In our democratic form of government, the people or, rather, we, the people, are said to be in charge, the ultimate source of political power. To believe that the people are in control is reassuring, to the extent that we are capable of knowing our best interests. And who among us claims not to know what is best for him or for her?
Yet, we are multitudes, unable to vote individually "aye" or "nay" on every law or public issue of importance to society, from water quality to taxation. We therefore elect public officials to represent us and conduct the business of government.
Since"to paraphrase an old saying"only very few people are pleased all the time, with most people pleased just some of the time and others not at all, disagreements inevitably arise about decisions made by political leaders. Citizens then might desire direct involvement in lawmaking, without the intermediacy of elective officials. They can employ the initiative and referendum strategy to directly affect the legislative process.
In brief, the initiative empowers people to propose legislation, then enact or reject it at the polls, independent of legislative assembly. An initiative also allows citizens to propose a constitutional amendment. A referendum authorizes people to appr ove or reject laws already passed by a legislative body. A referendum can be the result of a successful citizen petition or the legislature can pass a law and refer it to the voters as a referendum. Either way the law is put into effect only when and if v oters support the referendum. "Ballot-box lawmaking" is a term used to describe these various activities.
Making Natural Resource Policy
Arizona citizens have taken advantage of initiative and referendum options to influence public policy, both at the state and local levels. This strategy occasionally is used to create public policy having to do with water and other natural resources. S everal such efforts have occurred during the last several years. For example, at the local level, Tucson voters passed Proposition 200 in November, an initiative determining city management of its Central Arizona Project allocation.
At the state level, voters established the Arizona Heritage Fund in a 1990 initiative drive. The purpose of the Heritage Fund is to set aside $20 million per year from the state lottery for wildlife and recreational uses. The money has been used to buy and preserve riparian areas.
In 1994, a referendum with natural resource implications met with failure when Arizona voters turned down Proposition 300. Passage of the referendum would have affirmed a 1992 legislative act allowing broad compensation for landowners whose property lo st value due to state regulations. The act could have had serious consequences when regulating land for environmental purposes.
A referendum on HB2319 will be on the state ballot in November 1996. This referendum is an effort to repeal a law passed during the 1995 session empowering the governor to fire appointees to many state boards and commissions without cause. The law woul d have broad implications, applying to many state boards including the Game and Fish Commission and the State Parks Board. Both state agencies are involved in natural resource management and receive Heritage funds.
The above are examples of citizens taking direct legislative action through initiative or referendum. Their actions continue a history begun in 1910 when the Arizona constitution was adopted and established a citizen's right to engage in direct lawmaki ng activities.
Initiative, Referendum in Arizona History
Historians generally agree that during the two decades prior to statehood railroad and mining interests greatly influenced, if not controlled, Arizona territorial government. Corporate powers served their own political interests in various ways includi ng blocking passage of labor-sponsored measures. As a result, workers, farmers, and small businessmen felt left out of the territorial political process.
Those who felt disfranchised saw an opportunity to remedy the situation when Arizona drafted its constitution in 1910, prior to gaining statehood in 1912. They sought to include provisions for increased popular control of state government.
This represented a defensive strategy since labor leaders realized they would not control the new state legislature. They thus wanted the right to directly enact laws that would unlikely pass in regular legislative sessions. They also wanted to be able to thwart enactment of laws they otherwise would be unable to defeat in the legislature. Corporate interests vigorously opposed the adoption of such direct legislative measures.
These Arizona developments were occurring during the heyday of the national Progressive movement, a political influence on both the Democratic and Republican parties between the 1890s and the 1920s. Progressivism arose in response to reformers and muck rakers exposing corruption in government and big business. Progressivism trusted the political virtue of free, unorganized individuals over the deliberations and control of politicians, political parties and legislative bodies. A Progressive slogan was, " The cure for the ills of democracy is more democracy."
Delegates in favor of initiative and referendum provisions managed to dominate the Arizona constitutional convention. Those opposed to these measures fought back by proposing that a large number of signatures be required on petitions for direct legisla tive action. The debate continued as others argued that mandating an excessive number of signatures would render the process inoperative.
The issue was finally settled by agreeing that signatures equal to at least 15 percent of the total vote for governor at the last general election would be needed to qualify a proposed constitutional amendment for the ballot. A proposed statutory chang e would require 10 percent, and a referendum of a legislative act would need 5 percent.
Labor's drive to include direct legislative strategies in the Arizona constitution had immediate payoffs. Voters in the 1914 election passed six initiated measures, sponsored or supported by the Arizona Federation of Labor.
Not all states have the constitutional right of ballot-box lawmaking that Arizona citizens enjoy. Only 26 states guarantee their citizens initiative and referendum rights.
Use of Petition
Arizona citizens regularly take advantage of their constitutionally granted right to either propose legislation or a constitutional amendment or repeal a legislative act. The bar graph depicts the number of initiatives and referenda per general electio n during the 1970s, 1980s and the 1990s.
The graph indicates that petitions announced per election were fairly constant in the 70s and 80s, (13.2 and 14.0 per election, respectively) but have soared in the 90s with 36.3. (The graph includes the nearly three dozen voter petition campaigns anno unced as of November for the 1996 general election.)
The graph further indicates that many more petitions are announced than are actually filed. Hopes and ambitions often do not survive the arduous task of collecting a sufficient number of signatures and then filing to qualify an item for the ballot. In recent years, however, more petitions are making it on the ballot. Six percent qualified in the 70s, 17 percent in the 80s and 23 percent in the 90s.
The reason for the increased number of petitions and the higher percentage of them qualifying for the ballot bears further research. Are Arizona citizens increasingly dissatisfied with their elected officials? Are they becoming more active politically? Are petition campaigns being conducted with more sophistication.
Once on the ballot, the odds of "success" (defined as "yes" votes for constitutional amendments and initiatives and "no" votes for referenda) have remained rock-constant: 50 percent in the 70s, 50 percent in the 80s and 48 percent thus far in the 90s.
Tucson's Proposition 200
An actual case study of an initiative in action will help explain the process. Tucson's Proposition 200, which appeared on the November ballot, is an appropriate case to review. During the debate over Proposition 200, which addressed local water policy , various issues and concerns arose that often are significant in other initiative and referendum efforts, whether local or state.
A new chapter in Tucson's continuing saga of its CAP water use was written when voters confronted Proposition 200, an effort to restrict the city's use of its Colorado River allocation. Proposition 200 represented a showdown, an OK-Corral confrontation , with those who favor city officials determining appropriate treatment and use of CAP water vs. others who, distrustful of city officials, advocated their own criteria for CAP water use.
Initial efforts to deliver CAP water to Tucson Water customers in 1992 ended badly when people complained of its corrosiveness, smell and taste. The City Council responded by taking thousands of residents off CAP water. The harm, however, was done, not only to pipes, plumbing fixtures, appliances and other personal property, but to the credibility of CAP as an acceptable water resource.
Perceiving the renewed delivery of CAP water as a threat, a group was formed, "Citizens' Voice to Restore and Replenish Quality Water," to circulate a petition for a "Water Consumer Protection Act" initiative, to be placed on the city ballot. At least 17,400 of the nearly 30,000 collected signatures were deemed valid, an amount well in excess of the 10,938 signatures required for the ballot.
The initiative requires that groundwater be used for drinking water, with CAP water to be mostly recharged to replenish the aquifer. CAP water is to be used for drinking only if treated to ensure its quality is equal to or better in salinity, hardness and total dissolved solids than groundwater now being delivered from Avra Valley. Further, the initiative specifies that only groundwater pumped from unpolluted sources will be used for drinking water.
Not content with merely debating the merits of the proposition, a group of 28 Tucson citizens, mainly Tucson business leaders, challenged the legality of the initiative. They sued to keep the initiative off the ballot arguing the use of CAP is a techni cal and administrative decision, not a legislative affair. Voters therefore should not be addressing the proposition.
They also questioned whether voters were qualified to decide the issue since they lack the necessary knowledge and expertise. Their lawyer, Andrew Federhar, argued that deciding CAP water use requires an "intimate knowledge" of complex state and federa l regulations, Tucson's fiscal and operational requirements, and the technical problems of recharging that much water.
Santa Cruz Judge Roberto Montiel decided that voters should be able to address the initiative. The Judge stated, "The advisability of the standard attempted to be imposed by the initiative is clearly questionable. However, this court does not have the authority to rule on such issues. These are issues that should be debated by the electorate." The judge further stated that "Courts must be careful not to place restrictions upon the citizens' powers to enact legislation." An appeal to the State Supreme Court failed. On November 7 Tucson voters passed the initiative with 57 percent of the vote in favor.
Pros, Cons of Initiative and Referendum
A citizen initiative represents vestiges of direct democracy, in the tradition of the New England village or town meeting, with citizens casting their own votes for the laws to govern them. Despite attracting controversy, Tucson's exercise in direct le gislation therefore could be viewed as demo-cracy in action, a proud American heritage.
A legacy of debate over initiative and referendum, however, exists within U.S. history, with roots in the writings of the founding fathers. Although acknowledging that political control rests with the people, James Madison proposed an intermediary, rep resentative body to "refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country."
A number of Tucson citizens doubted that Madison had Tucson Water officials or the City Council in mind when he held forth on the virtue and wisdom of intermediary bodies. This lack of confidence in, even distrust of, elected representatives is an oft used argument in support of initiatives and referenda.
If the people's interest goes unmet, the people themselves can take direct action, rejecting or proposing specific pieces of legislation. Out of sync with Madison's political philosophy, Richard Wiersma, chairman of the CAP initiative, summarized this position when he stated, "People want to take the power out of the hands of the 'water mafia' and put it into the people's hands."
Also, some argue that direct legislation reduces the power of special interests to influence government in their favor. The people can stand up for their own rights, without relying solely on representatives, who may be influenced by special interests.
For example, those who opposed Proposition 300 in 1994, a referendum on a "takings" bill, claimed the law they were challenging was passed due to the efforts of special interests, specifically agricultural and realtor interests. A coalition made of div erse groups, including neighborhood associations, the Sierra Club and Common Cause, worked to place the referendum on the ballot and ultimately defeat it.
Those who attempted to remove the Tucson initiative from the ballot questioned whether citizens are qualified to decide the CAP water-use issue. This reflects a frequent argument against direct legislation, with critics complaining that the public is i ll-prepared, ill-informed, and incapable of interpreting complex ballot issues to decide weighty matters in the public good.
Further, such critics are likely to believe that, even if public competency could be demonstrated, the workings and affairs of modern politics are sufficiently complex to require the specialized attention of professional legislators and administrators. "If you allow the citizens to second-guess the day-to-day decisions of government, it would grind to a halt," attorney Federhar unsuccessfully argued in court to disqualify the CAP initiative.
On the other hand, initiatives and referenda are said to encourage general and spirited debate on issues that otherwise may not get that kind of attention. The debate enables citizens, as well as political leaders, to more fully explore an issue. For e xample, Tucson's use of CAP water was a much discussed topic prior to the November election.
Many fear, however, the debate engendered by a measure will tend to simplify an issue, rather than encourage a wider understanding. Instead of a full airing of an issue and its implications, slogans or 15-second soundbites occur to win voters' hearts and minds, thus trivializing the issue.
Some of this certainly was evident during Tucson's debate of Proposition 200. "Twice Toilet Tales," an incredibly strained allusion to "Twice Told Tales," and "CAP is Crap" were two scatological headlines announcing anti-CAP articles appearing in the T ucson Weekly, the city's "alternative" newspaper.
Some people also are wary of the use of initiatives and referenda fearing the "California syndrome." This occurs when people are asked to directly decide a myriad of issues, including some perceived as trivial. For example, this past election, San Fran ciscans confronted the question: "Should Cesar Chavez Street, named just this year for the late founder of the United Farm Workers Union, revert to its name since 1850, Army Street?"
Even if voters are to decide only ballot measures that are worthy of their attention, the election process still can become unduly complicated and lengthy. Voters would need to acquire knowledge and expertise in varied areas and, as a result, voting b ecomes frustrating and burdensome. For example, in 1990, voters in Arizona confronted 15 state initiative items on the ballot.
Initiative Sparks Environmental Quality Act
An initiative does not have to appear on a ballot and gain voter approval to be successful. Initiatives have sufficient political clout that an in-progress campaign that promises to be successful can prompt legislative action, as lawmakers strive to re gain control of the situation. Such a scenario played out to ensure passage of Arizona's 1988 Environmental Quality Act, which regulates water quality.
Groundwater pollution arose as an emerging concern as techniques became available in the late 1970s to detect minute amounts of pollution in water. No effective regulations existed, however, to establish groundwater standards, nor, in fact, to control continued groundwater pollution.
An effort in January 1985 to empower the Arizona Department of Health Services to regulate all potential polluters proved ineffective. This unsuccessful attempt served to further emphasize the need for new water quality legislation.
Different interest groups, including environmentalists, mining, agriculture and industry, staked out their varied and sometimes conflicting positions on water quality. Controversy bristled, balking efforts at a legislative solution.
Frustrated at the lack of legislative progress on this highly visible issue, environmental and public-interest groups drafted a clean water initiative. The initiative was filed October 1, 1985, and heralded by press conferences throughout the state. C ommon Cause was the lead organization behind the initiative, with other groups providing support, including the Sierra Club and the League of Women Voters.
In brief, the initiative granted new powers to the State Department of Health Services to regulate water pollution as well as pesticide spraying, a related issue. The initiative also included ample provisions for citizen-initiated enforcement of standa rds.
Claiming the initiative provisions were too restrictive, mining, agricultural and industrial interests viewed its likely passage with dismay. They considered negotiations as a defensive strategy to avoid the limiting regulations that would result from a citizen enacted initiative.
With the moment ripe for productive negotiations, Governor Bruce Babbitt appointed an 18-member panel, including legislators and representatives of varied interests, to work out a compromise that would, in effect, render the clean water initiative moot . Babbitt, who chaired the 18-member committee, wielded the initiative as a big stick threatening that if an acceptable compromise was not forthcoming he would support the initiative.
The committee labored and came up with draft legislation of a bill that would later be passed as the Arizona Environmental Quality Act. In brief, the act established the Arizona Department of Environmental Quality and determined that all groundwater supplies are to be drinking water quality.
Babbitt credited the initiative with bringing together the various factions at the negotiating table. Initiative activities ceased with the passage of the law.
Launching an Initiative
To qualify a measure for the ballot, whether initiative or referendum, is an arduous undertaking. A myriad of tasks must be performed, from gathering a sufficient number of signatures to educating voters to support the proposition. Money also must be r aised. The amount required could be substantial if a well-funded opposition fights the measure.
Citizens, therefore, likely will find the direct legislative route fraught with problems and difficulties. For this reason, ballot-box lawmaking is not considered the best strategy for enacting desired legislative changes. Many consider it a last-ditch effort, a route to follow only when all efforts of going through the usual legislative channels have failed.
For example, the organizers of the Arizona Heritage Fund initiative first set out to convince the State Legislature to adequately fund the Arizona Game and Fish Department and the Arizona State Parks Department. Their strategy included identifying 11 p ossible funding sources, including new taxes and fees, to be used to fund the state agencies. Only when it became apparent that the legislators would balk at establishing new taxes and fees did plans proceed for a citizen initiative.
The premier task is collecting signatures. The individuals who launch initiatives and referenda usually are committed to a cause. That all those hardy individuals collecting signatures likewise labor and persevere out a sense of commitment is unlikely. Many have to be paid, although some issues attract more volunteers than others. An all-volunteer team, for example, collected the signatures needed to put the initiative to ban leghold traps on the ballot.
Upon announcing an initiative or referendum drive, a group or individual likely will be contacted by several California agencies offering to collect signatures for a fee. Several individuals operate in Arizona to perform the same service. Providing thi s service obviously is a low overhead business requiring little more than an office, phone and the assistance of a notary public. Usually the contractors request a dollar per signature and pay workers 50 cents for each signature collected.
Collecting petition signatures is a sufficiently established activity to have its stars and legendary figures who shine forth as an inspiration to others in the field. Persons in need of signatures often seek out one such illustrious character who oper ates in Tucson. His ability to keep four clipboards going in a crowd outside Safeway while reaping a bountiful harvests of signatures is legendary.
People collecting signatures do best if they can work an area with heavy foot traffic. This can be a problem. Modern cities lack such areas. Large crowds of people traverse the corridors of shopping malls, but courts have declared these areas private p roperty and off-limits to petitioners. This is a situation that has provoked lawsuits. Special events in parks and stadiums offer possibilities, but such occurrences are irregular.
Also certain legal requirements can act as obstacles. Arizona Revised Statutes, Title 19, provide the rules and regulations governing the initiative, referendum and recall process. They include specific directives. For example, Title 19 specifies that the signature sheet: "Be printed in black ink on white or recycled white pages fourteen inches in width by eight and one-half inches in length, with a margin of at least one-half inch at the top and one-fourth inch at the bottom." Further, rules specify t he number of words to be used on the petition to describe the principal provision of the measure, the number of lines for signatures, and the size type. Additional regulations may exist at the city and county level.
Some critics complain the regulations are unduly restrictive and interfere with citizens' right to conduct initiatives and referenda. They say enforcing the rules to the letter has caused petitions and signatures to be disqualified. To be safe, organiz ers attempt to collect 25 percent more signatures than the minimum since many may be disqualified due to various technicalities. Some critics claim that many of the Title 19 rules and regulations are unconstitutional because they act to deny a citizen's r ight guaranteed by the state constitution.
Circumventing the People's Will
Every victorious initiative and referendum campaign is, to some extent, a qualified success. Voters may believe their exercise in lawmaking, whether creating a new law or repealing a law already on the books, is the final word and that their decision r epresents a done deal. But it is a deal that can be undone nonetheless by their elected representatives with subsequent legislative action.
That legislators may not take kindly to ballot-box lawmaking is understandable. They may feel their authority is being circumvented as voters second-guess their decisions. Yet, they often follow a hands-off policy, to avoid the displeasure of voters an d press if they are perceived as undoing the will of the people.
Yet, since initiative backers cannot depend upon all legislators sharing these noble sentiments, they may take action to ensure that enacted legislation remains intact. As Arizona Heritage Fund supporter Andrew S. Gordan says, "As experienced community activists, we know even the best-laid plans may go astray without a good angel to watch out for their well-being." The Arizona Heritage Alliance is the guardian angel for the Heritage Fund.
The Arizona Heritage Alliance, a non-profit organization, was created to ensure the Heritage Fund remains on course, its purpose and ideals respected and its funding undiverted. With 15 bills thus far introduced that would have impacted the Heritage Fu nd, legislative interference is no idle threat. The Alliance is there to keep the Heritage Fund out of legislative and administrative harms way.
The Alliance maintains communication with a network of Heritage Fund supporters throughout the state. It publishes a newsletter, the Arizona Heritage Guardian, announcing its achievements and activities, and marshals the necessary forces to foil any ef forts at undermining the fund. As a potential threat arises, the Alliance alerts supporters who respond with letters and phone calls to their legislators.
Although the people have spoken on the "takings" issues, defeating Proposition 300 by a 60 to 40 percent margin, Arizona legislators remain interested in compensating property owners for limitations placed on private property. A Joint Legislative Study Committee on the Constitutional Regulation of Private Property is conducting hearings on the issue throughout the state. The hearings prompted an audience member, Carol Owens from Apache Junction, to exclaim, "I think we have been here before. I keep wan ting to ask what part of Proposition 300 losing you didn't get."<127>
Also supporters of Tucson's Proposition 200 are fearful that the intent of their initiative will be subverted. Initiative backer C. Brent Cluff says, "With the same people working at Tucson Water, I'm very worried that they'll work to thwart the clear wishes of the public. We must be vigilant or it could soon be back to business as usual."
What, if any, actions will be taken is uncertain. An advisory group is being considered made up of water company operators, attorneys, hydrologists and scientists, to monitor compliance with the vote and offer advice. Pima County Supervisor Ed Moore sa ys the advisory group will issue weekly reports from the Board of Supervisors' meetings. Moore further says that if city officials create a water shortage this summer to discredit the vote, "We will direct the sheriff to direct city water to do the things they need to do."
Future use of Initiative and Referendum
Some observers believe the times are ripe for increased citizen involvement in government and that ballot-box lawmaking may become a more frequent citizen strategy in the future. They say current political and social conditions may prompt increased cit izen activity. Studies show many people do not hold government in high esteem. They distrust politicians and are dissatisfied with their decisions. They feel left out, believing the process is rigged to leave them powerless and their needs unmet.
Seeking relief from this disconcerting predicament people might more readily turn to initiatives and referenda. Ballot-box lawmaking could boost citizen and even personal morale.
Another development with the potential to increase citizen interest in initiatives and referendum is the downward shift of political power. This theme attracted attention during the Reagan administration and lately is gaining prominence. Thus far the h eralded shifting of power mainly has been from the federal to state level. Eventually, however, more political decisions may be made at the municipal or local level. The state and especially the local level offer a more favorable arena for citizen direct legislative actions.
This past election provided an example of a downward shifting of political interest as an issue usually addressed at the national level was taken up by a local group. Backers of the Tucson Livable Wage Initiative attempted to collect sufficient signatu res to enable voters to decide whether to raise Tucson's minimum wage to $7 per hour. Some view this development as portending future changes in public policy development, with national issues increasingly addressed locally. (An insufficient number of sig natures were turned in to qualify the initiative for the ballot.)
The above is not to imply that initiatives cannot work at the national level, despite the onerous logistics of such an effort. Jack Kemp championed this cause in his 1979 book An American Renaissance. He calls for a "Voter Initiative Amendment" to the U.S. Constitution to establish a citizen right of initiative. Kemp views such an amendment as extending our First Amendment right to petition the government for redress of grievances.
Kemp strongly supports such an initiative because "it goes to the heart of our national malaise." He believes a national initiative represents a strategy for the individual, the family and the neighborhood to regain power usurped by Washington bureaucr ats. The national initiative, he argues, would help to refocus the attention of government toward the individual citizen.
The technology is becoming available to facilitate direct citizen input into political affairs. With this technology, including the use of home computers, the Internet and interactive television, initiatives and referenda could be more readily arranged and conducted, even at the national level. Several communities have taken steps in this direction with "electronic town halls" that enabled citizens to better interact among themselves and their political leaders.
Meanwhile in Arizona the topic of the initiative and referendum arose at the recent 67th Arizona Town Hall that met October 29 - November 1 to discuss "allocating limited resources." Town Hall meetings are forums for Arizona political and community lea ders to discuss various issues and concerns facing the sate.
Although calling for more citizen involvement in government, a document prepared for the event also included criticism of the initiative and referendum process. Two suggestions were offered to remedy perceived problems: requiring a greater minimum perc entage of signatures at the local level for an issue to be placed on the ballot and mandating a minimum percentage of voters from each county for an issue to qualify for a statewide ballot.
Conclusion
When people vote on an initiative or referendum, they do more than merely express their will on a particular issue. Voters also are practicing a philosophy of government, one that espouses greatly decentralized power, with the people them- selves, th e individual voters, directly engaged in lawmaking.
This philosophy of government meets with mixed approval. An extreme form of it attracted the unqualified support of the French philosopher and writer Jean Jacques Rosseau who wrote in the Social Contract that "every law which the people in person have not ratified is invalid, it is not law." H.L. Menken expressed the opposite extreme when he defined democracy as "...the theory that the common people know what they want, and deserve to get it good and hard."
People wary of citizens' direct lawmaking powers usually share an underlining concern that voters are not necessarily qualified to make wise legislative decisions. Although they likely would be circumspect in expressing this view"except Menken who woul d readily own up to it"these critics still are in the awkward position of arguing that too much democracy can be a bad thing. This position arouses suspicion in a country firmly committed to individual rights.
Various concerns, however, do arise when citizens resort to the initiative or referendum to effect legislative changes. The people's voice is not infallible. Special interests can unduly influence the process. Misleading and false information can disto rt and trivialize the issue. Tucson's experience with Proposition 200 suggests a cure for these problems.
In their efforts to keep Tucson's Proposition 200 off the ballot, opponents spent about $200,000 on legal costs. Perhaps the initiative vote would have turned out differently had the money been spent more fully on educating the voters about the full im plications of the issue. To paraphrase the Progressive slogan quoted earlier, "The cure for the ills of democracy is more education."
The writer thanks all the people and organizations contributing information to this newsletter, especially the following: Dan Campbell, The Nature Conservancy; Sandy Bahr; John Kromko; Priscilla Robinson, Consultant; Julie Sherman, Arizona Heritage All iance; Rob Smith, Sierra Club; Tom Volgy, University of Arizona.
The ideas and opinions expressed in the newsletter do not necessarily reflect the views of any of the above people or organizations.
Arroyo, December 1995, Volume 8, No. 4