From Volume 80, Number 2 (January 2007)
The widespread use of the initiative process and the perception that it has lead to considerable negative consequences have prompted calls for reform. In this Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the process through which initiatives are passed may make welfare-reducing decisions inevitable. Reform proposals often aim to correct this complaint by increasing the hurdles to ballot qualification. This sort of reform is counterproductive in several ways. By increasing the “price” of ballot access, such responses are likely to exacerbate the current disproportionate influence of money. Moreover, there is no reason to believe that a more difficult qualification process will impede more socially suboptimal policies than policies that are welfare-enhancing and yet stymied in the legislature by powerful interest groups. We argue that a better focus of initiative reform would provide other checks and balances throughout the process, not primarily during the qualification period. Second, initiatives, once enacted, often fail to be implemented by government officials. Few reform proposals are aimed at this post-enactment problem; they do not take account of the likelihood that government officials who resisted passing the proposal are likely to continue to undermine it during the implementation phase. In contrast, our framework includes a new institution to monitor compliance with popularly generated initiatives and ensure greater enforcement. We describe these two concerns in greater detail in Part II.