Garrett explains direct democracy lawmaking process

Elizabeth Garrett, Professor and Deputy Dean for Academic Affairs in the Law School

What exactly is direct democracy?

A number of states, about half, allow people to make laws through initiatives–popular lawmaking. That’s what we mean when we say direct democracy. Related to this is the opportunity, in all but one of the states, for citizens to be involved in enacting amendments to state constitutions. In both cases, the people act as legislators, adopting policies either as statutes or constitutional amendments. It is possible–but not likely–that more states will adopt initiative and referendum processes. A group called the Initiative and Referendum Institute works to promote direct democracy. In Illinois, for example, there’s a strong movement to create a more robust system of direct democracy. However, since such changes are usually implemented by constitutional amendment, the number of states with direct democracy remains fairly stable.

Most people have heard of this process used in California. Where did it begin?

It’s true that the property tax initiative, “Proposition 13,” led by Howard Jarvis in California in the early ’80s, brought the concept to broad public awareness. However, the genesis of direct democracy is found in the progressive and populist movements at the turn of the century. That’s why you see the availability of initiative and referendum more in the Western states. Direct democracy was built into the constitutions drafted at that time, and popular lawmaking was designed to circumvent entrenched interests in the legislature, such as the railroads. Thus, it was seen as an alternative route to affect policy outcomes and to empower grassroots movements. A continuing question for scholars is whether direct democracy actually erodes or enhances the strength of special interest groups, political parties and established politicians.

Can you provide examples of how it is used by politicians?

In the 1970s, former California Governor Jerry Brown employed a series of reform initiatives to change the character of voter turnout and buttress his chances of electoral success. More recently in that state, former Governor Pete Wilson used initiatives on immigration to make his own candidacy more attractive. So we’re seeing direct democracy used both by established players and by the grassroots groups that initially inspired it.

How did you become involved in this field?

My general scholarly focus is unusual for a law professor because I’ve always tried to avoid the “court-centrism” of the legal academy. I’ve studied lawmaking, and for the first years of my career, lawmaking for me meant the work of the U.S. Congress. Then a student journal–The Roundtable–invited me to participate in a symposium on direct democracy. I saw that in the states that used it, direct democracy is as much a part of the lawmaking process as is the legislature. Unfortunately, it remains a subject that’s basically ignored in law schools. Law schools are not only court-focused, they’re federally focused, and direct democracy isn’t really a federal phenomenon, aside from some proposals by Ross Perot and Rep. Richard Gephart and from some new discussion prompted by the increasing use of online “referendums” or Internet polls to influence members of Congress. My interest was piqued as I began to learn more about the subject. So, somewhat by accident, I became one of the few scholars in the legal academy who writes about direct democracy.

Do you have a point of view when you look at direct democracy?

My first piece was fairly hostile to the concept. I argued that direct democracy was as much a tool of well-funded interest groups as it was a component of a well-functioning governance system. I have gradually come to think that there’s an important role to be played by direct democracy, though we’d never want a system that’s run exclusively through initiatives. What we have in many Western states are hybrid governance systems that allow voices to be heard that otherwise would be shut out of the process. Direct democracy empowers new voices, parties and groups that are locked out of the current two-party system with its entrenched insiders and interest groups. Sometimes those voices may not be ones I agree with, but I try not to force any substantive agenda onto my work studying the process of initiatives and referendums. Direct democracy has recently been used for some very disturbing majoritarian ends, including unacceptable and intolerant proposals against gays and lesbians in Colorado and Maine. But that’s where courts ought to come in aggressively to protect minority interests from oppression and unfair treatment.

So direct democracy can open up our two-party system?

We have many disturbing examples where our two entrenched political parties can strangle the process. For example, the presidential debates prevent minor party candidates from participating unless they have sufficient popular support, but they can’t generate that support unless they have a voice in the debates. Buffer-zone laws against electioneering near polling places made sense when voter intimidation and bribery were rife, but there’s no justification now that we have secret ballots. For many grassroots groups, the only way to get their message across is to have a presence at polling places on Election Day, when a voter is most focused on his or her decision. Direct democracy is one method to loosen the partisan lockup of governance institutions by the two major parties.

You are not advocating a multi-party system?

Our two-party system is one of our great strengths, with many more positives than negatives. The question is really how we create opportunities for dissident voices to be heard while maintaining the two-party system. And we need to talk about issues like these in law schools so future lawyers and judges are far more knowledgeable than they are now about political institutions and the electoral process. The University’s law school is still one of a very few schools in the United States to offer a course on legislation and the legislative process. That’s certainly in part because of our strength in law and economics, which includes the theory of interest groups. At long last, however, law schools are acknowledging that if we’re interested in law, the processes through which lawmaking is done by the people, by administrative agencies and by legislatures is just as worthy of serious attention as are the opinions of judges.