In defense of voter referendums

Initiatives and referendums are a critical way for ordinary Americans to have a voice in making the laws under which they live. Yet rather than listening to voters, too many legislators are trying to stop them from speaking.

Over the last decade, state legislatures have proposed 15 constitutional amendments restricting initiatives and referendums, and more than 70 since 1960, according to a new historical study I conducted. Chipping away at citizen lawmaking feeds the simmering populist sentiment in American politics that government is run by a narrow group of elites who are trying to subvert democracy.

The story of Ohio’s Issue 1 is a good illustration of what has become a recurrent pattern. In the wake of the repeal of Roe v. Wade, Ohio Republicans passed a new law banning abortion as early as six weeks after conception — much more restrictive than most citizens want, according to opinion polls. Abortion rights activists collected signatures for an initiative to override the new law with a far more liberal abortion policy. The legislature responded with a proposed constitutional amendment to require a supermajority for approval of amendments and make it substantially more difficult to meet the signature requirements. The electorate’s power to make laws needed to be restricted, they claimed, in order to stop “out-of-state special interests” from imposing their views on Ohio. The GOP effort was resoundingly rejected by voters last week.

It’s not just Republicans doing this. In California, after voters used initiatives and referendums to repeal some recent laws, the Democratic-controlled legislature has been trying to pass Assembly Bill 421, making initiatives and referendums more difficult by reducing time to petition and limiting paid petitioners. Like in Ohio, AB 421’s sponsors say they are just protecting the people from a “well-funded, well-powered set of interest that often undermine the collective will of the people of California.”

In addition to hamstringing initiatives, sometimes legislatures just ignore them. In 2017, South Dakota voters adopted an initiative limiting gifts from lobbyists and creating an independent ethics commission to monitor campaign finance and lobbying laws. The legislature simply repealed the law, claiming that voters didn’t understand it when they approved it.

The United States, like any modern democracy, relies on elected representatives to do most of its lawmaking. But we also recognize that our representatives don’t always represent us. They can be influenced by lobbyists, deep-pocked contributors or powerful interest groups.

So we have always limited their powers. Every state requires voter approval of constitutional amendments proposed by the legislature, and initiatives have been effective in forcing legislators to take actions they otherwise resisted, such as giving women the right to vote and providing aid to elderly citizens in the early 20th century; cutting taxes and limiting terms in office in the post-war period; and increasing minimum wages, legalizing marijuana, and nonpartisan redistricting in the 21st century.

Legislators who claim to be protecting the people by taking away their right to make laws imply that ordinary voters can’t be trusted to know their own minds. Yet extensive political science research shows this is incorrect — citizens are able to cast votes reflecting their interests, and are not easily misled by special interests.

Legislators haven’t always been so skeptical of their constituents. In 1978, California’s political establishment — the Democratic governor, leading Democratic and Republican legislators, major corporations, unions and media outlets — went all in to persuade voters to reject Proposition 13, a ballot initiative to limit property taxes. To no avail: voters approved the initiative in a landslide, 65% to 35%.

Instead of questioning the competence of voters, the governor pivoted, and to “carry out the will of the people,” instituted a hiring freeze on state workers, froze cost-of-living adjustments for public employees and welfare recipients, took a tough bargaining position with public-sector unions, and proposed a constitutional amendment to limit the growth of government spending. The legislature cut income and home sales taxes, and passed tax breaks for senior citizens, welfare renters and the disabled. The voters spoke, and in this case the politicians listened.

In addition to listening when voters speak, legislators could try to choose policies that the majority supports in the first place. When it comes to abortion, opinion polls consistently show that a majority of Americans reject the extremes: they want a “centrist” policy that permits abortion in the early stages of pregnancy, when the mother’s health is at risk, and in cases of rape and incest, but that prohibits it in later stages when the fetus is viable.

In Oklahoma, Tony Lauinger, who leads a prominent anti-abortion group Oklahomans for Life, urged the Republican-controlled state legislature to moderate its extreme anti-abortion law by adding exceptions for rape and incest, lest liberal groups use an initiative to pass a much more permissive abortion law. His argument hasn’t gotten any traction, and its very exceptionalism tells us something about how politicians see their job today.

Referendums can be a lifeline for legislators worried that compromising on an issue puts them in an untenable position. Italy, Portugal, Switzerland and Ireland have all held referendums on abortion that resulted in laws that the public found acceptable.

Opinion polls show that voters want to participate in making laws — they think democracy is more than just showing up every four years to select representatives. By hobbling initiatives and referendums, legislators perpetuate growing concerns that our democracy is under attack. Popular participation is a strength of our democracy, not a problem to be overcome.

John G. Matsusaka is a professor of business and law at the University of Southern California. He is the author of “Let the People Rule: How Direct Democracy Can Meet the Populist Challenge.”