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A SPECIFIC SOLUTION: “Time To Walk The Talk”

By Senator Mike Gravel, June 6, 2000

Over the last quarter century, awesome improvements in communications technology have
enhanced the ability of the citizenry to participate in lawmaking. In states that permit citizen
initiatives, the people have enacted meaningful reforms such as campaign financing and term
limits. This assertion of legislative power by the people has led to reforms by representatives
under the guise of correcting abuses of the initiative process.

This contest over who will rule – government officials or the people – has attracted the attention
of the political science community and media pundits. Their articles, papers and books address
all aspects of citizen lawmaking, but often in a vacuum.

Analysis of the methodologies of governance requires a comparative context. Analysis of one
approach to democratic governance – the initiative process – without a contemporaneous
comparison to the alternative – the legislative process of representative government – denies
outside observers a basis for judgment and choice.

As a lifelong student of political science, I read with relish all the excellent papers to be presented
at this conference. Most of the references to the practices of legislatures and initiatives are
familiar to me due to my sixteen years in elective office: four in the Alaska Legislature, two as
Speaker; and twelve years in the U.S. Senate. My experiences have taught me the dangers of
legislative monopoly by representative government.

In the early nineties I founded and continue to head up the nonprofit corporations Philadelphia
Two and Direct Democracy. These organizations are sponsors of the Direct Democracy Initiative
(DDI). The DDI is a proposed federal law that will empower citizens to set policy and enact laws
nationally and in every state and local jurisdiction of the United States, with procedures to
promote deliberation and debate, while prohibiting the influence of corporate, union and
association money. The DDI will establish an administrative agency, the Electoral Trust, to
implement the procedures that will in effect create a Legislature of the People. This new direct
democracy institution will legislate in a manner parallel and complementary to the legislative
bodies of representative governments. We hope thereby to set in motion improved governance
through an evolutionary process, rather than the revolutionary upheaval likely to come if
representatives and their acolytes insist on retaining and exploiting their monopoly of political
power.

The sponsors of the DDI see no chance that Congress would enact anything like it. Therefore, we
are pursuing the DDI’s passage through a self-enacting process (in DDI Sections 6 and 7) similar
to the self-enactment adoption provision of the federal Constitution written into it by James
Madison and his colleagues. They secured self-enactment of the Constitution via that special
ratification process by the people (U.S. Constitution, Article VII) in what was effectively a national
initiative in 1787-89.

The Influence of Money
Money is the mother’s milk of politics. This statement is immutably true and vital. However,
empirically, it has proven to be less true with respect to the initiative process than in the
representative legislative process. The failure of money to buy the enactment of initiatives
discredits the disingenuous arguments of initiative opponents. Yet, the substantial sums spent in
initiative campaigns does affect some initiatives negatively. The amounts of money spent on
initiatives will continue to grow, as they have in candidate elections. The main culprit is not money
itself but soft money coming from unidentified sources. The likelihood of Congress reforming
meaningfully either candidate or initiative funding practices is remote.
The money problem commenced with the U.S. Supreme Court decision in Santa Clara Co. v.
Southern Pacific Railroad Company, 118 U. S. 394, (1886). In that case the Court expanded
Chief Justice Marshall’s earlier definition of the corporation as an artificial being, into a
corporation as a person under the law. The Court explicitly, but for unnamed reasons, chose not
to hear arguments against this significant assumption, now ensconced in case law.

Two subsequent decisions expanded the Court’s corporate edifice: Buckley v. Valeo, 424 U.S. 1
(1976) and First National Bank of Boston v. Bellotti, 435 U. S. 765 (1977). These decisions
effectively allow the definition of “corporation” to include political rights for this artificial person.
The Valeo decision, abridging First Amendment rights of free speech, limited the income side of
the equation – personal contributions, without limiting the expense side of the equation –
campaign expenditures. The limit on individual contributions, coupled with the lack of limits on
corporate expenditure, unleashed the floodgate for soft money. In Bellotti, the Court extended
the Santa Clara logic to permit corporate wealth to work its will on initiatives, striking down
Massachusetts’ efforts to limit corporate spending on initiatives.

The negative impact of these cases on the polity and a spate of subsequent decisions by the
Court adding additional confusion suggest the need for the Court to revisit these cases,
particularly Santa Clara. DDI’s prohibition against corporate contributions (in Section 4 L)
effectively reverses Bellotti. This could trigger a suit, thereby opening an argument about the
Santa Clara corporate “person.” Additionally, DDI removes any possibility of a Buckley-like
limitation on personal contributions for initiatives.

We are not foolishly courting judicial review. The Bellotti decision was a close 5-4 vote, with three
written opinions. Justice Rehnquist wrote a separate dissent questioning acceptance of the
corporation as a person – a perspective that was adopted in Santa Clara but never examined.
He noted for future Court consideration that in Northern National Life Insurance Company v.
Riggs, 203 U.S. 243, 255 (1906), “liberty” was applied to natural persons alone and not artificial
persons. If the Court were to revisit Santa Clara, it could have ramifications well beyond the
initiative question.

DDI’s approach to initiative campaign financing is to remove all barriers to a person’s exercising
free speech by means of the expenditure of money, but to restrict such money expenditures to
persons alone. Civil and political rights should be restricted to human beings – persons – and not
to artificial, legal entities. DDI’s mandatory disclosure provisions (in Section 4 M) place
responsibility for policing money’s impact on campaigns with the people. Since there seems to be
no fair way to reapportion the disparity of private property within the polity, the DDI relies on
transparence.

The Competence Issue
Questioning the competence of the people in the initiative process touches the foundation of
human governance. It is an argument commonly used to discredit direct democracy, and, even
more frequently, an unconscious assumption. The obvious retort to this unflattering judgment of
others is: what are the options? Since the Age of Enlightenment positioned the individual as
sovereign as much as any king, who is there to rule other than the people? If the people are not
competent to govern themselves, then we must suffer whatever kind of government the people’s
competence chooses. This principle operates in Borneo or in New York City, where former mayor
Jimmy Walker is reported to have said: “I may have been a jerk in office, but it took a lot of jerks
to put me there.”

Considerably less competence is required to set policy or enact laws, both usually involving
straightforward decisions, than to select agents with complex personalities, with bundles of
“positions” and indiscernible motivations. Or, as Madison put it in Federalist 10:
Men of factious tempers, of local prejudices, or of sinister designs, may, by
intrigue, by corruption, or by other means, first obtain the suffrages, and then
betray the interests, of the people.

How can we as voters have the discernment to anticipate betrayal when candidates for our
agency assure us of their fidelity by urging that we read their lips?

Philadelphia Two’s DDI is premised on the belief that people, possessed of proper information,
will make decisions as good or superior to that of their representatives. Majoritarian decisions by
the people need not be filtered through the ambitious self-interest of representatives or the
economic self-interest of their supporters.

Qualifying Initiatives
The use of petitions to qualify initiatives is legitimate. However, the unusually high number of
required signatures, the short time allowed for the collection of those signatures, silly identification
requirements levied on signature gatherers, the serve-no-purpose certification of petition forms,
and numerous other ploys of government are not designed to improve the initiative process but to
impede the participation of people in their own governance.

The problems with professional signature gatherers also apply to volunteer gatherers. Signature
gathering is a numbers game restricted by time. Success requires putting aside time-consuming
edification and getting as many signatures as possible, as quickly as possible.

The DDI (in Section 4 C) lowers the number of signatures to qualify initiatives and extends the
period of time to gather signatures. More importantly, it establishes a new qualifier, the Public
Opinion Poll. Polling comes much closer to the ideal of accurately determining if an appropriate
number of people wish an issue to be placed on the ballot. It is also less costly and more
democratic.

I make no comment in this paper about the professionalism that has emerged in the initiative
process for the obvious reason that professionalism is a welcome improvement in almost any
human endeavor.

The Information Issue
The lynchpin of competency is the information people acquire or can cue on to make their
decisions. While reading about the information cues people rely on to make decisions, I often say
to myself: “that’s exactly the way we did it in the Senate.”

Let me share a recent a conversation I had with my good friend Senator Alan Cranston, as an
illustration of the extent cues are relied upon in legislatures. I asked his reaction to my estimate
that 75% of the members of Congress do not read 75% of the legislation they vote on. Alan’s
view is more experienced, having served longer in the Senate (and as majority whip, with the task
of monitoring votes). He thought my estimate was off, that more than 90% of the members of
Congress do not read 90% of the laws on which they vote.

The informational shortcomings in the initiative process stem from the fact that the people are
deprived of the publicly-funded, specialized staff assistance that representative legislative bodies
receive. This, of course, is correctable. The DDI (in Section 4) makes available to the people the
same kind of information cues now available only to our elected representatives.
After an initiative is qualified, a professional hearing officer from the Electoral Trust (Section 5 E
(4)), in conjunction with the initiative’s sponsors and representatives from the relevant legislative
body, will conduct hearings to receive the testimony of experts, advocates, opponents and any
interested parties. These interactive hearings can use all forms of advanced technology to inform
all interested communities – going far beyond what the Congress presently employs for its
hearings.

In the next legislative step (Section 4 E) the Electoral Trust convenes a committee of randomly
selected ordinary citizens from the relevant jurisdiction for each initiative to review the hearing
transcript, deliberate the merits, and prepare a written report with recommendations. The
committee can amend the initiative so long as the amendments are consistent with the original
intent of the initiative.

Like the committee of a legislature, the Deliberative Committee marks up a bill and sends it to the
legislative body of the relevant jurisdiction – a city council, a legislature, or Congress. That body
then conducts a public advisory vote (Section 4 F). Through these procedures, the DDI’s process
provides the people with the information cues of a deliberative process, minus the personal and
private contacts that permit and encourage logrolling in legislative bodies.

As an aside, I question the assertion that legislative compromises, resulting from the give and
take in legislative bodies, are a serious loss to the initiative process. Of course, compromise is a
very positive word in our democratic culture. Unquestionably, compromise, as a verb, helps
mediate among the divergent merits of a measure. However, as a noun, compromise often
describes a half-baked solution. Moreover, the give and take of compromises is often totally
extraneous to the merits of a bill. A vote in exchange for a judgeship, a dam, a road, a seat on the
next junket, or an endorsement in the next election has no relevance to fashioning a meritorious
compromise – rather, it relates more closely to corruption than merit. The initiative process suffers
no great loss in this regard.

DDI contains three limits on initiatives (in Section 4 A and B) that enhance their clarity. Initiatives
must have relevance to public policy, a limit on the number of words, and a limitation to a single
subject. It’s worth noting that lack of these limits opens sources of great mischief in legislatures.

To assist the people and assure the quality of initiative laws, a legislative drafting and research
service is established within the Electoral Trust (Section 5 E (3)). Similar services are available to
legislatures.

Today, public communications about the content of an initiative is very limited and print-exclusive.
DDI (in Sections 4 N and 5 E (5)) expands upon the means of making information available to
voters through the use of current technology.

The Courts
The courts dare not invade the legislative branch prior to the enactment of legislation, absent
overt fraud. The executive is less restricted in its legislative participation, at least informally.
Nevertheless, the separation of these two branches from the legislative branch is a mainstay of
our checks and balances system. But the executive and judicial branches wantonly invade the
people’s legislative venue, the initiative. Their reasons for the invasion – usually self-serving – are
that initiatives lack the deliberative procedures of legislatures.

The executive branch in states with initiatives has administrative and ministerial responsibilities
for the processing of initiatives. Under DDI, the Electoral Trust assumes this function; it is less
likely to have a conflict of interest. As the executor of the government’s laws, elected officials and
bureaucrats in the executive branch may stop measures they dislike before they can get off the
ground. By refusing to perform certain ministerial duties, they discourage sponsors or force them
to sue. Judges, who in many cases rely on the executive branch for appointment or promotion,
experience subtle pressures to go beyond the ministerial questions and delve into the merits of
the proposed initiative, e.g., its constitutionality. Often, they find ways to strike down initiatives
before they ever reach the people. What special powers or political qualifications do judges have
to determine what people – the ultimate sovereign – should or should not vote on?

This criticism in no way denigrates the court’s responsibility to adjudicate the constitutionality of
initiative laws. DDI (Section 4 H) explicitly acknowledges the court’s power and duty to determine
the constitutionality of statutory initiative laws, but cautions judicial restraint prior to a law’s
enactment.

First Principles
Recent initiative literature traces the origins of the initiative to Populists and Progressives. This is
correct with regard to the explicit aspects and procedures of Initiative, Referendum and Recall
(IRR) laws introduced in the first quarter of the last century. However, that shortened lineage
skews the dialogue and falsely suggests that the people’s involvement in lawmaking lacks an
adequate foundation in history.

The dialogue is better served by pushing back the initiative’s lineage, at least with respect to our
nation, to its proper and earliest beginnings: the Mayflower Compact, Jamestown, and the New
England Town Meeting, to name some of the highlights. The initiative originates with the First
Principles of governance – wherein people initiate and “just do it.” First Principles are embodied in
the initiative process. Madison pointed to the primacy of First Principles on August 31, 1787 at the
Constitutional Convention in response to a Maryland delegate who feared that the proposed
adoption of the federal Constitution would violate procedures in Maryland’s Constitution:

The difficulty in Maryland was no greater than in other States, where no mode of change was
pointed out by the Constitution, and all officers were under oath to support it. The people were in
fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could
alter constitutions as they pleased. It was a principle in the Bill of rights, that first principles might
be resorted to.

Opponents of initiatives cite Madison’s Federalist 10 as the prime source of justification for
representative government’s supremacy over the people’s legislative power. Two points need to
be made with regard to this. First, Madison made those arguments in the heat of the ratification
campaign. Earlier, at the Constitutional Convention, James Wilson describes the deeper context
of republican governance:

The Legislature ought to be the most exact transcript of the whole society.
Representation is made necessary only because it is impossible for the people
to act collectively.

The Framers had no choice but to build and defend a representational structure. However, what
was impossible in 1787 has become possible with the incredible level of technology we enjoy
today.

The second contextual point: Madison, in the last seven paragraphs of Federalist 10, argues that
state governments, with more people and larger areas, are well-suited to resolve the problems of
local smaller governments. He then extends that argument to sell the federalism of the
Constitution, arguing that a national government is well suited to resolve difficulties that plague
the smaller state governments. Extending Madison’s logic, the people, our highest venue of
authority, can address and have the responsibility to address today’s problems of an
unresponsive national government. The way to implement this logic is pointed to by James
Wilson:

All power is originally in the people and should be exercised by them in
person, if that could be done with convenience, or even with little difficulty.

Conclusion
Let me conclude with a macro perspective of our deliberations. Analysis of the methodologies of
governance must be comparative if it is to help us make choices that improve governance. I
conclude that governance that includes the people, rather than their representatives alone, better
serves the polity. The initiative process we advocate is not the initiative process that we see
today, which is almost as defective as our representative legislative process. To the contrary, we
fashioned draft legislation to address the shortcomings of the governance process in general.
With Philadelphia Two, we advance a measure, evolutionary in nature, that protects the
institutions of representative government while bringing forward the people to fully participate in
the central act of self-governance – the establishment of policy and lawmaking.

This partnership of the people and their agents would be achieved by the enactment of the Direct
Democracy Initiative, which at this stage should be scrutinized, constructively critiqued, and
amended where necessary. The DDI will never find a venue of more qualified individuals for that
purpose than this conference.

Direct Democracy, which may seem radical to some, is the essence of our Constitution, as
expressed in the initial words of the Preamble, “We, the People...do ordain and establish this
Constitution.” Alexander Meiklejohn, the great constitutional scholar, defined the real meaning of
self-government:

The citizens of this nation shall make and shall obey their own laws, shall be at
once their own subjects and their own masters.