Floyd Feeney is Professor of Law at the University of California, Davis. From 1968 to 1986 he also served as Executive Director of the university's Center on Administration of Criminal Justice. A former law clerk for U.S. Supreme Court Justice Hugo Black, he is the author of three books and numerous articles on criminal justice and court reform. In 1992 he and Professor Dubois authored a monograph for the California Policy Seminar entitled Improving the California Initiative Process: Options for Change.

This book describes the history of the initiative process and the major issues that have arisen during its increasing use in recent years. By elucidating the problems that have arisen and their possible solutions, the authors...

This book describes the history of the initiative process and the major issues that have arisen during its increasing use in recent years. By elucidating the problems that have arisen and their possible solutions, the authors seek both to inform the debate about the wisdom of the initiative and to offer suggestions for improvement to jurisdictions that choose to use the process.

With the aid of more than 40 charts and tables, the authors compare the major features of the initiative in the American jurisdictions that have adopted the procedure-24 states and the District of Columbia. They draw particularly on the experience in California, the most frequent U.S. user of the initiative and a major battleground in the development of ideas about the process. The book also discusses the use of the initiative in other countries, particularly Switzerland, where the process originated and the only other major country in the world that makes extensive use of the initiative today.

IN 1992, USING THE INITIATIVE PROCESS, citizens from 13 American states voted for term limits on the members of Congress from their states. I In that same year citizens from 12 states adopted term limits for their state legislatures through the initiative process and voted on such matters as health care, the right to die, welfare reform, tax reduction, and governmental structure.

Like the citizens of Oregon in 1908 who were the first to institute presidential primaries and to demand the right of popular election of U.S. senators (thus beginning the movement toward adoption of the sixteenth amendment), these citizens used the initiative to force consideration of fundamental change by the electorate. 1992 was not unusual. In 1994 California voters adopted a highly controversial initiative restricting state benefits for illegal immigrants, propelling this issue dramatically upward in the nation's domestic agenda. In 1995 the mere threat of an initiative in California concerning affirmative action did much the same to this issue, and in 1996 term limits supporters brought forth a whole flock of new proposals designed to force congressional candidates to vote for term limits. Similar topics have appeared on ballots in the District of Columbia and the 24 states that use the initiative process in every election year for many years.

Many see the initiative as the very essence of democracy, an opportunity for citizens to participate directly in making the laws under which they live. At a time when many citizens have lost faith in the capacity of government and in their elected leaders, proponents argue that the initiative is vital to a well-functioning democracy. In their view, the initiative increases interest and participation in government, reduces citizen alienation, and serves as an antidote for declining voter turnout in elections. Views such as this led Mississippi to reestablish the initiative in 1992 after a lapse of many years, and have led many other states to consider its adoption in the last several decades. There was even a brief flurry of serious consideration for a national initiative in the 1970s.

Others question the wisdom of the initiative. In their view, societal problems have become much too complicated for the black and white kind of solutions they believe possible through use of the initiative process. Detractors are also appalled by the demagoguery and simple-minded campaigns that characterize many initiative elections.

One of the classic debates about democracy concerns the extent to which the people themselves should exercise a direct voice in their government. James Madison and those who wrote the United States Constitution preferred a system of representative government. Believing that most important public questions were too complicated to be decided by popular vote, they designed a system calling for elected representatives who would have the time to study and understand the issues. The Populists and Progressives who fashioned and promoted the initiative, the referendum, and the recall in the late l800s and the early 1900s, saw a somewhat different picture. They believed that legislators and political party machines had become far too dependent on special interests. Trusting the populace itself to make better judgments, they thought that the cure was more democracy. While they did not want to abolish representative government, they wanted much more popular participation.

This book does not seek to settle the question as to whether the initiative is a wise institution. Rather, it seeks to describe the major issues that have arisen in the use of the initiative and to discuss the policy options available for addressing these problems. By elucidating the problems that have arisen and the possible solutions to these problems, the book seeks both to inform the debate about the wisdom of the initiative and to offer suggestions for improvement to those jurisdictions that choose to use the process.

The book compares the major features of the initiative in the American jurisdictions that have adopted the procedure-24 states and the District of Columbia.3 We draw particularly upon the experience of California, the most frequent American user of the initiative in the past several decades and a major battleground in the development of ideas about the initiative.

The book also discusses use of the initiative in Switzerland, the country from which the original American ideas were derived and the only other major country in the world that makes extensive use of the initiative today….

CHAPTER ONE: INTRODUCTION

CHAPTER ONE: INTRODUCTION

The California Experience

The Book

CHAPTER TWO: HISTORY

CHAPTER THREE: THE INITIATIVE AND AMERICAN DEMOCRACY

Concepts

Experience with the Initiative

CHAPTER FOUR: A COMPARATIVE ANALYSIS OF AMERICAN STATE LAWS

States That Use the Initiative

Ballot Access-Signature Requirements

The Indirect Initiative

Pre-election Administrative Review

Pre-election Legislative Review

Pre-election Judicial Review

CHAPTER FIVE: INITIATIVE IN SWITZERLAND AND OTHER COUNTRIES

Switzerland

Swiss Law-Federal Level

Swiss Law-Cantonal Level

Swiss Experience

More Detailed Description of Swiss Procedure

Restrictions on Initiative Subject Matter

Other Countries

CHAPTER SIX: THE BASIC STRUCTURE-CONSTITUTIONAL AMENDMENTS, INITIATIVE STATUTES, AND SUBJECTMATTER RESTRICTIONS

The Role of the Initiative in State Constitutional Amendments

Amendment Procedure

Amendment and Repeal of Initiative Statutes

Subject-matter Restrictions

Effective Date

The Indirect Initiative

CHAPTER SEVEN: SIGNATURE REQUIREMENTS

Purpose of Signature Requirements

Qualifying for the Ballot: Too Easy or Too Difficult?

Reforming the Signature Qualification Process

Restoring the Reliability of Signature Qualification

Impact on the Initiative Process

Calculating the Signature Thresholds

Changing the Requirements for Passage

CHAPTER EIGHT: REDUCING COMPLEXITY I – BETTER DRAFTING AND MORE ACCURATE VOTING

Better Drafting of Individual Proposals

More Accurate Voting: State the Effects of YesVote

CHAPTER NINE: REDUCING COMPLEXITY II - MAKING INDIVIDUAL INITIATIVES UNDERSTANDABLE

The Problem

The Single Subject Rule

The Subject Matter Must Be Expressed in the Title

An Assessment: How Well Have the Rules Protected Against

Trojan Horses, Log Rolling, and Complexity?

Some Future Possibilities

CHAPTER TEN: REDUCING COMPLEXITY III - THE NUMBER OF INITIATIVES

Number of Initiatives

Conflicting Ballot Propositions

CHAPTER ELEVEN: IMPROVING VOTER UNDERSTANDING

Quality of Voter Participation

The Voter Information Pamphlet: Who Uses It and How?

Improving the Pamphlet

Broadcast and Nonprint Media

CHAPTER TWELVE: INITIATIVE CAMPAIGN FINANCE AND DISCLOSURE

Campaign Spending and Initiative Outcomes

Campaign Finance Rules

Special Disclosure Rules for Campaign Literature and

Advertisements

Other Campaign Finance Related Rules

CHAPTER THIRTEEN: SUMMARY AND CONCLUSIONS

Basic Structure of The Initiative Process

Qualifying for the Ballot

Reducing Complexity

Improving Voter Understanding: The Ballot Pamphlet

Campaign Finance and Disclosure

The Process of Reform

APPENDIX A: Tables

APPENDIX B: The Massachussetls Ballot Pamphlet

APPENDIX C: California Ballot Summary

APPENDIX 0: Swiss Initiatives: Problems of Counting, Landesgemeinde, Sources

INDEX