The dual path initiative framework

Southern California Law Review

Volumn 80, Issue 2, 2007, Pages 299-345

  Garrett, Elizabeth ^a,b   Mccubbins, Mathew D ^a,c  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

^b USC Caltech Center for the Study of Law and Politics

^c UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 33947728089     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (154)

1. We do not consider disclosure provisions that should be part of any initiative framework to improve voter competence in direct democracy because these have already been the subject of more scholarly analysis than our other proposals. For reviews of the extensive empirical literature, see, e.g., Elizabeth Garrett, McConnell v. FEC and Disclosure, 3 ELECTION L.J. 237 (2004); Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and "Disclosure Plus," 50 UCLA L. REV. 1141, 1157-59 (2003);
2. Arthur Lupia & John G. Matsusaka, Direct Democracy: New Approaches to Old Questions, 7 ANN. REV. POL. SCI. 463, 476-77 (2004);
3. Elizabeth Garrett, Commentaries on Bruce Ackerman and Ian Ayers's Voting with Dollars: A New Paradigm for Campaign Finance Reform: Voting with Cues, 37 U. RICH. L. REV. 1011 passim (2003). Similarly, we do not tackle the issue of campaign finance regulations.
4. See, e.g., Richard L. Hasen, Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns, 78 S. CAL. L. REV. 885 (2005).
5. Thad Kousser & Mathew D. McCubbins, Social Choice, Crypto-Initiatives, and Policymaking by Direct Democracy, 78 S. CAL. L. REV. 949 (2005).
6. For a discussion of the role of money in direct democracy, see Elizabeth Garrett & Elisabeth R. Gerber, Money in the Initiative and Referendum Process: Evidence of Its Effects and Prospects for Reform, in THE BATTLE OVER CITIZEN LAWMAKING: A COLLECTION OF ESSAYS 73, 76-90 (M. Dane. Waters ed., 2001);
7. Elisabeth Gerber, Prospects for Reforming the Initiative Process (June 6, 2000) (paper presented to the National Direct Democracy Conference, University of Virginia Center for Government Studies), http://www.ni4d.us/library/ prospects.htm.
8. ELISABETH R. GERBER, ARTHUR LUPIA, MATHEW D. MCCUBBINS & D. RODERICK KIEWIET, STEALING THE INITIATIVE: HOW STATE GOVERNMENT RESPONDS TO DIRECT DEMOCRACY 15-26 (2001) [hereinafter GERBER ET AL., STEALING THE INITIATIVE];
9. Elisabeth R. Gerber, Arthur Lupia & Mathew D. McCubbins, When Does Government Limit the Impact of Voter Initiatives? The Politics of Implementation and Enforcement, 66 J. POL. 43 (2004) [hereinafter Gerber et al., The Politics of Implementation].
10. See, e.g., RULES OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, H.R. DOC. No. 108-241, §§ XXIV-XXVI (2005), available at http://www.gpoaccess.gov/hrm/browse_109.html ("The second reading must regularly be on another day. . . . [T]he question will be whether it shall be committed, or engrossed and read a third time?");
11. STANDING RULES OF THE UNITED STATES SENATE, S. DOC. NO. 106-15, R. XIV, ¶ 2 (2000), available at http://www.senate.gov/legislative/common/briefing/ Standing_Rules_Senate.htm#14 ("Every bill and joint resolution shall receive three readings previous to its passage which readings on demand of any Senator shall be on three different legislative days . . . .");
12. WYO. STATE LEG., RULES OF THE HOUSE OF REPRESENTATIVES, R. 7-1 (2006), available at http://legisweb.state.wy.us/2006/rules/house.htm ("Every bill shall receive three separate readings, previous to its being passed . . . .");
13. H.R. Res. 318, 2005 Gen. Assemb., Reg. Sess. R. 41(a) (N.C. 2005), available at http://www.ncleg.net/house/documents/houserules.html ("Every bill shall receive three readings in the House prior to its passage."). In reality, bills are seldom read in their entirety, and one or two of the three readings are usually pro forma parliamentary exercises, but representative institutions have other institutional checks that ameliorate any deliberative loss that may occur.
14. See Elizabeth Garrett, Hybrid Democracy, 73 GEO. WASH. L. REV. 1096 (2005). A hybrid democracy is one that incorporates both representative and direct democracy as essential elements of lawmaking.
15. CAL. GOV'T CODE §§ 81000-83124 (West 2005).
16. Proposition 71, the California Stem Cell Research and Cures Act, designated state money for stem cell research and created a commission to oversee its disbursement. CAL. CONST. art. XXXV, §§ 1-7; CAL. HEALTH & SAFETY CODE §§ 125290.10-.70 (West 2006). The constitutionality of the initiative was challenged in court by small-government and conservative religious groups, alleging that it did not provide sufficient legislative control over the expenditure of state funds, as required by the California Constitution. CAL. CONST. art. XVI, § 3. The trial court held that the measure was constitutional. People's Advocate v. Indep. Citizens' Oversight Comm., No. HG05 206766, HG05 235177, 2006 WL 1417983 (Cal. Super. Ct. May 12, 2006).
17. See INITIATIVE & REFERENDUM INST., OVERVIEW OF INITIATIVE USE 1904-2006 (2006), http://www.iandrinstitute.org/IRI%20Initiative%20Use%20(2006-11).pdf.
18. See BRITISH COLUMBIA CITIZENS' ASSEMBLY ON ELECTORAL REFORM, MAKING EVERY VOTE COUNT: THE CASE FOR ELECTORAL REFORM IN BRITISH COLUMBIA (2004), available at http://www.citizensassembly.bc.ca/resources/final_report. pdf.
19. See also Heather Gerken, Op-Ed., Citizens Must Drive Electoral Reform, ROLL CALL, Nov. 15, 2005, at 4, available at http://www.law.harvard.edu/news/2005/11/15_gerken.php.
20. During the 2005-06 session of the California Legislature, Assemblyman Joseph Canciamilla introduced the Citizens Assembly on Electoral Systems Act of 2006. Assemb. Const. Amend. 28, 2005-2006 Leg., Reg. Sess. (Cal. 2006), http://leginfo.ca.gov/pub/05-06/bill/asm/ab_0001-0050/ aca_28_bill_20060125_introduced.html.
21. See infra text accompanying notes 25-26 (discussing the indirect initiative); infra text accompanying notes 51-53 (discussing aspects of the process in Washington, Colorado, and generally).
22. THE FEDERALIST NO. 51, at 263 (James Madison) (Buccaneer Books 1992).
23. THE FEDERALIST NO. 47, at 244 (James Madison) (Buccaneer Books 1992).
24. See Elizabeth Garrett, Money, Agenda Setting, and Direct Democracy, 77 TEX. L. REV. 1845, 1849-54 (1999) [hereinafter Garrett, Money, Agenda Setting].
25. California courts are particularly unwilling to block initiatives from the ballot; preelection challenges were successful only three times between 1912 and December 2002. CAL. SEC'Y OF STATE, A HISTORY OF CALIFORNIA INITIATIVES 9 (2002), available at http://www.ss.ca.gov/elections/ init_history.pdf. Some other states allow more preelection review. For example, in Colorado a three-member Title Board reviews proposed initiatives to determine whether they comply with the state's formal requirements (including, importantly, the state's so-called "single subject rule.") The process provides an opportunity for interested parties to appeal the Title Board's decisions to the state Supreme Court, and thus the court has a formal filtering role prior to the election.
26. Kenneth P. Miller, The Role of Courts in the Initiative Process: A Search for Standards 1 n.3 (Sept. 2-5, 1999) (working paper, delivered at the 1999 Annual Meeting of the American Political Science Association), http://www.iandrinstitute.org/Studies.htm; COLO. REV. STAT. §§ 1-40-106 to -107 (2006). Like courts in most states, however, those in Colorado are more willing to strike down an initiative at this stage on procedural grounds than substantive ones. See Miller, supra, at 1 n.3. See also Advisory Op. to the Att'y Gen. Re: Indep. Nonpartisan Comm'n to Apportion Leg. and Cong. Dists. Which Replaces Apportionment by Leg., 926 So. 2d 1218 (Fla. 2006) (responding to a request by the attorney general and removing an initiative on reapportionment from the ballot because it violated the single subject requirement).
27. See M. DANE WATERS, INITIATIVE AND REFERENDUM ALMANAC 26 (2003).
28. Between 1960 and 1999, fifty-five initiatives were adopted in California, thirty-six of which were challenged in court. As of September 1999, final judgment had been rendered with respect to thirty-two initiatives. Of those, fourteen were upheld (44%), eleven were invalidated in part (34%), and seven were invalidated in their entirety (22%). The courts therefore invalidated, at least in part, about 33% of the initiatives enacted in California between 1960 and September 1999. Miller, supra note 15, at 12.
29. All legislation can be attacked in court on constitutional grounds, and many state legislatures are subject to single subject requirements. See Brannon P. Denning & Brooks R. Smith, Uneasy Riders: The Case for a Truth-in-Legislation Amendment, 1999 UTAH L. REV. 957 app. A. Some commentators, however, have observed that courts may more rigorously apply single subject rules to direct legislation than traditionally enacted laws. See In re Title and Ballot Title and Submission Clause for 2005-2006 #55, 138 P.3d 273, 283 (Colo. 2006) (en banc) (Coats, J., dissenting) ("Although the majority opinion today pays homage to the [single subject] requirement's dual concerns for secreting unrelated provisions and combining provisions too unpopular to succeed on their own, it understands the term 'subject' to be so elastic as to give this court unfettered discretion to either approve or disapprove virtually any popularly-initiated ballot measure at will.");
30. WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 511 (3d ed. 2001) (discussing California's single subject rule).
31. CAL. CONST. art. II, § 10(c).
32. See WATERS, supra note 16, at 27 (providing state-specific details); infra notes 72-73.
33. See WATERS, supra note 16, at 12 (providing a table showing states with constitutional initiatives, statutory initiatives, or both).
34. See Kousser & McCubbins, supra note 2, at 963-66. Our proposal does not change the binary, sequential nature of the U.S. initiative process, although other formats for decisionmaking are possible. See, e.g., Elizabeth Garrett, Who Chooses the Rules?, 4 ELECTION L.J. 139, 145-46 (2005) [hereinafter Garrett, Who Chooses the Rules?] (describing a two-stage, multiple choice format used in New Zealand). However, our proposal requiring constitutional initiatives to expire and allowing subsequent legislative involvement with statutory ones will mitigate the welfare-reducing consequences of this decisionmaking pathology. See infra Part III.C.
35. Kousser & McCubbins, supra note 2, at 965-66. The structure of direct democracy - presenting a series of questions on single subjects for a "yes" or "no" vote - impedes any straightforward consideration of tradeoffs and tends to obscure the tradeoffs that must necessarily be made in these decisions. Voters are not offered tradeoffs directly, which implies the tradeoffs are not in their choice set and thus would be difficult or impossible to consider. Furthermore, in many states that apply a single subject rule to initiatives, voters are forbidden from considering tradeoffs. A considerable amount of scholarship has determined that voters do not consider tradeoffs unless they are squarely presented with them. See, e.g., V.O. KEY, JR., PUBLIC OPINION AND AMERICAN DEMOCRACY 205-87 (1964);
36. Jack Citrin, Do People Want Something for Nothing: Public Opinion on Taxes and Government Spending, 32 NAT'L TAX J. (SUPP.) 113 (1979);
37. James H. Kuklinski, Paul J. Quirk, Jennifer Jerit & Robert F. Rich, The Political Environment and Citizen Competence, 45 AM. J. POL. SCI. 410 (2001);
38. Andre Modigliani & Franco Modigliani, The Growth of the Federal Deficit and the Role of Public Attitudes, 51 PUB. OPINION Q. 459 (1987).
39. See, e.g., Elisabeth R. Gerber, Reforming the California Initiative Process: A Proposal to Increase Flexibility and Legislative Accountability, in CONSTITUTIONAL REFORM IN CALIFORNIA 291, 303 (Bruce E. Cain & Roger G. Noll eds., 1995) (recommending increasing the signature threshold for constitutional initiatives as part of a larger reform proposal with elements of indirect initiatives);
40. Mark Ridley-Thomas & Erwin Chemerinsky, Editorial, Now That It's Finally Over, Let's Revamp the Recall, L.A. TIMES, Oct. 29, 2003, at B15.
41. But see John Ferejohn, Reforming the Initiative Process, in CONSTITUTIONAL REFORM IN CALIFORNIA, supra, at 313, 315 (proposing that once an initiative has qualified, competing initiatives on the same topic could qualify with fewer signatures).
42. For a discussion of the variations on the indirect initiative, see CAL. COMM'N ON CAMPAIGN FIN., DEMOCRACY BY INITIATIVE: SHAPING CALIFORNIA'S FOURTH BRANCH OF GOVERNMENT 104-05, 117 (unz.org 2003) (1992) [hereinafter DEMOCRACY BY INITIATIVE]. Fewer states allow the indirect initiative than the direct initiative; two states have an indirect constitutional initiative process, and nine have an indirect statutory initiative process.
43. See Fred Silva, The Indirect Initiative Process, in WATERS, supra note 16, at 13-15.
44. DEMOCRACY BY INITIATIVE, supra note 25, at 47 & n.43.
45. It has been suggested to us that, rather than using an enforcement commission, we should just urge initiative writers to put clear enforcement standards into the language of the initiative, such as reporting requirements and strict penalties for noncompliance. GERBER ET AL., STEALING THE INITIATIVE, supra note 4, at 22-25. These are all good ideas, but the problem is that they do not answer the questions: To whom is the legislature supposed to report? Who decides if a sanction is to be imposed, and, if imposed, who decides the remedy and the penalized party? Who then enforces the enforcement? The CIIOC will be able to determine if the initiative has been implemented or not and can bring to bear the only enforcements possible or necessary, that is, court or electoral sanctions to those who have impeded the implementation of an initiative. The CIIOC will be in a position to bring to the public's attention the lack of enforcement of an initiative, and it will be up to the public to decide if it is a wrong that is worth righting through the ballot box.
46. Gerber et al., The Politics of Implementation, supra note 4, at 52-56.
47. GERBER ET AL., STEALING THE INITIATIVE, supra note 4, at 20-25. See also Lupia & Matsusaka, supra note 1, at 475-76 (discussing scholarship on the "implementation problem").
48. GERBER ET AL., STEALING THE INITIATIVE, supra note 4, at 24.
49. See, e.g., MARK BALDASSARE, PPIC STATEWIDE SURVEY AUGUST 2004: CALIFORNIANS AND THEIR GOVERNMENT 17 (2004) (stating that 74% of California residents think the initiative process is a "good thing" and 59% believe that policy decisions made by voters through initiatives are probably better than policy decisions made by elected officials);
50. Jack Citrin & Jonathan Cohen, Viewing the Recall from Above and Below, in ESSAYS ON THE CALIFORNIA RECALL 68, 74-82 (Shaun Bowler & Bruce E. Cain eds., 2006) (citing several recent polls confirming California's strong and increasing support of direct legislation). Even after the 2005 special election in California, in which voters rejected all the initiatives, Californians are still enthusiastic about direct democracy.
51. See MARK BALDASSARE, PPIC STATEWIDE SURVEY NOVEMBER 2005: SPECIAL SURVEY ON CALIFORNIANS AND THE INITIATIVE PROCESS 13 (2005) [hereinafter BALDASSARE, SPECIAL ELECTION POLL] (stating that nearly half (48%) of voters in the November 2005 special election said that public policies generated by the initiative process are probably better than those developed by the governor and legislature; only three in ten thought the voters' decisions are probably worse).
52. BALDASSARE, SPECIAL ELECTION POLL, supra note 31, at 17 (stating that 77% of special election voters favored creating a new system of review and revision of proposed initiatives to avoid legal issues and drafting errors; 83% favored allowing time for the legislature and the proponents to reach a compromise before initiatives can be presented on the ballot).
53. Given the inherent conflicts of interest faced by lawmakers in designing the rules that will shape their careers, even some who have substantial reservations about the initiative process nonetheless argue that more directly involving the people in decisionmaking about democratic institutions is justified. See, e.g., DENNIS F. THOMPSON, JUST ELECTIONS: CREATING A FAIR ELECTORAL PROCESS IN THE UNITED STATES 14 (2002);
54. Dennis F. Thompson, The Role of Theorists and Citizens in Just Elections: A Response to Professors Cain, Garrett, and Sabl, 4 ELECTION L.J. 153, 158-60 (2005). For a less guarded advocacy of direct democracy to design democratic institutions, see Garrett, Who Chooses the Rules?, supra note 22. Whether the initiative process actually leads to different electoral institutions is a matter of scholarly contention.
55. Compare Nathaniel Persily & Melissa Cully Anderson, Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform, 78 S. CAL. L. REV. 997 (2005) (finding the initiative process related to states' adopting nonpartisan redistricting commissions, legislative term limits, and public financing for legislative races),
56. with John G. Matsusaka, Direct Democracy and Electoral Reform, in THE MARKETPLACE OF DEMOCRACY: ELECTORAL COMPETITION AND AMERICAN POLITICS (Michael P. McDonald & John Samples eds., 2006) (finding that the initiative has little effect on electoral laws except for the adoption of legislative term limits).
57. See JOHN G. MATSUSAKA, FOR THE MANY OR THE FEW: THE INITIATIVE, PUBLIC POLICY, AND AMERICAN DEMOCRACY 83-92 (2004) (discussing the various "frictions" that cause representatives to get out of step with their constituents);
58. Elisabeth R. Gerber, Legislative Response to the Threat of Popular Initiatives, 40 AM. J. POL. SCI. 99, 107-17 (1996) (analyzing when and how the legislature will be constrained by the threat of initiatives);
59. John G. Matsusaka, Direct Democracy Works, J. ECON. PERSP., Spring 2005, at 185, 192 (2005) ("Since ballot propositions are filtered through the electorate, only policies that make the median voter better off can gain approval in an election or credibly threaten the legislature.").
60. In California, it could be argued that our package of reforms is a revision of the California Constitution, rather than an amendment, because it alters the power of the electors in the initiative process through the three readings framework and alters the power of the legislature through the oversight commission. Constitutional revision cannot be done through the initiative process but can be done by the legislature, if two-thirds of each house votes to put the revision on the ballot, or by constitutional convention. CAL. CONST. art. XVIII, §§ 1-3. Courts have defined what constitutes a revision rather than an amendment, but the line between the two is not clear. See, e.g., Legislature v. Eu, 816 P.2d 1309, 1319 (Cal. 1991) (finding that an initiative that imposed legislative term limits and other reforms was an amendment, because it did not "necessarily or inevitably appear from [its] face . . . that the measure [would] substantially alter the basic governmental framework set forth in our Constitution"); McFadden v. Jordan, 196 P.2d 787, 799 (Cal. 1948) (finding that a wide-ranging initiative that, among other things, created a Pension Commission would "substantially alter the purpose and . . . attain objectives clearly beyond the lines of the Constitution as now cast" and thus constituted a revision). Given the restructuring we propose, it is possible our framework would be considered a revision in California; in which case, it should originate in the legislature. We believe, however, that our framework does not effect such "far reaching changes in the nature of our basic governmental plan" to necessarily rise to the level of revision. Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 583 P.2d 1281, 1286 (Cal. 1978). We do not know if similar issues would be raised in other states considering reform along the same lines we suggest.
61. We know of no direct evidence revealing how voters decide to sign initiative petitions. We note, however, that every state provides a brief summary of the ballot initiative on the petition. In addition, voters generally do not know much about public policy when asked. Taken together, these realities suggest that most voters are unlikely to know much about policy specifics and may often decide only on the basis of general policy goals. It may be the case that many voters are not even aware of the general policy objectives when they sign petitions, perhaps signing because they want to end the interaction with the signature gatherer and get on with their shopping, because they believe any question should be posed to voters, without coming to a conclusion about the merits, or because they believe their interests are aligned with those groups coordinating the petition drive and therefore they do not need to know more about the measure's substance. These voters would be made no worse off by our proposal; very few voters will find themselves denied information they need to make the decision whether to sign a petition or not. Literature on general voter ignorance is copious. See, e.g., ANGUS CAMPBELL, PHILIP E. CONVERSE, WARREN E. MILLER & DONALD E. STOKES, THE AMERICAN VOTER (1960);
62. MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS (1996);
63. Larry M. Battels, Homer Gets a Tax Cut: Inequality and Public Policy in the American Mind, 3 PERSP. ON POL. 15 (2005);
64. Larry M. Bartels, Uninformed Votes: Information Effects in Presidential Elections, 40 AM. J. POL. SCI. 194 (1996).
65. Heydon's Case, (1584) 76 Eng. Rep. 637 (Exch.).
66. See also LAWRENCE E. FILSON, THE LEGISLATIVE DRAFTER'S DESK REFERENCE 29-51 (1992) (describing a similar kind of approach to drafting statutes, that is, identify the problem and choose a solution from policy alternatives).
67. See supra note 3 and accompanying text.
68. To get an initiative on the ballot in California, the cost has been estimated at "anywhere from one to two million dollars," a substantial chunk of which goes to paying petition circulators. DAVID S. BRODER, DEMOCRACY DERAILED: INITIATIVE CAMPAIGNS AND THE POWER OF MONEY 69, 72 (2000). Eliminating paid petition circulators is not an option under current constitutional jurisprudence. Meyer v. Grant, 486 U.S. 414, 423-24 (1988). There might be, however, some flexibility to regulate how they are paid.
69. See ANDREW M. GLOGER, INITIATIVE & REFERENDUM INST., REP. 2006-1, PAID PETITIONERS AFTER PRETE (2006), http://law.usc.edu/academics/assets/docs/PaidPetitionersafterPrete.pdf.
70. "In providing the ballot title, the Attorney General shall give a true and impartial statement of the purpose of the measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure." CAL. ELEC. CODE § 9051 (West 2003).
71. Id. §§ 9008, 9011.
72. We do not discuss this disclosure requirement at length. See Garrett, Money, Agenda Setting, supra note 14, at 1884-86 (providing a fuller discussion of disclosure statutes).
73. See WATERS, supra note 16, at 7. The rates at which popular initiatives pass vary among the states. For example, 68% of initiatives in Florida passed between 1976 and 2000, while only 35% of initiatives passed in California from 1912 until 2000. Id. at 174, 93.
74. States with the direct initiative process prohibit changes in the text of the proposal after a very early stage in the process. Although some allow revisions to reflect advice provided by legislative drafters or other officials, see, e.g., IDAHO CODE ANN. § 34-1809(1)(a)-(b) (2006), none allow changes once proponents begin to circulate petitions. In some indirect initiative processes, the proposal can be changed after the legislature has considered it and refused to act but before it is presented to the citizens for a vote. See, e.g., MASS. CONST. art. XLVIII, § 2, cl. V (allowing a change that is "perfecting in its nature and does not materially change the substance of the measure").
75. Costa v. Super. Ct., 128 P.3d 149 (Cal. 2005), rev'd, 128 P.3d 675 (Cal. 2006).
76. Costa v. Super. Ct., 128 P.3d 675, 700 (Cal. 2006).
77. Id. (calling discrepancies between the version of the initiative measure submitted to the attorney general and the version circulated for signature "inadvertent"); id. at 694 (referring to "numerous relatively minor departures" from constitutional and statutory requirements that still substantially comply with applicable provisions).
78. Another recent scholarly proposal includes a step in the initiative process similar to ours. It would also allow flexibility in drafting after qualification and would provide a preelection period similar to notice-and-comment rulemaking in federal administrative agencies. This process would allow better drafting and time for compromise; it would also provide a record for subsequent judicial review. See Glen Staszewski, The Bait-and-Switch in Direct Democracy, 2006 WIS. L. REV. 17, 55-59.
79. Because the legislature has a role in this process, the three months must overlap with a legislative session, a requirement that presents greater logistical challenges in states with part-time legislatures.
80. Proposition 78 on the 2005 special election ballot was sponsored by the pharmaceutical companies and would have created a state-run drug discount program in which the pharmaceutical companies could voluntarily participate. Proposition 78: Discounts on Prescription Drugs. Initiative Statute, reprinted in OFFICIAL VOTER INFORMATION GUIDE: SPECIAL STATEWIDE ELECTION, 36-41, 66-69 (Cal. Sec'y of State, 2005), available at http://www.ss.ca.gov/ elections/bp_nov05/voter_info_ pdf7entire78.pdf.
81. It was a reaction to Proposition 79, which was sponsored by consumer groups such as Consumers Union, AARP, and the League of Women Voters, and would have created a mandatory drug discount program. Proposition 79: Prescription Drug Discounts, reprinted in OFFICIAL VOTER INFORMATION GUIDE: SPECIAL STATEWIDE ELECTION, 42-49, 69-72 (Cal. Sec'y of State, 2005), available at http://www.ss.ca.gov/elections/bp_nov05/voter_info_pdf/entire79.pdf.
82. WASH. REV. CODE ANN. § 29A.72.020 (LexisNexis 2006). See DEMOCRACY BY INITIATIVE, supra note 25, at 102.
83. COLO. CONST. art. V, § 1, cl. 5; COLO. REV. STAT. § 1-40-105(1) (2006) (requiring that a hearing be held on each initiative submitted, before petitions are circulated).
84. DEMOCRACY BY INITIATIVE, supra note 25, at 102. See also WATERS, supra note 16, at 15 (detailing similar assistance provided in other states).
85. See Press Release, Cal. Sec'y of State, Secretary of State McPherson Reports Three Proposed Initiatives Enter Circulation 2-3 (Apr. 4, 2005), http://www.ss.ca.gov/executive/press_releases/2005/ 05_037.pdf (providing the attorney general's official title and summary of the "Prohibition Against Defined Benefit Public Pensions. Exception for University of California. Initiative Constitutional Amendment and Statute.").
86. See Robert Salladay, Lockyer Is Accused of Stacking Deck Against Initiatives, L.A. TIMES, Aug. 1, 2005, at A1.
87. See, e.g., Francis Fukuyama, Big Science, Big Giveaway, WALL ST. J., Oct. 25, 2004, at A18;
88. Jonathan Knight, Critics Slate Ethical Leeway in California Stem-cell Proposal, NATURE, Sept. 16, 2004, at 232.
89. Klein has said that voters approved the initiative "with their eyes open" and that "[t]he institute needs time to go through the process" and "have thoughtful due diligence." Bernadette Tansey, Stem Cell Program in Limbo; Hayward Judge Reviewing Lawsuits that Block Research, S.F. CHRON., Nov. 18, 2005, at C1;
90. Carl T. Hall, Stem Cells: The $3 Billion Bet, S.F. CHRON., Apr. 11, 2005, at A1.
91. For a discussion of the single subject requirement in the context of initiatives, see Daniel H. Lowenstein, Initiatives and the New Single Subject Rule, 1 ELECTION L.J. 35 (2002).
92. For a discussion of how courts find "legislative intent" for initiatives, see Jane S. Schacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107, 114-23 (1995).
93. See Kousser & McCubbins, supra note 2, at 969-74 (discussing the rise of crypto-initiatives). For a further discussion of the likely equilibrium after the adoption of the Dual Path Initiative Framework, see Part V, infra.
94. In California, 65% of legislative initiatives pass, while around a third of popular initiatives succeed at the polls. Bruce E. Cain, Sara Ferejohn, Margarita Najar & Mary Walther, Constitutional Change: Is It Too Easy to Amend Our State Constitution, in CONSTITUTIONAL REFORM IN CALIFORNIA, supra note 24, at 265, 269.
95. See also THOMAS E. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 197 (1989) (providing similar national figures);
96. DAVID B. MAGLEBY, DIRECT LEGISLATION: VOTING ON BALLOT PROPOSITIONS IN THE UNITED STATES 107 (1984) (providing voters' self-reported drop-off for ballot propositions by demographic category).
97. Most states limit the ability of proponents to withdraw the ballot measures after signatures have been submitted or verified. See, e.g., OKLA. STAT. tit. 34, § 8(A) (1999). South Dakota, however, allows proponents to withdraw an initiative if the election is at least 120 days away, and if at least two-thirds of the named sponsors request withdrawal, in writing, with the secretary of state. S.D. CODIFIED LAWS § 2-1-2.2 (2003). See also COLO. REV. STAT. § 1-40-134 (2006) (allowing proponents to pull a measure from the ballot no later than thirty-three days before the election).
98. See Tom Chorneau & Doug Haberman, Local Officials Seek End to State Raids on Funds, PRESS ENTERPRISE, Oct. 25, 2004, at A6;
99. Proposition 1A: Protection of Local Government Revenues, reprinted in OFFICIAL VOTER INFORMATION GUIDE: SUPPLEMENTAL 4-9 (Cal. Sec'y of State, 2004), available at http://www.ss.ca.gov/elections/bp_nov04/supplemental/vig_sup_1a_entire.pdf.
100. See Proposition 65: Local Government Funds, Revenues. State Mandates. Initiative Constitutional Amendment, reprinted in OFFICIAL VOTER INFORMATION GUIDE 10-15 (Cal. Sec'y of State, 2004), available at http://www.ss.ca.gov/ electionsfop_nov04/supplemental/vig_sup_65_ entire.pdf (requiring voter approval for any reduction of local governments' vehicle license fee revenues, sales tax revenues, or share of local property taxes).
101. See id. at 14-15 (providing no argument in favor of Proposition 65 and urging voters to pass Proposition 1A, "a new and better measure . . . to prevent state raids on local government funding"). Proposition 1A passed with 84% of the vote; Proposition 65 was handily defeated. CAL. SEC'Y OF STATE, CALIFORNIA GENERAL ELECTION, NOVEMBER 2, 2004, STATE BALLOT MEASURES, STATEWIDE RETURNS (2004), available at http://vote2004.ss.ca.gov/Retums/prop/00.htm.
102. The legislature-sponsored proposal was Proposition 60, which was placed on the ballot to react to Proposition 62, the nonpartisan primary initiative. See Proposition 60: Election Rights of Political Parties. Legislative Constitutional Amendment, reprinted in OFFICIAL VOTER INFORMATION GUIDE 16-19 (Cal. Sec'y of State, 2004), available at http://www.ss.ca.gov/elections/bp_nov04/ prop_60_entire.pdf;
103. Proposition 62: Elections. Primaries. Initiative Constitutional Amendment and Statute, reprinted in OFFICIAL VOTER INFORMATION GUIDE 28-31 (Cal. Sec'y of State, 2004), available at http://www.ss.ca.gov/electionsfop_nov04/prop_62_entire.pdf. Proposition 60 passed overwhelmingly with 68% of the vote, while Proposition 62 failed (only 46% in favor).
104. CAL. SEC'Y OF STATE, VOTES FOR AND AGAINST STATEWIDE BALLOT MEASURES (2004), available at http://www.ss.ca.gov/elections/ sov/2004_general/ sov_pref21_votes_for_and_against.pdf.
105. See infra Part IV (discussing the CIIOC).
106. See infra Part V (discussing the possible equilibrium outcome of no negotiation between proponents and the legislature).
107. See Elizabeth Garrett & Daniel A. Smith, Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy, 4 ELECTION L.J. 295, 314-15 (2005) (describing logrolling engaged in by Gerald Meral, president of the nonprofit Planning and Conservation League Foundation, in California, to determine which projects would be included in a bond measure on the November 2002 ballot).
108. John Copeland Nagle observes that the legislature sometimes fails to take advantage of vetogates in his interesting piece comparing initiatives with hastily enacted statutes. John Copeland Nagle, Direct Democracy and Hastily Enacted Statutes, 1 N.Y.U. J. LEGIS. & PUB. POL'Y 163, 170-81 (1997). Certainly, we do not want to compare an ideal legislative process with a realistic, or even cynical, view of direct democracy. But our point is that the legislative process provides checks and balances - including the executive's veto power - that the initiative process simply lacks. Our goal is to suggest additional checks for the latter process, in the hope that they will be used to improve policy but with awareness that they will not be foolproof.
109. CAL. CONST. art. II, § 10(c) ("The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.").
110. See, e.g., NEV. CONST. art. 19, § 2, cl. 3 ("An initiative measure so approved by the voters shall not be amended, annulled, repealed, set aside or suspended by the legislature within 3 years from the date it takes effect."); WYO. CONST. art. 3, § 52(f) ("An initiated law . . . may not be repealed by the legislature within two (2) years of its effective date. It may be amended at any time.").
111. See, e.g., ARK. CONST. art. 5, § 1 ("No measure approved by a vote of the people shall be amended or repealed by the General Assembly . . . except upon a yea and nay vote on roll call of two-thirds of all the members elected to each house of the General Assembly . . . ."); N.D. CONST. art. 3, § 8 ("A measure approved by the electors may not be repealed or amended by the legislative assembly for seven years from its effective date, except by a two-thirds vote of the members elected to each house.").
112. See ARIZ. CONST. art. IV, pt. 1, § 1, cl. 6(C); WATERS, supra note 16, at 27. Arizona also prohibits repeal of an initiative by the legislature. ARIZ. CONST. art. IV, pt. 1, § 1, cl. 6(B).
113. Nevada requires that initiative constitutional amendments pass by a majority vote in two successive general elections. NEV. CONST. art. 19, § 2, cl. 4; WATERS, supra note 16, at 26. See also INITIATIVE & REFERENDUM INST., REP. 2006-3, CONSTITUTIONAL AMENDMENTS (2006), http://www.iandrinstitute. org/REPORT%202006-3%20Amendments.pdf (detailing other deviations from the requirement of a simple majority to pass).
114. In states that allow both constitutional and statutory initiatives, there have been slightly more statutory initiatives placed on the ballot through the petition process than constitutional initiatives. Data from the Initiative and Referendum Almanac reveal that 703 constitutional amendments have appeared on the ballot in the eleven states that allow both direct constitutional and statutory initiatives, while 758 statutory amendments have qualified. This data covers the period from the beginning of the initiative process in the United States through 2000. See WATERS, supra note 16, at 12 and passim.
115. For a discussion of the effects of requiring traditional legislation to expire, including some similar to those we discuss here in the context of initiatives, see Jacob E. Gersen, Temporary Legislation, 74 U. CHI. L. REV. (forthcoming 2007).
116. Kousser & McCubbins, supra note 2, at 957-60.
117. Lupia & Matsusaka, supra note 1, at 475.
118. Gerber et al., The Politics of Implementation, supra note 4, at 55-56.
119. Id. at 47.
120. Cf. Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243, 264-66 (1987) (describing intervenors in the legislative and administrative processes).
121. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165 (1984) (arguing that "fire-alarm" oversight, which involves little direct intervention by Congress into executive agency activities, is likely to be more effective, on balance, than "police patrol" oversight, which is comparatively centralized, active, and direct).
122. CAL. GOV'T CODE §§ 83100-83102 (West 2005).
123. CAL. CONST. art. XXXV, §§ 1-7; CAL. HEALTH & SAFETY CODE §§ 125290.10-.20 (West 2006).
124. ARIZ. REV. STAT. ANN. § 16-955(A) (Supp. 2005).
125. OR. REV. STAT. §§ 774.010-.990 (2005).
126. For the arguments that appeared in the Marin county ballot pamphlet for and against this measure, see MARIN REGISTRAR OF VOTERS, MEASURE STATEMENTS JUNE 6, 2006, REBUTTAL TO ARGUMENT IN FAVOR OF MEASURE A (2006), available at http://www.co.marin.ca.us/depts/ RV/main/Prime60606/Measures/21-554.pdf;
127. MARIN REGISTRAR OF VOTERS, MEASURE STATEMENTS JUNE 6, 2006, ARGUMENT AGAINST MEASURE A (2006), available at http://www.co.marin.ca.us/depts/ RV/Main/Prime60606/Measures/21-555.pdf.
128. Initiatives might still set up initiative-specific agencies to implement the new policy; the CHOC does not eliminate the need for such administrative agencies. However, because many of these are appointed by elected officials, the CIIOC should improve compliance in such cases because the appointed officials may have preferences more aligned with those who appointed them than with the voters or initiative proponents.
129. Thus, the number of commissioners will fluctuate as the number of initiatives fluctuates. Commissioners will be part-time positions, with compensation for expenses and perhaps a very modest honorarium. As initiatives conflict, so might the commissioners, but this conflict is just a reflection of state politics and the decisions of the voters in passing conflicting initiatives. The commission then provides another forum for these conflicts to be made public and explicit and to be brought to a resolution. We object to a commission run by experts, such as former legislators or judges, who are often part of the problem being addressed by an initiative. The commission may not need to meet very often but should meet and publish reports on implementation each fall and will meet to approve the language of new initiatives as needed. The commission should meet as often as needed by circumstances and should have a budget large enough to allow a sufficient number of meetings. One reader of an earlier draft worried that the CIIOC will encourage a new kind of crypto-initiative, symbolic ballot measures designed only to pack the CIIOC with allies of a particular group or movement. We think it unlikely that many would be willing to spend the resources necessary to qualify and enact enough ballot measures to capture the CIIOC. We also anticipate that the reading periods in the Dual Path Initiative Framework will work to reduce the number of crypto-initiatives, identify any that are designed purely for questionable purposes, and publicize that aspect of any proposal. Moreover, the legislature has the opportunity during the second reading period to co-opt a proposal and eliminate the possibility of CIIOC involvement. Thus, although this sort of commission-packing behavior is theoretically possible, we do not anticipate that it will occur much, if at all, in practice. Cf. Christopher S. Elmendorf, Representation Reinforcement Through Advisory Commissions: The Case of Election Law, 80 N.Y.U. L. REV. 1366, 1407-14 (2005) (discussing commission-packing in a related context).
130. Like the FPPC, commissioners would be removable by the governor, with the concurrence of the Senate, for "substantial neglect of duty, gross misconduct in office, inability to discharge the powers and duties of office . . . after written notice and an opportunity for a reply." CAL. GOV'T CODE § 83105 (West 2005).
131. For a recent use of random selection as part of a political process, see George A. Papandreou, Opinion, Picking Candidates by the Numbers, INT'L HERALD TRIB., June 8, 2006, at 8 (discussing how Greece's Socialist Party revived the ancient Athenian practice of deliberative democracy to select its candidates in municipal elections).
132. The ability to fill a vacancy on the commission reflects how much people care about the implementation of an initiative.
133. CAL. HEALTH & SAFETY CODE § 130110 (West 2006).
134. CAL. GOV'T CODE § 83106 (West 2005).
135. Id. § 83122.
136. For a discussion of the reasons initiatives use vague language now, see Gerber et al., The Politics of Implementation, supra note 4, at 58.
137. See Keith Archer, Redefining Electoral Democracy in Canada, 3 ELECTION L.J. 545 (2004) (examining the reform of Canada's electoral system as a case study in reforming political institutions). The Citizens' Assembly website is http://www.citizensassembly.bc.ca/public (last visited Dec. 21, 2006).
138. See BRITISH COLUMBIA CITIZENS' ASSEMBLY ON ELECTORAL REFORM, supra note 10, at 3-8.
139. See FINAL REFERENDUM RESULTS: REFERENDUM ON ELECTORAL REFORM (2005), available at http://www.elections.bc.ca/elections/ge2005/finalrefresults.htm.
140. See Assemb. Const. Amend. 28, supra note 10 (dying in committee after being introduced by Assembly Members Canciamilla and Richman). In addition, a citizens assembly is under consideration in Ontario. See News Release, Office of the Premier, Ontarians to Have a Say on Electoral Reform (Nov. 18, 2004), http://www.premier.gov.on.ca/news/Product.asp?ProductID=251.
141. See also ETHAN J. LEIB, DELIBERATIVE DEMOCRACY IN AMERICA: A PROPOSAL FOR A POPULAR BRANCH OF GOVERNMENT (2004) (proposing an institution like a citizens assembly, a fourth, "popular," branch of government in a creative proposal to make direct democracy more deliberative).
142. Although the CIIOC members are not selected by lot, as in the British Columbia Citizens' Assembly, they are more like ordinary citizens than are legislators. Even in a world of term limits, most legislators have extensive political experience and are more likely to be professional politicians than citizen legislators. In contrast, CIIOC members cannot be elected or appointed politicians and will have been selected through the mechanism of direct democracy.
143. See GERBER ET AL., STEALING THE INITIATIVE, supra note 4, at 15-25.
144. Id. at 20.
145. Id.
146. Id. at 21.
147. See Gerber et al., The Politics of Implementation, supra note 4, at 51-52.
148. This is the standard assumption in the legislation scholarship. See, e.g., DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 14-15 (1974) ("It seems fair to characterize the modern Congress as an assembly of professional politicians spinning out political careers.").
149. See Daniel A. Smith, Homeward Bound? Micro-level Legislative Responsiveness to Ballot Initiatives, 1 ST. POL. & POL'Y Q. 50, 56-57 (2001).
150. GERBER ET AL., STEALING THE INITIATIVE, supra note 4, at 22.
151. An additional factor in the success of the term limits initiatives is that they were backed by several well-funded national organizations that did not disband after succeeding in passing the measures. For a discussion of the term limits provision of California Proposition 140 of 1990, and the implementation problem, see id. at 57-59.
152. Id. at 24.
153. See supra note 76.
154. See supra Part III.B.