Commercialisation is the major concern. Citizens’ initiatives in California are fought using only paid professional signature collectors, with a per-signature cost of around $5. The main aim of the collectors is to get a quick signature - what gets lost in the process is the interaction between collector and potential signatory around the content and value of the initiative.
From a German point of view the signature quorums for citizens’ initiatives are really low - for legislative initiatives only 5% of the registered electorate at the last election for state governor; for constitutional initiatives 8%. The quorums date from a time when California’s population was two million - today it’s 38 million. The quorums ought to be lowered and the 5-month collection period extended. Big money also plays a role in the initiative campaign. Up to $30 million can be invested in an initiative, with most of it coming from companies. A lot of money goes on TV commercials, which tend to play on the emotions rather than offering factual information.
Attempts to limit this commercialisation have mainly come to nothing, in particular as a result of decisions made by the US Supreme Court (the highest court in America). A 1975 decision means that there are no limits to the amount of money that can be spent on political campaigning, because this was held to be a part of the right to free speech guaranteed by the American constitution. In addition, the notion of “corporate personhood”, entrenched in law, allows companies to be treated as if they were individual citizens, enjoying citizens’ rights.
The result is that enormous sums of money are invested in referendum campaigns, sometimes as much as dozens of millions of dollars. On the other hand, it isn’t at all the case that referendums can automatically be won with lots of money. The money keeps an initiative going, but doesn’t guarantee it success. If people see too much money being thrown at an initiative they often vote “No”. The positive sides of Californian direct democracy are: no restrictions on allowable subject-matter; no ban on initiatives which have public spending implications (and no requirement for an initiative to suggest how the cost implications are to be met); there are no quorums for the referendum: a simple majority decides; before the vote all registered voters receive a referendum booklet containing the arguments for and against; all monies given for or against an initiative have to be publicly declared.
On the downside: the procedure bypasses the state parliament entirely; there’s no possibility of the initiators and parliament reaching a compromise solution; parliament cannot present an alternative proposal. What has also turned out to be problematical is the fact that initiative proposals accepted in a referendum cannot be changed by parliament (even many decades later) unless this is specifically provided for in the initiative’s proposition. If parliament wants to make a change, it has to be approved in a referendum. The non-amendability of referendum decisions has frequently led to awful results - especially when the practical circumstances and the legal position have both changed over time. Other weaknesses are: there is only a formal pre-check on initiatives, so that unconstitutional proposals can still go to referendum - only for them to be subsequently struck down as invalid by the courts. As mentioned above, there are no limits on donations for citizens’ initiative campaigns, leading to extreme commercialisation. And the relative ease with which the constitution can be amended has meant that highly controversial constitutional amendments which restrict the rights of certain groups were passed by slim majorities. The fact that referendum votes are scheduled together with elections means that voters have to decide on lots of proposals at the same time, and the texts of the propositions are often very long. Thus alongside its positive aspects, Californian direct democracy shows in a lot of ways how direct democracy should not be designed. Mehr Demokratie will take care to ensure, through the intelligent design of procedures, that from the very start Germany avoids the flaws which afflict Californian direct democracy. Public opinion polls in California show that Californians themselves are also unhappy with the rules for their direct-democratic procedures - but on no account do they want to lose their direct-democratic rights. That’s why there is a lively debate about reform. Our own proposals for improving direct democracy in California: mandatory debating of citizens’ initiatives in parliament; the right of parliament to present an alternative proposal to be voted on in the referendum; the right of parliament to amend existing laws by referendum after a blocking period of a few years; the introduction of upper limits for campaign funding; payment (to professional signature collectors) by the hour instead of per signature; the right of initiatives to a refund on legitimate costs; longer signature collection periods, at least between the launch of the initiative and the referendum, so as to allow more time for information-gathering and debate; restriction on the length of proposition texts.
Ralf-Uwe Beck & Daniel Schily
Speech by Joe Mathews
