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 [1]. 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 [2]. 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.
[1] 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.
[2] 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.
Very interesting. So much of this is foreign to me, but it seems funny for a legislature to essentially sue the citizenry claiming they want their power back. Which isn’t to say that there aren’t problems with the specific initiatives. For instance, I would rather see folks who get screwed by the districting committee sue because that new process is flawed then the legislature sue because they want to be in charge.Report
As Burt and the rest of the legal contingent remind us regularly, standing can be a peculiar thing. For individual voters, showing “harm” can be tough — look at how hard the federal government has to work to prove that a particular districting plan violates the civil rights statutes.Report
I guess I just think the harm done to citizens who have their voting rights curtailed is worse than the harm done to legislatures who have their power diluted. I mean, do legislatures have rights to particular powers?Report
As for initiatives in general, as an east-coaster, they are not familiar to me but I could get on board with them provided certain structures were put in place to ensure we’re not leaving everything up to the potential tyranny of the majority. Voting rights should not be subject to popular opinion, for instance. And maybe their is a mechanism in place that prevents them from ever being put on the ballot or maybe folks have tried and could just never get to that point. I dunno. Just spitballin’ here, but it might be preferable if the constitutionality of the initiative is determined before the vote. Though, that would be holding citizens to a higher standard than our legislatures… which might actually be appropriate given the relative efficacy of each group.Report
State-level initiatives are subject to the same federal constraints that state legislatures are. Absent that, the initiative process would pose that risk. Of course, absent that, state legislatures pose the same risk. I suspect that historically, state legislatures have been a much worse threat to minorities than citizen initiatives have.Report
I am generally anti-initiative. I think they came from a place of good meaning and your history is right but it seems in California (and probably elsewhere) that the entire initiative process has been hijacked by corporate interests and/or some really rich cranks who use their own fortunes to get their hobby horses enacted into law.
Three Strikes is a product of the Citizen Initiative process. There is also the infamous (from my point of view) Prop 13. There have been failed (and potentially successful) attempts to use the initiative process in a way that is basically organized bigotry and prejudice. Other times, the voters pass impossible and/or contradictory goals. There are good initiatives and I am all for bond measures to be voted directly by the people but it seems to me that the harm of the initiative process far outweighs the good.Report
Let me push back. California’s Prop 13, Massachusett’s Proposition 2 1/2, and Colorado’s lesser-known Gallagher Amendment are all cases of responding to the failings of the state legislatures (the Gallagher Amendment was actually a referendum rather than a citizen initiative, but as Dennis Gallagher explained to me once, the threat of the initiative was a good part of convincing the legislature to refer the matter to the voters). The poster children for all three were elderly folks being quite literally taxed out of the houses where they had lived for decades.
As Mr. Gallagher explained to me — and everything I learned when I later worked for the legislature confirmed what he said — the legislature knew there was a problem. They knew that the solution to the problem was the same thing you mentioned the other day — for various reasons, schools ought not to be funded with property taxes. But changing the tax structure was a hard job, and the legislature punted, repeatedly. The threat of the citizen initiative forced the legislature’s hand. In California and Massachusetts, rather than threatening, the voters simply took charge.
Looking at California, Colorado and Massachusetts over the last 35 years, it’s awfully hard to argue that they haven’t done well despite significant property tax restrictions.Report
I think reducing Howard Jarvis to an “elderly folk” is quite an accomplishmentReport
I am going to join Saul in opposing citizen initiatives. On the balance, they seem to cause at least more mischief and harm than good. For every legalization of marijuana or taking districting outside of the legislature, you get at least three bad things like Prop 8, Prop 13, and three strikes. People should vote for officials and the officials should govern.Report
@leeesq
Come on lee,these are the same “people” that liberals talk about the nobility of and how they must be listened to. What happenwd to power to the people? Is it a good thing only when you get the result you like?Report
I spend the first thirty years of my life in California, reaching the age of political awareness during the Prop 13 era. I’m with you on this. We can add to the list of problems, that initiatives are often so badly written as to be incoherent. But with a catchy title and a good marketing campaign, who cares what, if anything, it actually says?
Legalizing marijuana is hard for a legislature because of all the baggage the idea carries, despite its polling well. So if the legislature wants to duck responsibility, make it a referendum.Report
Like Michael, I’m on balance in favor of initiatives, although as Saul and Lee point out, they can be a tool for much mischief. I used to be on balance opposed, when I lived in Colorado. Exhibit A was the anti-gay rights “Amendment 2,” passed the same year as TABOR. Exhibit B was/is the difficulty of incorporating the recently-passed-initiative-du-jour into existing laws and the huge, unreadable constitution.
But after moving to Illinois, and seeing how dysfunctional the government is here, I think a robust initiative system could improve some things or at least curb the near total power that aldermen seem to exercise in Chicago when it comes to licensing businesses and providing services. I’m not certain, but I believe Illinois might have an initiative, or at least a referendum, system, but it’s very difficult to implement and happens in only a small number of cases. It does have a required “con con” vote every 20 years, where citizens vote on whether to have a new constitutional convention. If the last vote (in 2010) is any indication, the vote elicits a brief wave of panic from most elected officials and from people with a rent to draw from the way things are (in particular, the Illinois Federation of Teachers), when such stakeholders send letters assuring voters that “there’s nothing wrong with the constitution” and in almost the same breath admit that “some things need to be changed in the constitution” but that such changes should happen through the normal amendment process, which almost never happens.
At the same time, Saul’s and Lee’s objections are good ones and on some level just the bad I have to take with the good if I want to support a robust initiative system. (It’s convenient, of course, that I’m not–I hope–likely to be part of the group targeted by bigoted initiatives.)Report
@gabriel-conroy
You say dysfunction but i think corruption would be more accurate.Report
Politicians have no interest in the doing “the people’s work”. Their job is to get reelected. To that end, they’ll subvert the process, change the rules/laws, etc. to ensure they maintain their control. Recently, a local initiative got all the way through the process to be put on the ballot, and low and behold, the wording was not acceptable the commission. Surprise, it’s too late to go back, and re word it, the commission having taken SOOOO long to review original words… Color me surprised.
The initiative process is a good interim step in the republican process. It provides a nice outlet that diverts the populace from storming city hall and shooting the bastards.Report
The way I call it is like this:
Popular democracy began stirring around the time of the populists (William Jennings Bryan, etc.), and was co-opted by the early progressives, but solidified in the American consciousness in the New Deal. And it’s not going away any time soon.
It seems like a lot of contemporary notions of responsibility in government hinge on this theory of popular democracy, which remains something of a misfit structurally.
From which view I see citizens’ initiatives as largely beneficial, without regard to outcomes.
Reviewing the matter (error correction), from my old trade, the concept of redundant safety devices is pervasive.
In this view, citizen initiatives are a good thing generally, provided they don’t go outside of calibration.
And taking another look at it (because I’m built like that), accountability is a conservative cause generally; as reporting corruption to a Democrat is the rough equivalent of reporting water to a catfish.
I shudder to think of what sort of filth it might take to corrupt something like a Democrat– well nigh impossible, I should say.
But in the small government model, it is necessary for all the parts to function properly. There is no room for error. Everyone has to pull their weight. Things will get bowed up down the line if some jokers start lollygagging.
Best to set them straight as soon as can be when that happens– less cut-out work.
And from this view, citizens’ initiatives appear to be something along the lines of a square kick in the seat where needed.
I’m all for it.
But generally what I see in the comments is the same Right/Left divide:
Conservatives are more process-oriented and mindful of principles, where Liberals are more outcome-oriented and more concerned with policy positions.Report
@will-h
I am going to push back against this because I think you are ruining a good observation by putting your partisan hat on:
A large part of the unsuccessful but still with surprising results push agaist Cuomo and Emmanuel is that they were seen by the liberal wing as being corrupt. Or at the very least they were seen as corporate sell-outs. There are lots of liberals and Democrats who care strongly about clean government and ending corruption but they just see accountability in different areas than conservatives. For liberals, accountability does not mean gutting the welfare state or decimating the teacher’s unions. Lots of liberals don’t see charter schools as putting more accountability into the education system, they see charter schools and other for profit educational facilities as a product of corruption where the operators cozy up to politicians and get lucrative contracts in no-bid situations.
The reasons that lots of liberal oppose Citizens United is that we do think it can (and will!) lead to quid-pro-quo corruption or something very close to quid pro quo corruption.
I find it very interesting (this is not an attack but just something that is psychologically fascinating) that conservatives see corruption in Teacher’s Unions and Safety Net measures and liberals see corruption in corporate donations to campaigns followed by legislation that is favorable to the corporations and/or giving the corporations lucrative contracts.
I also see corruption potentials in the revolving door where people spend a few years in politics/government (elected or not) and then go into lucrative positions in private industry, lobbying, come back to government, go back into private industry, rinse, lather, repeat.Report
I think “corruption” by itself isn’t the main problem, at least if what we’re talking about is the quid pro quo or revolving door sort of corruption. I mean, it’s a problem, but in principle it’s easy to forbid or to uncover when it happens.
The more intractable problem is the more messy question of “access” and what some call “rents” and what the rest of us call “special privileges.” The corporation that makes a large donation to a mayor’s campaign might not necessarily get that big contract. But when a new zoning law is passed by the city council that will help/hurt said corporation, and it’s up to the mayor to approve or disapprove the measure, the corporation might be more likely to get a hearing in the matter. It won’t necessarily be a “we gave you x, so you give us y.” Rather, it will be more a “we’d like to meet with you for lunch” when it’s understood but unstated that “we gave you x” and “we’re going to talk about y.” And at the end, if the mayor does y, it’s probably justified on a lot of other grounds and not obviously a giveaway, but the corporation had its say in the matter while others affected did not.
The same thing, mutatis mutandis for unions, private or public. With public unions, there’s an added difficulty, and it’s just as clumsy to talk about “corruption” in their case as it is in the case of corporate campaign donations. I’m uncertain where I stand on public employee unions, but my main reservations aren’t that they’re “corrupt,” it’s that they’re an organized interest very much involved with state policy and with a high stake in that policy, so that revisions of that policy are hard, even if called for by exigent circumstances, like budget deficits. Add to that the less-than-adversarial nature of public employment, in which the supervisors and politicians have more of a reason to broker peace than, say, a private business owner would.
None of that means I necessarily opposed public employee unions. None of what I describe above is corruption. And none of what I describe above is “public employees are exceptionally greedy or bad people.” It’s all more messy and complicated than our moralistic way of talking about “corruption.”Report
An excellent commentary, and I wouldn’t want to interrupt.
Yes, I was being a bit partisan, but I do so love the catfish saying; a short saying that could well be wrought as an object d’art in Japanese porcelain.
At any rate, the Democrat corporate sellout is a phenomenon I tend to associate with the DLC. I don’t think it’s going away any time soon.
I was having a conversation earlier about the disappearance of party overlap; and I made the point that, in the Geo. W. Bush administration, the party overlap covered a significant portion of the Democratic party (the case could be made for the Reagan administration as well).
But generally I believe that corporations have too much influence in comparison to ordinary citizens, and it’s generally a matter of resources available. Definitionally, a corporation would not have the best interests of the nation or state in mind– at least, not foremost, as that would be unlawful for its officers and agents.
I’m not strictly anti-union (I was a trades journeyman for nine years). I do default to right-to-work, because I think it’s a good thing for the unions generally, for a number of reasons. But there are a number of areas where right-to-work is a bad idea, just because of the prevailing landscape.
I am ordinarily opposed to public employee unions, for the reasons Mr. Conroy enumerates above; but I would add that the police unions have done far worse to the nation in co-opting other the work of other departments and agencies. Teachers unions I generally despise.
I’m one who has been advocating that the trades leave the AFL-CIO for many years now, and form their own collective.
As far as gutting the social safety network goes, I see no reason for it. Filling in the gaps makes more sense to me. I’m really not sure why it is such a popular target, other than it’s an easy one to aim at when budget concerns loom mighty, and the welfare recipients tend not to be such a vocal group advocating their position.
Similar to the Pell grants, which produce more income than that paid out, it seems natural that assisting persons to move from dead weight to productivity is generally beneficial. Sadly, there is also the issue of reduction in services at the state level, as so many homeless are in need of mental health services, or have addiction issues, and the like– unanswered needs.
Mr. Conroy has the issue of access summed up fairly well. I know this because I have access as well, as I have taken an interest in lobbying. I have attended dinners, prayer breakfasts, functions at the state house, etc.– all with a mind of rubbing elbows with the right people– developing working relationships.
I met a former state representative who now lobbies (a Democrat), who is something of a walking encyclopedia on credit unions. I’ve met other lobbyists as well, some of whom I consider fairly decent, and some rather ghastly. They are a mixed lot, tremendously diverse. I’ve met state supreme court justices and state legislators, talked with 501(c)(3) presidents, and the like– all with a mind of getting a better idea of where they’re coming from for when the time comes for me to target a pitch.
I’m getting to where I golf with the right people. I’m deadly accurate on the green, but the twenty-one strokes getting there tends to kill my game.
But access is just that– access, and nothing more. Anyone can do it, if they care to take the time.
Producing a desired result as a product of that access is something more– much, much more.
I sort of forgot where I was going with this, so I’ll duck out.
But by all means, please continue.
ps:
I’ll pass this along, just because it happens to be what I’m doing right now.
Far better than any similar to be had.Report
@will-h @gabriel-conroy
I am wondering if you would consider this a form of corruption but with private companies instead of government organizations:
http://www.dnainfo.com/new-york/20150508/greenwich-village/nyu-students-want-info-on-trustees-role-controversial-abu-dhabi-campusReport
Whether the Abu Dhabi government is acting corruptly, I guess it depends in part on their laws, etc. But if what’s alleged is true, it seems like a quid pro quo. If it’s something else–say, if Abu Dhabi has a standard exemption process that all organizations of a certain size, etc., can apply for–then the situation falls into the murky area of wealth influencing access and ensconcing rents without an obvious quid pro quo.
I want to be clear. I’m not saying corporate money in our political system is free of problems. I’m saying that “corruption” in its basest form is less a problem than the way corporate money can ensure other things for corporations. (Whether campaign finance laws help or hurt is another question.)Report
I would go a step further, and say that the exemptions need not be available to anyone else at all, but something more along the lines of a project management agreement (having worked under them myself).
It looks like the issues in question were uncovered by an independent investigation sponsored by the AD gov’t. That counts in their favor.
I think it would be premature to say that there is corruption there, but rather a re-adjustment which needs to be made.
We’ll see shortly.Report
You might be right, especially because I’m pretty ignorant of project management agreements, etc.
I do want it to be clear that I think pro-corporate corruption can be a problem. But to me, the deeper problem is the more messy thing of access and not-obviously-“corrupt” rent seeking. Those are worse and more endemic, and corporations are as enmeshed in them as other entities.Report
I see quite a bit of pro-corporate corruption myself.
Tax abatements are the ones that really stick out in my mind at the moment.
Then there’s the environmental stuff. When I was a kid, we ate fish that we caught from the river. Ugly stuff in there nowadays.
As long as the doors are open to everyone, I’m not too concerned about the access.
I’m more concerned about the accountability aspect.Report
@saul-degraw
“conservatives see corruption in Teacher’s Unions and Safety Net measures and liberals see corruption in corporate donations to campaigns followed by legislation that is favorable to the corporations and/or giving the corporations lucrative contracts.”
And I, and similar folk, consider both examples to be corruption. But what the hell do I know. I’m just an, allegedly, rich old white guy who already “IGM” and thinks everyone else can “FY”.Report
Again, I’m late to a pretty good party.
The OP is spot on in that standing is really the interesting question here. Does a member of a Legislature, or the Legislature itself, have power to assert an “injury” if a process is taken away from it?
Is that really true when the function of the Legislature is to represent the interests of the people?
Of course, the Guaranty Clause says what it says — states shall have a “republican” form of government. “Republican” (small ‘r’) means to me a form of representative democracy, a process by which the people act as voter sand select a small, workable number of themselves to gather and deliberate the issues of the day, create laws, and direct the enforcement of those laws. Direct democracy is not part of that picture, and indeed some of the Framers were quite wary of what they considered the “excesses” of Athenian-style democracy and had greater admiration for the more indirect system of the pre-Caesarian Romans.
And the redistricting clause says what it says, which is that legislatures are the state entities that should redistrict. Given that at least some of the Framers were decidedly not democratic and feared the excesses of “too much democracy,” it seems likely to me that an originalist position would be that direct democracy can’t do something like this.
Which is a pity because it took exactly one redistricting cycle in American history before state legislatures proved themselves eminently capable of redistricting for partisan advantage, itself something of a thwart of the popular will.Report
Well, standing becomes “the” interesting question if the Court holds that members of the state legislatures lack standing to sue if stripped of powers by the initiative process. All of the lower courts in both cases have held that the members do have standing. If not the members, who would have standing to challenge how “legislative” authority is allocated at the state level? Anyone?Report