Threats and Restrictions

The Initiative process has been used throughout its history as a tool for the people to utilize to reign in government when it has become too powerful and when government refuses to deal with the issues supported by the people. Since the end result of most initiatives, especially those that reign in government, has been to limit the government’s power, elected officials have taken offense.

Legislative attempts to “reform” the process aren’t new. Legislators since the first use of the process have been trying to restrict its use for they see it – rightfully so – as a means reserved to the people to limit their power. But as William Jennings Bryon said in 1920:

[W]e have the initiative and referendum in Nebraska; do not disturb them. If defects are discovered, correct them and perfect the machinery … make it possible for the people to have what they want … we are the world’s teacher in democracy; the world looks to us for an example. We cannot ask others to trust the people unless we are ourselves willing to trust them.

California is a perfect example. Since the voters first adopted the initiative process in 1912, the state legislature has consistently tried to make it more difficult. When California first adopted the process, the citizens had an unlimited amount of time to collect signatures. Then, as the population of the state ballooned - which meant that the signatures had to collect more signatures on petitions – the state legislature was busy shortening the circulation period. It went from unlimited to four years and then to the current requirement of 180 days to collect over 750,000 signatures. One could legitimately question the rationale of drastically decreasing the circulation period during a period of high population growth.

Modern day attempts to reform the process is even more prevalent. From 1998 to 2000, nine states—Arizona, Idaho, Mississippi, Missouri, Montana, Oklahoma, Utah and Wyoming—have tightened procedural restrictions on initiatives.

In November 2000, Nebraska voters rejected a law placed on the ballot by the state legislature that would require initiatives to pass twice before becoming law. Legislators in Alaska, Arizona and Washington are debating whether to impose new geographic distribution requirements for petition circulators, while California and Florida legislators are mulling whether to change the majorities required to pass initiatives. And on May 16th, 2000 Oregon voters went to the polls and defeated an increase in the number of signatures required to place a constitutional amendment on the ballot – an amendment placed on the ballot by the state legislature.

Despite the fact that the citizens adopted the initiative process to ensure citizen government, most of the states where the citizens provided that they retain initiative rights have seen the legislature enact legislation that restricts rather than facilitates the use of these powers by the people. The legislatures’ regulation of the initiative and referendum have often violated the citizenry’s First Amendment rights as articulated by U.S. Supreme Court in Meyer v. Grant, 486 U.S. 414 (1986). It can be argued that not a single example of truly facilitating legislation has ever been enacted by any state legislature. Furthermore, the restrictions imposed on the citizenry are typically not imposed on other individuals seeking to use a state’s electoral processes to invoke changes in state government, whether it be through lobbying, legislating, or running for political office.

A variety of legislative enactments in various states demonstrate how the legislatures have reacted to the use of the initiative process. Many argue that their response appears based on self-interest rather than an interest in protecting a system of government where the citizens are an independent branch of government. A review of the various legislatures’ responses, many argue, reveal that control of a distinct branch of government, the people, by legislative action is not about fraud but about raw political power.

Similar restrictions are not imposed on lobbyists or other campaign workers. It has been noted that legislators enacted restrictions for the apparent purpose of “maintaining the integrity of the initiative process.” Despite this asserted interest, however, the legislatures in the initiative states have failed to impose the same or similar restrictions on lobbyists hired to influence legislation and/or executive policy or individuals hired to work on a candidate’s campaign for political office, including the circulation of a candidate’s nominating petitions.

This disparate treatment can be seen in Mississippi’s Lobbying Reform Act of 1994. While the Act defines “lobbying” as including “(i) Influencing or attempting to influence legislative or executive action through oral or written communication;” the legislature has imposed no restrictions on who may come into the state seeking to influence the course of legislative and executive policymaking. Yet, it requires those utilizing the initiative to be residents of the state.

Similarly, despite having residency requirements for circulators of initiative and referendum petitions, Wyoming fails to impose similar restrictions on lobbyists. Furthermore, while Wyoming requires petitions for candidates who are nominated by petition as independent candidates to include a circulator’s verification, no statements indicate that the nomination petitions must be circulated by “qualified registered voters.” Nor does Wyoming prohibit paying these circulators based on the number of signatures they collect.

In Colorado, while circulators of petitions for candidacy and recall must be eligible electors in the political subdivision where they are circulating petitions and they must affiliated with the political party of the candidate for at least two (2) months prior to filing the petition, no provisions exist regarding paying such circulators and having such payment information printed on nomination petitions as there exist for initiative petition circulators. Nor does it make provisions for such circulators to wear identification badges or to file monthly disclosure requirements for paid nominating petition circulators. Similarly, Colorado imposes no residency or voter registration requirements for lobbyists nor does it require lobbyists to wear identification badges.

Oddly, at the time the Colorado Legislature deemed it necessary to enact restrictions on those seeking to use the initiative process, it did not also impose the same limitations on lobbyists who are, like sponsors of initiatives, seeking to influence Colorado’s elected officials.

Maine does not impose the same restrictions regarding residency and voter registration on lobbyists as it does on initiative and referendum petition circulators. Nor does it impose the initiative restrictions on circulators of nominating petitions.

In Idaho, lobbyists are not required to wear display tags at the time of lobbying. More importantly, while the legislature requires persons seeking to evoke change through the initiative and referendum to be residents of the state, persons seeking to accomplish the same thing via lobbying are not required to be residents or registered voters of Idaho.

Excerpted from the Initiative & Referendum Almanac by M. Dane Waters.