Introduction and overview

The direct democracy provisions of initiative, referendum and recall contained in most state constitutions are an imperfect but acceptable check on the an unresponsive or corrupt state government. The twentieth century application of these democratic functions prove the Framers' warnings about the dangers of direct democracy have not diminished.

After nearly 100 years of application in the state governments, direct democracy has shown its place as a necessary check on state government. The electorate views access to initiatives and recall as a right to and normal process in the functions of government. Current applications of direct democracy and future possible manifestations demonstrate the inevitable evolution of republican government into something more direct, more influenced by popular decision making.

In an age of political cynicism, the people demand access to initiative, referendum and recall as relief from what is perceived as ineffectual governance. Yet, the people are intuitively aware of the possible dangers of the initiative and recall in spite of their adherence to its application. As the people take on more of the decision making through initiatives, they will react with a continuing reliance and belief in representative government. Direct democracy is causing republican government to evolve into something more popular and direct. Only the inevitable mistakes of majority tyranny caused by "easy democracy" (and as predicted by Madison) will teach the electorate to use their power sparingly. The electorate will continue, in spite of the possible democratic access offered by technological advances, to rely on republican institutions.

Does initiative, referendum and recall undermine representative government or strengthen it? The application of these measures in the states shows that in the long-run it is strengthening republican government. The paradox of direct democracy is that it strengthens republican government; while being inherently anti-republican in nature. Direct democracy's advocates intend less to strengthen republican government than to punish or bypass it. Through the over use of direct democracy the voters are returned to the realization that initiatives, referendum and recall should be a "safety valve" rather than a substitution for law or legislative bodies.

Initiatives give the electorate a voice in law making and are an outlet for their outrage directed at the state and national legislative branches. At times this outrage can circumvent the special interest dominated legislatures or to be used as a bargaining tool (threat) to legislature to take action on a specific issue.

Nathan Cree argued in 1892, the national initiative is the necessary next step in the evolution of self-government. "The only way to train people for self government Cree argued, was to practice it. He liked the idea of government by discussion and viewed the majority of the people as the wisest, most just, and most conservative political power in the country." (Cronin, 46)

On the last point Cree was correct, initiative, referenda and recall campaigns are generally of conservative ideologically, particularly when connected to taxes, immigrants or homosexuals. The ideological shift in initiatives is interesting, the direct democracy movement started as a progressive era tool, a way to control the conservative legislatures. In the 1980's and 90's, most initiatives are directed at furthering the conservative, right-wing agenda. It is interesting to imagine that such governmental reforms as direct democracy proposed by the populists and progressives has become a tool used against modern-day populists and progressives. The numerous "English Only," anti-immigrant or anti-homosexual, anti-pornography, prayer in school, anti-abortion initiatives of the last ten years demonstrate this shift from initiatives being tool of the populist/progressive to a battering ram of the conservative/authoritarian conformists. Still, this "tool" could be used on either side to repress the rights of the minority. Present day progressives are reinvigorating their use of the initiative to force the legislature to respond to their needs.

On Cree's points that initiatives are the ultimate in popular sovereignty and self government, so far history shows he is wrong. More evidence exists which demonstrates the electorate is easily misled, subject to the oversimplification of arguments made by special interests willing to step on the rights of the minority. Some also point out that the initiative process has substituted running for political office as the means for monied special interests to get their agenda fulfilled.

For these reasons, many voices argue that direct democracy has gone too far. What the Framers predicted about its dangers are still relevant. Too much popular sovereignty upsets the delicate balance between the other fundamental principles of constitutional government such as federalism, separation of powers, republicanism and bicameralism. Take a look at any California general election ballot (or the recent frequent recalls of republican state legislators) for proof of the system that has caused the "disease" of factionalism predicted by the framers.

Questions remain, will legislators fearful of losing their seats refer every controversial matter to the voters? Will initiative generated statues ever become a substantial percent of the legislation passed in the states? Will the "demonization of pubic service" continue to the point that the recall is a normal part of the election cycle?

Initiatives have the power to educate and mobilize the electorate on specific issues, in this ability lies direct democracy's greatest potential in the twenty-first century, as the ultimate civics lesson. The people will act as a check on themselves. Direct democracy is both a threat and a a promise. We are like Ulysses who had his hands tied so he would not jump to the to swim towards the beautiful songs of the Sirens; the electorate will tie its own hands to prevent following the temptation of easy and total democracy.

Federalist Views on Democracy and Republican Government
Governments are instituted among men deriving their just powers from the consent of the governed --Declaration of Independence, 1776

Men love power ... Give all the power to the many, they will oppress the few. Give all the power to the few , they will oppress the many. Both ought to have power, that each may defend itself against the other. --Alexander Hamilton, 1787.

James Madison feared tyranny of the majority even more than the lone tyrant. He pointed out that the threat to liberty in the new United States came not form the old tyrannical monarch, but from the new power of the majority forming in the American democracy. Madison made a leap in thinking with the realization that surest way to control tyranny by the few or the many is to give both the power to share. Only a republic offered this possibility. Madison explained in Federalist Paper Number 39 that only a republican form of government was acceptable for the nation:

"The first question that offers itself is whether the general form be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self government."

By creating a republic which "derives all its powers directly or indirectly form the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." (Federalist #39). The people do not hold the power of governance directly Madison pointed out, the power "flows from the great body of the people" to the government, then with their consent, they live under it.

Madison never considered direct democracy as a possible method of governance. It was the problem that democratic form of government created numerous self-interested factions. Madison viewed the uncontrolled factions as a "disease" which had killed all previous attempts at self government. Madison defined a faction as "... a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." (Federalist # 10).

The primary advantage of a republic is its ability to control the human tendency to split into numerous groups of ideological variation. Without a governmental process to bring these groups together, their differences, whether great or small would keep them isolated. Isolation makes acting in a common interest difficult.

"Among the numerous advantages promised by a well constructed Union none deserve to be more accurately developed than its tendency to break and control the violence of faction ... The instability, injustice and confusion introduced into the public, have in truth been the mortal diseases under which popular governments have every where perished; as they continue to be the favorite and fruitful topics from which the adversaries of liberty derive their most specious declamations." (#10)

This is seen in today's application of direct democracy. Without the normal process of republican government and bicameralism, initiatives allow their proponents to hold their ground without the need for compromise. Initiatives do not go through the normal filtration process. Factions are hardened; divisiveness rather than compromise results.

To Madison, it was not the presence of factions that was evil, but their effects. Factions are essential to free political expression. Attempting to control the free expression and assemblage of like-minded people is as bad as the problems caused by factionalism. "There are two methods of curing the misscheifs of factions: the one, by by removing its causes; the other by controlling its effects ... the one by destroying the liberty which is essential to its existence; the other by giving to every citizen the same opinions, the same passions, and the same interests... Liberty is to faction what air is to fire." (#10)

The instinct to divide into groups for the protection of an idea, of property, of conceptions of liberty is one of self-preservation. The instinct of self preservation is the most deep rooted in human nature. In fact, self-preservation is the most fundamental premise of government. Once people feel their interests are threatened, they divide into factions to protect themselves the most minute attack. The slightest in-road is a route which leads to tyranny and the complete loss of autonomy. The 1990's proliferation of "talk radio" is a reaction to perceived fear of tyrannical behavior. The message of most talk radio shows is one of "no compromise, they are out to get us and take away our guns."

Usually there is more that the factions of our society hold in common than in difference, yet those disagreements divide the people beyond compromise. This is a basic truth of human nature that Madison recognized in all past governments he studied, and correctly predicted would be the case in future governments. "The latent cause of factions are thus sown in the nature of man... So strong is the propensity of mankind to fall into mutual animosities, that ... the most frivolous and fanciful ditictions have been sufficient to kindle the unfriendly passions, and excite their most violent conflicts." (#10.)

Direct democracy fuels faction by motivating the citizenry to use their direct influence over government to achieve their particular goals; there is no need for compromise in the interest of the common welfare of all. Initiatives and recall are direct democracy. When Madison said that direct democracy will not cure the problem of faction he observed:
"... it can be concluded, that a pure Democracy, who assemble and administer the Government in person, can admit of no cure for the misscheifs of faction ... and there is nothing to to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; and have in general been as short in their lives,a s they have been violent in their deaths." (#10)

Madison declared that only a republican form of government would be immune form the disease of factionalism. "A Republic ... promises the cure for which we are seeking...The effect ... on one hand to refine and enlarge the public views, by passing then through the medium of a chosen body of citizens, whose wisdom may best decipher the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to the temporary or partial considerations. Under such a regulation it may well happen that the public voice pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves concerned for the purpose." ( #10).

Not that republican government was perfect, Madison recognized that unscrupulous representatives would use suffrage to achieve their own narrow ends (as they would in a direct system). Still, there is much to be said for relying on the virtues of patriotism of the representatives to act in the common welfare. If there is treatment to the problems caused by factionalism, it is a belief in the virtuous behavior possible in human nature and its manifestation in representation. Certainly virtue is not enough, even the most virtuous person / representative often acts in his own self interests. Acting in one's own self interest is more reason for a deliberative system. In the process of achieving their own ends, the representative claims the virtue of also acting in the common interest; thus results compromise in the common good rather than tyranny.

Relying on virtue carried forward the classical republican ideal of obtaining the common welfare through civic virtue; this gives promise to the outlook of human spirit and condition. Madison wanted public opinion to be filtered and refined "I go on the great republican principle, that the people will have the virtue and intelligence to select men of virtue and wisdom." (James Madison, Speech at the Virginia Ratifying Convention, June 20, 1788, in Cronin, pg. 18). The same principle was stated by Edmund Burke when he told the electors of Bristol, November 3, 1774 that a Member of Parliament owes to his constituency his highest fidelity. But he also owes them his best judgment and he does not owe his conscience to anybody. (Henry Hyde, Congressional Record, 3/29/95, vol.141, no.58).

The Framers believed in the process by which the representatives would deliberate to reach majority. In an October 17, 1788 letter to Thomas Jefferson, Madison stated:
"[I]n our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents." (Madison to Jefferson, Oct. 17, 1788, in 11 J. Madison, The Papers of James Madison 298 (R. Rutland & C. Hobson eds. 1977)

Having experienced the excesses of majority rule in the states during the Confederation period the Framers saw "powerful private groups appeared to dominate state and local government, obtaining measures that favored them but no one else, and that could be explained only by the reference of private self interest." (Sunstein, Cass R. "A Republic of Reasons", from Modern Constitutional Theory, Garvy and Aleinikoff eds. 1994.) The Framers were ready for less democracy than the state governments provided.

Thomas Paine also agreed that "simple democracy," as he called it, was undesirable. Representation had to be imposed over democracy emanating directly from the people. Governance and the representation within had to be indirectly applied from and to the people.
"By ingrafting representation upon democracy, we arrive at a system of government capable of embracing and confederating all the various interests and and every extent of territory and population' ... Our new system has settled for the form by scale parallel in all cases to the extent of the principle. What Athens was in miniature America will be to the magnitude. The one was of the ancient world -- the other is becoming the admiration and model of the present. It is easiest of all the forms of government to be understood and the most eligible in practice; and excludes at once the ignorance and insecurity of the hereditary mode and the inconvenience of the simple democracy." (Thomas Paine, The Rights of Man, in The Writings of Thomas Paine, Albany, N.Y.,Charles R. and George Webster, 1792).

In Federalist number 58 Madison points out that a large group can not govern effectively. The greater the number of representatives, the greater opportunity for the ...
"ascendancy of passion over reason. In the next place, the greater the number, the greater the proportion of members of limited information and of weak capacities. .. In the ancient republics, where the whole body of the people assembled in person, a single orator, or artful statesman, has generally seen to rule ... as if a scepter had been placed in his single hands... The people can never err more than in supposing that by multiplying their representatives, beyond a certain limit, they strengthen the barrier against the government of a few."

Madison warns of decision making in the mass of the people. The people meeting en masse believe the slickest commercial, the most clever exaggeration, and in the attempt to by-pass the legislative body with an initiative, often do as much damage to the rights of the minority as the majority legislature had incurred on them.
The problems of democracy, Madison pointed out, are ever present, even with the advent of the technology to make a nation-wide "town meeting" possible. Democracies are inefficient and tyrannical. The problems are bad in small democracies according to Madison, and dangerous in large ones.

The voices in support of representative government are stated in recent times when Walter Lippman asked: "What are the true boundaries of the people's power? The answer can not be simple. But for a rough beginning let us say that the people are able to give and withhold their consent to being governed -- their consent to what government asks of them, proposes to them, and has done in the conduct of their affairs. They can approve and disapprove of its performance. But they cannot normally initiate and propose necessary legislation. A mass cannot govern." (Epigraphs: Walter Lippman, The Public Philosophy , New York: New American Library, in Cronin pg. 21.)

Direct democracy has an impact on the heart of the Constitution, its principles which have driven its success for over 200 years. Republican government, bicameralism, separation of powers and checks and balances, federalism and judicial review all are negatively impacted by the application of initiative, referendum and recall.

Constitutional Principles Applied to Initiative, Referendum and Recall
Bicameralism
"We should now concern ourselves in devising a system for legislating that will give us more efficiency and quicker response to the demands of our economic and social conditions and the will of the people." - Kansas Governor George H. Hodges 1913

Madison spoke of factionalism as a "disease." If factionalism is a disease caused by democracy, a prevention lies in a bicameral legislative body. Bicameralism creates more opportunity for compromise and enhances slower, deliberative democracy. A two house legislature fit well with balanced and separated power within government. The representatives could expect to achieve some of their interests while claiming they had reached a compromise in the name of the common good.
Whether the Framers intended bicameralism to be an anti-populist devise or as a means to reduce hasty democracy is not clear form the debates conducted at the time (The Founders' Constitution , Kurland and Lerners eds., 1987, pg. 357). The Framers emphasized bicameralism as a means to protect the property of the wealthy rather than a means to hold back majority rule. In Federalist 62 Hamilton reminded the people that those who govern may forget the obligations of those who elected them. He wrote, "double the security of the people by requiring the concurrence of two distinct bodies in the schemes of usurpation or perfidy, where the ambition or corruption of one would be otherwise sufficient."

Adoption of a bicameral legislature at the national level was a result of the need to accommodate the interests of both the large and the small states. Fearing domination by the larger states, the less populous states demanded bicameralism. Even stronger was the belief in the principle of checks and balances, to balance the wealthy interests against the popular interests.
James Wilson described a single-house legislature as, "all the pernicious qualities of the different extremes of bad government. It produces general weakness, inactivity, and confusion; and all these are intermixed with sudden and violent fits of despotism, injustice and cruelty... Different will be the case when the legislature consists of two branches, If one of then should depart, or attempt to depart, from the the principles of the constitution, it will be drawn back by the other. The very apprehension of the event will prevent the departure or the attempt." ( James Wilson, in Cronin, pg. 31.)

Instituting bicameralism into the national government demonstrates Madison's concern of controlling the factions and irrational behavior of the public in general. A second chamber was a way to protect the people from themselves, from hasty decisions, from the excesses of classical liberal thinking the young state legislatures demonstrated in decisions made during the confederation period often these decisions were too democratic, and not in the common interest.
Some states experimented with unicameral legislatures; Pennsylvania (1701-1789), Georgia (1777-1789) and Vermont (1776-1836). The Articles of Confederation provided for a unicameral congress. Bicameralism was not routinely adopted as a feature of American Constitutionalism. Ben Franklin advocated a unicameral legislature on the assumption that bicameralism would make the legislature less responsive to the people, slower and more likely to be influenced by the executive. All of which would eventually become arguments for bicameralism in the Constitution and all state governments except Nebraska in the modern period.

Nebraska created unicameral legislature by citizen initiative in 1934 . The citizens of Oregon and Oklahoma voted (by initiative) in substantial majorities not to create unicameral legislatures.
During the Confederation the states' enactment of paper currency laws, debtor relief, and other majority tyranny measures increased the awareness of the dangers of easy democracy, unicameralism became the exception. George Mason stated at the Federal Convention on June 20, 1787 that he believed the "mind" o the American people was "settled" on a bicameral legislature and a republican form of government. Franklin's comments on the advantages of unicameralism sound similar to those made in favor of initiative, referenda and recall 150 years later.

Bicameralism suggests both a recognition to protect the interests of wealthy class, and republicanism. The lower chamber could be viewed as the embodiment of the popular will, and the upper house would represent the aristocracy as the requirements for land, or as in the case of the U.S. Constitution, appointment by the state legislature.

The same arguments made in favor of bicameralism are those made against referenda and recall. The popular lower house could be easily led by the self-interested or foolish, making hasty decisions based on emotion led by a demigod. The Pennsylvania Gazette on March 26, 1777 stated the "the united will of the whole community, is not only absurd, but highly dangerous." (The Founders' Constitution , pg. 366). Exactly the point made 217 years later by Peter Schrag when speaking of the excesses of initiatives in "California's Elected Anarchy" when he said, "The more the people try to take representatives government into their own hands, the more incapable they become as citizens." ( Harpers Magazine, Nov. 1994 pg. 50).

Initiative and referenda are part of the modern political process. Direct democracy does not pose a current or projected threat to bicameralism at the state and national levels. Bicameralism's ability to slow the process down so the common interest may emerge is its strength. If there is a criticism which could push direct democracy forward at the national level, it is the snail's pace of law making in the United States Congress. The people have let the Congress know they want action through their votes for changes. The sign of movement was the distinctive feature of the first 100 days of the 104th Congress under Newt Gingrich. The cry to scrap bicameralism was not heard, but the demand to increase its efficiency was. The people believe in the the potential of the representative system embodied by a bicameral legislature because they instinctively understand what Hamilton said at the New York ratifying convention on June 25, 1788 called bicameralism "...the perfect balance between liberty and power." It's ironic to speculate that our liberty is best protected with a healthy dose of republican (not the party) government in the body of a bicameral congress.
The history of direct democracy in the twentieth century demonstrates that the, "will of the people involves more than simply ascertaining and applying the statistical will of the people. It is more complicated and often untidy process by which the the people and their agents inform themselves, debate and compromise, and arrive at a decision only after thoughtful consideration." (Cronin, pg. 35.)
The Guarantee Clause -- Republican government

"The United States Shall guarantee to every State in this Union a Republican Form of government ..." U.S. Constitution Article IV, Section 4

"It would be strange indeed that a guaranty made at the insistence of the party whose leaders are still recognized as the most pronounced advocates of democratic principles should be construed to forbid rather than to support a reform whereby the will of the people may be made more effectual in government."
-W.A. Coutts, Michigan Law Review, 1908

At the on-set of the direct democracy movement in the twentieth century, those critics of sending power directly to the people argued that state provisions for initiative, referendum and recall violated the Guarantee Clause of the Constitution.
The lawmaking function which shifted to the people was not foreseen when initiatives were first purposed. The use of initiative and referendum is far from substituting the routine decisions made by the elected representatives; the people could not manage the day-today operations of government. It is unlikely that the practice filing initiatives,or of legislatures referring excessive decision making to the people will not become an exception to the rule, that rule being: if more than one percent of lawmaking is made by direct means, a threshold detrimental to republican government is crossed.

The argument which applies the Guarantee Clause asserts that when the people decide on statutes in their states, or recall a duly elected officials, the principle of republican government was violated. Once the people take on the authority to override the elected legislature, they have created a quasi-direct democracy, and diminished the republican government. The fear of hurting republican government motivated an attack on initiative, referenda and recall was the same which motivated Madison; the fear of "tyranny of the majority." According to its critics initiative, referenda, and recall are unconstitutional because they undermine republicanism. Elections are intended to bring people into the representative process.

Elections are part of a constitutional design to connect people to government, but only at a distance from one another that preserves the independence of both. Elected for two to six years, politicians would have the time and scope of office to act and to build a record of their own. Of all innovations, the initiative (and its evil cousin the public opinion poll) have chipped away the most distance between electors and elected. Exactly how much distance republican government needs for healthy operation from the direct action of the electorate en masses not clear.

The meaning of the guarantee clause has never been fully clarified by the U.S. Supreme Court (Cronin, 34). The decision about the constitutionality of direct democracy provisions in state constitutions has been left to the state courts. In practice a state government is considered to be republican in form if Congress accepts its elected representatives. With the proliferation of initiative, referenda, and recall in the 1980's and 90's, a significant degree of decision making transferred from the representatives to the people directly.

As voter initiatives proliferate, the protection of minority rights provided by republican government becomes more important. However obvious the evidence of hasty, or majority tyrannical decisions of the mass electorate may appear to an observer, it is unlikely that a challenge to direct democracy based on the guarantee clause would be successful in any state or federal court. The acceptance of initiative referendum and recall as power in the peoples' hands, and as a check on unresponsive or abusive government is so deeply held, that should a court rule these provisions in conflict with the Guarantee Clause, the people would likely amend the U.S. Constitution.

In spite of the voters attraction to direct democracy they realize instinctively that bicameralism is essential to a free society. In a May, 1987 New York Times / CBS News Poll of a national sample of 1254 adults asked the question "Do we need to have both a House of Representatives and a Senate, or would one legislative body be enough?" Seventy two percent responded that both are needed, 21 percent said one is enough, and 7 percent did not know or had no answer (Cronin, 233).

Separation of Powers and Direct Democracy

Powers are separated and balanced in government to prevent tyranny or dominance by any one branch. The separation of powers protects the minority by giving them a counter voice to the majority. Separation of powers also prevents hasty law-making by allowing one of the other branches to reconsider a law or policy. Both of these are issues important to the application of direct democracy in the state and local governments with initiative, referendum and recall.

There are two important questions concerning the affects of initiatives on the separation of powers: Can the executive veto an initiative or referendum passed by the people, and if he does veto, can it be overridden by the legislative branch which was by passed by the process in the first place? Can an initiative or referendum direct the executive branch to take action in an administrative capacity?
In the early American experience the separating and balancing powers were applied in the first governments. During the revolutionary period the influence of Locke, Montesquieu and Blackstone were the philosophical foundations upon which powers were separated in government.

The Founders came to realize that power concentrated anywhere in the governmental process led to abuse. Jefferson, in his "Notes on the State of Virginia, 1784" made the same point when he said, "All powers of government, legislative, executive and judiciary, result to the legislative body (in the Virginia Constitution). The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by plurality of hands, and not by a single one."

In Federalist number 48 Madison warned of the legislative department be prevented from, "...drawing all power into its impetuous vortex." Statutory initiatives demonstrate Madison's warning. Unless initiatives can be reviewed by the executive veto or by the judiciary, the electorate will use the direct legislative power excessively. Some argue that because an initiative is popularly passed through the great body of the people, it holds a special legislative status. The state and federal courts have overturned many initiatives for various reasons, but not with out recognizing the danger of over ruling the will of the public; especially when the court has no enforcement power for its decisions.

The Arizona Constitution is a case study in the application of the initiative, referendum and recall to state government in general, and the separation of powers specifically. The Arizona Constitution provides that:

"The legislative authority of the Sate shall be vested in a legislative ... but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently or the Legislative; and they also reserve, for these of their own option, the power to approve or reject at the polls and Act of the Legislature." (Article IV part 1).The ultimate and total authority to make laws lies with the people. Arizona's Constitution was written with heavy progressive era influence, as the above citation shows.

The separation of powers in Arizona government exists within the state governmental framework. Policies of the government from any of the three branches are subject to the normal application and protections of the separation of powers. In Arizona, and many other states (mostly Western U.S.), once the people choose to enter the governmental process, the normal protections of the separation of powers is thrown out. The power of popular law making in Arizona is extensive. Essentially, the people of Arizona have the direct power to over rule any action of any of the three branches through statutory initiative, referendum and recall.

The veto power of the executive and the power of the legislative to override that veto are not present in the successful initiative. The governor of Arizona may veto a bill referring a matter to the people, but he may not veto an initiative, (or reinstate a recalled official).

The Arizona Constitution states specifically that the governor's veto power applies to "acts passed by the legislature." (Arizona Constitution Article V, section 7). Further the Constitution is clear that "The veto power of the Governor, or the power of the Legislature, to repeal or amend, shall not extend to the initiative or referendum measures approved by the majority of the qualified electors." (Article IV, pt.1). Although recent Arizona Attorney General rulings and other legal precedents give a governor the possible power of veto, based on the definition of the clause "qualified electors," no governor has attempted a veto, it would be politically risky to over rule the people.

Upon the passage of a referendum of initiative the governor must proclaim the measure approved when it immediately becomes law (Article IV, part 1). This is a huge amount of direct power which lies in the mass of the electorate. For the time being it is untapped, for the better in Arizona. If California is the fore-runner of trends nation-wide, then Arizona, with all the same constitutional powers of direct democracy will see this power applied more frequently. A danger to constitutional authority lies in the over use of this power. The violation of the doctrine of the separation of powers and balance of powers, whether state or national, will result from over use. Powers are separated to prevent tyranny and despotic rule. Nothing can stop despotic government arising through direct democracy in Arizona except the ultimate popular power of the constitutional initiative, which would curtail the people's direct power; this is unlikely. The people will have to learn for themselves to be responsible with the power in the absence of separation of powers through direct democracy.

In Federalist numbers 37 and 70, Hamilton said, "Energy in government is essential." If powers are separated and balanced, each branch has a self defense mechanism giving it a reason to exist, and the energy to protect itself. Direct law-making and recall are a powerful injection of energy into the system. The excitement and participation generated by popular governance is a positive aspect of direct democracy. Bringing more people into the application of governmental power, allows citizens to put meaning behind the principle of popular sovereignty and energizes the government. This is direct democracy's greatest potential, the "energy" provided by participation may evolve the civic virtue of the people in general. The result maybe a heightened, more sophisticated awareness of democracy.

Madison recognized in Federalist number 51 the importance of going beyond the constitutional separation of powers when he wrote, "...experience has taught mankind the the necessity of auxiliary precautions." If the constitution was not enough to defend the concentration of powers, and to Madison, complete separation of powers was not desirable, or possible, then an additional, more complex institutional arrangement is necessary. "Ambitions must be made to counter ambition..." Personal motives are to be enlisted in the service of the public good. With government separated, these personal motives should usually cancel each other out. Popular law making and recall uphold this theory; personal motives and narrow interests are often components of initiative and recall campaigns. Precisely because self-interest is such as strong motivator, in the big picture, it will be in the electorate's self interest to restrain the narrow interests. The people will have to do this limiting with their own vote and will exercise a higher enlighten self interests.

In the scheme of the national government, the legislative is not held to any special action to ensure accountability other than by the frequent vote of the people; unlike the judges and the executive are to impeachment. Nathaniel Chipman, in "Sketches of the Principles of Government, 1793 (pg. 120) pointed out that there is no "constitutional tribunal to hold them (the Congress) accountable," legislators are "properly and solely amenable to the tribunal of public sentiment." In the fifteen states which have state-wide recall of all elected officials, another layer is added to the accountability of elected representatives.

What is statutory, and the realm of the legislative, and what is administrative and the realm of the executive is another problem in the application of direct democracy and its relation to the separation of powers. An initiative or referendum can not direct the executive branch to take action in an administrative capacity, initiatives and referendums are are either statutory or constitutional; no state has the provision for a "advisory" referendum as France does on a national level. The public opinion poll or pressure from talk radio also plays the pressure role on Congress and is highly unrepresentative and unreliable.

The day-to-day functions of government are too complicated for the general populace to understand, or would want to deal with. That is the reason we elect representatives. The power of initiative is legislative, not executive. When initiatives attempt to micro-manage the executive they are in effect creating policy. Allowing initiatives to affect executive and administrative functions would hamper efficient administration of government.

This issue was raised in Tucson, Arizona in August of 1995 concerning the operation of Tucson Water, a municipal entity. The Central Arizona Project (CAP) was one of the last federally funded reclamation projects approved by Congress in the 1960's The CAP brought water from the Colorado River to Arizona Indian reservations, towns and cities along its path. The project runs nearly the entire length of Arizona. Until the arrival of CAP water, the City of Tucson relied solely on the rapidly depleting supply of ground water in the aquifer below the city. When Tucson came "on-line" with the water in 1990, numerous water quality issues were raised. The water supplied to Tucson homes from the CAP caused corrosion in residential plumbing, and was generally of poor quality. The outcry by the media and the water customers motivated a group of citizens to file for a municipal initiative. The initiative organizers collected the required number of signatures (30,000 were collected, at least 17,400 were valid, 10,938 were needed or 10% of the total number of voters in the last city-wide general election, (AZ Star, 9/19/95, pg. B1) ) and set the issue for a vote on the November, 1995 general election. The initiative entitled the "Water Consumer Protection Act," directed the water company to meet stringent water-quality standards for CAP water. If the water utility couldn't meet the requirements then the CAP water had to be "recharged" back into the aquifer, or used only for non-potable water purposes. Because the cost of building a new water treatment plant was prohibitive, the issue was boiled down the question of to recharge or not.
The initiative was challenged twice by its opponents; the first challenge came to the validity of the petition signatures. Many people who receive the water lived out of the city limits, they had signed the petitions because they had an interest in the outcome, but were ineligible to sign or vote in a Tucson election. The court upheld the validity of the petitions.

Once the signature issue was lost, opponents turned to administrative versus statutory challenge in an attempt to keep the question off the November ballot. The opponents argued that initiative proposed administrative and policy setting measure designed to carry out already existing government policies, rather than enacting a new policy. They also argued that initiative was too complicated for the general electorate to understand and therefore the voters could not make an informed decision when voting. "Auto dealer R.B. O'Riely, the lead plaintiff said the group believes the issues about the treatment and use of CAP water in Tucson are too complex for voters." (AZ Star, 9/19/95, pg. B1).

The Arizona Supreme court defined which initiatives are administrative versus statutory in Wennerstrom v. City of Mesa (1991), in a four part test:
1. Is the ordinance proposed by the initiative general as a opposed to special or temporary; does it from a permanent rule of government? 2. Is the initiative a new law or executing a law already in existence? 3. Does the initiative constitute a declaration of public purpose and provide for the ways and means of its accomplishment? and 4. Does the initiative require an intimate knowledge of the fiscal and other affairs of city government?

The Pima County Superior court ruled in September of 1995 that the measure was legislative in nature, "Courts must be careful not to place undue restrictions upon the Citizens' power to enact legislation, accordingly Courts will generally refrain from determining the validity of a proposed initiative or referenda prior to its enactment." (O'Rielly et.al. vs. Tucson, Pima County, Arizona, Superior Court, 1995). On its face the arguments made at the trial demonstrated that the initiative would direct the utility to reinterpret an existing policy, that it required intimate knowledge of fiscal matters, and that it was a temporary measure. This would indicate that it was an administrative decision. The Court ruled that the initiative set a standard, but did not require how the standard would be met. The ruling held that the measure was legislative and that it could remain on the ballot. The proposition passed with over 60% approval (AZ Daily Star, 11/8/95, pg. A1).
This case study demonstrates two factors: 1. Arguing that a proposition is "too complicated and difficult for the voters" is always an unwise strategy for the opponents of a proposition and 2. Courts will refrain from removing a ballot proposition based on its constitutionality before the vote (signature and residency requirements notwithstanding).

The CAP issue is on appeal, the Appeals Court is likely to overturn the initiative based on the legal precedent, unless, as mentioned in the next section of this note, the courts show deference to measures passed directly by the people, especially when passed with such large majorities. The judge in the case demonstrated the difficulty of apply judicial review to direct democracy when he said, "The issues should be debated by the electorate." (AZ Star, 9/19/95, pg. B1).

Direct democracy adds a quasi-fourth branch of government in the people themselves. This fourth branch does not fit well into the scheme of balanced and separated powers. The end result of separation of powers is an effective means of serving the need for energy as well as of securing liberty. Other than the people themselves, the power of judicial review is the only power realistically capable of checking the power of direct democracy.

Judicial Review of Direct Democracy

To what degree state courts have judicial review over popularly passed legislation is not clear. There are two theories regarding judicial review of direct democracy. The first states that the judiciary should take a "hard judicial look" at initiatives, referenda, and recall campaigns. The other states that initiatives are the embodiment of popular sovereignty and self-government and should therefore be treated with great deference as the will of the people. (Stein, 143)
The hard look theory of interpreting initiative, referendum and recall campaigns holds that since direct democracy was not addressed in the U.S. Constitution, direct democracy should not receive deference but should be subject to the same scrutiny as statutes passed by the legislatures. The courts should interpret the laws which set signature or campaign standards for initiatives; but when referendum, or initiative passed statues violate the constitution, those laws should be held to the same standards of judicial review as a law passed by the legislature. If the propositions are statutory in nature then they are still subject to the supremacy of the U.S. and state constitutions.
Elizabeth Stein, in her article "The California Constitution and the Counter - Initiative Quagmire," pointed out the relation of judicial review to direct democracy stating:
Judicial review of direct democracy is even more important as the initiative process has become more susceptible to the domination of powerful interest groups. Scrutiny should be high when the initiative effectively stifles minority voices or political expression. (pg. 162)

The second method of interpretation states that the courts should stay out of the realm of direct democracy. This idea is based on the premise that the voter holds much more competence that the elites in the media or the government give them credit. One advocate of this view stated that while the "people may sometimes approve mischievous or unconstitutional measures, ... by and large,... they are good legislators." ( Donald Greenburg,The Scope of Initiative and Referendum in California, California Law Review 1717, 1747-48, 1966 at Stein, 162). Carol Caralton of the League of Women Voters said in testimony before the New York Legislature in 1979 put an other way, "If we accept the premise that people can choose between good and bad leaders, we must accept that they can choose between good and bad laws." A judicial decision striking down a popularly elected initiative would appear to the people that their power is being subverted by the judiciary. If an initiative passed the electorate, it is more likely to have wide-spread support and awareness; the media then will also have heighten interest. Former California Supreme Court Chief Justice Joseph Grodin commented on this phenomenon when he said "It is one thing for a court to tell a legislature that a statute it has adopted is unconstitutional, to tell that to the people of a state who have indicated their direct support for the measure through the ballot is another." (Joseph P. Grodin, In Pursuit of Justice, (1989) in Stein at 161). In the 1981 case Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley (454 US 290 295 (1981) the U.S. Supreme Court the majority held that "It is irrelevant that the voters rather a legislative body enacted this law, because the voters may no more violate the constitution ... than a legislative body (Stein, 161).
The U.S. Supreme Court decided an important case interpreting initiatives in U.S. Term Limits v. Thornton, which asked them to decide whether the federal term-limits initiatives (which twenty-two states have passed since 1992) are consistent with the U.S. Constitution. (Nine of the initiatives were passed in 1994.) The issue before the Court in this case was not one of initiative passed laws and their validity, but of states' power to determine the qualification and membership of their member to the U.S. Congress. Important questions were raised in the case concerning initiatives, however, due to the number of states which had passed their term limit laws by popular initiative. These question are:

Do state term-limits amendments, ratified by the people, an expression of popular sovereignty in its purest form? Or are term-limits amendments, in fact, anti-democratic because they limit the choices of voters in particular elections?

Clarence Thomas' dissent in the Term Limits case indicates his deference toward popularly passed initiatives. He said the right of the people, "to choose whom they please to govern them" is a hollow, given the Court struck down twenty-three state laws passed by popular initiative. Thomas claims that term limits are constitutional whether passed by state legislatures or by popular initiative based on the Tenth Amendments reservations of power to the state governments and the people.
California Proposition 13 in 1978 is (truly the "mother of all tax revolt initiatives,") and California Proposition 103, which rolled back auto insurance rates, are two important cases dealing with judicial review of initiatives. The U. S. Supreme Court ruled with the people. In the proposition 13 case Nordlinger v. Hann (No. 90-1912. -Decided June 18, 1992), the court held that the inequities in property tax allocations in the same neighborhoods does not violate the equal protection clause of the U.S. Constitution.

In the auto insurance case Calfarm Insurance Co. v. Deukmejian the U.S. Supreme Court overturned the California Supreme Court's decision that the auto insurance companies were entitled to a "reasonable rate of return" and did not have to give a 20% roll back of auto insurance premiums. This decision by the California Supreme Court was highly unpopular with the citizens of California because the initiative passed with such a large majority. The U.S. Supreme Court overturned the state supreme court ruling that the rate of return was not reasonable but excessive.
It is questionable as to whether the Court used the popularity of the issues with the electorate or its constitutionality as the basis of its decision. When the Court rules in areas which affect the relation of the government to the marketplace, its decisions should clearly indicate that any governmental management of the marketplace has specific constitutional authority, such as regulation of interstate commerce or intellectual property.

In another issue destined to define the scope of initiatives is the "English Only"or "Official English" movement. The Official English movement hit Arizona early. In 1988, Arizona approved the initiative with 50.5% a constitutional initiative requiring English be the official language of government. Opponents of the measure argued that requiring governmental officers to use only English violated both the First Amendment and the Equal Protection clause of the U.S. Constitution. In October of 1995, the 9th Circuit Court of Appeals ruled 6 to 5 in favor of the plaintiffs agreeing that the proposition violated the rights of free speech of government employees and public citizens. The Appeals Court also said the ruling was discriminatory because it did not provide equal protection of citizens to access the information they needed in the daily lives. (Tucson Citizen, 1/5/96, pg B1. And, AZ Star, 1/7/96, pg. B8).
Supporters of the initiative have filed an appeal to the United States Supreme Court. Stephen Montoya, a lawyer for "Arizonans Against Constitutional Tampering" said, "I doubt the high court will accept the case." Arizona House Rules Committee Chairman Don Aldridge agreed and said, "... the Court should preserve the sacred right of the people to petition the government." The most important question this case raises is the use of power of judicial review over federalism. Aldridge spoke on this point saying, "the real issue is state's' rights and whether federal courts are allowed to thwart voter decisions."(ibid.)

Based on the ruling in the U.S.Term Limits vs. Thornton case which struck down term limit laws in 23 states passed by popular initiative, it is unlikely that the court would return to the issue Aldridge makes of judicial review vs. federalism. The U.S. Supreme Court will probably let the Appeals Court ruling stand based on its First and Fourteenth Amendment arguments. Federal courts are less inclined to be pressured by the popular vote, because they are not subject to direct democracy in their states. Not having a national form of initiative of referendum supplies a de facto check on the states' use of direct democracy by removing the federal courts form the direct pressure of the people.

In its Official English ruling the 9th Circuit Appeals Court showed the power and determination of the judicial branch (generally of the national government) to take a "hard look" at the constitutional issues of an initiative and not grant special consideration because of its initiative status.
The U.S. Supreme Court has a mixed record, with its upholding of California Proposition 13 and 103 on one hand and the 1982, 5 to 4 decision which rejected a Texas initiative requiring U.S. citizenship to attend public schools on the other, the question is up in the air. The U.S. Supreme Court seems likely to rule on the most recent anti-immigrant initiative, Proposition 187 in the future; it will be interesting to see which of the theories of judicial review of initiative the courts applies.

The string of initiatives begun by Proposition 13 are now hitting the courts. The courts have the opportunity to address the application of judicial review to popularly passed initiatives. The hard look approach is about the only tool which can be applied to protect the rights of minorities and principles of the constitutionalism in the face of majority democracy in a republican system. As indicated by the U.S. / Official English case, federalism and Tenth Amendment states rights will be an essential question the courts will have to face in their considerations of the application of direct democracy.

Federalism and Direct Democracy

The problems caused by direct democracy are further complicates federalism. The passage of California Proposition 187 in 1994 provides an example of how the application of judicial review into the initiative process affects by federalism and the supremacy clause of the U.S. Constitution. The proposition passed with a 59% majority. California Governor Pete Wilson moved quickly to enforce the proposition. The day after the initiative passed eight law suits were filed in state and federal courts challenging the proposition. The federal courts have since ruled that the proposition violates Congress' power to regulate immigration and is therefore a violation of the supremacy clause. The U.S. Court should rule on the federalism issue as well as whether proposition 187 violates the equal protection clause. The passage of 187 indicates an important trend in the development of federalism. Although there is no national initiative, passage of initiatives in the states can now act as a pressure tactic on the national congress as they have against the state legislatures. "Before the passage of 187, many people dismissed it as another of Pete Wilson's campaign initiatives, this one intended to to be a tactical weapon in Wilson's crusade to get federal dollars to close his budget deficit." (Margot Hornblower, "Making and Breaking the Law,"Time Magazine, 11/94.) The same process of using popular initiatives to pressure Congress is beginning with both California Proposition 187 on immigration reform and Arizona's "Official English" proposition.

According to the National Conference of State Legislatures, other anti-national government / new federalism initiatives such as term limits, "takings", unfunded mandates and imposition of court approved taxes were all initiative issues voted on in the states in the November 1995 general election. The use of the state initiative to force the representatives in Washington into action is just beginning. With this trend will come a new round of judicial review of initiatives by state and federal courts giving more definition to the boundaries and shared powers in the system of federalism, and new life to the Tenth Amendment as it may apply to initiatives.

The Antifederalist Positions on Democracy and Republicanism

The Antifederalists did not advocate direct democracy. Although the type of government they envisioned shared similar goals of responsive democratic government to that of the Populists a century later.

With the exception of the general failure of the economy, the Antifederalists were content with the Articles of Confederation. The Articles come about as close as republican government can come to the type of outcomes a direct democracy could have. The type of republicanism offered by the Articles provided for the influence of factions over both their state and national governments. Exactly the effect numerous initiatives would have on state governments in the 1980's - 90's.
The Articles provided for recall of the representatives, instruction of representatives, and short elected terms. All of these anti-republican concepts can be related to nearly the same affect initiative, referendum and recall would have in the twentieth century.

Although the representatives to the national congress were not popularly elected but appointed by the state legislatures to the Confederal congress, the representatives could be recalled home should they not follow the instructions of their constituents, or should the people of the state not agree with actions of congress.

Recall is a direct democracy idea held by the Antifederalists. Although the type of recall under the Articles did not function through a direct vote of the people, it served the same purpose as the recall which motivated the populists and progressives, make representatives more responsive to the people.

The Antifederalists believed that representatives and legislature must "mirror" those they represent. That homogeneity created real representation. To achieve that letters of instruction were sent from counties or towns to their representatives was common in American representative institutions until the practice was phased out the mid-Ninteenth century. It was impractical for a representative to be advised on every issue and it undermined the primary purpose for republican government, to control the effects of factions. Instructing representatives did not take into account a feature of bicameralism, that the representatives have a larger view of the common good, based on what the nation needs, we vote for the representatives wisdom and character.

Current politicians propose returning to the practice of instructed representatives through a technological "cyber city hall" which allows for the instantaneous input of large percentages of his constituents; at least those with access to a computer. The representative could mold to the instructions of public opinion. When it came to instruction of representatives the Antifederalists and their successors found that republican government allows the voter to vote for the integrity of the representatives so that he would not need instructions.

Factionalism and Cynicism
The people are not supposed to govern; they are not supposed to deiced issues. They are supposed to decide who will decide." --George F. Will, 1977, Washington Post column, July 28.

The Framers were right, direct democracy is dangerous, it causes the disease of factionalism which kills representative government and brings tyranny. Republican government's strength lies in its power of insulation and filtration of factious public opinion prevent the danger of tyranny and force compromise in the determination of the common welfare. The "filtration and insulation" causes the complaint that the government is "out of touch" and "acting in its own interests".

Initiative and recall are powerful tools against corrupt government. The empowerment of the electorate by these means should diminish cynicism of the electorate if they feel they have a voice and hold the ultimate power. In 1892, Lars A. Ureland a Republican turned Populist said of initiative and referendum, "The more I study these principles the more I am convinced that they will furnish us the missing link-the means needed to make popular self-government do its best ... I would rather have complete initiative and referendum adopted in state and nation than the most ideal political party that could be made ..."

In that same year, Nathan Cree in his article, " Direct Legislation by the People" called initiative and referendum the "next logical step in the evolution of self government."
The progressives wished to achieve a legislative process free of special interests and excessive party control and to create the model citizen who would study the issues and think the issues through. The progressives who advocated direct legislation still had their own set of special interests and could not imagine that initiatives and referendums would become such powerful tools of the same interest groups they were fighting in their time. The populist/progressive dream is diminished as the people watch the tool of their influence used so effectively by the powerful monied interests.
Rousseau argued that any law not directly passed by the people was an invalid law. The distance between the people and their representatives causes an oligarchy to form and the people become alienated. So while republican governments reduces the effects of factionalism, it creates cynicism. It is this opinion that promoted the general electorate to rely on direct democracy of initiative and recall yet remain pragmatic that republican government is the most practice mode of government an extended republic.

Excessive reporting by the media of political conflict is a fundamental cause of the 1990's age of political cynicism. Conflict is more interesting than clarity in much media coverage of the political culture. It is a cynical electorate which is drawn to the appeal of easy democracy in reaction as a way of getting back at the politicos. Conflict promotes extreme solutions to problems. The excessive reporting and emphasis on conflict were evident in the Proposition 187 campaign.
The cynicism of the electorate is then directed at the elected representatives. This causes what retiring Senator Alan Simpson (R-Utah) called "The demonization of public service." If there is one force that republican government can not stand, it is the refusal of persons to step forward and run for public office. Republican government relies on the "enlightened civic virtue" of the representatives. The refusal of qualified candidates to run for office will diminish the quality of representation and lead to the application of more direct democracy by the electorate. A rise in the problems caused by direct democracy will result, an increase in factionalism, less compromise, demagoguery, majority tyranny. A reliance on the civic virtue of elected representatives is not enough, the people demand teeth in the mouth of popular government.

In a speech against a term limits act, Representative Henry Hyde of Illinois argued that the electorate which proposes ideas such as limits on terms is mistaken. He said,
"I will not surrender. I will not conceded to the angry, pessimistic populism that drives this movement, because it is just dead wrong. Our negative campaigning, our mudslinging, our name calling has made anger the national recreation. But that is our fault, not the system's ... This is not conservative. It is radical distrust of democracy. It is cynical. It is pessimistic, devoid of hope and optimism that built this country. this corrosive attack on the consent of the governed stems from two sources. One is well meaning but misguided, and the other are those who really in their heart hate politics and despise politicians." (Congressional Record, 3/29/95, vol.141, no.58.)

It may be the extent to which we have become too representative in the twentieth century that is causing cynicism. Americans elect over 55,000 in the typical general election (Cronin, pg. 22). The perceived low quality of their representation is a loud voice in favor of direct democracy, and paradoxically, as the use of direct democracy, particularly recall accelerates, the number and quality of those wishing to stand for the rigors of election and representation decline enhancing the "demonization of public service." This is not a recent problem Hamilton said:
"I see great difficulty of drawing forth a good representation. What, for example, will be the inducements for gentlemen of fortune and abilities to leave their houses to attend annually and long? ... Will it not be the power, therefore, be thrown into the hands of the middling politician, who, for the sake of a small stipend and the hopes of advancement ..." (Alexander Hamilton, Federal Convention 18 June 1787.

Cynicism towards government is out of control. Every leader of our time, and in the near future will deal with the explosion Harding factions making the claim that the politicians have no civic virtue. As this trend continues the demands of public office will appeal less to the most qualified and more to those seeking a resume enhancer. The record number of "career" representatives leaving after the 104th Congress is evidence of the effects of cynicism. Madison recognized the problem over 200 years ago, it is not new, yet we have survived as a republic. Many politicians are using the cynical attitude of the electorate to enhance their own standing. The use of direct democracy then becomes a tool to fight back against the public's cynical attitude, only to find politicians using to their advantage to gain power.

Initiatives -- Money and Politics

Today, Americans consider their right to use recall, initiative and referendum as sacred. Since the passage of California Proposition 13, the number of initiatives nation-wide has increased exponentially. In 1988 voters voted on 50 initiatives in eighteen states (Cronin, pg. 3). In a 1982 poll by the California Field Institute found that eighty percent of people polled regarded statewide propositions as good for California, while only six percent saw them as bad.
The most recent entry to the California initiative market is the "California Civil Rights Initiative (CCRI). CCRI would end affirmative action programs in all state functions, including at the county and town levels. The initiative is intended to be on the general election ballot in 1996. In addition to demonstrating the power of the initiative to target specific groups, it is a case study in the impact of money and initiatives. Campaign chairman, Larry Arnn, who heads the Claremont Institute said of the measure,"Fund-raising has gone a lot slower than I thought it would." Arnn says he wants to raise between $3 and $7 million for the general campaign, "That would permit a relatively generous advertising budget and probably ensure victory." ("California vs. Affirmative Action. Losing Race," John J. Miller and Abigail Thernstrom, The New Republic, 6/26/95).

About 20 states have direct democracy provisions for statutory initiatives. Every state except Delaware require constitutional amendments be ratified by the people in a referendum. Most states allow initiatives, referendum and recall at the local level, but not state-wide. In the states with state-wide direct democracy the application, usually the initiative and referendum, increased enormously. Since Proposition 13's impact on electoral politics, governors and legislative leaders in several states, mostly republicans have led the efforts to get the initiative and referendum enacted in their state jurisdictions, but none have passed with the necessary majorities (Cronin, pg. 3). It seems likely that given the mood of the populace for "change," the political atmosphere is favorable for the expansion of this power in other states. Before these states amend their constitutions they should take a hard look at California.

The 1990 California general election was described as "the most extensive and complicated list of ballot propositions in the history of electoral politics." (Election Excess, 1990's style:The issues and the Dangers, L.A. Times, 10/8/90,B4). The 1990 California Ballot ballot was 222 pages in length and would have taken the average voter 10 hours to read. (ibid) After the 1990 California General Election, reforms which limit the length of explanations and ballot issues were proposed. Limiting the ballot length is not the issue, the length of the ballot is an indicator of the excessive use of initiatives and referendums. More frequently, legislatures find in less risky to refer any and all controversial matters to the people rather than decide for themselves, as the elected representatives. More special interests are finding it easier to pass and initiative in their favor than work through the legislative process. Once one group proposes their initiatives, and opposing groups usually works on their own to counter and compete.

The voters may not always be informed on the morass of issues on the typical ballot, but they are sophisticated enough to know that not every commercial is true, and that the system of direct democracy is abused. The electorate rightly suspects the motives behind many initiative and recall movements. Politicians use initiatives as platforms to run for office, recall elections are often vendettas, or micro-management of the administrative functions of government by the executive. Should the powers of direct democracy be added to the U.S. Constitution, the same problems California experiences would grow exponentially.

The United States is one of the few countries in the world without a national referenda. Throughout Europe nations hold referenda on admission to the European Union. In October of 1995 the Republic of Ireland recently approved in a referendum to provide the civil right of divorce to its non-catholic citizens. The Canadian of Quebec in a direct referenda decided to remain a part of the nation of Canada in both 1992 and 1995. A Time Magazine poll in September of 1994 showed Americans favored establishing a national referendum by a 78% to 19% majority. ("The way is open for the total overhaul of U.S. politics," Time Magazine, 3/14/95). As the states which have recently attempted to amend their constitutions found, many people fear opening the Pandora's box of direct democracy at both the sate and national levels.

The growth of the use of initiative, referendum and recall in the states is staggering. An industry has grown around the initiative and referendum processes which has acted as compounding affect on the total number of initiative and referendums.

Candidates often use the initiative and referendum process as platforms from which to run their campaigns. Republican Arizona governor, Fife Symington ran in 1992 as a "successful businessman." When his developer empire collapsed in October of 1995 he filed for bankruptcy. To shield and divert attention from his financial problems Symington proposed two constitutional initiatives within one month of the the bankruptcy hearing. The first was an initiative to eliminate the state department of education and school boards, the second to reform the juvenile justice system by removing the courts from implementation of juvenile justice. Symington defended the juvenile justice initiative by saying the measure will, "Bring the voice of the people into the area of social policy ... All we are doing is trying to make government work better," (AZ Star, 10/29/95, pg B6). Symington demonstrates the current conservative thinking that the people know what's best in every issue and should vote on every social issue. His statements reflect ignorance about the purpose of republican government in the formation of social policy. He is misinformed that the use of initiatives will make the system "work better." Evidence from his own state of Arizona, and from California demonstrate that the more the people make the decisions which determine the "common welfare" the more they create the situation of factions and majority tyranny that Madison warned would occur. Republican Representative Patti Noland of Tucson said of the juvenile justice initiative, "If the initiative changes the Constitution, I just believe that Fife Symington will hammer the Legislature to have his way further and do away with all juvenile justice corrections, or put everything under him." Her comments point out one other factor of initiatives driven by politics (usually those in, or those seeking a state-wide executive elective office), once the governor has the initiative proposed or after it is passed, it is used as a threat to the legislature to enact his position. Claiming to have the force of the people behind him, the balance of power in the state government is upset by the misuse of the initiative.

Governor Pete Wilson of California has a history of using popular initiatives as platforms matter of propositions. Before Wilson dropped out of the 1996 presidential race, Wilson became the epitome of the initiative driven politician. Congressional Quarterly said of Wilson tactics,
"As a presidential candidate, Wilson is touting himself as a conservative largely on the strength of his support for several ideas that have taken the form of ballot initiatives in his state.

Among them have been measures to limit taxes, permit parents to choose among public schools, limit politicians' terms in office, deny public services to illegal immigrants, and, most recently, eliminate affirmative action programs for women and racial minorities." ( Congressional Quarterly Inc. 1995)

A conflict arises when politicians use the force of direct democracy to bolster their elective position. The two methods of policy making are in conflict. It is hoped that the voters would recognize these opposing forces of representation and see the tactic used by self-promoting politicians in the name of "what the people want."
Another use direct democracy for self-promotion is the example of Mayor Louie Valdez. In 1994 Louie Valdez ran for mayor of Nogales, Arizona (the writer's area of residence), as part of his campaign he promised to begin an initiative to amend the city's charter and allow for a city administrator and reduction of the Mayor's powers. One week before the election he announced he was opposed to the initiatives. "In a display of political acrobatics that would make Barnum and Bailey proud, Louie Valdez performed a 23rd hour flip-flop ... when he announced his opposition to two of the four amendments he himself created." (Nogales International, September 19, 1995, A1.)
Initiatives are powerful forces in modern elections. In the previously mentioned case of O'Riley vs. Tucson , Terry Pollack a supporter of the anti-CAP initiative stated, "This has nothing to do with administrative rather than legislative ... it has to do with cost- it's cheaper to fight us in the courts than with a campaign in the public forum." ( AZ Star, 9/19/95, pg. B1). This demonstrates the new phenomenon of initiatives, at times it can be either less expensive (or more profitable) and/or more feasible to collect collect petition signatures and campaign for an initiative than to pass legislation. Initiatives give special interests the tool they need to get what they want when a legislature is unwilling to pass legislation to meet their needs. Mr. Pollack's quote also demonstrates that special interests can stop unfavorable initiatives more easily in court than through an expensive campaign against an issue popular with the public.

Direct Abuse of Minority Rights

Republican government's greatest virtue is its ability to protect the rights of minorities and individuals against tyranny by majorities. In "Thoughts on Government," John Adams recognized the powerful protection republican government offers the people's liberties when he said, "At least the majority of them would invade the liberties of the minority, sooner and oftener than any absolute monarch."
A recent ABC "20/20" program demonstrated a common plight of minorities in the mass of the general public mind. The case of Christy Bauchman's fight against Christian hymns being sung in her Utah public school choir is an example of religious tyranny in the 1990's. The Bauchman's file a law suit to stop Christian hymns being sung in her school choir's repertoire. Christy is Jewish and objected to the use of Christian hymns. Eric Bauchman, Christy's father said in the 20/20 interview, "Let me tell you a little secret ; we don't live in a democracy, we live in a republic. In a democracy the rights of the majority prevail, in a republic the rights of the minority are just as important as the rights of the majority." ("20/20," ABC, 10/27/95) Mr. Bauchman's experience is one that demonstrates what the Framers intended for republican government, protection of the minority and enlarging and refining the definition and application of the common good.
Many people hold the belief that the Untied States is a democracy, and that in a democracy the majority rules. According to the Mormon majority in Salt Lake City Schools, Mr. Bauchman's daughter should go along, or move along. The religious conservatives argue that because 50 or 95 percent of the people in a community want religious songs sung in their school, they should have their way by direct means. The community's free exercise of religion is being held up by one Jewish girl; her right to free exercise is less because there are more of them. This is exactly the type of thinking of which Madison warned us. To uphold the principle of United States Constitutionalism it is often more important to uphold the rights of one over the rights of many. This is a clear example of this principle. To allow the religious conservatives to have their way because there are more of them would diminish the value of individualism, of the right to be different and to keep the state from forcing conformity. These issue keep being raised in the American political arena demonstrating the relevance of the Framer's writing and creations in the 21st Century. Should the courts uphold the removal of the religious songs from the public school's song book, the natural tendency for the majority would be to turn to an initiative which would legislate their point of view (although probably unconstitutionally). Hamilton saw this same principle in his own time when he wrote in Federalist Paper Number 35,
"It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of society against the injustice of another part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure...Justice is the end of government. It is the end of civil society ...In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature..."

In elections since 1990 numerous initiatives and referenda in several states attempted to limit the rights of one group over another in some cases, and expand the rights of another group over others. The process and outcome of these elections factionalizes the electorate with lasting results (whether the proposal passes or not), and makes the people cynical to the political process as they watch and hear the sleazy and negative attacks on the opposition. "Yes on 301, no on 103." (AZ 1994 general election publicity pamphlet.) Then, when the election is over, the "weaker party" is "sacrificed." (Federalist #10)
Initiatives have manifested several recent examples of attempts to limit the rights of minorities. The U.S. Supreme Court ruled the the affects of Proposition 13 on new home owners (a minority of those owning land) in California did not violate the equal protection clause because these people had the choice to buy or not buy the land once they were informed of the tax rate. None the less, there is a clear inequity in the application of the law creating the appearance of a violation of the minority right of that group of people. Proposition 187 struck back at perceived abuses of illegal immigrants, Official English and English Only initiatives struck out again at immigrants and non English speakers Anti-gay initiatives like Amendment 2 in Colorado is an initiative in litigation which questions the equal protection of homosexuals in Colorado.
Jeffrey Rosen wrote of the effects of direct democracy on the rights of the minority in the New Republic:
Quoting James Madison on the dangers of majority factionalism, Julian Eule of UCLA argues that all of the filtering mechanisms present in ordinary legislative decisions--informed deliberation, political horsetrading, coalition building, and so forth--are dangerously absent in the crude, one-shot majoritarianism of a constitutional referendum. But this is a utopian view of the way legislatures operate. It's hard to argue with a straight face that the debate in Congress about, for example, the balanced budget amendment was more deliberate and soberly Madisonian than the debate among the citizens of Colorado about Amendment 2. Moreover, the anti-populists are quoting Madison out of context: the constitutional guarantee of a Republican Form of Government, far from expressing a suspicion of direct democracy, was in fact designed to protect the right of a majority of citizens to alter and abolish their governments as they pleased. ("Disoriented," The New Republic,10/23/95)

In what may be evidence of the civic education of the voters was the November, 1995 vote in Maine rejecting a measure that would have curbed protection for gays. The amendment would have restricted rights and protections to groups already covered by state law and would have overturned Portland's gay rights law. In a sign that voters are waking up to their awesome responsibility when considering initiatives, in a 1994 election, Wyoming voters defeated "The Human Life Protection Act," the only anti-abortion referendum in the country. The law would have outlawed most abortions and imprisoned offending doctors for up to fourteen years. 466,000 Wyoming citizens voted against the act.
In another sign that the 1980's and 90's use of the initiative by conservative factions may be changing, the Arizona AFL-CIO filed a initiative called "The Workers Bill of Rights." (AZ Star, 11/8/95 pg. A1 and 1/10/95, pg. B4). The initiative would proposes many pro-worker changes in Arizona law, the most important being a raise in the minimum wage from the federal $4.25 per hour to $5.84 (one half the current average Arizona hourly wage). This initiative shifts setting the minimum wage from federal to state control.
Initiative organizers plan to collect 250,000 signatures by July 3, 1996 to place the issue on the ballot; 169,000 are required. In a classic sign of the initiative as a threat, AFL-CIO Treasurer Charles Hudggins said, "We'll scare the hell out of a bunch of politicians." (AZ Star, 1/10/96, pg. B4).
In Arizona, a traditionally anti-labor, "right to work" state, there is little possibility the current legislature would consider a state minimum wage law. A similar law was put to a vote in Tucson, Arizona in 1992 and failed by wide margins. The same outcome is likely for this initiative. This case demonstrates how the use of the initiative works, regardless of political orientation, to force law making bodies to respond, and often to violate the rights of minorities. The labor unions can rightly claim that republican government has failed them, that it is not recognizing the needs of a majority of the people in Arizona, those regular blue collar workers. Yet, their proposed initiative will probably fail as the business interests in the state paint the workers as socialists and anti-business resulting in a net loss of jobs in Arizona.
Republican government has a long history of violating the rights of minorities, it is not a panacea, it is a layer of protection which direct democracy doesn't offer. The only protection offered minorities when it comes to an initiative, referendum or recall is judicial review. The courts have demonstrated that at times, they too are unwilling to protect the rights of minorities in the face of an overwhelming vote of the people in an initiative or referendum.

Recall -- The Local Tyrant
The recall tends to produce in every official a nervous condition of irresolution as to whether he should do what he thinks he ought to do in the interest of the public, or should withhold from doing anything, or should do as little as possible, in order to avoid any discussion at all." -William Howard Taft, 1913

Recall is the power to remove an elected official before their term has expired. Recall is a powerful check against incompetent or unresponsive representatives. Only 15 states currently have state-wide recall provisions in their constitutions. Ten of which were added between 1908 and 1926. Georgia was the last state to amend its constitution to include recall in 1978 Thirty six states allow recall at the local level. (Cronin, 127).
Only a few state-wide officials have ever been recalled, but at the legislative district and local government level recall is the most abused technique of direct democracy. On many occasions recall is used for trivial reasons bordering on personal vendettas, thinly veiled as a recall for "malfeasance in office." Since the Republican party gained a majority in the California Assembly, they have staged numerous recall elections in the last years against members of the Republican party who are not demonstrating ideological conformity. All five of the recalls have been successful.
Local political communities eventually recognize these attempts for what they are, and often retain the elected official up for recall, but do little to stop the recall at the petition process. Recall movements at the state level are difficult requiring thousands of signatures. In smaller communities however, recall signature requirements can be easily accomplished. Recalls come in flurries in these communities, then subside as the threat to representative government becomes obvious to the voters.
Only one governor and a handful of other state wide officials has have ever been recalled. About forty recalls have been mounted against state officials in California all but two failed for lack of signatures. Generally, at the state level, a number of valid petition signatures equivalent to 25% of the votes cast in the last election must be obtain to force a recall. Difficult at the state level, easy at the local level.
Recall appeared early in America. The 1780 Massachusetts constitution allowed for recall, as is the Articles of Confederation. Although familiar in the Constitution formative period recall was not as as necessary when elected terms of one or two years were common. Recall was debated at the Constitutional Convention in 1787. Luther Martin reported to the Maryland legislature that a lack of recall, especially with six year terms for senators failed to provide adequate accountability he said ...
"The representative ought to be dependent on his constituents and answerable to them; that the connection between the representative and the represented ought to be as near and as close as possible ... Under the new constitution he argued, "for six years the senators are rendered totally and absolutely independent of their states ...During that time, they may join on measure ruinous and destructive to their states, even such as should totally annihilate their State governments, and their sates cannot recall them." (Luther Martin in the Records of the Federal Constitution of 1787, ed. Max Farrand, vol. 3 (New Haven Yale University Press, 1911-194).

Former Arizona Governor Evan Mecham was nearly recalled in 1987 but was impeached before the recall election could take place. Evan Mecham's behavior in office prompted a recall. Mecham's recall had its beginnings in his conservative policies and publicly stated opinions. Mecham's performance of governor included frequent brash and biased statements. His public attitude and fight against the creation of a state Martin Luther King Day mobilized many segments against him. Eventually, the affair became so embarrassing that when Barry Goldwater supported the recall, it had spread to the mainstream. Recall organizers collected almost 400,000 signatures on recall petitions; 216,000 signatures were required. Mecham was impeached in a three month Arizona Senate trial from both charges arisen from the recall, and as a result of the overall anti-Mecham sentiment in the state.
Unlike impeachment, officials being recalled don't have to have criminal charges brought against them. Officials can be recalled if the electorate finds them not to be representative. Mecham's recall demonstrates an extraordinary effort to make government more responsive. The difficulty of collecting the required number of valid signatures (especially with those states which have strict paid petition laws) acts as a check on the popular power of recall. The process is open to the same problems to representative government as initiative proses. Mecham's recall demonstrates that the input of the people directly into the representative system can have a positive effect.
This is not always the case, the attraction of easy democracy leading to demagoguery is well documented by the Framers. The previously mentioned Louie Valdez began his political "career" by dropping -out of college and spearheading a group which supported the recall of three Nogales Unified School District school board members. Valdez then used the recall to launch his own elected office first as a new school board member, then while serving on the school board he ran for mayor. He still sits as both a school board member and the Mayor of Nogales and now is running for the state legislature. This local, extreme example demonstrates the ease at which direct democracy lends it self to demagoguery and self-interest rather than civic virtue.

Conclusion

In spite of the evidence that the process is being abused, direct democracy acts as the ultimate civics lesson for the populace. The mistakes made by the people's over use or tyrannical application teaches citizens the value of representative government, and in the long run, strengthens it; but only after the abuses become apparent and their affects are suffered.
Republican government and the principles of United States constitutionalism face challenges. As the electorate's anger is incensed and exaggerated by excessive media coverage and talk radio, the number of civically virtuous people willing to run for office declines. As the people feel the Congress and legislatures are not representing their interests, or that the members are just a bunch of "fat insider politicians," the number of initiatives will increase, perhaps to a point where the people see the true threat posed by democracy. The wisdom of James Madison is relevant through the ages; democracy hurts the minority rights, and results in unwise decisions.
Ultimately, the people want their elected representatives to do the law making, but insist on direct democracy as a backup check on their elected representatives. The Federalists were right about popular government, but our experiences must evolve. We are ready to make new mistakes, and correct old ones. The inane drug laws will never find the legislator with the juveos to repeal these laws in spite of the overwhelming evidence of their ineffectiveness and unenforceability. Only the people en mass hold that wisdom. Yet, direct democracy is an essential tool. In political communities where it is abused, the people will react to hold back silly, competing or confusing initiatives and referenda, or the use of recall for personal vendettas.
The people will act as the ultimate check on themselves. Direct democracy is both a threat and a promise. But like Ulysses, we will always need to tie our own hands to prevent following the temptation of "simple democracy."