DEBATING INITIATIVES

	May 17, 2000
	The ballot measure story. Are initiatives the purest form of democracy, or is the process falling prey to moneyed special interests? We begin our coverage with this report from Lee Hochberg of Oregon Public Broadcasting.

LEE HOCHBERG: Oregon is one of the nation's most active states when it comes to initiatives. It's averaged 15 per year in the 1990's, and even had six in yesterday's primary election. One involved a road tax. The heavy trucks that roar down I-5 in Oregon do more damage to the road than cars do. For 50 years, the state has taxed the trucking industry for its share of the repairs. But industry lobbyists convinced the state legislature this winter to change the system, so Oregon motorists pay more for repairs in the form of a higher gas tax, and truck lines pay less. ANNE O'RYAN, American Automobile Association: I was appalled by the blatant disregard and arrogance of the legislature to kowtow to the big out-of-state special interests. TOM BEARDEN: Anne O'Ryan of Oregon's AAA says the new law was outrageous. The motorist group used the state's initiative system to let Oregon citizens decide on it. In the form of measure 82, it went to public ballot. The trucking industry began a $4 million advertising blitz to win the election. SPOKESMAN: ...Costing the average driver less than $3.75 a month, and guarantees we get the highways we need. TOM BEARDEN: Polls showed the measure so unpopular, though, that with only a third of the money spent, the industry suspended its campaign. The new citizen gas tax was overwhelmingly rejected. SPOKESPERSON: Stop super-majority voting. TOM BEARDEN: The initiative system was born of the populist reform movement a century ago, to lessen the influence of money in politics. It enables citizens to bypass state legislatures and enact laws themselves. Laws go to a direct public vote if they generate enough signatures. 24 states use the process today. About 400 initiatives nationwide are now in the process of getting on the ballot, and about 6% will succeed. In Oregon, which requires a relatively low number of signatures, the success rate is usually higher. Some of the state's most innovative laws, like suffrage for women in 1911 and legalization of doctor-aided death for terminally ill patients, were enacted through initiative. But Oregon political activist Dick Springer says many grassroots initiatives in Oregon were derailed by well-funded special interests in the 1990's. DICK SPRINGER, Activist: Whether it was to limit a harvest and clear-cutting of our forests, limit pollution of our streams, expand Oregon's bottle bill, truly grassroots efforts that had significant public support in the polling, those measures flipped around after millions of dollars of paid advertising. TOM BEARDEN: More and more, initiatives are sponsored by big money, and fought by big money. Oregon doctors backed measure 81 on this week's ballot, to put a financial cap on jury awards. Proponents raised $700,000 in the campaign. Oregon psychiatrist Ron Hofeldt says doctors can be unfairly driven from their profession by huge malpractice awards. RON HOFELDT, Psychiatrist: What's we're simply trying to do is to protect the practice of medicine, so the initiative system is an option, and we're using it. LEE HOCHBERG: The doctors got financial support from insurers and national companies like General Motors, who want jury awards capped. But they came up against $1.5 million from opponents, largely out-of-state trial lawyers who don't want awards capped. The opponents' campaign focused on people like Linda McCathern of Portland, who was awarded $7.5 million by a jury after her Toyota Forerunner flipped over, leaving her a quadriplegic. McCathern says she hasn't seen a penny yet-- her money's been tied up in court appeals-- and she resents all the cash big corporations spent to promote the ballot measure. LINDA McCATHERN, Accident Victim: I see the big money at work is the insurance companies, automobile industry; anyone that is motivated by profit over justice. And that's what's truly behind this. LEE HOCHBERG: Oregon voters yesterday rejected the proposed cap. The measure's sponsors say money from outside Oregon doomed their campaign. RON HOFELDT: This is an Oregon issue, and we wish that the outside money would stay outside. I think it's mind-boggling to all of us, the number of dollars that's coming into this. And it's, I think, a statement of what politics today is all about. LEE HOCHBERG: Activist Springer says it's not what the initiative system was supposed to be about. He's brought on telephone canvassers to push an initiative of his own for the November election that will limit contributions to Oregon ballot measures to $1,000 apiece. RAY SUAREZ: Margaret Warner takes it from there. MARGARET WARNER: Now, two perspectives on the initiative process which is used in nearly half the states and in hundreds of localities around the country. "Washington Post" political reporter David Broder is the author of "Democracy Derailed: Initiatives Campaigns and the Power of Money." Dane Waters is president of the Initiative and Referendum Institute in Washington, an organization that studies and promotes the initiative process. Welcome, gentlemen. Well, David Broder, your book title pretty much sums up your attitude-- "democracy derailed." What is so bad about the initiative process? DAVID BRODER: I said "derailed" deliberately because I think this was an idea that came to our country about 100 years ago, which was noble in its intent, worked quite well for a while, it was designed to empower average citizens to write the laws at a time when many people saw the corruption in the legislatures. They still see that kind of corruption in legislative bodies today, but increasingly, the initiative process is being used by powerful interest groups and by millionaires who have their own personal political agendas. MARGARET WARNER: Would you agree with that, that the initiative process has moved quite a ways away from its original concept? DANE WATERS: No, I would not. I mean, the initiative process was designed to allow people the opportunity to get around the legislature when it was unwilling or unable to deal with certain issues. Today you have rich special interests or millionaires who have tried to get issues through the legislative process and they have been unsuccessful, so they've turned to the initiative process. So it is being used exactly as the progressives and populists envisioned it to be used 100 years ago. MARGARET WARNER: It does let citizens, though, too, doesn't it David, if the legislature's unresponsive, it gives them another avenue. DAVID BRODER: When I was reporting on this, I found that there were some genuine citizen initiatives. For example, people who were interested in animal rights often can... in protecting game from what they regard as cruel hunting or trapping practices, they can generate a lot of volunteer support, and they can really manage to get these initiatives on the ballot by their own efforts. But for every case of that kind, I found many more where it was the money that was driving the process. It was the groups or the individuals who had money to put into it who could pay the people who collect the signatures, who could higher hire the lawyers to write these initiatives, and most of all, to hire the political consultants that run these very expensive campaigns now to pass or defeat these initiatives. MARGARET WARNER: How much of a role does money play in the success of these initiatives, in getting on the ballot or in winning? DANE WATERS: Well, you have to take the money issue and break it down into three separate discussions. First, is money necessary to utilize the initiative process? Yes. Primarily because of the restrictions and regulations that have been placed on the process. Now, if you talk about what role money plays... MARGARET WARNER: And you're talking about... Excuse me, that you have to collect, for instance, a certain amount of signatures, and they all have to be to be registered voters. DANE WATERS: Right. In California you have to collect a million signatures in 120 days. That requires a lot of money. So it takes money to utilize the initiative process. Now, as far as what effect money has in the success of initiatives, only 40% of all ballot measures pass, and that is because people are predisposed to vote no on new laws. When more money is spent in an initiative campaign, that just raises voter doubt, and voters are smart and they're confident and they vote no. You can't take money and just buy a yes vote. Academic after academic says that's not the case. And, you know, David in his book says it doesn't jibe with his viewpoint. But the research shows that that is not correct. MARGARET WARNER: You raised, David, in your book another criticism apart from the money, and you said... You called the initiative process "an alternative form of government that's alien to the constitution." How do you think it's alien to the constitution? DAVID BRODER: The men in Independence Hall created what they called a republic in which we would governor ourselves through elected representatives who would be accountable to us at election time. And they put into place all of those checks and balances, which we learned about in our high school civics classes. Those checks and balances were designed to be sure that there was genuine consensus in the society before law was written. Those checks and balances are largely missing from the initiative process, where an individual or a group gets the law written exactly the way they want it by the lawyers that they have hired. It goes on the ballot exactly the way they want it, and then the campaign is designed to sell it exactly as they want it sold. There is never a point in that process where there is a serious discussion, negotiation between the supporters and the opponents to try to work out consensus, which is the essence of the legislative process. DANE WATERS: The checks and balances on the initiative process are the same that exist on the normal legislative lawmaking process. If an initiative is proposed that infringes upon anybody's minority rights, the courts are there to strike it down. Our founding fathers created a system... created a Constitution, which was a wonderful document, but they allowed slavery and they didn't give women the right to vote. And they saw that this was a document that needed to be changed and altered. After 100 years, the progressives and populists said, "hey, this is a wonderful document. We have a great system of checks and balances, but we need an additional check and balance on representative government." That's why they proposed the initiative process. MARGARET WARNER: But you would agree, wouldn't you, that for instance, in the legislative process, you have hearings. You have that kind of public debate on an issue that you don't have here, you just have basically competing advertising. DANE WATERS: Well, no. You do have public debate. I mean, the genesis of getting an initiative on the ballot, it's a very difficult process. For example, in Montana you write your language, you submit it to the state, the state reviews it, the state gives you comments about whether or not it's constitutional or not, they say you should consider this. So you have that entire process. Then once that occurs, then you have to go out and convince, you know, in California, a million people to sign it, which means you have to approach actually four million people because only 20% of the people you approach actually sign a petition. And then you have several months to convince 50% plus one of the voters that, "hey, this is a good idea." And there's a lot of public debate. MARGARET WARNER: That's not enough for you in the checks and balances department? DAVID BRODER: The people that I interviewed who run these campaigns I thought were remarkably candid because they said, "look, it is not our job to explain the initiative. That's not what we're hired to do." And what in fact they do, and Dane has seen this many times, is they find a slogan that will attract people or assemble... some of these initiatives-- one that I wrote about in Nebraska in 1998-- 12,000 words of constitutional language. Nobody in his right mind is going to read that much thing, so they find a handy slogan that will attract people to it, or if they've been hired by the other side, to repel people from it. MARGARET WARNER: Yet, and you also wrote that in your reporting, you found that the citizenry really likes these. DAVID BRODER: They love them. And that's one reason that I think in the very near future, we're likely to confront a proposal from a presidential candidate that we bring the initiative process to the national level. And that's one reason I wrote this book, because I think we ought to look carefully at what is now happening in the states before we make this fateful decision to bring the initiative process to the national level. MARGARET WARNER: Do you think we're moving in that direction? Does your group support that? DANE WATERS: We look at the national initiative process. However, that requires Congress to actually let the people have it. You know, people support term limits and presidential candidates have espoused term limits, but Congress is not about to impose term limits on themselves. I just don't see it in the cards that they're going to allow the people the national initiative process. MARGARET WARNER: Do you think it's a good idea, though? DANE WATERS: I think it's a good idea. I think there needs to be a national check and balance. Now how exactly it's structured is open to debate, but I think it's something that should be looked at. MARGARET WARNER: Do you think there's a way to reform this reform? DAVID BRODER: The courts have been very protective of the initiative process. They have said up to this point, "you may not limit the amount of money that is contributed to an initiative campaign or the amount of money that is spent on an initiative campaign." There have been proposals from time to time at the state level to regulate the campaigns, but the state legislators that I talked to, knowing the popularity of this process, tend to be, I think, fairly cautious about trying to meddle with it because their constituents don't like it. MARGARET WARNER: All right. Well, thanks David Broder and Dane Waters. Thanks very much. DANE WATERS: Thanks for having us.