Have You Signed?

You know the drill. To get into the Safeway, you’re going to have to walk past the man with the clipboards. “Are you a registered voter?” he is asking you already, when you’re still 10 feet away. “Have you signed for…?” Whatever the pitch, it’s hard to decline, because he looked you in the eye and asked politely. It’s a small request. He’ll be here on the way out, too.

Who are these people? They’re paid signature gatherers. They travel from state to state, chasing the big initiatives, working as independent contractors for shady companies that reward them for each signature—a dollar or two or even more per valid signer. This petition derby yields intense incentives for gatherers to mislead voters, making the initiative sound sweeter than it is, and to engage in fraud, copying names from phone books, for example. But it’s also how the system works nowadays.

Citizens’ initiatives have become another business. Petitioning is no longer a test of popular ferment; it’s a test of sponsors’ money. As Western Washington University politics professor Todd Donovan says, “No one can get on the ballot unless they’ve got a million bucks.”

There are ways to mend this signature-gathering process, and they mostly focus on eliminating abuses. That’s the good news.

But let’s start with the bad news.

The Northwest states cannot do what a large majority of their voters want to do to reverse the near takeover of citizens’ initiatives by corporate lobbies and the one percent. They cannot ban paid signature gathering. (And as I explained, they also cannot just kick Big Money out, cap donations, or limit spending.) Money is free speech protected by the First Amendment, says SCOTUS, even when it’s the national real-estate lobby paying carpet-bagging petitioners to stand outside of Walmarts and ask every passing shopper a misleading question like, “Have you signed to ban special taxes on homes?”

Paid signature gathering has a long history in the Northwest. None other than William U’Ren, the father of the initiative in Oregon, sometimes paid petition circulators. Even then, many people thought the practice a perversion of the democratic spirit of the initiative. In 1913, Washington banned it (details here); in 1935, Oregon did too. In 1982, however, SCOTUS began applying its money-is-speech obsession to initiatives, and first Oregon and then Washington repealed their bans. The number of initiatives promptly rebounded, especially in Oregon, where the paid-circulator ban had coincided with a half-century-long slackening in the pace of initiatives: only those that were deeply inspiring to well-organized volunteer movements could gather enough names. Moneyed interests couldn’t just buy their way onto the ballot.

Signature Math

It’s a safe bet that Costco, the realtors, the national soda industry, and other recent lobby-group sponsors of ballot measures in the Northwest would have had a hard time recruiting the army of volunteers needed nowadays. A century of population growth, after all, has pushed the numbers into a daunting range: Washington requires valid signatures equal to 8 percent of votes cast in the last gubernatorial election. Currently, that’s about a quarter million signatures, all to gather in less than six months—a staggering number that explains why successful all-volunteer signature drives are now a distant memory in Washington.

Oregon’s bar is lower: 6 percent of voters, which is 87,000 valid signatures this year. (For constitutional amendments, which are not allowed by petition in Washington, Oregon’s threshold is 8 percent.) The state is also more generous than Washington in its deadline: it gives sponsors two years to circulate petitions. Yet in the Beaver State, too, all-volunteer drives almost never cross the finish line. Richard Ellis, professor at Willamette University in Salem, writes, “Between 1990 and 2002, all but eight of the eighty-two initiatives on the ballot used paid signature gatherers.”

That’s the bad news. The best fix for the signature-gathering phase of the initiative process—the proven way to make it a test of grassroots enthusiasm—is foreclosed.

The good news is coming soon.

Raise the Bar?

But first, let me dispose of a class of suggestions that often comes up with regard to initiative reform. What about making it tougher to qualify? The reasoning goes like this: If Washington and Oregon, like Wyoming, required 15 percent of voters to sign, surely that’d put Big Money back on its heels. Or if they, like California, shortened the signature-gathering window to five months, measures without a groundswell of popular enthusiasm would founder. Or, if they added geographic distribution requirements, that’d knock the stuffing out of the bevvy of money-drenched consulting firms (read Santa Monica, California-based hired guns Winner & Mandabach’s website and feel your stomach clench) that currently operate most initiatives.

Geographic distribution requirements are a special favorite of initiative reformers in this school of thought. Oregon and Washington, like their neighbors California and Idaho, do not require signature gatherers to fan out across the state. The only quota a signature drive needs to focus on is a gross quantity: 6 percent of voters in Oregon, 8 percent in Washington. The states encircling them, though, including Alaska, Montana, Wyoming, and Nevada are among the dozen states—half of all initiative states—that do demand statewide signatures. In Montana, for example, to place a proposed law on the ballot, you must gather the signatures of registered voters equal to just 5 percent of votes cast for governor. In the Big Sky State, however, you cannot just go stand outside a few automatic doors and sign people up until you hit your number (24,000, this year). You have to hit the target separately in at least 34 of the vast state’s 100 legislative districts: 5 percent of each district’s electorate. Surely, the reasoning goes, a requirement like that could only be met by a real grassroots effort, with authentic, widespread support: No carpetbagger is going to be able to recruit signers in 34 different districts!

Don’t Raise the Bar

This argument for higher quotas, shorter windows, and geographic diversity has its appeal. It’s certainly true that raising the bar, especially through geographic standards, depresses the number of measures on the ballot. Not one of the states with spatial requirements is a hotbed of the initiative process.

The problem with the argument is twofold. First, as reform proposals, all of these options are nonstarters, because they require voters to assent to reduce their own power. In 1996, the Oregon legislature asked voters to add geographic distribution requirements to the state constitution. Voters demurred. Instead, on the same ballot, they reduced politicians’ power by imposing a super-majority voting requirement for revenue bills in the state legislature. In 2000, Oregon voters similarly rejected a proposal to raise the threshold of signatures required to put a constitutional amendment on the ballot. As Richard Ellis put it, with academic understatement, “Voters have usually resisted efforts to make qualifying or passing initiatives more difficult.”

[prettyquote align=”right”]”To diminish the influence of Big Money in the signature-gathering process, we need reforms that disadvantage Big Money rather than reforms that disadvantage authentic popular movements.” [/prettyquote]

Second, and more fundamentally, the raise-the-bar argument is just not true. Making it tougher to qualify raises the cost of qualifying, but it does not reweight the scales in favor of people power. A billionaire or corporate lobby willing to pay half a million dollars to qualify a measure in one state might also be willing to pay a million dollars to do so in a state with a higher bar. Meanwhile, a voluntary effort in the high-bar state is just likely to fail. Anything that makes it harder to qualify ballot measures tends to decrease the number of ballot measures, but it does not make them more democratic.

To diminish the influence of Big Money in the signature-gathering process, we need reforms that disadvantage Big Money rather than reforms that disadvantage authentic popular movements.

The Good News: We Hate Cheaters

There is a way to do that. It’s to focus on ridding signature drives of fraud and abuse. The public hates cheaters and is eager to clamp down on shady practices. Fortunately, as it turns out, doing so tends to make life harder on Big Money initiatives, because they often have more to hide and therefore rely more heavily on questionable practices. Fraud prevention is no silver bullet, but it’s a good start.

Already, Oregon is a national leader in cleaning up the initiative process. (See table.) It’s the only state in Cascadia (or partly in Cascadia, like Alaska, California, and Montana) that adequately safeguards against ballot title “shopping” by requiring petition sponsors to collect 1,000 signatures to apply for a title. That’s a hurdle high enough that sponsors do not flood the state with variant proposals until they get one that polls well. Similarly, Oregon is unique in the region in requiring paid signature-gatherers to register with the Secretary of State, which allows disqualification of signature gatherers who break the rules or have criminal records for forgery or identity theft. The Beaver State and most Cascadian states also prohibit signature gatherers from filling in petitions on voters behalf, unless the voters request help because of a disability. (When signature gatherers fill in petitions themselves, it is much harder to detect fraud and forgery.) They also require signature gatherers to witness each signature and swear to it on an affidavit on each petition, which better protects petitions from forgery and tampering by others.

Citizens’ Initiative Rules, by State	AK	CA	ID	MT	OR	WA
Safeguards against ballot title “shopping”					X
Signature gatherer must register with state					X
Signature-gathering companies must register
Signature gatherers may not fill in petition for voters, unless  requested for disability	X	X	X	X	X
Signature gatherer must witness each signature	X	X	X	X	X
Signature gatherer must sign affidavit on petition	X	X	X	X	X
Affidavits must be notarized			X	X
Signature gatherers may not be paid based on number of signatures gathered				X	X
Oregon leads and Washington lags in ballot measure integrity. Source: Ballot Initiative Strategy Center, A State-by-State Report Card 2011.

In 2008, Oregon’s legislature enacted many of these reforms to clean up its initiative process. The Washington, DC-based Ballot Initiative Strategy Center, a national nonprofit that monitors ballot-measure integrity, ranks Oregon the best in the country. Still, the state could further improve. For example, it could require companies that hire and deploy signature gatherers to register with the Secretary of State. The absence of registration makes it difficult to hold these companies accountable for abuses when they occur. Were they registered, the state could revoke their registration if they displayed a pattern of violations. Similarly, like Idaho and Montana, petitioners’ affidavits could require notarization as a further check on forging signatures.

Fraud Blockers

Washington, in contrast, is a laggard. It—and other Northwest states—could improve a lot just by imitating Oregon. A reform coalition brought a bill to the 2011 legislative session in Olympia that would have tightened regulations on paid signature gathering, banning convicted forgers and identity thieves from participating and requiring signature gatherers and signature-gathering companies to register with the state. Unfortunately, the bill died at session’s end. The state would do well to revive it and add additional safeguards: erecting barriers to ballot title shopping, requiring completion of notarized affidavits, prohibiting signature gatherers from filling in petitions for voters, and requiring them to witness each signature. Doing so would bring Washington’s petition rules up to the standard of its already highly regarded financial disclosure system.

One step that the courts have apparently closed to Washington is to emulate Oregon’s ban on paying signature gatherers based on how many signatures they collect. Oregon voters enacted that rule at the ballot in 2001 as a precaution against fraud. Pay-per-signature creates a dangerous incentive. Petition circulators chasing bounties, commonly of more than a dollar per signature, routinely mislead those they’re soliciting about what an initiative would do. Some have been caught copying names out of the phonebook, getting signatures from nonvoters, or otherwise falsifying signatures. Oregon’s statute remains on the books, but federal courts have divided on the constitutionality of pay-per-signature bans. In 1994, a district court threw out Washington’s similar statute, which it had passed when SCOTUS forbid complete bans on paid signature gathering.

Making Money Matter Less

As an alternative, suggests University of Washington law professor Hugh Spitzer, the legislature in Olympia could require that signature gatherers reveal if they are volunteers or paid and, if paid, how much they are getting paid per signature. Furthermore, they could be required to show potential signers the name of the organization that is paying them and to provide contact information for that organization if asked. Unable to regulate how signature gatherers are paid, Washington could at least demand full disclosure.

Fraud prevention is no substitute for banning paid signature gatherers, but it’s a help. The number of initiatives in Oregon has slackened substantially since 2008, and, although it’s too soon to be sure, the number of self-interested money grabs, dressed up as populist petitions, seems to have diminished, too.

In conjunction with fuller disclosure of campaign money and corporate shareholder approval for political spending, cleaner signature-gathering drives can help dampen the sway of Big Money in citizens’ initiatives. The final step the Northwest can take, and the topic of my next article, is to dramatically improve the quality of trustworthy information reaching voters on each ballot measure, so that money—even obscene amounts of it—will not matter as much.

Imagine, for example, that petitioners standing in front of your grocery—protected by federal courts in their right to get money for soliciting signatures—were required by state law to be truthful, on pain of having their registration revoked and were required to disclose who was paying them and how much. “Have you signed to ban taxes on the transfer of real estate? The realtors lobby will pay me $2 if you sign this petition.” Rules like those would sure change the drill on the way into your neighborhood Safeway.

Thanks to Jane Harvey for researching this article.