In the United States, Massachusetts voters have been authorized to use the citizen initiative since 1715 to place articles in the town warrant (fixed agenda) to call a town meeting. Currently twenty-three state constitutions, commencing with South Dakota's in 1898, authorize the use of petitions to place propositions on the referendum ballot. The constitutional initiative exists in seventeen American states and the statutory initiative may be employed in twenty-one states. The governor's veto power does not extend to initiated statutes. The device also may be used in most states to adopt and amend local government charters and in many municipalities to enact ordinances. The United States Supreme Court in Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) rejected a challenge to the initiative that it violated the United States constitution which guarantees each state a republican form of government.
Initiatives may be classified as
- state or local,
- constitutional or statutory,
- direct or indirect, and
- advisory.
The first two categories are self-explanatory. Under the direct initiative, the entire legislative process is circumvented as propositions are placed directly on the referendum ballot if the requisite number and distribution of valid petition signatures are collected and certified.
The indirect initiative, employed in eight states, involves a more cumbersome process as a proposition is referred to the legislative body upon the filing of the required number of certified petition signatures. Failure of the legislative body to approve the proposition within a stipulated number of days - varying from forty in Michigan to adjournment of the Maine State Legislature - leads to the proposition being placed automatically on the referendum ballot. In Massachusetts, Ohio, and Utah additional petition signatures must be collected to place the proposition on the ballot. Only the Massachusetts Constitution authorizes use of the indirect initiative to place proposed constitutional amendments on the ballot.
The Maine, Massachusetts, Michigan, Nevada, and Washington State Legislatures are authorized to place a substitute proposition on the ballot whenever an initiative proposition qualifies for the ballot. Although a section of the Constitution of Alaska provides only for the direct initiative, another section allows the State Legislature to enact a legislative substitute that voids the initiative petition provided the substitute is 'substantially the same.' Maine, Massachusetts, and Wyoming authorize only the indirect statutory initiative. Michigan, Nevada, Ohio, South Dakota, Utah, and Washington authorize employment of both types.
The advisory initiative allows voters to circulate petitions to place non-binding questions on the ballot at an election to pressure legislative bodies to enact specific bills into law. Such initiatives were used infrequently prior to the late 1970s and generally attracted only local notice. The growth of the environmental and nuclear freeze movements results in the employment of the initiative to generate national media attention.
States which authorize use of the initiative to place proposed statutes on the referendum ballot, except Alaska, require the preliminary filing of a proposed petition with the Attorney General or Secretary of State who checks the petition for conformance with constitutional and/or statutory requirements. In Alaska, sponsors file the petition with the Lieutenant Governor who also receives all signed petitions filed by the deadline date. Three states require a deposit - $100 to $1,000 - when an application is filed and the deposit is refunded if the proposition qualifies for the ballot. In three states the petition is reviewed by state officers who may suggest wording changes to the sponsors.
The Attorney General (Lieutenant Governor in Alaska) is directed to prepare a ballot title and a summary of the proposition, which is printed at the top of each petition. Similarly, a local government clerk typically is responsible for preparing the ballot title and summary. The Secretary of State is usually responsible for printing petition forms at public expense, but in Idaho the sponsors are responsible for printing the petitions.
The required number of signatures to place a proposition on the ballot is based on a percentage of the votes cast at the most recent general election or a percentage of the votes cast for Governor (Secretary of State in Colorado). Signatures requirements vary from three percent of the votes cast for Governor in Massachusetts to fifteen percent in Arizona and Oklahoma. The Massachusetts Constitution stipulates a petition must be submitted to the General Court (State Legislature) and will be placed on the referendum ballot only if approved by one-fourth or more of the members in two consecutive sessions. When placed on the ballot, the proposal is ratified if approved by a majority of the votes cast on the proposition provided the majority includes thirty percent or more of the total number of ballots cast in the election.
The arguments for and against the citizen initiative are similar to the pro and con arguments associated with the protest referendum, see Referendums and Plebiscites, and the recall, see Legislative Recall. The early initiative supporters were convinced that the collective wisdom of the voters was superior to that of elective representatives, but recognized that not all needed laws should be enacted by the initiative and the referendum. In theory, the initiative would be exercised only when elected legislative bodies failed to enact needed bills on important subjects or enacted laws not responsive to the wishes of the electorate. Proponents maintain that the initiative
- Makes legislators more responsive to the voters and less responsive to special interest groups,
- Increases citizen interest in governmental affairs,
- Reduces voter alienation,
- Generates support for brief state constitutions and local government charters, and
- Performs an important civic educational function.
Numerous arguments against the initiative have been mustered by its opponents - legislators make better laws, poorly drafted initiated statutes create implementation problems, initiative statutes may not be coordinated with related statutes, the wording of the proposition may confuse voters, the initiative oversimplifies issues, 'minorities' may be affected adversely by a successful initiative campaign, and governmental inflexibility is introduced if an initiative proposition can not be amended by the state or local legislative body.
The continued successful use of the initiative is evidence that legislative bodies are not always responsive to the public will. Although the initiative is a patchwork approach to law making, initiated statutes in general have not caused serious implementation problems. Critics notwithstanding, the general electorate has been discriminating in examining the pro and con arguments of an initiated proposition prior to deciding how to vote.
On balance, the indirect initiative strengthens the governance system because this type has the benefit of the legislative process, including public hearings and committee review, study, and recommendations. Should the legislative body fail to approve the proposition, voters have been advantaged in their decision-making capacity by information on the proposition generated by the legislative process. The indirect initiative is a useful adjunct to the conventional law-making process and can be an effective counterbalance to an unrepresentative legislative body and no more undermines representative government than the executive veto and the judicial veto. A major initiative advantage is the fact it makes the operation of interest groups more visible in comparison with their lobbying activities in a state legislature and a local legislative body.
Support for the indirect initiative does not suggest that it should be employed frequently. It should be a reserve power of a last-resort weapon and the relative need for its use depends upon the degree of accountability, representativeness, and responsiveness of legislative bodies.
