In many of the twenty-four states that permit voters to initiate statutes, constitutional amendments, or both,1 groups routinely rely on initiatives to enact policies unattainable through the legislature. In recent decades, initiatives have been a vehicle for both limiting and increasing taxes and spending, imposing legislative term limits, raising the minimum wage, limiting affirmative action, legalizing marijuana, expanding gambling operations, protecting animal welfare, and establishing redistricting commissions, among other measures that are often blocked by legislators but embraced by voters.2 This Article focuses on rules governing the initiative process. It explains the numerous wide-ranging efforts to change initiative process rules in the Twenty-First Century. Although some of these recent proposed changes have been rejected or are awaiting a final vote, many have been enacted, generally limiting the use of the initiative process but occasionally facilitating access. Efforts to change initiative process rules generally emerge in response to disjunctions in the views of the public and elected officials, whereby legislators block policies supported by voters. When these disjunctions result in groups relying on initiative measures to bypass legislators on high-profile issues on a routine basis, the party that controls the state legislature will begin to consider ways of limiting initiatives. One option would be eliminating the initiative process, however, there is no indication that the public would endorse the drastic step of repealing the initiative process. The more viable approach is to restrict the use of the initiative process by changing the rules to make the process less accessible and limit the initiative measures that can be enacted. This Article’s primary purpose is to identify the policy issues that are chiefly responsible for prompting changes in initiative process rules in the Twenty-First Century.3 Over the 120-year history of initiatives in the U.S., the initiative process has been relied on by both liberal and conservative groups to enact policies disfavored by elected officials. Progressive groups benefited especially from the initiative process in the early Twentieth Century. Conservative groups often benefited in the late Twentieth Century. During the first two decades of the Twenty-First Century, Democratic officials and liberal groups are, on balance, more likely to benefit from initiatives, and Republican officials and conservative groups are more likely to support restricting the process. During the recent period, a half-dozen policy issues have figured prominently in initiatiative campaigns and have, in turn, prompted legislators to change initiative process rules: protecting animal welfare, legalizing marijuana, increasing the minimum wage, expanding Medicaid, altering voting and elections policies, and expanding gambling. In addition to identifying the main issues that have recently spurred calls for rule changes, this Article will take stock of the various changes in initiative-process rules that have been proposed and enacted.4 One approach has made it more difficult to qualify initiatives for the ballot. A second approach has made it more difficult for voters to ratify initiatives placed on the ballot. A third approach has been to limit the number and range of subjects targeted through the initiative process. A final approach focuses on whether and how the legislature can revise policies enacted through initiative statutes, with critics of the initiative process seeking to expand opportunities for legislative modification and supporters aiming to better insulate initiatives.
Changing the Rules for Direct Democracy in the Twenty-First Century in Response to Animal Welfare, Marijuana, Minimum Wage, Medicaid, Elections, and Gambling Initiatives,
101 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol101/iss1/4