Talk:Direct democracy/New version

Direct democracy comprises a form of democracy and theory of civics wherein all citizens can directly participate in the decision-making process. Some adherents want both legislative and executive powers to be handled by the people, but most extant systems only allow legislative decisions.

Direct democracy is rule by the people through referenda, which are votes open to all registered voters within a particular jurisdiction (Neitzke, 2004, State Of The Republic, chapter, "Rule By The People vs. Rule By Reps", section, "Democracy & Repocracy"). When specific direct democracy issues, other than the election of representatives, reach a local- or state-level ballot, they are commonly referred to by local and state governments as "ballot questions" or "ballot measures".

Ballot questions divide into two broad groups, the legislative and the administrative. Most relate to the legislative, but it is important to see the recall as an administrative component.

Historically, there is no such thing as a "pure democracy", or pure direct democracy. All governments labeled as democracies, including the great democracy at Athens, have had representative governments to carry out the will of the sovereign people, once approved in referendum. Ancient republican governments were, traditionally, combinations of citizen lawmaking and representative government. (Finley, 1973, and Natelson, 1989).

Switzerland's national government has held more referendums than any other national government in the modern era. Italy and Australia, respectively, follow the Swiss in the number of national referendums held (Kobach, 1993).

In the United States, ballot measures and their corresponding referenda are widely used at the state and sub-state level. There is much state and federal case law, from the early 1900s to the 1990s, that protects the people's right to each of these direct democracy governance components (Magleby, 1984, and Zimmerman, 1999). The first United States Supreme Court ruling in favor of the citizen lawmaking was in 'Pacific States Telephone and Telegraph Company v. Oregon', 223 U.S. 118 -- in 1912 (Zimmerman, December 1999).

In various states, referenda through which the people rule include:


 * Election of representatives (constitutionally used in all 50 states).


 * Referrals by the legislature to the people of proposed constitutional amendments (constitutionally used in 49 states, excepting only Delaware -- Initiative & Referendum Institute, 2004).


 * Referrals by the legislature to the people of proposed statute laws (constitutionally used in all 50 states -- Initiative & Referendum Institute, 2004).


 * Constitutional amendment initiative. This is the most powerful people-initiated, direct democracy governance  component.  It is a constitutionally-defined petition process of proposed constitutional law, which, if successful, results in its provisions being written directly into the state's constitution.  Since constitutional law cannot be altered by state legislatures, this direct democracy component gives the people an automatic superiority, and their rightful sovereignty, over representative government (Magelby, 1984).   It is state level in eighteen states:  Arizona, Arkansas, California, Colorado, Florida, Illinois, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, and South Dakota (Cronin, 1989).  Among the eighteen states, there are three main types of the constitutional amendment initiative, with different degrees of involvement of the state legislature distinguishing between the types (Zimmerman, December 1999).  Below state level, citizens in thousands of home rule jurisdictions -- e.g., cities, towns, boroughs, counties, school districts, water districts, etc. -- have this power over their unicameral legislative bodies, even in states that do not have it at the state level.  In most jurisdictions, conflicts between proposed law referrals from the legislature and the  proposed law, petition-process initiatives from civil society in the same election are resolved on the basis of which receives the highest number of votes (Kobach, 1993, and Zimmerman, December 1999).


 * Statute law initiative.  This is a constitutionally-defined, people-initiated, petition process of  proposed statute law, which, if successful, results in law being written directly into the state's statutes.  The statute initiative is state level in twenty-one states:  Alaska, Arizona, Arkansas, California, Colorado, Idaho, Maine, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming (Cronin, 1989).  Note that, in Utah, there is no constitutional provision for citizen lawmaking.  All of Utah's I&R law is in the state statutes (Zimmerman, December 1999).  In most states, there is no special protection for citizen-made statutes -- the legislature can begin to amend them immediately.


 * Statute law referendum.  This is a constitutionally-defined, people-initiated, petition process of the proposed veto of all or part of a legislature-made law, which, if successful, repeals the standing law.  It is state level in twenty-four states:  Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming (Cronin, 1989).


 * The recall.  This is a constitutionally-defined, people-initiated, petition process, which, if successful, removes an elected official from office by "recalling" the official's election.  In most state and sub-state jurisdictions having this governance component, voting the ballot that determines the recall includes voting for one of a slate of candidates to be the next office holder, if the recall is successful.  It is state level in eighteen states:  Alaska, Arizona, California, Colorado, Georgia, Ihaho, Kansas, Louisiana, Michigan, Minnesota, Montana, Nevada, New Jersey, North Dakota, Oregon, Rhode Island, Washington, and Wisconsin (National Conference of State Legislatures, 2004, Recall Of State Officials).

Note that the terms, 'I&R' and 'citizen lawmaking', are commonly used to refer to initiative and referendum combinations, or to the very powerful constitutional amendment initiative alone (Florida and Mississippi). The constitutional amendment initiative easily does the work of both the initiative and the referendum. The term, citizen lawmaking, has generally replaced the older Reform Era term, direct legislation, to connote both, or either, initiative and referendum (National Economic League, 1912, and Schmidt, 1989, and Waters, 2001).

The contexts in which the two shorthand terms, I&R and citizen lawmaking are used vary widely. However, the most common usages are in the terms, 'I&R states', meaning states with both, and 'I&R petitions', meaning petitions of either type.

Currently, the United States has twenty-four I&R states. That is, there are twenty-three states in which sovereign citizen lawmaking is constitutionally defined -- Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Washington, and Wyoming -- plus Utah, which defines its citizen lawmaking only in the state statutes.

There are now a total of 34 U.S. states with constitutionally-defined, people-initiated, direct democracy governance components (Zimmerman, December 1999, and Neitzke, 2004, State Of The Republic, appendix, "DD States Chart").

Digital Direct Democracy. Even before the predominance of the Internet, "electronic constituent assemblies" were designed and used effectively. The ECAs combined television, telephone, and computer technologies to put representatives together with their constituencies in real time. The ECAs did the difficult consensus work of agenda-setting, defining proposals, amending proposals, and then voting (Hollinshead, 1998, "Electronic Constituent Assembly". ECAs have not been widely used.  Nonetheless, they may well be the precursors of future digital forums in which representatives and constituencies can effectively work together in real time.

In Northern Ireland, at least one system of Internet-based preferendum voting has been designed. Its intent was to take people through the difficult consensus work of agenda-setting, defining and amending proposals, and establishing that a proposal is ready to go to a referendum (Dr. D.R. Newman, 1996 The Online Preferendum. The system went unused.  Nonetheless, it may well be the precursor to modern-era online citizen institutions for direct democracy's citizen lawmaking.

The glue needed to make digital forums and online citizen institutions workable has yet to be invented. A secure, peer-reviewed, secret-ballot-mimicking, online voting system is missing from the mix. The digital signature is possible. We've had it for years in the public/private "keys" of the Pretty Good Privacy -- PGP -- encryption system. It is only a matter of time before direct democracy advocates design it into a secure digital voting system.

History
Direct democracy governance components in the modern era (after 1200 AD), mimic the concepts of corresponding ancient-era direct democracy components, dating back to the great democracy at Athens, beginning circa 508 BCE (Finley, 1973), and to the ancient Roman Republic, beginning circa 449 BCE (Cary, 1967).

The ancient Roman Republic's citizen lawmaking -- citizen formulation and passage of law, as well as citizen veto of legislature-made law -- began about 449 BCE and lasted the approximately four hundred years to the death of Julius Caesar in 44 BCE. Many historians mark the end of the Republic on the passage of a law named the Lex Titia, 27 November 43 BCE (Cary, 1967). The presence of citizen lawmaking in Rome's governance was a strong, contributing factor to the rise of Rome, and its Greco-Roman Civilization, to a greatness all out of proportion to the rest of the ancient world (Carey, 1967). Polybius (c.200-120 BCE) immortalized the Roman Republic's constitutional citizen lawmaking in Book VI of his The Histories.

Modern-era citizen lawmaking began in the towns of Switzerland in the 1200s. In 1847, the Swiss added the statute referendum to their national constitution. They soon discovered that merely having the power to veto Parliament's laws was not enough. In 1891, they added the constitutional amendment initiative The Swiss political battles since 1891 have given the world a valuable experience base with the national-level constitutonal amendment initiative (Kobach, 1993).

The American tradition of direct democracy dates from the 1630s in the New England Colonies (Willard, 1858, and Miller, 1991, and Zimmerman, December 1999). Some New England town meetings still carry on that tradition (Zimmerman, March 1999).

Beginning in 1877, millions of American farmers began banding together to break the post Civil War, small-farmer enslaving, crop lein system with co-op economics (Goodwyn, 1976 and 1978). When they were bested by corrupt and abusive practices of the national financial sector, they attempted to improve their circumstances by forming the People's Party and mounting Populism. Again they were bested, this time by the country's mainstream two-party politics. However, the Reform Era had just begun. Before it was ended, it would be the greatest democracy movement in recorded history (Neitzke, 2004, State Of The Republic, chapter, "Rule By The People vs. Rule By Reps", section, "Reform Era").

Fired by the valiant efforts of millions of farmers, by exposes written by investigative journalists (the famous "muckrakers"), and by correlations between special intersts' abuses of farmers and special interests' abuses of urban workers, Progressives formed nationally connected citizen organizations to extend this greatest of democracy movements. From 1898 to 1918, the Progressives, supported by tens of millions of citizens, forced direct democracy petition components into the constitutions of twenty-six states (Cronin, 1989).

The constitutional placement of direct democracy petition components was seen by those citizen majorities as necessary. Given the obvious corruption in state governments, the lack of sovereign public control over the output of state legislatures was seen as "the fundamental defect" in the nation's legislative machinery. Advocates insisted that the only way to make the founding fathers' vision work was to take the "misrepresentation" out of representative government with the sovereign people's direct legislation (Special Committee of the National Economic League, 1912).

I&R citizen lawmaking spread across the United States because state legislatures were unresponsive in creating laws that the people needed to protect themselves from special interests, laissez faire economics, and the era's Robber Barons (Cronin, 1989, and Schmidt, 1989, and Zimmerman, December 1999, and Waters, 2001). Additionally, while legislatures were quick to pass laws benefiting special interests, both legislatures and the courts were inflexible in their refusals to amend, repeal, or adjudicate those laws in ways that would eliminate special interest advantages and end abuses of the majority (Cronin, 1989, and Zimmerman, December 1999, and Waters, 2001).

That same special-interests-favoring lawmaking, unresponsiveness to the people, and inflexibility to amend or repeal laws abusive of the majority -- continues to drive citizen lawmaking today (Schmidt, 1989, and Zimmerman, December 1999, and Waters, 2001).

Court battles over the constitutionality of direct democracy, from the early 1900s to the late 1990s, have repeatedly established that the combination of sovereign citizen lawmaking and representative government is, in fact, an historically traditional republican form of government(Magleby, 1984, and Natleson, 1999, and Zimmerman, December 1999).

Citizens in Nebraska, after gaining the constitutional amendment initiative in 1912, used it to reduce their bicameral legislature of 133 members to a unicameral legislature of 43 members in 1934. Effective with the Nebraska legislature's first nonpartisan, unicameral session, 1937, it reduced cost, waste, secrecy, and time (no conference committee required), while at the same time making the legislature more efficient and more cooperative with the press and civil society. The success of combining direct democracy governance components with a unicameral legislature has stood the test of time (Nebraska Legislature Online, 2004, The History of Nebraska's Unicameral Legislature, retrieved 04 September 2004).

Direct democracy governance components have contributed significantly to state-level policy and law. Those contributions have been much more successful than most of direct democracy's critics admit (Schmidt, 1989, and Zimmerman, December 1999, and Waters, 2001).

Pros and cons
In 1912, the National Economic League was a prestigious organization, with headquarters in Boston. Its Executive Council included David Starr Jordan (president of Stanford University), Louis D. Brandeis (then a lawyer, but justice of the U.S. Supreme Court in 1916), Jacob Gould Schurman (president of Cornell University), Charles J. Bonaparte (a former U.S. attorney general) and many others of similar accomplishment. In that year, the League produced a slender volume titled 'The Initiative And Referendum: Arguments Pro And Con By A Special Committee Of The National Economic League.'  The special committee was comprised of four members who favored direct legislation and four members who opposed it.

After the main affirmative and negative presentations are made, there is a "Rebuttal For The Affirmative" written by Professor Lewis J. Johnson, in which he immediately cuts to the heart of the matter. "The sole contention of the advocates of the Initiative and Referendum is that the sovereign people, in order effectively to assert and maintain their sovereignty, must equip themselves with proper means for direct control of 'results' in lawmaking. ... This is plainly no new theory of government, but merely an attempt, by correcting a radical defect in its operating machinery, to enable our old theory actually to work. ... There can be no argument against the Initiative and Referendum that is not an argument against popular sovereignty. For to say that a sovereign people shall not adopt such measures as will give them real supremacy over legislation is obviously to contend against the sovereignty itself.  An argument openly and directly to this effect might have been ventured a century and a half ago, but it will hardly be attempted in this country today.  Our opponents, of course, make no such attempt."

Professor Johnson then re-employs the argument from the people's sovereignty to view the I&R opponents' perception of representative government. "We really want representative government; we want it efficient; we want it perfected, and we want it to be really representative. We are persuaded that the Initiative and Referendum are necessary to get it, and keep it.  Our opponents keep up the cry with which we have been mocked for decades -- that we must elect better representatives -- a thing, as a rule, clearly impossible while the present political machinery remains intact.  Our opponents, by offering no practical alternative to our proposal, force us to think that whether they are aware of it themselves or not, they do not want representative government after all, but delegated government, a mere elective oligarchy, the elective feature of which, while savoring of popular control, does not in practice bring it... .  If this diagnosis is correct, the answer to their position is the argument for popular sovereignty which we are sure we need not undertake at this date in this country."

Despite the crucial and widely held argument for the sovereign people's fundamental right to control the output of legislation, opponents continue to use criticisms of citizen lawmaking that do not defeat, diminish, or even address the people's sovereignty or their fundamental right to control the output of legislation.

In 1996, Dennis Polhill, a senior fellow at the Independence Institute, handled most of the small criticisms again when he summarized recent and extensive research: "Examination of fourteen commonly heard allegations against the initiative process finds none of them very persuasive.  Special interests do not thrive on the initiative; they find the legislature far easier to manage.  Money-power likewise gets its way more readily under the Capitol dome, not at the ballot box.   Voters are not incompetent to decide complex issues, as quantitative research has proved.  Nor are ballot measures notably less well drafted than legislative bills.  Constitutional invalidation of successful initiatives is not frequent, but very rare.   The number of initiatives on today's ballot is not unprecedentedly large. ... And voters themselves do not seem to dislike a longer ballot; turnout statistics suggest the opposite. The initiative does not benefit merely the political right or left; partisans from both sides have used it over the years. Bad ideas do not often muster the petition support to make the ballot, and they win at the polls even less often. ... Finally, the initiative process does not imply a tyranny of the majority; the US Constitution prevents that. Nor does the initiative threaten to make the legislature unnecessary, rather it supports that institution by enlisting the people to counter-balance legislative overreach and to compensate for legislative weaknesses" (Polhill, 1996).

For a compelling examination of special interests and money in the initiative process, see especially the 1999 book by Professor Elisabeth R. Gerber, The Populist Paradox.

Beyond those commonly heard allegations, there are a large number of criticisms leveled at direct democracy components that are not unique to direct democracy, but simply true of all forms of governance. For example, direct democracy is said to be open to demagoguery. Every form of government ever devised is open to demagoguery. As with other petty criticisms of this genre, the criticism from demagoguery says nothing to even approach diminishing the sovereign people's fundamental right to control the output of legislation.

Another common genre of criticism revolves around the notion that making laws for complicated situations is beyond the knowledge and understanding of most citizens. This is sophistry aimed at making people servile and submissive. As Polhill remarks, history has proven that citizen-proposed law is as carefully crafted as legislature-proposed law. The experts handle that assignment. The people -- trusting the experts, as most legislators must -- vote the issue's political level, not its details. We don't have to be rocket scientists to vote on whether the Hubble should be maintained. We don't have to be economists to vote on whether corporate welfare should be cut so that we can have national health care. As democracies have proven since ancient Athens, any 18-year-old raised in the society is capable of voting such political level desisions in complicated issues (Finley, 1973).

A third troublesome sophistry from the direct democracy opponents is that the people are so remote from each other, so unable to deliberate properly, that they give representative government conflicting instructions. The classic example used is of the people limiting taxation in one initiative and demanding an increase of spending in another. However they might pretend otherwise, the politicians have many options that would allow them to follow the sovereign people's instructions. In those states, such as California, where government does not extend cooperation to its sovereign people -- and apparently does not comprehend the cutting of non-essential costs -- the people always have the recourse to cut the legislature from bicameral to unicameral, as Nebraska citizens did in 1937.

One of the prominent advantages that direct democracy brings to governance is its tangible legitimacy. Participation is one of the principles that determines a government's legitimacy for any democratically elected, representative government. This is especially true for any government that is a constitutional combination of sovereign citizen lawmaking and representative government. In such a combined government form, the more people who participate in the resolution of a political problem, the more legitimacy the resolution has -- in the widest possible legal, political science, and historical sense.

Contrarily, in such a combined government form, legitimacy is dangerously diminshed by representative government's manipulations to reduce the number of citizens who participate in citizen lawmaking (Cyber-Federalist, Number 14, 2002 Creating The Illusion Of Legitimacy, retrieved 05 September 2004). Legitimacy is catastrophically reduced when representative government arbitrarily and unconstitutionally controls citizen-proposed law (Neitzke, 2004, State Of The Republic, chapter, "Violating Constitutions") or when it arbitrarily and unconstitutionally refuses to implement citizen-made law (Gerber, 2000).

In 1990, the civil society of Nevada -- an I&R state -- resolved to minimize the intense controversy raging around abortion. The Nevada legislature was under pressure from pro-life organizations to change the state's abortion law. The state's pro-choice organizations wanted the standing law, which conformed to Roe v. Wade, to be left as it was. The pro-choice organizations made use of a seldom-used feature in Nevada's I&R law. They petitioned for and passed a referendum on an existing state law. It was only the fifth time, since Nevada had gained citizen lawmaking in 1912, that the referendum on an existing state law had been used (Erickson, Questions On The Ballot). Because of the constitutional provisions defining this particular referendum, approval of the state law meant that the legislature is barred from ever amending the law. Only the people can amend such a law. It is called a "see us first" referendum provision. In 1990, it functioned as the safety-valve it was designed to be.

The participation of most Nevada citizens in the 1990 abortion law referendum, with an approving majority of over sixty percent, gives a degree of legitimacy to the standing law that no small number of legislators could ever invoke in such a visceral controversy. With the legislature legally taken out of the picture, and the referendum's large legitimacy recognized by both sides, the controversy quickly quieted. The legislature is free to refer proposed statutes or constitutional amendments relating to abortion to the people, but the people are now the decision-makers in this issue.

In the United States, only single majorities are required (simple majority of those voting) to approve any of the direct democracy petition components. In Switzerland, single majorities are sufficient at the town, city, and state (canton and half-canton) level, but at the national level, "double majorities" are required. The intent of the double majorities is simply to ensure any citizen-made law's legitimacy (Kobach, 1993).

Double majorities are, first, the approval by a majority of those voting, and, second, a majority of states in which a majority of those voting approve the ballot measure. A citizen-proposed law cannot be passed in Switzerland at the national level if a majority of the people approve, but a majority of the states disapprove (Kobach, 1993).

In 1890, when the provisions for Swiss national citizen lawmaking were being debated by civil society and government, the Swiss copied the idea of double majorities from the United States Congress, in which House votes were to represent the people and Senate votes were to represent the states (Kobach, 1993). This pioneering and legitimacy-rich approach to national citizen lawmaking has been very successful.  Kobach establishes that Switzerland's tandem successes both socially and economically are matched by only a few other nations. The United States is not one of them. As Koback states at the end of his book, "Too often, observers deem Switzerland an oddity among political systems. It is more appropriate to regard it as a pioneer."