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Reforming the Ballot Initiative Process: Making Direct Democracy Work

Direct democracy through popular intiatives and referenda began a century ago as a grassroots, progressive reform aimed at circumventing corrupt legislatures and increasing civic involvement.  The long history of this reform indicates that in the whole this experiment in direct popular participation in the legislative process has been successful as an avenue for passing populist policies that maintains the favor of the public over time.  However, throughout this history there have also been attempts, sometimes successful, to manipulate the process and the electorate into passing legislation that would not garner majority support had voters possessed an accurate conception of its content and effect.  This Dispatch covers the threats to direct democracy from fraud, manipulation, and a lack of accurate information regarding ballot measures, as well as reforms that can bolster the integrity of initiative and referendum campaigns.

Direct Democracy Under Siege: Increasingly in recent years, a small group of wealthy individuals and powerful interest groups on the Right have been using deception and secrecy to push measures that undermine the interests of the vast majority of people.  Often using a menagerie of shadow organizations to hide their identity, these actors manipulate the process in multiple ways: they cloak their financial backing of ballot campaigns, they misrepresent the content and purpose of measures through misleading ballot titles and descriptions, and they commit fraud in the signature gathering process to qualify for the ballot.  At every stage the ability of voters to make a well informed choice that reflects their true positions on an issue is undermined and the ability of direct democracy to serve the citizens is diminished.

The extent of these problems grows as the money spent in support and opposition to ballot measures increases rapidly.  In 2006 the dozen most expensive campaigns generated a total of $329 million in spending.  The most expensive campaign, a renewable energy proposal in California, saw over $150 million in spending alone.

The Ballot Initiative Entrepreneurs of the Right

There are actually a relatively small group of wealthy individuals and rogue signature gathering organizations that work with conservative organizations to push a handful of pet policies around the country. Sometimes they have a vested economic interest in the policy and sometimes they are ideologically driven.  Primarily they push measures that attack workers and consumers for the benefit of the few. Two examples illustrate the contours of this problem.

Ward Connerly - A one man crusade against civil rights protections:  Perhaps no individual has demonstrated more zeal in manipulating the initiative process to pass policies that are far removed from mainstream opinion than Ward Connerly.  Beginning with California Proposition 209 in 1996, he has waged a campaign against any recognition of race in state policies across the nation.  And throughout his years pushing measures that gut affirmative action requirements, he has never let the unpopularity of his views get in the way. Instead of convincing voters of his views through persuasion, in state after state he has used fraud to gather signatures in order to qualify for the ballot - misleading voters on the content of the measures, such as convincing voters at a civil rights rally to sign the petition by saying it will "end discrimination," and employing signature gathering organizations that consistently manufacture the signatures they need to qualify.

Connelly's drive to dismantle affirmative action state by state has not abated, but after years of dirty tricks progressives have learned that his use of deception is his biggest vulnerability. This year Connelly tried to put his anti-civil rights measures on the ballot in five states, but in the end his measures qualified in only two.  In Arizona, PSN board member, Rep. Kyrsten Sinema, spearheaded a citizen campaign to scrutinize the nominating petitions, which had been circulated by another perpetual bad actor - National Ballot Access.  Sinema organized 1,000 volunteers to scrutinize the signatures.  In the end over 100,000 suspect signatures were discovered and rejected due to the grassroots effort.  Now activists are suing Connelly for fraud and his campaign in Arizona is dead.

National Ballot Access - Making a buck by subverting democracy: National Ballot Access (NBA) is a young organization run by two principals, Mary Edith "Edee" Baggett and Heidi Verougstraete, whose alleged history of signature fraud goes back a dozen years.  Having cut their teeth on pro-gambling ballot initiatives and then moved on to tax payer "bill of rights" (TABOR) initiatives, they have recently been retained by Ward Connelly. Just this year this toxic partnership has result in allegations of voters being told they were signing an unrelated petition on eminent domain, and rejected signatures, as well as a referral by the Secretary of State to the State Supreme Court in Oklahoma.  Missouri has seen similar accusations of signature gatherers lying about the petition that voters are being asked to sign.

A Failure of Disclosure

The primary weakness in the ballot initiative process that opens the door for manipulation and deceit is a lack of mandatory disclosure.  This problem infects multiple aspects of the process:

  • The content of ballot measures are often obscured by deceptive language and titles, or as described above, signature gathers actively lie to those whose signatures they are soliciting.
  • The funding for ballot campaigns is shrouded.
  • The voters are directly manipulated by misleading claims and advertising that distort the content and effect of the measure.

Shrouding donors and misleading voters are also combined when ballot measure proponents or opponents use front organizations with misleading names - such as Citizens for "Blank" to describe a committee completely funded by a single corporation or corporate association.

Voters' Competence Undermined:  Voters use many pieces of information to determine whether or not to support a particular ballot measure.  Some research the proposals extensively and make informed, reasoned judgments about each measure's worthiness. Others merely rely on interest groups who they trust to make the assessment and follow their recommendations.  Still others rely on the media and advertising by proponents and opponents to inform their decisions.  When these types are information are limited or voters are fed misinformation, their ability to vote in their own interests is greatly diminished.  

This is referred to as a lack of voter competence.  And while in a perfect world every voter would be able to educate themselves thoroughly about every measure, research shows that voters with have accurate information about who supports and opposes an initiative vote in a similar manner to individuals with more extensive knowledge.  Knowing this, it becomes clear that accurate information about ballot measures and those that support or oppose them are essential to fair ballot campaigns.

Restoring Integrity to Direct Democracy Through Increased Disclosure and Fraud Prevention

Donations to campaigns for political office can be regulated because there is an opportunity for quid pro quo arrangements between donors and candidates, however, initiative campaigns are not vulnerable to the same sort of corruption.  Therefore regulating ballot campaign finances is impermissible on First Amendment grounds.  Given this restriction the most important reforms for ballot campaigns are to prevent fraud and increase the information voters have to make a reasoned choice. 

The following recommendations and best practices have been developed by the Ballot Initiative Strategy Center (BISC).

Thwarting Signature Fraud:  Signature fraud consists of both deceiving voters into signing petitions that they don't support, and adding false entries to pad nominating petitions.  The widespread nature of these practices became evident during the 2006 campaign to pass TABOR measures in several states, and there has been a significant upswing in this type of behavior in the last few years.  BISC has released a comprehensive set of signature reform guidelines that includes:

  • Regulating Petitioners - Require petitioners to register with the Secretary of State, and to swear lawful gathering of the signatures; only allow voters to fill in the petition; pay petitioners by the hour, not per signature.
  • Establish Clear Rules - Specify exactly what constitutes signature fraud or forgery, and what the consequences of such crimes are; establish notary requirements; mandate the form of any petition.
  • Transparency - Give the public access to the petitions.
  • Accountability - Establish clear accountability for the people who run the campaigns and signature gathering operations through fraud and conspiracy statutes.

If states have clear rules and methods of keeping petitioners accountable, it becomes less likely that fraud will be attempted and when fraud occurs there is a better chance it will be detected and punished.

Mandating Comprehensive Disclosure:  While progressives have been active in building campaign finance regulations that prevent corruption, there has been comparatively little work done to enhance ballot campaign disclosure.  Yet, disclosure is essential if voters are to get the information they need to competently assess their position on these measures.  In particular, knowing who is supporting a ballot campaign is vital for most voters to make an informed choice. This is also true with respect to interest groups themselves as well as the media - they need access to information on the supporters of a measure in order to adequately inform others.

As mentioned earlier, just knowing the name of a committee supporting or opposing a measure is often not very helpful.  A committee named Citizens for Prop X doesn't reveal anything about who is behind the measure.  What is most helpful is knowing the actual donors - individuals, corporations or other organizations - that are funding the campaign.  Few states require comprehensive disclosure.  Even in states that require ballot committees to identify their donors, wealthy individuals and groups can often create non-profits or other entities to shield their identities.

However, there is no substantial restraint on mandating disclosure from all donors to a ballot campaign and all spending in support or opposition to the campaign.  The only restrictions needed are for individuals who only spend a nominal amount to support the campaign, and for people with a credible fear of retaliation for expressing their views.  California has mandated comprehensive disclosure of all donations to ballot initiative campaigns spending more than $1,000 [CA Code Section 82013].  Access to campaign information is so thorough and well presented in that state that I was able to determine in less than 30 minutes that the largest individual donor from New York State (where PSN is located) to the main ballot committee for Proposition 8, which restricts marriage to opposite sex couples, works as a teacher in a Catholic school in the Hudson Valley.  This teacher gave nine donations totaling $1,100.  Washington stands out for its disclosure practices and easy access to information as well.

Facilitating Public Access to Ballot Campaign Data:  Beyond a simple failure to mandate timely and comprehensive disclosure of donations and spending, the biggest impediment to an informed electorate is poor access to the data once it is disclosed.  BISC has a thorough assessment of the best practices for giving the public access to ballot campaign data which focus on the following areas:

  • Timely filing and posting of campaign finance disclosure data, including mandatory electronic filing and stiff penalties for late filing.
  • Ensuring data quality through clear requirements to provide complete data on not just name, address and donation, but also occupation and employer.
  • Adequate presentation of the data that includes summary information, various search and sorting options, raw data for researchers to download, and easy to navigate disclosure websites.

Each of these reforms will decrease the power of monied interests to deceive voters and force special interests to be democratically accountable-- exactly the goal of those who created the ballot initiative process in the first place.

Direct Democracy is a Powerful Tool for Driving a Policy Agenda

The rightwing has been very astute in using campaigns to further their agenda.  We are all aware of the power that ballot initiatives highlighting right wing social policies (principally anti-same-sex marriage measures) had to drive turnout in the last presidential election.  It is not implausible that the national ballot measure campaigns that conservatives waged put President Bush over the top in 2004.  These campaigns are also currently an effective way to evade contribution limits in many states, though rigorous disclosure requirements can and should temper the effectiveness of this tactic.

While reform of the initiative and referendum process is sorely needed in the majority of the 24 state with initiatives and popular referenda, it is important to recognize that direct democracy has also been essential to enacting important progressive reforms such as publicly financed elections in Maine and Arizona, clean energy policies, and minimum wage increases in multiple states.  If progressives can reform the process in states with weak regulations and disclosure requirements, the attractiveness of ballot measures to monied interests will be greatly diminished, but the utility of initiatives for progressive reformers will remain.

Ballot Campaigns have been used to effectively drive policy agendas and energize the grassroots, both within and across states.  However, reform of the process is desperately needed to stop these campaigns from being used as a way to deploy deception and secrecy in passing laws that a well informed electorate would not support.  By mandating rigorous disclosure and clamping down on ballot measure fraud, progressives can reinvigorate the initiative and referendum process as an important instrument in the reformer's toolbox.