Initiative Inflation

We northwesterners tend to be proud of our direct democracy. We are the birthplace of the citizens’ initiative and pioneer of trend-setting ballot measures on everything from direct election of Senators to women’s suffrage, from death with dignity to marriage equality.

But behind this civic mythology lies a reality that is decidedly more mixed and worrisome. Initiatives do create a channel to circumvent sometimes-hapless or lobbyist-bound state houses, and they do allow breakthroughs on issues sometimes.

On the other hand, they also create tremendous opportunities for political mischief by playing on the public’s misperceptions. Just consider the many ill-conceived initiatives peddled by Tim Eyman in Washington or Bill Sizemore in Oregon. More generally, initiatives cost a fortune, are dominated by corporations and the 1 percent, and are now often played out as proxy battles in national policy wars that have little to do with the Northwest. They also leave the door open to unintended consequences.

Don’t get me wrong! For all their flaws, initiatives have sometimes yielded welcome changes. My father had greater peace of mind in his final months thanks to the death-with-dignity option approved by Washington voters in 2008; and I get to look forward to the possibility of attending weddings for all three of my children someday, thanks to marriage equality. (For the record, though, marriage equality was passed by the Washington legislature and affirmed by voters on a referendum forced by equality’s opponents. British Columbia and Oregon got marriage equality through the courts. So citizens’ initiatives were not key to marriage equality in Cascadia.)

[prettyquote align=”right”]”There’s no contradiction in cheering loudly for your team and still criticizing the rules of the game.” [/prettyquote]

Repeat: I am not disparaging initiatives; far from it. My argument is with the process, not all the outcomes. There’s no contradiction in cheering loudly for your team and still criticizing the rules of the game.

Fixing those rules appears wickedly difficult. SCOTUS, as I noted last time, won’t let us purge Big Money from the scene.

Just as bad as the SCOTUS block: as a rule, citizens never vote to limit their own power, especially by handing that authority to politicians. That means, for example, that there’s little hope of eliminating the rarely helpful referendum power, through which petitioners can force a vote on laws recently passed. The archetypal referendum of 2012 was the vile vendetta against Washington’s marriage equality law, which cost $14 million to overcome. Another archetypal referendum, playing out this year, is the mean-spirited question on the Oregon ballot of whether to halt a program through which immigrants can get driver’s licenses whatever their documentation status and, among other things, stop driving uninsured. The list of referendums is a rogue’s gallery so full of malfeasance that I’d happily give up the few gains to erase the countless losses from Cascadia’s law books.

Citizens’ unwillingness to disempower themselves also means that there’s no realistic chance of revising state constitutions in the Northwest to limit the domain of initiatives themselves. In most localities and in many other states, initiatives are welcome only on subjects that have modest budgetary impacts, such as death with dignity or marriage equality or bear baiting. They are not allowed on basic questions of state budgeting such as taxes and funding, which is the fundamental duty of legislatures and the area where initiatives have been so ruinous in the last three decades of public cynicism.

So what hope is there for retaining the good, and restraining the bad, in initiatives? There are a few politically plausible ways forward, and I will lay them out in my next few articles, but first, it helps to take a hard-eyed look at the reality of initiatives: their history, status, merits and foibles.

Origins

In the beginning, there was William U’Ren, an Oregon reformer of mythic energy and effectiveness. He won adoption of the initiative in the state and, starting in 1904, racked up an unprecedented streak of wins. He and his progressive allies pushed measures including primaries for president, old-age pensions, public utility districts, local initiative processes, and ethics reforms. Indeed, U’Ren’s heavy use of initiatives earned petition-based lawmaking the name “the Oregon system.” Other Northwest states soon adopted it.

At the time, citizens’ initiatives in the Northwest were almost exclusively a tool of progressive reform. Yet as Richard Ellis, professor of politics at Willamette University in Salem, Oregon, says, “If there was a golden age of the initiative process, it was very brief.” It lasted less than a decade before special interests figured out how to counter U’Ren. Money from secret sources poured in, and the process became rife with fraud. Idealism dissipated. After 1914, the use of initiatives plummeted.

From then to now, powerful interests have proved much better at blocking measures than at passing them. Money for “no” makes a bigger difference than money for “yes.”

Ellis writes of Oregon,

Between 1920 and 1969, Oregonians voted on fewer initiatives than . . . between 1906 and 1914. Even more striking, the twenty-three initiatives passed . . . from the 1920s through the 1960s is less than the number that were passed . . . between 1906 and 1910. In the 1920s and 1930s less than one in five initiatives succeeded, and during the 1960s not a single initiative passed and only seven qualified for the ballot.

In recent decades, the Northwest has had a second surge of initiatives (see figure). In the 1980s and 1990s, Ellis notes, “Oregonians approved more initiatives than in the previous six decades combined.” And unlike in the U’Ren era, more of these initiatives were conservative; many were cuts in taxes or spending.

No state has voted on as many measures as Oregon: some 424 to date. In Washington, the pace of initiatives has been slower and more stable; Washingtonians have considered about half as many.

Who Is Taking the Initiative?

The most notable change in the initiative process in recent decades is not the number of initiatives, however; it’s the number of dollars.

“You see a dramatic jump in initiative campaign funding starting in 2010,” notes former Washington State representative Mary Lou Dickerson, who helps lead the initiative reform group Responsible Choices. In the quarter century before 2000, spending by all Washington initiative campaigns, both pro and con, was typically less than $2 million per year, she says. That’s total, not per initiative. After 2000, spending surged above $11 million a year, on average. Since 2010, average annual spending has been $44 million. (See chart.)

In Oregon, the surge started earlier. Since 2000, average initiative spending per year has been more than $16 million. (Note: this calculation excludes the many odd years during which Oregon had no ballot measures; most types are only allowed in even-year elections.)

The biggest money has come from corporations and lobby groups.

• 2007, OR: The tobacco industry spent about $10 million to defeat a tobacco tax increase.
• 2010, WA: The soft drink industry spent $16 million to overturn a temporary soda tax.
• 2010, WA: Costco, grocers, and alcohol distributors spent $18 million fighting over rival liquor store privatization plans.
• 2011, WA: Costco dumped $20 million into liquor privatization. Despite a $12 million “no” campaign, privatization won. (The investment was good for Costco: the company now corrals about 10 percent of all liquor sales in the state.)
• 2012, OR: PDX Entertainment Group sluiced almost $5.7 million into self-serving campaigns for two unsuccessful ballot measures to allow casinos.
• 2012, OR: The National and Oregon Associations of Realtors gave almost $5 million to a measure amending the state constitution to ban real-estate transfer taxes.
• 2013, WA: As I’ve described, Big Ag poured $22 million into fighting a genetic-engineering labeling measure.

Plutocrat Populism

Corporate spending is not the end of the story, though. Billionaires have also dramatically boosted their giving, sometimes to protect their interests but more often to advance their political beliefs. The lion’s share of the $6 million for—and $6 million against—a state income tax proposal in Washington in 2010 came from the uber-rich, with Bill Gates and his father on the “yes” side and Gates’ Microsoft co-founder Paul Allen and Amazon founder Jeff Bezos on the “no.” These Washington money clans united in 2012 by all supporting the $11 million campaign for public charter schools and the $15 million defense of marriage equality. (It’s noteworthy that each of these individual ballot measure campaigns was as expensive as a gubernatorial campaign, although a governor can effect dramatically more change during four years in office than a single ballot measure can. The asymmetry is revealing. Candidate campaigns are, or were until recently, conducted under tight contribution caps. Initiatives are not.)

Lesser titans also ponied up: before his untimely death in March of this year, Woodinville, Washington-based millionaire Michael Dunmire bankrolled several of Tim Eyman’s anti-tax and anti-transit ballot measures. In Oregon, millionaire Loren Parks has personally spent at least $6 million on conservative initiatives in the state; he kept giving in Oregon even after he moved to Nevada.

A National Chessboard

The initiative process, once a populist check on moneyed interests, is now simply a different field on which corporations and one-percenters fight out their policy disputes.

In the face of political gridlock in Washington, DC, initiatives in blue states like Oregon and Washington have also become test beds for policy ideas that their proponents hope to spread more widely. The basic pattern is simple: take an idea like marriage equality and pass it in one state after another, until it gains liftoff in national consciousness. It’s a smart strategy and, because these proposals sometimes align with my own political beliefs, I sometimes rally for its success. Still, it is a curious state of affairs that direct democracy in the Northwest is orchestrated from afar.

Opponents understand this playbook as well as proponents, which is why national dollars pour into Oregon and Washington by the tens of millions on seemingly modest measures, like a small, temporary tax on soda pop. In that case, in 2010, Big Soda came in to smother the idea before the sparks could spread to other state. Same for GMO labeling. Same for tobacco taxes. And so on.

2014

The Northwest’s line-up of ballot measures in 2014 illustrates this “national chessboard” reality to a T. Again, I’m not judging the particular proposals. In fact, I lean toward “yes” on all of them. But I am noting the way the rules have given free rein to Big Money.

• OR: A top-two primary proposal (as in California and Washington), which may get an infusion of cash from billionaire former mayor Michael Bloomberg, who reportedly has checkbook in hand and is hoping to boost chances for political independents like himself nationwide. Local proponents argue that the measure will dampen extremism in the state legislature, which would be an excellent outcome.
• OR: A replica of Washington’s marijuana legalization measure from 2012, which also passed in Colorado. The initiative may get national cash from drug policy reformers; Washington’s campaign got $250,000 from the late Peter Lewis, billionaire former insurance executive of Cleveland, Ohio.
• OR: A version of Washington’s defeated 2013 (and California’s defeated 2012) labeling measure for genetically engineered foods. This measure may draw the biggest money of the year. Big Ag may repeat its open-throttle spending from previous years in neighboring states.
• WA: A rule that requires private sellers at gun shows to run background checks on their buyers, as firearm shops already do. This campaign sets the national gun lobby against millionaire Nick Hanauer and much of the Seattle-area financial elite.

In fact, the only unusual thing about Cascadia’s initiative landscape this year is what’s not on it. In Washington, for the first time in many years, there will be nothing from the conservative initiative mill Tim Eyman. Eyman’s efforts fell short of funding this year, partly because he alienated some of his patrons in the business community last year. He solicited support for an anti-tax initiative and then sent the petitions into the field for signatures with a separate measure riding piggyback on it: a measure that would have allowed petition circulators to approach customers in malls and in the shopping lots of big box stores, on private property, without permission. Many retailers were incensed.

[prettyquote align=”left”]”The basic pattern is unchanged: lots of plutocrat-backed measures and corporate-backed opposition campaigns, most of them moves on a national chessboard.” [/prettyquote]

In Oregon, there will be no anti-tax measure—not even a hint of the barrages of tax cuts that used to fill the ballots in the heyday of initiative entrepreneur Bill Sizemore, who flamed out in a conviction for tax evasion in 2011.

Despite the paucity of conservative-sponsored ballot measures in 2014, the basic pattern is unchanged: lots of plutocrat-backed measures and corporate-backed opposition campaigns, most of them moves on a national chessboard.

Direct Democracy?

The principal flaw of the initiative process is the degree to which it’s become dominated by corporate lobbies and plutocrats. But there are other failings too.

Oligarchy. Initiatives are largely chosen now by corporate lobbies and one percenters who can afford to hire armies of petition circulators and pay consultants to run multi-million-dollar campaigns. Voters still decide the outcome, it’s true, and no amount of money can sway public opinion that’s set against a proposal. But voters’ choices—and much of what they know about the issues—are given to them by Big Money. It is of a piece with the oligarchy of the donor class in candidate races.

Amateur hour. The initiative process tends to write sloppy laws. Because ballot measures go through no vetting in hearings, legislative staff analyses, and committee mark-ups, they are commonly rife with contradictions and ambiguities and often contain unconstitutional provisions. In Oregon, a quarter of all initiatives approved between 1980 and 2000 were overturned in whole or part by courts. Many measures have sweeping implications for state budgets, yet they do not indicate how they’re to be paid: mandates for new programs without commensurate taxes; tax cuts with no corresponding spending cuts.

Office congestion. The initiative process also clogs the machinery of state government. In Washington, the offices of the Secretary of State and Attorney General spend weeks processing multiple versions of initiatives, because initiative operatives have found that small wording changes can help them win. They “shop” for ballot titles until they get one that polls well. In Oregon, meanwhile, petitioners must submit 1,000 signatures just to ask for ballot language, which makes title shopping expensive. Instead, groups challenge the wording in court, and the state Supreme Court ends up spending weeks during the filing season adjudicating fights over the verbiage of ballot titles—not the best use of the state’s highest legal authority.

Uninformed Voters. Finally, voters are often little informed about the measures they are voting on; typically, they know much less than legislators, who have staff members and colleagues available to brief them in depth. A few ballot measures, like marriage equality (R-74) in Washington in 2012, are relatively straight-forward values questions: should gay couples be allowed to marry? Others, like spending limitation measure I-601 which Washington voters approved in 1993, seemed simple but had complicated implications: Should state spending grow no faster than the rate of population growth plus inflation? Seems reasonable, right? It might, unless you have studied the state budget, and you understand that much state spending supports medical services, especially for seniors, along with education and incarceration. Overall population increase does not track the growth rates of the youth and senior populations, nor the incarceration rate, which is largely a product of mandatory sentencing rules. And the rate of general inflation is much lower than the rate of medical inflation. The simple formula did not freeze state services at the same level, as voters expected; it reduced them steadily. Complicated issues of public budgets are probably best left to elected officials and their professional staffs, not decided based on sound bites and media blitzes.

Fixes?

The initiative process as it currently operates clogs state government; produces sloppy, sometimes-unconstitutional laws; often produces decisions less grounded in reality than does legislative law-writing; and is overrun with Big Money.

Fixing these flaws, unfortunately, is hard. We’re trapped between SCOTUS’s odd dictums about money being speech and voters’ reticence to restrict their own authority. Still, there are things we can do. In my next article, I’ll describe some stepwise reforms in the way initiatives are funded. In subsequent pieces, I’ll discuss reforms to the signature-gathering process and ways to make money matter less, by informing voters more.

Thanks to Jane Harvey for research assistance on this article.

The first figure is from data published on ballotpedia.org, an invaluable nonprofit website that tracks ballot measures nationwide. We hand counted all initiatives listed on ballotpedia, whether statutes (in Oregon or Washington) or constitutional amendments (in Oregon), and all referendums that were initiated by citizen petitions. It excludes measures placed on the ballot by legislatures. The second figure is drawn from public disclosure reports on ballot measure campaign spending (including legislative referrals, although those tend to have far less spending). We used reports from Oregon and Washington’s own public disclosure systems (ORESTAR and PDC), although we relied more heavily on the systemization of the same data in a database maintained by, and research done by, the National Institute on Money in State Politics.