Why the California Initiative System is Undermining Democracy

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Mr. Tygiel, professor of history at San Francisco State University, is author of Ronald Reagan and the Triumph of American Conservatism.

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IF GOV. ARNOLD Schwarzenegger really wants to"blow up the boxes" in Sacramento, he should sponsor one two-line initiative:

"There shall be no further initiatives.

"All previous initiatives may be modified by a majority vote of the Legislature."

When asked after the Constitutional Convention in 1787 what kind of government the new American nation had adopted, Benjamin Franklin famously replied,"A republic, if you can keep it." In a republic, there is no monarch. More important, representatives elected by the people enact laws on their behalf.

Throughout the first century of the United States, Americans ardently embraced this idea. When Texans broke away from Mexico in 1836 and formed an independent entity, the rebels dubbed it the Lone Star Republic. The motley frontiersmen who sought to emulate the feat in California 10 years later called their short-lived creation the Bear Flag Republic.

Frustrated by the railroads' and corporations' control of legislative bodies and political parties, agrarian reformers proposed a variation on the republican form of government in the late 19th century — direct democracy. When elected officials ignored the will of the people, they contended, the people should be able to propose their own laws, reject or revise existing ones and remove public officials. The initiative, referendum and recall would be the instruments of the popular will.

The agrarians failed to achieve their goals, but the Progressives picked up their cause in the early 20th century. Under their leadership, many states and localities, particularly in the West, enacted direct-democracy legislation. At the behest of Progressive Gov. Hiram Johnson, the Legislature added the initiative, referendum and recall to the California Constitution in 1911.

As a rule, liberals, who feared corporate privilege and professed faith in the ability of the masses to govern, championed direct democracy. Conservatives, who advocated laissez-faire economics and feared the tyranny of the majority, opposed it. Johnson's father, Grove, derided supporters of direct democracy."The voice of the people is not the voice of God, for the voice of the people sent Jesus to the cross," he admonished.

Californians ignored his warnings and adopted a draconian version of the initiative. The Legislature could not amend an initiative passed by voters. Short of a court declaring it unconstitutional, a flawed initiative could only be corrected by another ballot measure. Nonetheless, most Progressives viewed the initiative not as a general tool of governance but rather as an emergency solution. Initiatives were only to remedy the Legislature's gross failures.

California voters generally acted according to this view. From 1912 to 1978, they passed 46 initiatives, about two every three years. Proposition 13 changed this pattern.

The 1978 proposition slashed property tax rates and limited increases on the assessment at the time of sale. It also transformed the state's political landscape in two other critical ways. Since 1933, California law had required a two-thirds supermajority in the Legislature to approve a budget. Proposition 13 applied the supermajority threshold to all tax increases. Thus a small, unified opposition party could paralyze the budget process and block efforts to raise revenues.

The success of Proposition 13 marked the beginning of a new trend. The initiative was no longer viewed as a means to correct the Legislature. Rather, it became an instrument to govern. Between 1982 and 1988, voters passed 22 measures. In the 1990s, they passed 24 more. In the 20 years since Proposition 13, Californians passed more initiatives than in the preceding 6 1/2 decades.

Many of these measures further limited the Legislature's ability to govern. Proposition 4, approved in 1979, imposed limits on the growth of state spending. Proposition 98, passed in 1988, mandated that 40% of the state's general fund be spent on public schools and community colleges.

These and similar measures restrict state legislators' flexibility and curb their ability to reach budget compromises. As a result, direct democracy has turned the annual budget process into an annual budget crisis.

The initiative remains popular among all segments of the California electorate. Liberals are still wedded to the dream of popular sovereignty, and once-skeptical conservatives embrace it as a way to remove many issues from the jurisdiction of elected officials.

In truth, the initiative has, in effect, strangled the republic and made California less governable. The Nov. 8 special election will, by definition, exacerbate, not cure, what ails California.

If we want to reclaim the republican model established by our founding fathers, we must have one final ballot measure: one that terminates the initiative. That would truly be a special election.

This article first appeared in the Los Angeles Times and is reprinted with permission of the author.

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Jacob Pemberton - 11/10/2005

Oh, now that I've read your incisive comment, I realize that you're correct: Tygiel is a frothing right-winger and I am a complete dupe. Thank you for taking the time to educate me.

Maura Doherty - 11/6/2005

Finally! a cogent argument that raises legitimate concerns against the initiative and referendum, especially as practiced in California. (Although I'm not sure the "founding fathers" imagined 40 million Californians or 300 million Americans). I did not say that I favor or disfavor this form of direct democracy, especially under the California rules (each state is different, as I'm sure Switzerland is). My objection to the Tygiel article, and the main objections of others who posted here, is primarily his offensive line of argumentation (as stated above). Thank you for bringing the discussion back to an educated debate instead of name-calling, patriotic hyperbole and the "God-is-on-my-side" scare tactics of the right wing, so-called "Christian," extremists

E. Simon - 11/6/2005

Apparently it was also the intention of the writers of the Federalist Papers, to miseducate and manipulate, in noting that there are indeed subtle differences between governing a small town or Swiss canton and a state of 40 million + or more people. I don't know that California should necessarily abandon referenda altogether, but as I understand it is completely uncontroversial there to acknowledge that it is interfering with effective governing.

The members of a small town or similar unit of government exist in small enough numbers to be more intimately acquainted with how a given proposed statute will effect them broadly. In a much larger state however, there are multiple interested constituencies, and the effects of a given piece of legislation generally interacts across an infinitely higher number of actors, yielding more complex and less predictable results. Representative government places the burden for navigating these complexities and crafting balanced compromises in legislators whose job it is to specifically understand them and discuss the issues in depth, and then decide the legislation accordingly. The instances of large numbers of Californians voting consecutively for conflicting legislation alone is worth noting. Every voter, if asked, will want his cake and eat it too. Problem is, his job isn't on the line for failing to reconcile competing interests, with which he's failed to adequetely familiarize himself, with their mutually exclusive nature.

Heinrich Buchegger - 11/5/2005

Doherty raises the interesting example of the town meeting form of government that gave earlier American citizens a direct say in the governing of their lives; a system that co-existed with the federal republic. The town meeting form of government still exists in the Appenzell region of Switzerland, where direct democracy is cherished. The Swiss constitution allows for nationwide referendums and initiatives that are voted on directly by the people several times a year. It certainly can be used by groups from the whole political spectrum but cannot violate the civil liberties embodied in the constitution (that would take a constitutional amendment). Democracy involves some risk; that's why education is central to its success. Tygiel's article purposely attempts to miseducate and manipulate.

Heinrich Buchegger - 11/5/2005

Hopefully as a professor Tygiel did not bring his right-wing politics into the classroom. However, had you read and understood his argument in this newspaper, you would see that it clearly uses right-wing arguments for a right-wing agenda. In addition, by arguing against "direct democracy" and then claiming this is best for "democracy" Tygiel uses dangerous double-speak to intentionally confuse people, as it successfully did you.

Heinrich Buchegger - 11/5/2005

Tygiel is using the tiresome right-wing call for a return to the "intentions of the founding fathers" that has become in vogue in the U.S. over the last ten years or so. Only the most extreme, right-wing, and, yes, fascist thinkers would hold the "intentions of the founding fathers" as the litmus test for American laws or traditions. Most of the "founding fathers" believed in concepts that are highly offensive today, such as racial slavery, women's moral, spiritual, and physical inferiority and complete lack of political rights, and voting rights only for propertied white males (who were few at the time). When establishing the "right to bear arms" they imagined a militia to "provide for the common defense" and certainly did not imagine machine guns as a right; yet conservatives rarely bring up the "intention" argument when defending their unconditional right to possess guns. The "founding fathers" argument is an attempt to make their own idea sound more patriotic than their critics; an empty trick for people with empty arguments.

Jacob Pemberton - 11/4/2005

Whether you agree the article or not, I feel that I must offer a correction: Jules Tygiel was a professor of mine at San Francisco State University and he is not, in any way, a right-winger (nor, for that matter, is he a radical left-winger). His criticism of the initiative system, one which I happen to share, is informed not by a right-wing desire to distort history and silence common people, but rather by an honest belief that it hinders the governance of the state.

Steven R Alvarado - 11/2/2005

"governance done by the hierarchical, massively corrupt representatives, rather than governance by the nonhierarchical, sovereign people". Seems like that could also apply to communism. Wonder why the Left never uses that term when throwing insults? Maybe they don't consider it an insult.

Paul Noonan - 11/2/2005

The use of initiative and referendum is not solely a province of tax-cutting conservatives. Oregon's assisted suicide law was adopted in this way. Given the pressures on legislatures by organized religion I can't imagine this law would have passed any state legislature in the US. I'm not an unqualified supporter of the Oregon law, I merely note how it was adopted. Most medical marijuana laws were also adopted by referendum. Perhaps liberals should think about using these laws instead of bemoaing there existence. In addition to the examples mentioned above requiring "big-box" retailers to provide some minimal health benefits to employees could possibly be done by referendum. Legislators are unlikely to do anything that will annoy Wal-Mart and its compeers, but the public might.

Stephen Neitzke - 11/2/2005

Maura obviously doesn't need help or a translator, but I can't resist. Her use of 'fascist' correctly describes Tygiel's distortion of historical fact and his twisted definition of democracy, i.e., governance done by the hierarchical, massively corrupt representatives, rather than governance by the nonhierarchical, sovereign people. This distortion of fact and re-defining words with opposite meanings is one of the main features of Hitler-Mussolini-Bush fascism. Alvarado's ad hominems -- attacking the person, not the issues under discussion -- slots him as the ignorant one in this thread.

Steven R Alvarado - 11/2/2005

You should not take my revealing of your ignorence as an insult. Take it as a bit of advice from a friend. One more bit of advice. Unless you are referring to Adolph Hitler or Franco don't call people who disagree with you fascist. It may be fashionable in some circles but to serious people it only reveals your lack of understanding of the term.

Maura Doherty - 11/2/2005

Oh, and I forgot to add that they resort to name calling, belittling the arguer, and false accusations of being anti-Christian to distract people from the facts. This, of course, violates the rules of this discussion board, as well as the civil discourse of educated people who use logic and valid argumentation for persuasion and not hysteria and vicious attacks to manipulate people and silence dissent.

Stephen Neitzke - 11/1/2005

Jules Tygiel's anti-democracy piece, "Why the California Initiative System is Undermining Democracy", is typical sophistry for the benefit of money-power and the status quo -- in all its moral, legal, and financial bankruptcy .

Tygiel implies that the limited democracy of electing representatives is somehow separate from direct democracy's intitiatives. The two are not separate, of course. They are both done with referendums. Our "elections" are nothing more than referendums.

Referendums, whatever their objective, are just the sovereign people speaking for themselves, rather than their being spoken for, and subjugated by, the predator demagogues and charlatans, in and out of govt, who represent money-power.

Whatever it is that elected and appointed representatives do, it is not democracy. Just the party-line voting in the state legislatures and Congress negates most representatives' right to vote his/her own conscience, thereby negating any claim to 'representative democracy' or 'indirect democracy'. Both terms are straightforward contradictions in terms. More sophistry from money-power.

Let's call whatever it is that representatives do by a separate name, say, 'repocracy'. The new word will allow us to intelligently discuss the role of our govts in the society, their obvious and massive corruptions, and the democratic reforms needed. Repocratic secrecy and deceit can be reduced by turning our partisn bicamerals, including Congrss, into nonpartisan unicamerals on the successful 1934 Nebraska model.

All democracy is rule by the people. All democracy, including the election of representatives, is referendal direct democracy -- no matter what the elitist dictionaries say.

In recorded history's greatest democracy movement -- our own Reform Era, 1898-1918 -- many tens of millions of citizens in 26 states forced various components of I&R direct democracy into their state constituions. (Most of today's historians of the period, in obvious efforts to aid money-power and the corrupt status quo, simply do not mention the Reform Era's increases of direct democracy. Factual history of the Era's greatest contributions to governance have been unconscionably buried by our "Madisonian scholars" -- for the benefit of money-power.)

This increased I&R democracy was not separate from the democracy that elects representatives. It was an increased democracy that fused with the earlier democracy. It created a continuum of democracy.

The court cases that followed found that the combination of representative govt and I&R is a legacy from 400 years of such governance in the Roman Republic, as well as in other ancient societies. They found that the combination of all the direct democracy governance components with representative govt is a republican form of govt intrinsic to the Constitution.

Those court cases, stretching from the early to the late 1900s, spotlighted the sophistries of the founders. Subsequent examination of the Federalist Papers shows most of the material to be sophistry on sophistry in sophistry. The "founders" lived the unexamined life of bigoted, predatory elitism. In the Constitution, they were true to their class, not to the nascent nation, and certainly not to the commoners. We live in that legacy today. The class-race problem is our single largest political problem.

Objectives of the constitutional convention of 1787 included shutting off the decade-long, raging national debate over the people's claimed right to instruct their legislatures. Elitist ratification of the Constitution, unconstitutional and illegal under the inviolable Articles of Confederation, set the precedent for govt's continual violations of the supreme law of the land -- never more intensely than through the Bush administration years.

The advent of I&R in the early 1900s would have resolved many of our political problems had not the I&R state govts moved immediately to establish unconstitutional gauntlets for controlling citizen-proposed law. The gauntlet is unconstitutional statute law violating and overriding constitutional law.

For a hundred years, "separation of powers" violations have been rampant, with executive branch officials performing legislative and judicial branch functions not permitted by their state's constitution. Additionally, judges unconstitutionally intercede into citizen-proposed law, when every constitution in the nation defines the judicial power to exclude interference with proposed law. Judges would be immediately impeached and removed for doing to legislature-proposed law what they do to citizen-proposed law. Judges also unconstitutionally perform binding judicial review of citizen-proposed law, when no constitution in the nation defines the judicial power to include binding judicial review of proposed law.

These truths will out. If academe does not play a large role in bringing the truths out, the coming citizen backlash will do extensive damage to the institutions of higher education. Bet your boots, Reform Era II is on its way. Think avalanche, not slowly rising water levels.

Stephen Neitzke
Direct Democracy League

Steven R Alvarado - 11/1/2005

Obviously this person doesn't realize that historically it has the Right in California that has used the inititive to further their goals.(Prop 13, 187) I think that she was so exited to be able to use such cute Leftist terms as "fascist" and be able to insult Christianity that she forgot that she was ignorant.

John D. Beatty - 11/1/2005

It SHOULD work that way. Givernment should just learn to SPEND LESS.

I know, difficult to imagine. Try it, anyway.

Maura Doherty - 11/1/2005

If I thought this was a Halloween trick, I'd be laughing at this fascist distortion of history and democracy. Since the town meeting form of government prevailed throughout much of the U.S. two hundred years ago, direct democracy was, in fact, the rule of the land. It was only as the state and federal governments grew in power and jurisdiction that people felt that democracy had been abandoned and the republic kidnapped by special interests. Whenever the extreme right wing doesn't like an outcome either of democracy or the republic model, they revise history, distort logic, and claim God is on their side.