Wednesday, March 01, 2006

Does Direct Democracy have a place in the individual rights arena?

As we speak, Tim Eyman is preparing a direct democracy one-two punch which he hopes will knock out the recently passed anti-discrimination bill that would outlaw housing and employment discrimination on the basis of sexual orientation. Ever since he announced the effort (days before the anti-discrimination bill was actually signed into law), gay rights advocates have remarked that individual rights should not be put up to a vote of the people, or that minority rights should not be decided by majority rule. This is farcical. But it is an idea not at all confined to the political left. You could have heard these arguments (if you were listening hard enough) from the beleaguered smoker’s rights forces during the I-901 campaign, urging the majority not to take away individuals’ and businesses’ right to smoke and allow smoking in bars and clubs.

There are two reasons why the arguments seem especially ridiculous and inconsistent in this case: the anti-discrimination bill was passed by a bare majority of the democratically elected legislature, and gay right’s advocates just years ago attempted to pass similar legislation by initiative, in the same process many now deride as an improper forum for legislating on the subject of individual rights.

The anti-discrimination bill passed, as it often has in the past, by a large margin in the House of Representatives. It went on to the Senate where it passed 25-23, about as close a margin as you can get. Both of those votes were by democratically elected legislators who have to answer to their constituents, and who are swayed by the same arguments and interests as those back home who they represent. The legislative passage of the anti-discrimination bill was nothing more than a majority legislating on the rights of minorities. The vote was roundly praised by some minorities and condemned by others (conservative Christians) who notably raised the arguments that their associational rights were being trampled by the new law. In fact, if any of them had been thinking ahead, they could have claimed at the time that a majoritarian democratic forum is inappropriate for determining minority rights—the same argument being used by those in favor of the new law.

In the 1990’s gay rights activists, frustrated by an apparently blocked legislative process, tried to pass their anti-discrimination legislation into law via initiative. It was crushed at the ballot box, perhaps feeding the current attitude among gay rights activists that the public can’t be trusted with a decision on the subject of gay rights. I can understand their change of heart, but it hardly seems reasonable for one side to argue that a forum is inappropriate just because that side tried to use the forum and lost. If they believed that individual rights were not an appropriate initiative subject, they should not have written an initiative to further their goals in the first place.

It is time to reframe the issue. The central question isn’t gay rights; the central question is whether the initiative is as appropriate a forum for legislating any issue as the legislature. If not, the second question is how we can make that distinction in a broad, principled way, not case by case. Once we have had an open discussion about when initiatives are appropriate, we may be able to develop a consistent system rather than changing sides on this issue as different propositions threaten to make the ballot.


Orrin Johnson said...

There are a lot of issues here. The legislature and the initiative process are both ways of implementing the will of the majority, so people who favor getting rid of the initiative process based on that are simply wrong. If "individual rights" aren't something that the people through an initiative should be allowed to pass on, a legislature must be prohibited from doing the same.

I think the (reasonable) opponents would instead say that it amounts to mob rule, with people passing on complex issues about which they haven't had the benefit of attending hearings on.

But I think it's an important check on the legislature, which due to districting, Congressional culture, campaign money, etc., becomes arrogant and insular. It can be abused just like any good thing can, but I'd rather live in a world made imperfect by its presence than made less accountable by its absence.

Cato said...


I agree with all of your points. I think the major divide between what makes good and bad initiatives is the complexity of the issue. Look at the medical malpractice train-wreck. Some issues are just too complicated to do well in initiative form. But that doesn't mean we should outlaw those issues. The public knows when something is too complicated, and they tend to vote them down.

Orrin Johnson said...

Well, and even if the public gets it wrong (smoking ban), the process is not immutable. And I would argue that the public has a far better legislative track record than the state legislature does. Although I would like to see a period where the legislature couldn't repeal an initiative of something like five years, although another initiative could.

But that just proves that the process is imperfect, not unecessary or unwise.