July 5, 2009
Historically, the initiative process sought to remove the barriers that were prohibiting citizens from participating in government. In part, these barriers were inextricably bound to corruption. Those in political power wanted to preserve their positions; therefore, they did everything within their means to insulate themselves from others. Progressive reformers, thus, targeted “politicians, parties, interest groups, and political institutions” in an attempt to restore the public’s confidence in government as well as remove barriers to political participation (Schacter, 1995, 113). The overarching aim of the initiative process is to strengthen democracy, especially in the form of confidence and participation. Many legal scholars frame the importance of the initiative process in this manner: “The mechanism gives popular mass movements the ability to develop legislative vehicles and secure a date for verdict from fellow citizens. In a manner unmatched in any nation…the initiative is an expression of confidence in ourselves, a reaffirmation of the confidence of the Framers: that free men and women can govern themselves” (Schacter, 1995, 112). The reformists were seeking a way to remove the undue influence of political elites and special interests so that American democracy would once again belong to the people.
Reinserting the decision-making power of the citizenry in a new way became the remedy: “turning legislative decisions over to the people seemed one clear way to do this” (Mattson, 1999, 22). The intended effect was that “[b]ecause the initiative process allowed citizens to register their opinions by direct votes, it promised to be a valuable alternative to representative government, which had become tainted by the influences of privileged interests and partisan politics” (Du Vivier, 2007, 1046). Ultimately, the initiative process was deemed the proper vehicle to restore representative democracy because it left the fate of democracy in the hands of its citizens. Overall, the Progressive era was
[a] major period of systemic reform of local, state, and federal government institutions, culminating in the creation of a national administrative state. Progressive reforms served to create hierarchical bureaucratic organizations to prevent political corruption and restore public trust in government. By changing political institutions, Progressive reforms reshaped American democracy both substantively and procedurally and were critical in adapting government institutions for a new industrial economy. (Tolbert, 2003, 470)
The Progressive reforms swept across multiple levels of society and government. The reforms sought to minimize, if not remove, the high levels of public distrust, frustration with the political process, and, in many ways, outright alienation created by political bargains. Overall, these reforms reoriented the political power structure so that citizens again were the focus of the government and, simultaneously, fostered a newfound trust in government itself.
July 5, 2009
Growth and development, in general, contribute to the diversification of society itself; this creates a dilemma for both political culture and legal theory alike. Specifically, each must meet the demands of an increasingly varied populace, yet the manner in which they do so becomes constrained by the multiple demands placed upon them. A gap results from the inability of law, legal theory, political institutions, and individual actors to meet the public’s needs. The result is that law and society lag behind society, unable to meet its multifaceted demands. Law and theory, thus, have to be overhauled or augmented in order to comport with society and its needs. In some cases, mechanisms outside of simple representative governance are invented to encourage growth and stability in society. The creation and adoption of the initiative process (also referred to as direct democracy) during the Progressive Era of American democracy exemplifies the need for the creation of a tool, outside typical governance, to benefit society and meet citizen desires.
The Progressive Era of American democracy was plagued by corruption. In the Progressive Era (roughly mid-1890s to 1917), political machines developed in response to the vacuum created by unmet, varied public desires. In large part, these machines aimed to meet their own desires while, minimally, fulfilling those of society in general. In many ways, the political machines perpetuated the cycle of citizen needs not being met by government. Not surprisingly, corruption or the perception thereof, especially in the form of quid pro quos (bargains), became rife across multiple levels of society—in particular, government. Progressive reformers, as a result, attempted to curb this corruption through a series of changes in law and political and legal theory to better society’s current and future state. As a result, a method was sought to redefine the boundaries and theories of law itself to be consistent with the desires of the public.
Progressive Era reforms emerge as an attempt not only to quell political corruption, but also to simultaneously restore the public’s confidence in government; it should be noted that public confidence is vital to the U.S.’s form of governance, republican democracy. Collectively, the Progressive Era reforms that are pertinent to the issues at hand—corruption and ineffective governance— are referred to as the initiative process. The advent of the initiative process establishes the foundation of the manner in which reformists hoped to reconcile public confidence and political corruption, all the while, reinvigorating government. The initiative process, loosely understood, is a series of tools for the citizenry to effectuate and realize their desires. Specifically, these tools are the initiative, referenda, and recall. The initiative and referenda, although different in the manner in which they arrive on a public ballot, are single-issues that are subject to a vote by the public. The recall is subjecting either an already completed election or a vote taken in the legislature or elsewhere back to electorate—the equivalent of a voting mulligan. It also remedies past actions taken by the legislature with which the public disagrees. In short, the initiative process allows citizens to create law to meet their desires and remove unwanted or undesirable laws, actions, or elected officials. As a result of the initiative process, citizens themselves have the ability to begin this process with little intrusion by the government. An underlying goal of the reform movement is that the citizenry’s psyche is meant to be affected such that they are empowered which, hopefully, increases their participation of government. The ballot initiative process signals a significant change: citizens now can seek changes in the status quo, irrespective of non-responsive or ineffective representation, to realize their needs.