Ballot initiatives: recommendations for change.

In 1968, Florida adopted a new Constitution. One provision in the 1968 Constitution provides a procedure for Florida citizens to amend or revise the Florida Constitution by ballot initiative. Also known as direct democracy, initiatives adhering to the strict requirements provided in Art. XI bypass the legislature and are submitted directly to the public for approval.(1) Twenty-three other states also provide for some type of initiative and referendum process,(2) and a record-setting 94 ballot questions were presented to the people in 20 states during the 1996 election.(3)

With the growth of popularity of ballot initiatives as a means of advancing matters where the public believes that the legislature should act but has failed to do so, some genuine problems have arisen with respect to using the initiative process to amend the Florida Constitution. We propose inserting in the present Art. XI, [sections] 3 of the Florida Constitution, as it pertains to the initiative process, a statutory initiative procedure to address these problems. We recommend that the Constitution Revision Commission(4) examine the issue and consider such a revision.

The Florida Constitution should address only those issues relating to the organization, power, and framework of the government and the rights of the people with respect to their government. Statutory law, on the other hand, commands or prohibits actions. We believe the difference between the two should be recognized and addressed as it pertains to ballot initiatives. While debate remains concerning the infringement of initiatives on the allocation of power under the Constitution to the legislature as an undesirable alteration of the very structure of representative democracy itself, one thing is certain--such initiatives are beginning to distort the primary purposes of the Florida Constitution: to limit the powers of the legislature; and to define and allocate government functions among the various branches. As such, the Florida Constitution is not "a vehicle for making positive law"(5) and some proposals are better suited for statutory initiatives. "By transcending time and changing political mores, the Constitution is a document that provides stability in the law and society's consensus on general, fundamental values. Statutory law, on the other hand, provides a set of legal rules that are specific, easily amended, and adaptable to the political, economic, and social changes of our society."(6) We would recommend that the Constitution Revision Commission consider an amendment to the Florida Constitution to provide for statutory initiatives.

Direct democracy advocates espouse the benefits of ballot initiatives for giving the citizenry a clearer role in demanding government action and responsiveness to the needs and desires of the people, as well as producing open and active debate on important issues, and increasing voter participation in the election progress. However, there are some serious problems with the process which the commission should address.

First is the signature requirement. Fla. Const. Art. XI, [sections] 3 requires that initiative proponents gather signatures equaling eight percent of the votes cast in each of one-half of the state's congressional districts and in the state as a whole in the most recent presidential election. While proponents claim that it unites groups and gets people on the streets advancing ideas, the fact is that paid signature gathers have assumed the task, creating the potential for fraudulent signatures, pressure upon individuals to sign the petitions, and ensuring increased costs. In 1976, the average cost to get an initiative on the ballot was $45,000, but by 1990 the costs rose to over $1 million.(7) Some limitations or restrictions on the use of professional signature-gatherers in the initiative process should be considered.

However, it will be necessary to proceed very carefully in this area in view of several decisions on this issue. In Meyer v. Grant, 486 U.S. 414 (1988), a unanimous Court ruled that a complete ban on paid petitioners violated the First Amendment; and on August 15, 1996, in Bernbeck v. Moore, 936 F. Supp. 1543 (D. Neb.) (1996), a federal district court held that the First Amendment was violated by a state law permitting only registered voters to circulate initiative petitions. In Bernbeck, there was no provision under Nebraska law barring the hiring of out-of-state campaign consultants, printers, canvassers, or lobbyists, so the Court felt logic compelled the conclusion that petition-bearers should not be subjected to the particular qualification that they be registered voters. However, the Court did say the state could show a compelling need for petitioners to provide both permanent and temporary addresses. Presumably, therefore, a state could show a compelling need for other types of information which might be required to prevent fraudulent practices.

Under the present state of the law, as declared in Buckley v. Valeo, 424 U.S. 1 (1976), and its undergirding principle that freedom of speech bars expenditure limits unless they are combined with some form of public financing, any restrictions on limiting the amount of money that could be specifically allocated for the purpose of hiring petition bearers would have to pass strict scrunity. However, the requirements of showing a compelling need and that the restrictions are narrowly tailored might still accommodate some carefully drawn regulations intended to protect against fraud and deceit or tactics by petitioners which are intimidating in nature. A form of licensing, as currently employed in the state of West Virginia, might be feasible.

Because the Constitution is intended to provide stability in government where statutes serve citizens' current needs and desires, thus requiring frequent revision or repeal, we suggest that the commission consider making it more difficult to get a constitutional amendment on the ballot than a statutory initiative by requiring a greater number of signatures for constitutional initiatives. Another possibility would be to place time limits on the signature-gathering procedure and to vary the costs for signature verification.(8)

A second issue which should be addressed is the participation of special interest groups in the initiative process. Although ballot initiatives initially gained popularity as a means of avoiding the perceived corrupting influence of PAC money on the legislature, it is clear that special interest groups have entered the initiative arena. This was made very apparent by Amendment 4, the sugar tax, during the 1996 election. By mid-October, the anti-tax forces--primarily Florida's sugar industry--had spent at least $17 million on the campaign while the pro-tax environmental forces expended over $9 million.(9) By election day, over $35 million had been spent, making Amendment 4 the costliest campaign in Florida's history.(10)

As a result of their involvement in the process, opponents of ballot initiatives are asserting the vulnerability of initiatives to special interest groups in ways not unlike those which affect the decisions of the legislature. Although the Supreme Court, as was evidenced by its decisions in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), and Buckley v. Valeo, 424 U.S. 1 (1976), seems to view the potential for and appearance of corruption as solely an individual candidate problem and not one faced during a popular vote on a public issue, the fact is both individual and corporate contributors donate so much money because they have a significant political interest in the initiative's outcome. These campaigns can be "bought" as easily as an individual candidate's. Yet, unlike individual campaigns, there are no limitations on contribution amounts for ballot initiatives and only a statutory requirement that all contributions be reported." We recommend that the Constitution Revision Commission hold hearings on and explore the feasibility of placing some limitations which can be constitutionally defended on individual and group contributions to a particular initiative committee similar to those placed on contributions to political candidates.

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), did invalidate a restriction placed on bank and business corporation expenditures specifically intended to deter corporate influence on the outcome of referenda. There was, however, a strong dissent by three justices. In view of a later U.S. Supreme Court case, Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the State of Florida should be willing to consider the reasonableness of placing limits on both corporate and individual contributions and expenditures for ballot initiative campaigns.

It is true that in Federal Election Commission v. National Conservative Political Action Committee (NCPAC), 470 U.S. 480 (1985), the U.S. Supreme Court struck down limits on independent expenditures by a political action committee; and it is also true that four years earlier in Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981), the same Court invalidated a city ordinance which had attempted to limit the size of contributions to an unincorporated association formed to oppose a ballot initiative. However, the late Justice Marshall, while concurring in the judgment, said:

If I found the record ... disclosed sufficient evidence to justify the conclusion that large contributions to ballot measure committees undermined the "confidence of the citizenry in government" I would join Justice White in dissent on the ground that the State had demonstrated a sufficient governmental interest to sustain the indirect infringement on First Amendment interests resulting from the operation of the Berkeley ordinance.(12)

It is our strong belief that huge corporate contributions can corrupt the initiative process. For example, much of the money spent during ballot initiative campaigns is for paid advertising and not grassroots campaigning by individuals. When big-money special interest groups are involved, the result can be one-sided arguments and the possibility of improper influence on voters. There is, we believe, a growing public recognition and alarm about this tendency and the winds of reform are beginning to stir in our nation's capital on campaign finance reform. As so often has been the case, with examples like its Sunshine and Sunset laws, the State of Florida has been in the vanguard of reform of the governmental process. If Florida adopts a statutory initiative to join its current provision for the constitutional initiative, it should not lose the opportunity to conjoin with these provisions some new requirements for campaign finance reform in the area of ballot initiatives that could set a standard for the entire nation.

It should be noted of course, that although campaign funding helps ensure meeting the signature requirements for ballot initiatives, it does not always assure their final success and adoption. For example, in Florida's 1994 election the Proposition for Limited Casinos Committee received over $16.5 million in campaign contributions and advertised extensively, but the initiative did not pass.(13) Money has actually been much more successful in defeating ballot proposals, as was evidenced by Amendment 4. Perhaps it is easier to cast doubts on ballot proposals than to convince citizens to vote affirmatively on an issue that may be more easily portrayed as beneficial to a special interest. To demonstrate this, results from a study of ballot initiatives from 1954 to 1982 in California showed that only one initiative was able to pass with big-money opposition, while in 22 ballot propositions where proponents had significantly greater funds, only eight were successful.(14)

Although the authors believe in "direct democracy" if it is used as it was when it originated in the progressive era at the dawn of this century, we have made it clear that there are pitfalls and perils. There are times when the need to jump-start a laggard legislature is necessary if the voice of the people is to be heard. However, one scholar has concluded that "[T]he initiative process in practice confirms the presence of the Framers' fears. Special interest groups, aided by one-sided spending and voter ignorance, enjoy the very position of power that a representative government with its checks and balances is designed to prevent."(15) Another critic muses that it may even offend basic republican principles of government and occasion doubt that it complies with the mandate of Art. IV of the U.S. Constitution, which requires each state to maintain a republican form of government.(16)

Of course, the legislative process itself as carried out in state capitals often cannot be squared with the principles of representative democratic government in its purest and most desirable form. It is often not deliberative democracy at its best. However, we continue to press for innovative reforms rather than simply jettison it for some new and untried form of governance.

The Constitution Revision Commission should, in its hearings, explore in-depth ways that direct democracy can be improved, particularly with respect to making it a more deliberative process. The following paragraphs are intended merely to illustrate some of the many issues which can and should be raised.

* To combat one-sided arguments and the potential for improper voter influence caused by special interest group paid advertising, the commission should consider placing a limit on campaign spending and require that all paid advertisements include the names of the main contributors. This would enable the public to know who is sponsoring an issue, associate the argument with the sponsor, discover hidden agendas, determine the credibility of the argument, and help voters better understand the initiative they are to vote on.

* As a way to provide for more balanced debates, initiative sponsors could be required to conduct public hearings, or there should be a provision requiring government-sponsored public hearings on ballot initiatives. While we would prefer that public financing be implemented for educating the public and the use of private funds be proscribed, we recognize that citizens often disapprove such use of public monies, so that a combination of the two may be necessary to ensure public awareness of an issue.

* Another issue to be considered is a provision permitting revision or amendment to initiatives qualified for the ballot. One possibility would be to permit alterations following the public hearings. The hearings would help identify drafting problems, constitutionality issues, and voters' concerns, and the sponsor, in response, would modify or refine the initiative. Such a provision would provide the voters with more access to and input in the initiative process--what direct democracy was intended to do.

* A second possibility would be to implement the indirect statutory initiative process. This would permit the legislature to act on the initiative prior to its placement on the ballot. The legislature would conduct hearings on the initiative, and could adopt the proposal, refine it, or offer an alternative proposal to be placed on the ballot along with. the initiative. This method would alleviate the fears of those who believe that the direct initiative process does not provide the degree of debate and analysis necessary prior to implementing public policies.

The Florida Constitution should not be overborne with statutory clutter. Direct democracy should be exactly that. It should not be permitted to become a playground for special interest groups. The Constitution Revision Commission will not convene again for 20 years following its 1997 session. We hope it will consider some of the issue. noted in this article and address the problems.

(1) This method is the direct initiative process. The indirect method permits the legislature to act on a proposal prior to its placement on the ballot.

(2) Darrell Preston, Southwest Debates Ballot Initiatives: Democracy or Tool of Special Interests? Trends in the Region: Bond Advocates Worry About Expanding Ballot Powers 318 BOND BUYER (Dec. 3, 1996) available in 1996 WL 5644890.

(3) Bill Varner, Citizens Initiate a Record 94 Ballot Questions, USA TODAY, Oct. 17, 1996, at 4A, available in 1996 WL 2072345. The issues addressed, among others, were campaign finance, gambling, hunting, victims' rights, the environment, education, government affirmative action programs, regulation of HMOs, legalizing medicinal marijuana use, and minimum wage. Ballot Front, 4 STATE CAPITALS REPORT No.43, [sections] 2 (Nov. 1, 1996).

(4) FLA. CONST. art. XI, [sections] 2, provides for a Constitution Revision Commission 10 years after the adoption of the 1968 Constitution, and every 20 years thereafter. Although not scheduled to convene until 1998, Floridians approved during the 1996 election an amendment permitting the institution of the commission in 1997.

(5) Joseph W. Little, Does Direct Government Threaten Constitutional Governance in Florida?, 24 STETSON L. REV 393, 410 (1995).

(6) Advisory Op. To Att'y Gen. re: Limited Marine Net Fishing, 620 So. 2d 997, 1000 (Fla. 1993) (McDonald, J., concurring).

(7) CALIFORNIA COMMISSION ON CAMPAIGN FINANCING, DEMOCRACY BY INITIATIVE--SHAPING CALIFORNIA'S FOURTH BRANCH OF GOVERNMENT 359 (1992).

(8) Currently an initiative committee must pay the supervisor of elections the lesser of ten cents or the actual cost for each signature checked. FLA. STAT. [sections] 99.097(4) (1995). However, if the committee can establish that such payment would place an undue burden on its resources, the verification fee may be waived. In such cases the Comptroller reimburses from the General Revenue Fund the supervisor of elections for the verification costs incurred. Id.

(9) Neil Santaniello, A Costly Campaign: Tab in Sugar Tax Fight Now at $26.4 Million, SUN-SENTINEL (Ft. Lauderdale), Oct. 23, 1996, at 1A.

(10) David Beard, $35 Million Poured Into Sugar Fight, SUN-SENTINEL (Ft. Lauderdale), Nov. 5, 1996 at 1A.

(11) FLA. STAT. [sections] 106.08 (1995).

(12) Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 301-2 (1981) (citations omitted).

(13) P.K. Jameson & Marsha Hosack, Citizen Initiatives in Florida: An Analysis of Florida's Constitutional Initiative Process, Issues, and Alternatives, 23 FLA. ST. U.L. REV. 417, 446-7, n. 279 (1995) (citing to Press Release from Public Affairs Research Instit. N.J., Inc., Princeton (Mar. 13, 1995) (entitled $140 Million Spent on Citizen Initiative Questions) (on file with Fla. S. Comm. on Gov't Reform & Oversight, Tallahassee)).

(14) John S. Shockley, Direct Democracy, Campaign Finance, and the Courts: Can Corruption, Undue Influence, and Declining Voter Confidence Be Found?, 39 U. MIAMI L. REV. 377, 393 (1985) (referring to D. MAGLEY, DIRECT LEGISLATION: VOTING ON BALLOT PROPOSITIONS IN THE UNITED STATES (1984)).

(15) Julian N. Eule, Address at Hastings College of Law (Mar. 3, 1989).

(16) Hans A. Linde, When Is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159, 172 (1989).

John B. Anderson is a professor at Nova Southeastern University, Shepard Broad Law Center He received his B.A. from the University of Illinois (1942), his J. D. from the University of Illinois College of Law (1946), and his LL.M. from Havard University (1949). Professor Anderson was a member of the U.S. Congress from the State of Illinois from 1961-1981.

Nancy C. Ciampa is a candidate for Juris Doctor in 1997 at Nova Southeastern University, Shepard Broad Law Center She received her B.A. from the University of Maine (1975), and her M.Ed. from Boston University (1979).

This article is submitted on behalf of the Young Lawyers Division, Matthew J. Comisky, president, and Alex P. Rosenthal, editor