Whither the Fifth Branch
by Michael Cain
Early on, US schools teach about the three branches of government – legislative, executive, and judicial. The large independent regulatory agencies, empowered by legislatures to do the fine details of legislating but located within the executive, are often referred to as the fourth branch. In the early 1900s, at the height of the Progressive movement, most of the states in the western half of the US adopted a fifth branch: citizen initiative processes to put statutes, constitutional amendments, or both on the ballot. While some eastern states also adopted such provisions, it is not surprising that the movement was widespread in the West. Citizens in western states believed broadly that they were being exploited by outside interests – large Eastern corporate interests in particular – and that those interests had purchased control of the state legislatures.
On balance, I’m a fan of the citizen initiative. Some of it might be simply that I’ve lived most of my adult life in places where the initiative is part of the system – it’s what I’m used to. More constructively, state and local government is a machine, elected officials have to fit into that machine, and there are some things that replacing the individual cogs can’t accomplish. Generally, incumbency is an enormous advantage so after public opinion reaches tipping points it may take a long time for the change to be reflected in the legislature’s make-up (eg, legal recreational marijuana has passed in four western states and will likely be on three more western ballots in 2016). The need of legislative candidates to raise large sums of money in order to get elected means that some representatives arein the pocket of the big donors to some extent. It’s not as blatant as it was circa 1900, but it’s still there (and probably always will be).
Article I, Section 4 the Elections Clause of the US Constitution assigns responsibility for defining districts for the US House of Representatives to the “legislature” of each state. It would be unusual indeed if a state legislature willingly gave up control of that process . In 2000, by ballot initiative, the people of Arizona approved a change in the state constitution that took Congressional redistricting completely out of the hands of the legislature, giving the responsibility to a committee instead. In 2012, after the commission approved a new map, the legislature sued the commission in federal court, arguing that the ballot initiative violated the Elections Clause. Congressional redistricting cases are decided by a special federal court; the three-judge court split 2-1 and rejected the challenge, upholding the validity of the citizen initiative. The main precedents cited were Ohio ex rel. Davis v. Hildebrant and Smiley v. Holm, where the Supreme Court interpreted the Article I Section 4 “legislature” to mean the legislative process as determined by the individual states. The Supreme Court heard oral arguments on the Arizona case in March this year. The expert consensus seems to be that the justices were inclined to find that “legislature” should be interpreted more narrowly to mean only the elected legislative body (eg, this piece at SCOTUSblog).
The Arizona case is not the only initiative-related case potentially before the Supreme Court this term (or possibly next). In 1992, Colorado passed the Taxpayer Bill of Rights (TABOR). Among other things, TABOR takes away the state legislature’s power to raise existing tax rates or introduce new taxes on their own. The legislature can only refer such measures to the voters. In 2011 some members of the Colorado state legislature sued in federal court, arguing that taking away the legislature’s power to control taxation violated the constitutional requirement that states have a republican government. Defendants argued that this was a political question, so the plaintiffs lacked standing and filed a preliminary motion asking that the case be dismissed. The district court found that the situation was sufficiently different from historical precedents to proceed with a trial . That opinion was upheld by the appeals court, and has been appealed to the Supreme Court. To date, some five months after materials were distributed to the justices, no decision has been made as to whether to grant certiorari.
If I wear my natural western-populist hat then I want the Court to rule in favor of the people in both cases. Admittedly, when I was a budget analyst for the Colorado legislature, TABOR made my job a lot more difficult. However, when the state faced a real budget crisis in the early naughts, the legislature referred a ballot issue granting limited relaxation of the TABOR limits to the people, and the people approved it. I’d like to see TABOR tweaked, but I’m in favor of allowing the people of Colorado to determine how the state government will operate, not just the once when the constitution was established but on an ongoing basis. And allowing the people of Arizona to take the task of redistricting away from their elected representatives when the people believe that to be appropriate. I expect that me to be disappointed.
A better question, I think, is just how much the Supreme Court will prune back the initiative’s power. The folks who wrote the US Constitution seem to have had little use for the voters after they had selected their representation. For example, Congress may choose to expel members but there’s no sort of recall mechanism. On the other hand, the citizen initiative process has been broadly in existence for a hundred years now. It seems unlikely that the whole thing would be tossed, if for no other reason than the enormous set of statutes and amendments added in the past that would have to be discarded now. Instead I expect the Court to try to draw a line defining just how much legislative power is off limits to initiatives, which will get messy indeed.
 In 1983, the Washington State legislature referred an amendment to the people that created a largely-independent redistricting committee. The proposal didn’t remove the legislature from the process entirely, as they can still overrule the committee if they can get a two-thirds majority vote in each chamber.
 The distinction drawn by the courts in the Colorado case is that it is not just more difficult for the legislature to raise taxes – as in, for example, California’s two-thirds supermajority requirement – but actually impossible for the Colorado legislature to raise taxes. The court says that’s a new situation that should be argued at trial.
Image credit: Washington State Legislature oral history site.