own laws outside of Congress. Additionally, the method of amending the Constitution runs in direct contradiction with the method dictated in the Constitution and allows the Constitution to be amended much more easily. This could result in discriminatory amendments to the Constitution because all that is required is a simple majority of the voters. The existing system requires a supermajority in each house of Congress, as well as ratification by three-fourths of the state legislatures; these high standards help to ensure that the foundation of the government is not changed without extensive deliberation and heavy approval.
Through the discussion of the Act and the Amendment it is very clear that no matter which approach is taken, either leaving the system they way it is or adopting the National Initiative for Direct Democracy, a significant amount of thought will be required to ensure that the rights of the people are not abused or eliminated. Direct democracy has the potential for greatly impinging upon the rights of others if procedural safeguards are not in effect. Should Philadelphia II and Direct Democracy continue to pursue the implementation of a direct democracy system of government, they, too, should take the steps that the Founders painstakingly took in ensuring the rights and freedoms of all citizens, and to protect all citizens from tyranny.