For years now The Democracy Foundation, a Virginia-based nonprofit founded by former Alaska senator and current presidential hopeful Mike Gravel, has been pushing a plan that’s both quixotic and rather sensible. Through its National Initiative for Democracy, the nonprofit aims to amend the Constitution in order to create a fourth branch of government, a “legislature of the people” empowered to make laws through nationwide popular voting.
“This is not a very radical thing at all,” says the organization’s chairman, Tom Lombardi. “I see it as just a step forward. People have a right to step up to their rightful role as lawmakers alongside their representatives.” In fact, citizens in 24 states are already allowed to pass initiatives and referendums by popular vote (in initiatives, citizens write laws and try to garner enough signatures to get those laws on statewide ballots; in referendums, legislatures draft the laws and put them on the ballots). The results, according to experts, have been sound. So why not take the idea national?
The plan has obvious advantages. National popular votes, for example, may be the only way to pass laws that are against lawmakers’ interests, such as campaign finance reform, term limits, and caps on congressional pay. They would also reduce the disproportionate power of small geographical pockets. Under this system, senators from coal-producing states, to give one example, would have a much harder time holding up research on renewable sources of energy. A legislature of the people would also help to counter the influence of money in Washington—special interests and lobbyists can co-opt key members of Congress with campaign contributions and other perks, but would have a much harder time swaying the hearts and minds of millions of Americans.
Don Kemner, secretary of The Democracy Foundation, describes our current form of government as a “mendicant democracy.” “In a political sense that means that all we can do is ask, beg, plead, petition, protest, or civically disobey our representative government for the things we want done,” says Kemner. “They say 70 percent of the people would like to see the Iraq war come to an end. But the people have no way of implementing that in legislative action.”
As appealing as this notion is, The Democracy Foundation’s National Initiative is not without its pitfalls, to which the organization’s staffers, extreme idealists all, have no shortage of counterarguments. Are the people really qualified to make laws? “We shouldn’t underestimate the public’s ability when it’s in their self interest to educate themselves,” says Lombardi. “People are brighter and more enthused than politicians and the media give them credit for.” But if the people have legislative authority, what about the role of Congress? “The formal role of Congress stays exactly the same,” he says. So, what if Congress dislikes a law passed by national initiative and passes its own law in direct contradiction? “Congress can go ahead and rewrite” the people’s law, says Kemner. “They can write it off the books if they wish!” And what of the courts? “As the Congress can be challenged on constitutional grounds, likewise the people would be challenged when a law is enacted through the national initiative,” says Kemner. “A national initiative in no way disposes of any procedures of the first, second, or third branches of government. It simply introduces a new one.”
Those are logistical objections, but there are serious philosophical ones as well. For instance, how do you protect individual rights from the tyranny of the majority? Nearly a century ago voting rights for blacks were revoked in Oklahoma by a popular vote, points out John Matsusaka, the president of the Initiative and Referendum Institute at the University of Southern California. Still, he says, “you can find such examples, if not worse, that came out of legislatures.” Jim Crow laws, for example, were largely perpetrated by legislatures.
Moreover, states where voters dictate economic policy via initiatives and referendums tend to be just as financially healthy as states without these processes. “There’s a concern that voters will be myopic,” says Matsusaka, “that they’ll approve a whole bunch of spending programs and at the same time cut taxes, and therefore create deficits and cause all kinds of problems.” But this isn’t the case. “If you look at the data, initiative states have no higher debt levels on average, their bond ratings are no worse on average, they have no higher taxes or deficits.” In the past fifty years or so, says Matsusaka, the most common upshot of citizens having the right to make policy is lower taxes and lower spending.
Examples of direct democracy are also found on the international level. The Swiss have used a national initiative system for over 100 years, and the results are compelling. Gregory Fossedal, author of the book Direct Democracy in Switzerland, writes that the system is “harder to corrupt, and develops the popular mind.” The press, aware that it has a critical role to play in educating the public, deemphasizes the individuals at the top levels of government and instead “offers a stream of extensive, diverse, instantaneous, and ongoing information to voters.” The result of this system of government, writes Fossedal, is “less alienation, and a much closer association between people and elites.”
Across Europe, more and more countries are adopting national referendums, a process in which legislatures develop laws and put them up for a popular vote. “If you go to Europe now,” says Matsusaka, “it’s almost getting to be unthinkable that they would make a decision on some important national topic without asking the people what they think about it.” In contrast, the United States, a worldwide leader in democracy, has never held a nationwide vote on any law.
In the end, the largest problem with the Democracy Foundation’s National Initiative may be enacting the thing. Passing a law in Congress is a non-starter for obvious reasons, so its supporters are trying to pass a Constitutional amendment through, naturally enough, a nationwide popular vote. They’ve set up a web site called Philadelphia II (an homage to the founding fathers’ 1787 constitutional convention) where citizens can cast a vote for the idea. There’s just one wrinkle. Article V of the Constitution, which lays out the processes for passing amendments, identifies only two methods of doing so, neither of them a popular vote: a constitutional convention called by two-thirds of state legislatures or a two-thirds vote in both houses of Congress.
Even so, some constitutional law scholars believe the people do have the power to put forth a constitutional amendment. Yale constitutional law professor Akhil Reed Amar, one of America’s foremost scholars on majority rule and popular sovereignty, writes that the repeated invocations of the power of the people in the Declaration of Independence, the Constitution, and other writings authored by the nation’s founding fathers suggest the people “have a legal right to alter our government—to amend our Constitution—via a majoritarian and populist mechanism akin to a national referendum, even though that mechanism is not explicitly specified in Article V.”
Look no further than the preamble to the Constitution, Amar argues. The words “We the People of the United States… do ordain and establish this Constitution” make the case: if the people make the Constitution, they obviously have the right to change it.
Determined to do so, the backers of the National Initiative soldier on, trying to raise publicity where they can. Mike Gravel’s campaign has brought some exposure, but not nearly enough. The Democracy Foundation’s web site proclaims that “when the majority of the People who voted in the last presidential election vote affirmatively for the National Initiative it becomes the law of the land.” They say, and this is where the idea starts to sound more like a pipedream, that when the votes on the Philadelphia II web site hit this threshold, the administrator of Philadelphia II will notify Congress and all other relevant parties that American democracy has been changed forever. We’ll see how that goes over, if and when they get there. As it stands, 3,500 Americans have cast a ballot for the National Initiative, leaving only 61 million more to go.