Initiative, Recall, and Referendum

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INFLUENCE
SEE Power.
INFORMATION ACT
SEE Freedom of Information Act.
INITIATIVE, REFERENDUM,
AND RECALL
In the United States, three common forms of direct
democracy are the initiative, referendum, and recall, all
of which were adopted at the turn of the twentieth
century at the heyday of the Populist movement. Aspir-
ing to complement representative democracy via ‘‘gov-
ernment by the people,’’ these processes involve direct
participation by allowing citizens to place specific meas-
ures on the ballot or to call for a special election to
remove elected officials. The initiative is the most popu-
lar and widely used form of direct democracy. Citizens
petition to collect a requisite number of signatures to
qualify a statutory measure or constitutional amendment
for the ballot in an upcoming election. Similar to the
initiative, the referendum allows voters to uphold or
repeal a controversial law by petitioning the state legis-
lature to put it on the ballot. Finally, the recall results
from a petition-gathering process that allows voters to
retain or remove an elected official before the end of the
term.
Since their adoption, the mechanisms of direct
democracy have been praised for their contribution to
the American electoral system. They have enhanced voter
enthusiasm about voting on issues as well as candidates,
increased voter participation, and expanded the agenda
by raising policy issues that the legislature may have
avoided. Most importantly, they have restored account-
ability and increased the government’s responsiveness.
Whereas the positive effects of direct democracy have
been well documented, many critics question whether
the electorate as a whole or the ‘‘tyrannical’’ majority
and special interests are represented through initiatives;
Initiative, Referendum, and Recall
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they also question the extent to which citizen initiatives
can lead to more representative governance.
THE HISTORY OF DIRECT DEMOCRACY
Following the Swiss example of direct democracy, in
which citizens gather in the open to vote on issues, Pro-
gressive Era reformers became particularly interested in the
initiative, referendum, and recall as remedies to the peo-
ple’s distrust of representative government and even the
judiciary in an age of powerful political-party machines
and special economic interests. Reformers thought politi-
cal power was being abused, leading to corruption and
economic inequalities. These sentiments of discontent, in
combination with the heavy industrialization of the
United States, the commercialization of agriculture, and
the increase in farm foreclosures, incentivized various eco-
nomically disadvantaged groups to form coalitions and
campaign in support of direct democracy.
The history of direct democracy stresses the efforts of
key Progressive figures, such as William S. U’ren (1859–
1949), Theodore Roosevelt, and Woodrow Wilson, in
forming nonpartisan coalitions, organizing grassroots
movements at the local and state level, fundraising for
the cause of direct legislation, and promoting the benefits
of the initiative to the people and the nation as a whole.
In short, they campaigned from the bottom up for direct
legislation. After making a strategic decision to omit the
recall from their platform due to its radical nature, many
reformers at the end of the nineteenth century did their
best to represent the interests of farmers, unions, and
other minorities, while at the same time keeping a non-
partisan stance to achieve political legitimacy and a
national appeal.
The end result of their efforts was that the initiative
and popular referendum were adopted in twenty states
between 1898 and 1918. To reach their objectives, how-
ever, the proponents of direct democracy could not avoid
gathering the support of special interests and regional
political parties, such as the Democrats in Massachusetts
and the Republicans in Wisconsin and Illinois. Never-
theless, key to the reform movement’s success were the
organized efforts of single-issue groups, such as the Farm-
er’s Alliance, single taxers, labor, woman suffragists, and
the People’s (Populist) Party.
For these minority groups, the mechanisms of direct
democracy ‘‘were a means for temporarily bypassing their
legislatures and enacting laws on behalf of the down-
trodden farmer, debtor, or laborer’’ (Cronin 1989, 45).
At the same time, Progressive officials and candidates
were openly embracing direct democracy in their plat-
forms. For example, North Dakota farmer Lars A.
Ueland, a Republican state legislator in 1889, switched
to the Populist Party by 1892, arguing that initiatives and
referenda are the missing link ‘‘to make popular self-
government do its best’’ (Cronin 1989, 46). One of the
most notable proponents, although formerly a critic, of
direct democracy was Democrat Woodrow Wilson. Dur-
ing his 1912 presidential campaign, he said that direct
democracy could serve as a ‘‘gun behind the door’’ that
would strongly motivate legislators to be responsive to
their constituents (Smith and Tolbert 2004).
By the late 1890s the public’s interest in direct
democracy was very high; the extensive grassroots work
by Progressive groups and candidates, as well as wide-
spread disenchantment caused by corrupt politicians and
special interests, led to a wave of direct democracy adop-
tion across the American states. South Dakota (1898),
Utah (1900), and Oregon (1902) were the first states to
adopt and use ballot initiatives respectively. By 1918
twenty-three states had adopted the initiative, the refer-
endum, or both. During that period, initiatives were put
forth and reforms passed, such as woman suffrage, the
direct primary, eight-hour work days for women and
miners, the abolition of the poll tax, and the regulation
of public utility and railroad monopolies.
Despite the undisputed popularity of direct legisla-
tion among the public and the state legislatures, the recall
constituted a more controversial reform. Supporters of
the recall argued that it is ‘‘a guaranteed right of the
people to discharge their public servants when these
public servants cease to be satisfactory to them’’ (Persily
1997, 14). Despite the recall’s quick adoption and use in
Oregon (1908) and California (1911) at the local and
state levels, reformers recognized that it was perhaps too
radical a reform; especially with respect to the judicial
recall, critics stressed that it would undermine the con-
stitutional order of keeping the three branches of govern-
ment separate. Possible recall of members of the
judiciary, a branch that sometimes overturns the will of
the majority, was an especially controversial component
of recall legislation. In the effort to avoid its misuse,
reformers implemented stricter requirements, such as 20
to 25 percent signature thresholds, which were signifi-
cantly higher than the 5 to10 percent thresholds for the
initiative and popular referenda. Yet, due to the over-
whelming unpopularity of the judicial recall, most
reformers realized that the device of the recall had to be
underemphasized for direct legislation to spread success-
fully across the states.
IMPROVING REPRESENTATIVE DEMOCRACY
Support for direct democracy was rooted in the belief
that representative democracy does not efficiently reflect
the citizens’ interests. Some scholars argue that people
instead prefer ‘‘citizen-initiated and policy-oriented
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forms of activity’’ to make their voices heard and to
demand responsiveness that they are unable to receive
from representative democracy (Dalton 2008, 72). Direct
democracy, therefore, can serve as President Wilson’s
‘‘gun behind the door,’’ as long as citizens have the
incentive, namely the policy issue, to directly participate.
Research shows that the mere fear of the initiative and
referendum can make legislators more sensitive to their
constituents’ preferences. Regarding the recall, the resig-
nation of state officials in Wisconsin (2012) and Colo-
rado (2013) to avoid being successfully recalled indicates
a strong effect of this radical device on the political fate of
officeholders.
The benefits of direct democracy, generally speaking,
are recognized by the majority of the population; accord-
ing to public opinion data, voters ‘‘experienced’’ in
the initiative are more likely to ‘‘see themselves as com-
petent citizens when living in an institutional context that
makes active use of direct legislation’’ (Bowler and Dono-
van 2002, 384). Furthermore, exposure to initiatives
improves voters’ information on particular issues; moti-
vates them to turn out, especially in low-information
elections; and increases voters’ trust in government.
These ‘‘educative effects’’ of direct democracy, particu-
larly the extensive use of the initiative across the states,
are robust; scholars find that, on average, initiatives
increase turnout in both presidential and midterm elec-
tions, with more substantial mobilizing effects in the
latter (Tolbert and Smith 2005).
PITFALLS OF DIRECT DEMOCRACY
The expectations about the positive effects of direct
democracy were rooted in the assumption that the elec-
torate was sophisticated enough to assume a citizen-legis-
lator responsibility, and that ‘‘citizen involvement in
government decision making was good for both the
individual and the government’’ (Magleby 1984, 22).
Despite the public’s overall support for direct legislation
and the recall, the increased use of initiatives and refer-
enda since the 1960s has revived most, if not all, of the
criticism about the effectiveness and efficiency of direct
democracy as a complementary institution to representa-
tive democracy. Concerns about voter competence, the
A volunteer in Madison, Wisconsin, collects signatures on a petition to force a recall election for Governor Scott Walker,
November 15, 2011. Walker won the recall election on June 5, 2012. ªCHICAGO TRIBUNE/TRIBUNE NEWS SERVICE/GETTY
IMAGES
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effect of money in initiative campaigns, the extent to
which initiatives reflect the preferences of the citizens
while at the same time protect the disadvantaged minor-
ities are central to the debate, especially considering that
once an initiative or a referendum is approved, it will
affect the population and minorities in significant ways.
The normative praise and criticism of direct democ-
racy in general and direct legislation in particular sparked
an extensive theoretical and empirical debate around the
educative effects of direct democracy, the cognitive
capacity of voters to make legislative decisions, the effects
of campaign financing on initiatives, and direct democ-
racy’s impact on minority rights and legislative respon-
siveness. The empirical effort to clarify these relationships
has been cumulative, yet focused mostly on initiatives.
Researchers consistently address the question of who
is represented by direct democracy. Some ballot initia-
tives led academics to doubt whether direct democracy
protects minorities from the ‘‘tyranny of the majority.’’
For example, a 1996 California ballot initiative on the
question of affirmative action was interpreted by some as
a reaction of the white population to increasing minority
population in their communities, which has been referred
to as ‘‘white backlash’’; some scholars, however, have
called the white backlash theory into question (Voss
and Miller 2001; Tolbert and Grummel 2003). As part
of the 2004 presidential election cycle, ballot initiatives
placing bans on same-sex marriage passed in eleven states,
a development that many in the LGBT community
regard as an expression of majority tyranny. In Arizona,
New Hampshire, and Washington, among other states,
voters also passed measures eliminating affirmative action
policies on the grounds of equal treatment, even though
critics maintain that affirmative action policies aim to
enhance equality.
At the same time, the absence of regulations on
campaign contributions and expenditures on ballot initia-
tive campaigns not only allows for out-of-state interest-
group influence, but also enables certain groups, such as
nonprofits or unincorporated entities, to take advantage of
the states’ weak disclosure requirements. Not only are
these political actors able to remain ‘‘veiled,’’ but also their
financial activity is not disclosed to the general public
(Garrett and Smith 2005).
Researchers have documented the significant rise in
spending on initiatives in states such as Colorado, Mon-
tana, and Washington since the 1990s. As Daniel A.
Smith points out in Pitfalls of Direct Democracy, when
supporters or opponents of an issue have the monetary
advantage, the other side is ‘‘by definition excluded from
the game’’ (2002, 33).
Studies on campaign finance of ballot initiatives strongly
suggest that direct democracy campaign expenditures can be
better understood by separating the prequalification cam-
paign from the postqualification campaign. In effect, the
signature collection process has been industrialized, with the
extensive use of paid petition circulators. To ensure that the
requisite number of signatures will be collected in time,
interest groups utilize nonvolunteer petition gatherers
who are paid for their work. In the California 2003
gubernatorial recall case, scholars argue that Republican
Darrell Issa’s $2 million contribution to ‘‘help foot the
bill for paid circulators’’ led to the success of the recall-
petition drive against Democratic Governor Gray Davis
(Garrett 2004, 241).
These arguably sophisticated prequalification strat-
egies have important implications for why recall efforts or
direct legislation campaigns are initiated. For example,
one of the purposes of direct democracy was to allow for
grassroots representation. Even though it is not con-
firmed that heavy spending on direct democracy cam-
paigns will guarantee success, scholars stress that wealthy
interests can and do monopolize the direct democracy
industry. In addition, the fact that campaign finances are
not disclosed until a petition has qualified further high-
lights how little citizens really know about who initiates
and supports a direct democracy campaign even when
they are asked to sign a petition.
In terms of transparency, the lax campaign finance
laws associated with direct democracy may lead to mis-
guided voters, as well as corruption, particularly when
ballot initiatives, popular referenda, and recall campaigns
are monopolized by out-of-state donors. For example,
the heavy influx of out-of-state contributions during the
2011 Wisconsin gubernatorial recall and the 2013 recalls
of two state senators indicate that outside interests played
a major role determining the success of the recall efforts;
as a consequence, the original intentions behind the
attempts to recall these officials are questioned. In addi-
tion, concerns about special interests dominating direct
democracy campaigns were reinforced after evidence
revealed that out-of-state ‘‘dark money’’ (undisclosed
contributions) was funneled into the Wisconsin 2011
gubernatorial recall.
DOES DIRECT DEMOCRACY FULFILL ITS
PROMISE?
In his extensive documentation of the history and evolu-
tion of direct democracy in America, Goebel concludes
that direct democracy ‘‘has not lived up to the expect-
ations of its advocates one century ago,’’ and has not
contributed ‘‘in any meaningful way to a revival of
democracy in America, it has not empowered ordinary
citizens, it has not increased political awareness or par-
ticipation, it has produced few significant public policy
achievements, and it has not reduced the power of special
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interests’’ (2002, 198). Whereas scholars consistently
show that the positive effects of direct democracy are
substantial, it is difficult to ignore the fact that special
interests continue to play a significant role in direct
democracy. For this reason, state legislatures recommend
that states without the initiative or referendum should
not consider adopting them, because the costs outweigh
the benefits (National Conference of State Legislatures
Report 2002).
It would be premature, however, to dismiss these
plebiscitary (public voting) devices altogether as ineffec-
tive at reaching their goals. Primarily, direct democracy,
or the absence of it, has been extensively discussed in the
context of initiatives and popular referenda. Scholars
contend that if direct legislation does not disadvantage
minorities, or does not further incentivize legislators to
be responsive to their constituents, then representative
democracy must work, as it efficiently protects minority
interests and leads to responsive legislators. Such claims
must be critically reexamined, especially considering that
they are made in absence of the recall. Since 2010,
citizens have attempted to recall their governors, state
senators, and state representatives with relative success.
The inclusion of the recall in the political discussion,
therefore, should have distinct implications for direct
representation, as well as for the effectiveness of repre-
sentative and direct democracy in responding to the
citizenry’s calls, either in isolation from one another or
cumulatively.
SEE ALSO Democracy; Impeachment; Populism; Progressive
Movement, 1890 to 1920; Progressive Movements in
American History; Representation: Accountability.
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INNOVATION
SEE Entrepreneurship and Innovation.
INS V. CHADHA
In Immigration and Naturalization Service v. Chadha,
462 U.S. 919 (1983), the Supreme Court held that the
legislative veto—a mechanism for congressional oversight
of authority delegated to the executive—was a violation
of separation of powers. The legislative veto originated in
1932, with President Herbert Hoover’s request for broad
powers to reorganize the executive. Hoover aimed to
improve the management of the executive’s many admin-
istrative agencies, and a long series of distinct legislative
acts—the practice that had been in place for organizing
the executive—did not appear capable of effective reor-
ganization. In an amendment to the Legislative Branch
Appropriations Act of 1933, Congress gave the president
authority to reorganize the executive branch, subject to a
particular procedure that became known as the legislative
veto: the president would submit proposals for reorgan-
ization to Congress, and if neither house vetoed a pro-
posal in sixty days, proposals would become effective.
Legislative vetoes are thus characterized by congres-
sional delegation of authority to the executive, notification
of executive action to Congress, and the opportunity for
Congress to veto executive action (by both houses, one
house, or a House or Senate committee). Although some
presidents have disputed its constitutionality, the legislative
veto allowed Congress to grant the executive needed dis-
cretionary powers without abdicating its own legislative
authority. In his ruling in INS v. Chadha, Chief Justice
Warren Burger Referenced 295 ‘‘veto-type procedures’’ in
196 statutes, including significant legislation such as, some
argue, the War Powers Act (462 U.S. at 944).
One of these statutes, the Immigration and Nation-
ality Act of 1952, governed the deportation of aliens. The
attorney general regularly submitted a list of suspended
deportations to Congress, and either house had the
opportunity to veto any suspensions on that list. In
1975 the House of Representatives, reviewing a list of
340 cases, vetoed the suspension of Jagdish Rai Chadha
and five other aliens, meaning they would in fact face
deportation. Chadha, traveling under a British passport,
had been in the United States since arriving in 1966 from
Kenya on a student visa, and had remained after the visa
expired. In appeal, Chadha argued that the legislative
veto was unconstitutional, and both the INS and the
United States Court of Appeals for the Ninth Circuit
agreed.
THE RULING
Burger, writing for the majority, began by countering
arguments that the Supreme Court should not decide
the case. He stated that the INS, even though it agreed
with Chadha, was an ‘‘aggrieved party’’; that Congress
could defend the statute in the executive’s stead; that the
legislative veto could be severed from the rest of the act;
that Chadha could not receive relief in other form; and
that the legislative veto was not a judicially unresolvable,
political question.
Burger then addressed the veto’s constitutionality.
The question before the Court was not, he wrote,
whether the legislative veto ‘‘is efficient, convenient,
and useful,’’ but whether it is ‘‘subject to the demands
of the Constitution’’ (462 U.S. at 944, 945). To protect
against ‘‘arbitrary governmental acts,’’ and ensure a
‘‘deliberate and deliberative process,’’ the Framers sepa-
rated and delegated powers (462 U.S. at 959). Essential
to the separation of powers is a specific procedure for
legislation, delineated in the so-called presentment
clauses of Article I, which requires that Congress present
bills to the president (at which point bills become laws,
or are vetoed and returned to Congress for reconsidera-
tion). Presenting a bill to the president and overriding a
presidential veto require the actions of both houses. The
Constitution gives one house the power to act alone only
in specific cases, such as Senate ratification of treaties, but
not when making law. Review by the president, Burger
wrote, and approval by both houses, ensures the separa-
tion of powers and carefully considered laws.
The majority, in which Burger was joined by Justices
William Brennan, Thurgood Marshall, Harry Blackmun,
John Paul Stevens, and Sandra Day O’Connor, ruled that
the Immigration and Nationality Act’s one-house legis-
lative veto violated both the principles of the presentment
clauses and bicameralism. Burger also clarified that the
one-house legislative veto at issue in Chadha ‘‘was essen-
tially legislative in purpose and effect,’’ as its actions
‘‘alter[ed] the legal rights, duties, and relations of per-
sons’’ (462 U.S. at 952). Furthermore, Congress had
previously made exceptions to deportations through
the regular legislative process. That the legislative veto
replaced these private bills (private, in that they were directed
at a particular group of individuals) demonstrated the veto’s
Innovation
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