1In his Gettysburg address, President Lincoln defined America’s representative democracy as a “government of the people, by the people, for the people”, placing the citizen at the heart of government. Today, several studies question the actual power exerted by the individual in policy making.
- 1 South Dakota in 1898 till Mississippi in 1992. In Smith Daniel A. and Caroline J. Tolbert (2004), E (...)
2The federal Constitution as well as state Constitutions are based on the separation of powers and clearly define the areas where the citizen can participate in politics. Unlike the US Constitution, state Constitutions provide for direct democracy. This provision was confirmed by the Supreme Court in the 1912 Pacific States tel. v. Oregon. The first state to include it was Georgia in 1776: it defined, for instance, how to amend its new Constitution with the petition. A majority of the states now give an individual three types of state level approaches to play a direct role in his/her state.1 The first one, the proposition, is a petition that can amend the state Constitution (18 states) or create laws (24 states). It first must be signed by 5 to 10% of the voters who last participated in a general state election, and then approved by a majority of the state electorate. The second one, the referendum, has the same powers but is not initiated by a citizen but by the legislature (all states but Delaware). The third one is the recall of public officers (18 states). Propositions therefore seem to give the greatest power to the people, a significant popular power, a “social regulation” as defined by the concept of local governance.
3Propositions have been widely used, mostly in western states. Over the past hundred years,
- 2 McCuan David (2003) in Waters, Dane (ed), “The History of the Initiative and Referendum Process in (...)
4“2,051 statewide ballots have been put on the ballot and 41% adopted; over 60% of all initiatives have taken place in just 6 states: Arizona, California, Colorado, North Dakota, Oregon and Washington. A minority of initiatives actually make it to the ballot: in (California), a study showed that 26% did and 8% were adopted by the voters”.2
5However propositions can be checked: In some cases, they can be cancelled by the legislature or by the state courts if they violate the federal Constitution or if they address a national rather than a local issue. Moreover, propositions are often supported by local and sometimes national lobbies; in California in 1988, the tobacco industry spent 1 million dollars to fight a proposition to ban smoking in public places. This is not to mention pressure groups that hire specialized companies to collect the needed signatures for the initiative to become a proposition. In those cases, petition gatherers could be paid up to 5 dollars a signature in 2001.3
- 4 Wright in “Who Governs?”
6Are propositions then the expression of “participatory democracy”? Or is the American democratic system an illusion where the “public good” gives in to “private interests”?4 And is public interest best defended by the public itself? The study of the actors at play in the most prominent California propositions will shed a light on those questions. The time period under study will span over the past two decades and the emergence of the notion of local governance.
- 5 Secretary of State website (SOS) 15 September 2012.
- 6 Alexander Robert M. (2002), Rolling the Dice with State Initiatives: Interest Group Involvement in (...)
7A ballot measure is either an initiative or a referendum at the local level. The initiative is the most often used. As described above, the first step is to obtain the required number of signatures among the state population. Both volunteers and paid petition circulators collect signatures. The period during which an initiative may be circulated for supporting signatures varies from state to state; in California it is 150 days. It may be stated either as a percentage of registered voters or of participants in a recent general election, such as that for governor. In California, for an amendment to the Constitution it is 8 percent of the votes cast for governor (807,615 in 2012), while to change a statute, 5 percent (504,760 signatures) are needed.5 The measure must then be filed with a designated official: the Lieutenant Governor, the Attorney General or the Secretary of State. That official counts the number of signatures gathered, checks their validity – it is not uncommon for 30 to 40% of the signatures to be invalid – and gives an official summary and title to the initiative.6 The measure is then put to the vote of the citizens in the state at the next general election. If it is approved, it then becomes a law or an amendment. This form of direct democracy exists not only in certain states of the United States, but also in Switzerland, in some German länders, in Austria and in Italy.
- 7 Smith and Tolbert p. 35.
- 8 For the period 1988-2000, Waters. (106-10)
- 9 Mc Cuan p. 6.
8Propositions developed in the West rather than in the South and East where elites were afraid African Americans and immigrant voters would change provisions, which the former favored. Also Southern states witnessed routinely lower turnout as a legacy of Jim Crow laws.7 California has often been the focus of national media attention with its often controversial propositions. To name a few, proposition 63 that establishes English as the official language (in 1986), proposition 8 on gay marriage (in 2009), proposition 69 allowing the collection of DNA on felons and individuals arrested for certain crimes (in 2009), or proposition 19 for the personal use of marijuana (in 1972 and 2010). Researchers provide us with an interesting list of all initiatives per state and California offers a wide range, probably because it is the most populous state.8 The first significant initiative there passed in 1914 and abolished the poll tax, long before it became a federal constitutional amendment in 1964. A new momentum started in 1978 with the famous California Proposition 13 which cut taxes. Within 2 years, 43 states put the same measure to the ballot.9 It culminated in 1994 with the highly controversial Proposition 187 which prohibited illegal aliens access to social services like health care and public education. This proposition was later challenged in the courts as it addressed immigration, a federal, not a state, issue.
- 10 Mc Cuan p. 7.
- 11 Mc Cuan p. 8.
- 12 Initiative & Referendum Institute at the University of Southern California (IRI): http://iandrinsti (...)
9California is the only state in which the legislature does not have the power to amend or repeal an initiative, which greatly magnifies the chances that the popular will will become law.10 The initiative process is therefore very active in that state. For the time period 1904-2002, California is one of five states with the greatest number of statewide initiatives on the ballot.11 Its Constitution was drafted in 1849 and has been amended 425 times since 1911, with the result that it is the third longest Constitution in the world (after those of Alabama and India). Also, some recent propositions have attracted a lot of attention due to their controversial or innovative nature, be it societal, economic, or governmental issues. They include term limits, bilingual education, racial preferences/affirmative action, medical marijuana, punishment for crimes, taxes, government debt, and same-sex marriage to name a few.12
10The selection of the initiatives under study here was made because of their controversial nature, the attention they received nationally and the fact they were presented twice in our time period. They are as follow:
Proposition 215 in 1996 on legalizing medical marijuana
Proposition 19 in 2010 on the legalization of recreational marijuana
Proposition 22 in 2000 on a statute banning same-sex marriage
Proposition 8 in 2008 on a state constitutional amendment banning same-sex marriage
11For each set of propositions, we will look at the definition, at some proponents, support and opposing groups, the money involved, public opinion and the future of the proposition. It should provide us insight into the power citizens exert in this form of politics.
12Proposition 215 in 1996 on legalizing medical marijuana
- 13 California Secretary of State (SOS): http://sos.ca.gov on 10 September 2012.
- 14 Sabato et al. p. 104.
13The official title was “Marijuana. Regulation and Taxation of Medical Use Industry. Reduced Criminal Penalties. Initiative Statute.” It made it legal for patients and caregivers to use cannabis. The proposition was initiated, among others, by Denis Peron, an activist and businessman, Anna Boyce, a nurse, Valerie Corral, the Executive Director and co-founder of the Wo/Men’s Alliance for Medical Marijuana and psychiatrist Tod H. Mikuriya, the so-called grandfather of the medical cannabis movement in the US. Opponents included groups like the Law Enforcement and Drug Prevention Leaders, the California State Sheriffs Association, the California District Attorneys Association, the California Police Chiefs Association, the California Narcotic Officers Association, the California Peace Officers Association and Attorney General Dan Lungren. Others specifically opposed the measure because it reportedly would have made it easier for criminals to deal drugs. They included the Californians for Drug-Free Youth, the California DARE Officers Association, Drug Use is Life Abuse, Community Anti-Drug Coalition of America and Drug Watch International.13 Some of those were highly organized interest groups. They offered services such as “opinion polling, media buying, designing and producing campaign ads, advice on political strategy, signature gathering, fund-raising, legal advice, direct mail, or general campaign management”.14
- 15 SOS on 10 September 2012.
14After a long campaign and heated debates, the measure, also known as the “Compassionate Use Act of 1996”, passed with 55.6 per cent (5,382,915 votes) in favor and 44.4 per cent (4,301,960 votes) against. The stakes were high and money played a significant role in the passage. Indeed, groups are required to file their costs with the Secretary of State: the three groups in support of the proposition spent 2,256,094 dollars with Californians for Medical Right alone filing 2,074,231dollars and one opposing group, Citizens for a Drug Free California, spent 32,547 dollars.15
15The votes were consistent with public opinion as two Field polls taken before the vote reveal:
Field poll: “Do you favor the use of medical marijuana?”
16The measure was later completed by the California legislature, which enacted the Medical Marijuana Program (MMA) in 2004
- 16 Office of the Attorney General of California website on 10 September 2012.
“to further clarify lawful medical marijuana practices by establishing a voluntary statewide identification card system, specific limits on the amount of medical marijuana each cardholder could possess, and rules for the cultivation of medical marijuana by collectives and cooperatives. According to Americans for Safe Access, California has more than 200,000 doctor-qualified medical cannabis users”.16
- 17 Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryla (...)
- 18 California, Colorado, New Mexico, Maine, Rhode Island, Montana and Michigan.
- 19 Mitchell Dan (31 May 2008). “Legitimizing Marijuana”. The New York Times. Retrieved on 11 August 20 (...)
17However, the use of cannabis remained a federal criminal offense under the Control Substances Act (CSA) enacted in Congress in 1970. Many appeals were therefore filed and one was debated in the US Supreme Court, which in 2005 used its federal review to rule that federal authorities could still prosecute patients; however, the Department of Justice declared in March 2009 that it would not prosecute patients or caregivers respecting the new law. The use of medical cannabis was secure in California. In 2012, twenty-two states have decriminalized the use of medical cannabis with new states adopting the measure every year.17 Seven states use dispensaries to sell medical cannabis18 In California in 2008, “cannabusiness” generated 2 billion dollars a year and 100 million dollars in state sales taxes thus proving the new measure could generate tax money.19
18The next initiative under study still involves marijuana but not the medical use of it.
19Proposition 19 in 2010 on the legalization of recreational marijuana
20The title or ballot label issued by the Secretary of State reads as follows:
Legalizes Marijuana under California but not federal law. Permits local governments to regulate and tax commercial production, distribution, and sale of marijuana. Initiate statute. Allows people 21 years old or older to possess, cultivate, or transport marijuana for personal use. Fiscal impact: Depending on federal, state, and local government actions, potential increased tax and fee revenues in the hundreds of millions of dollars annually and potential correctional savings of several tens of millions of dollars annually.20
- 21 Initiative & Referendum Institute at the University of Southern California (IRI): http://iandrinsti (...)
- 22 National Institute on Money in State Politics website on 16 October 2012.
- 23 http://CaliforniaWatch.org on 27 July 2010
- 24 Donovan, Bowler and McCuan in Sabato et al. p. 101.
- 25 Sabato et al. p. 104.
21Supporters of the measure argued that it would help the California budget with the new tax, that it would cut violent drug dealing and allow the police to devote more time to deal with violent crimes. Opponents saw defects that may have a serious impact on public safety, workplaces and federal funding. In any case, the federal 1970 Control Substances Act still applied. The proposition was defeated with 53.5 per cent against and 46.5 per cent in favor. Large amounts of money were spent during the campaign but this case shows that contrary to what many observers have written, money alone is not enough to pass an initiative.21 Indeed, supporters filed 4,633,312 dollars whereas opponents filed a total of only 364,835 dollars.22 The largest committee was Yes on 19-Tax Cannabis 2010 with 3.2 million dollars raised in support of the initiative. The largest contributor was S.K. Seymour, a medical provider.23 There were at least twelve California-based campaign management firms devoted to the passage of the initiatives.24 They consulted on opinion polling, media buying, gave advice on policy strategy and to a lesser extent signature gathering.25 In that case, the power of the lobbies did not prevail. Again, the votes were consistent with public opinion measured in the following polls:
Field poll: “Do you favour the legalization of marijuana?”
22This highly controversial issue has received much national attention in the decade as the next poll shows. At the 6 November 2012 general elections, propositions made it legal in two states: Washington and Colorado, a first. National Gallup polls found a gradual and increasing support in favor of legalizing the use of marijuana reaching 46 per cent in 2010:
23However, in keeping with our former findings, another question of the poll asked about medical marijuana and found that 70 per cent of those nationally polled were in favor of legalizing it for medical use. It even showed a greater support than in California in 1996. The poll also underlines the national impact that a state initiative can have.
24Our first set of issues shows that a group of citizens can successfully change the law in agreement with what the majority thinks. Will it be the same with our next set of initiatives on same-sex marriage?
25Proposition 22 in 2000 on a statute banning same-sex marriage
26Before the latest general elections, same-sex marriage was legal in six states: Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia. As of today, all state laws allowing gay marriage have come from legislatures or courts, despite a total of 35 ballot measures banning same-sex marriage, 34 of which passed with margins higher than 30 points. The first measure was taken in 1993 when the Hawaii Supreme Court ruled in Baehr v. Lewin that refusing same-sex marriage was sex discrimination. There followed a number of conservative measures defining marriage as solely between a man and a woman: state legislators in Hawaii passed a constitutional amendment in 1998. But the Court decision prevailed. Conservative activists placed measures on the ballot in Alaska in 1998, in Nevada and in California in 2000. Proposition 22 states that "only marriage between a man and a woman is valid or recognized in California." Its author is William “Pete” Knight, a state senator, and the measure is known as the Knight initiative. The measure passed with 61 per cent in favor and 39 per cent against. The Field poll confirmed those results.
Field poll: “Do you consider marriage as solely between a man and a woman?”
27The vote confirms that morality issues often create clear divisions.26
28Proposition 22 was ruled unconstitutional in In Re Marriage in 2008. As in Hawaii, the California’s Supreme Court stated that same-sex marriage was authorized by the Constitution. The majority of Californian citizens opposed same-sex marriage and did not prevail in that case. The Court also went against Congress’s Defence of Marriage Act passed in 1996.
29Proposition 8 in 2008 on a state constitutional amendment banning same-sex marriage
30The title of the initiative was originally the California Marriage Protection Act and it officially eliminated the rights of same-sex couples to marry. It was an initiative constitutional amendment.The purpose of this measure was to override In Re Marriage which legalized same-sex marriage that year. It stated: “Eliminates right of same-sex couples to marry. (…) Changes California Constitution to eliminate the right of same-sex couples to marry. It provides that only marriage between a man and a woman is valid or recognized in California…”.27
31The purpose was to add a section to the California Constitution, Section 7.5 of the Declaration of Rights, that "only marriage between a man and a woman is valid or recognized in California."
32The battle was intense especially as public opinion seemed to be slowly accepting gay marriage. A 2011 Gallup poll shows a gradual shift in favor of gay marriage: for the first time more people supported same-sex marriage than opposed it:
33However, the Field poll conducted in California shows a slight difference, as more – but to a lesser extent than with Gallup – of those polled opposed the ban and the election return was not consistent with the outcome of the vote:
Field poll: “Do you support same-sex marriage?”
- 28 Alexander p. 58.
- 29 Matsusaka notes that the amount spent on initiatives in 1998 was $400 million nationally and 326 mi (...)
34Contrary to some analysts’ observation, this morality issue did not create clear divisions.28 Does it mean that respondents felt the pressure to give a more progressive answer, or that Californians are more conservative on that question as a whole? It passed with 52.24 per cent in favor and 47.76 per cent against. Money was a big player as both sides raised huge amounts: 39.9 million dollars for and 43.3 million dollars against, making it the most expensive campaign of the year after the presidential election.29 In 2010, a federal district court overturned the measure in Perry v. Schwarzenegger citing the Equal Protection Clause. Here again, the courts were more progressive than the majority of the voters. Same-sex marriage still divides in California but the minority of supporters have succeeded in getting their voice heard and are more and more supported. The position of the courts is extremely interesting as they have consistently taken the more progressive path and defended minority rights. And in the November 2012 elections, four propositions in favor of same sex marriage passed in Minnesota, Maine, Maryland and Washington.
35The initiative process allows citizens to vote their preferences on a variety of issues. But it is the first step in their power and decision-making. A major provision in American government is that each branch of power – the legislative, the executive, the judiciary – can be checked by the other two. Also, federal decisions can overturn state decisions. In the case of propositions, as they express the will of the people, they do not belong to any branch in particular and can therefore be checked by all three branches. Our study has shown that most initiatives have been challenged later. The state executive, ie. the governor, does not have a veto right but can file a suit with the courts, as Governor Schwarzenegger did in 2010 in the case of gay marriage. At the federal legislative level, Congress, as in the marijuana propositions (215 and 19) and the 1970 Controlled Substances Act, was used by the courts to overturn decisions made at the state level. The role of the courts seems less straightforward. At the state level, we saw that in a 1993 case involving civil rights, the Hawaii Supreme Court in Baehr v. Lewin ruled that refusing same-sex marriage was sex discrimination. It meant that same-sex marriage was legal inside Hawaii, unless a federal court overturned it. In 2004 the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that its Constitution allowed same-sex marriage. There followed 24 constitutional amendments, all of which passed by mostly high margins. Those examples show that the courts have been more liberal and progressive on the question of same-sex marriage than even some groups of citizens such as opponents or those expressing their opposing view in the polls. The case is different concerning the legalization of marijuana: as we said earlier, the Supreme Court ruled in 2005 that federal authorities could still prosecute patients and wrote that the Commerce Clause of the US Constitution made it legal for the government – should it decide so – to ban the use of cannabis, including medical use. Those decisions are more conservative than the propositions that passed in California and it would be interesting to see in 2012 what the Supreme Court would rule should there be an appeal on the question as public opinion has just turned in favor of the use of recreational marijuana, and voted Yes in Colorado and Washington on Nov 6, 2012.
- 30 Sabato et al. p. 21.
- 31 Smith and Tolbert p. 39.
- 32 Alexander pp. 5-13.
- 33 Alexander 20 and Matsusaka xii
36Direct democracy has developed as a central part of government in many American states in the 21st century. Propositions are more and more used.30 However the practice has been criticized as, for example, citizens may lack the expertise to judge certain complex issues like budgets. In those cases, they take cues from groups they trust. Proponents show that states with the initiative have a greater turnout at elections.31 Others believe that the power of interest groups is greater, as they can muster money and personnel to support or defeat propositions, even before the ballot stage.32 We witness a mix of popular governance, interest group power and money. However, our study shows that money alone does not always decide the outcome of an initiative. Another criticism is that the majority supress minority rights.33 In the case of gay marriage, we have shown that a minority could get its rights enforced upon by the majority thanks to the courts and now propositions.
- 34 Smith and Tolbert pp. 39-50
- 35 Journalist Peter Shrag in Smith and Tolbert p. 140.
37Researchers have shown that voters in states with a high proposition turnover also go to the polls more.34 Some even go as far as saying: the initiative “has not just been integrated into the regular governmental-political system, but has begun to replace it”.35
- 36 Alexander p. 13.
- 37 Idem p. 23.
38The Constitution’s framers were no advocates of direct democracy and preferred representative democracy; however our study and others show that direct democracy has developed tremendously. Some of the criticism might include the following points: The lists of proponents and opponents studied here show that there is a strong “linkage between direct democracy and interest groups.36 In addition there is, too, the endorsement by “representatives, business elites, media, community groups, celebrity personalities…organized interests that excel at ‘insider politics’”.37 They all try to influence public policy with means the individual citizen, or minorities, lack. However special interests’ participation is crucial in organizing phone banks, door-to-door campaigning, local meetings or the distribution of campaign material, and therefore influencing results.
- 38 Smith in Sabato et al. pp. 83-6 and Matsuka p. 11.
39The importance of moneyed special interest questions the power of the individual even though our study shows that money does not always dictate the result of a proposition. Some say that negative money, the money spent by opponents, is the best predictor of passage. They add that it is the source of money rather than the amount that matters.38 Could money, “the mother milk of politics”, be that of propositions too? Today, there is no limit on initiative campaign finance.
40Propositions are a great way for citizens to actively participate in the life of their state. Our study has uncovered a small part of the fights that take place in California concerning marijuana and same-sex marriage. It has shown that citizens, with the help of organized interest, can prevail in some issues or lose in others. But no vote is final as the system of checks and balances applies here too. The recent past has shown that controversial issues such as those studied here usually cross state borders and gain national and even international attention. Additional studies will probably further show the direct impact which citizens are gaining on government.