Initiative madness

Recent news reports detailing the machinations accompanying various proposed ballot initiatives in Nevada indicate that political dysfunction is not something that is the sole provenance of the Democratic presidential nomination process. Just as the inability of the Democrats to settle on a presidential nominee suggests institutional processes going awry, so do the recent court challenges that have further muddied the waters about what is and is not an acceptable ballot initiative in the state of Nevada.

To review: the successful removal of the TASC proposal from the ballot during the last election cycle on the grounds that that its sponsors circulated different versions of the proposal when collecting the requisite signatures opened the floodgates for various interests to use the courts as means to preemptively challenge proposed initiatives that threaten their comfortable hold over the status quo.

Most notably, the Nevada Resort Association, with an assist from the state GOP (or as it is otherwise known, the Las Vegas Sands Corporation), persuaded District Judge Bill Maddox to throw out two proposals that sought to increase the state's gaming tax because the proposals violated the legislative edict that initiatives be limited to addressing a single subject (both of the proposals sought to raise taxes on gamers and direct the money to specific ends). The single subject law itself was enacted in 2005 by the legislature in response to a handful of misleading, confusing, and self-contradicting proposals that appeared on the 2004 ballot.

A revised version of the gaming tax initiative being pushed again by the teachers' union is again being challenged by the Nevada Resort Association. This time the basis for the suit stems from ambiguity in the initiative's wording stating that the Legislature cannot "consider" the gaming revenue when approving the education budget (the "consider" language, of course, was designed to circumvent the single subject restraint).

Not to be outdone, perpetual ballot initiative sponsor and all around political gadfly Kermit Washington, whose proposal to triple the gaming tax was one of the proposals that Maddox rejected for violating the single subject rule, is using an initiative proposed by the Nevada Casino Dealers Association that seeks to stop employers from requiring employees to share tips with other employees designated by management and that Washington otherwise has no connection to as the basis to file suit in federal court contesting the constitutionality of the single subject requirement. Naturally, the dealers' initiative is being challenged in court as well by a group including Wynn Las Vegas and various trade groups, on the grounds, yep you guessed it, that their proposal violates the single subject requirement.

As if that was not enough, an AFL-CIO front group that goes by the catchy moniker Nevadans for Nevada (what Nevadan could be against such a group?) filed suit against two conservative backed initiatives being circulated by the equally clever Nevadans for Clean and Open Government on the grounds that the proposals violated, yep, you guessed it again, the single subject rule. Facing a prolonged court fight that would have made it difficult for the sponsors of the "The Clean and Open Government Amendment" and "The Tax Backed Lobbying Ban" to gather the necessary signatures to qualify for the November ballot, Nevadans for Clean and Open Government decided to pull their initiatives.

Of course, if the courts actually allow any of these proposals to stay on the ballot and the voters then decide to support them, chances are after the election the losers will seek judicial intervention to limit or stop the implementation of the newly passed proposals. This was the case most recently with the smoking ban where the Tavern Association fought to have Question 5 ruled unconstitutional after it was passed by voters with 54 percent support (not surprisingly, opponents of the initiative also sought, unsuccessfully, to have the measure removed prior to qualification in June of 2006).

What is obvious from the above is that the initiative in Nevada has strayed quite a bit from its original intent. The initiative, along with the referendum and recall, stem from the Progressive era of the early 1900s that sought to create an institution that would allow the people to organize at the grass roots and circumvent interest dominated state legislatures to create public policy via the ballot box. Largely adopted in the West and the upper Midwest, this quaint institution has mushroomed into a booming industry.

To wit, in most cases, proposed initiatives are not the product of grass roots organizations, but rather are another tool used by well-funded interests who in many cases have no presence in or connection to Nevada to further their own ideologically motivated ends. Indeed, because of the narrow and self-serving nature of many proposals, their sponsors are forced to go the initiative route after being unable to gain traction in consensus driven state legislatures. In other cases, interests may push initiatives as a means to stimulate voter turnout via wedge issues (i.e., gay marriage), to recruit more members to their cause, or shape campaign agendas. Nevada is a particularly inviting locale for these activities given the state's concentrated population, limited political engagement, and relatively easy qualifying process.

More broadly, the initiative process is inconsistent with the philosophical underpinnings of American-style democracy. In writing the Constitution, James Madison crafted governing institutions that would create public policy via a slow and deliberate process that resulted from consensus and compromise among competing interests. In Madison's view, government is better off making no laws if the alternative is knee-jerk responses to short-term fluctuations in public opinion flamed by self interested actors.

In contrast, the defining characteristic of government by initiative is the creation of policies that result from a take it or leaves it arrangement. Once an initiative qualifies for the ballot, the burden is shifted to the opposition to organize and counter-mobilize not to seek a compromise as would occur in a legislative setting, but to defeat the proposal in its entirety. If opposition fails to emerge then it is only the collective wisdom of the electorate (something that Madison and many of the framers, incidentally, did not put a lot of faith in) that stands between a cabal of ideologues, lawyers, lobbyists, and interest groups from writing laws or, as is often the case in Nevada, amending the Constitution for their own ends.

And as if all of this was not disconcerting enough, as documented above, invariably it is the courts that have the final say on what proposals can be qualified for the ballot and how initiatives passed by voters will be implemented. This, of course means, that judges are not simply determining right or wrong or guilt or innocence, but are effectively doing the job of the state legislature by creating public policy.

Unfortunately, for the time being, there is not much that can be done to stop the madness. It would be political suicide for any politician to propose that Nevada eliminate the process all together. Given that any attempt by the Nevada Legislature to widen the distance between governmental decision making and the public or provide the Legislature with greater autonomy is roundly defeated (see for instance, ballot questions nine and ten in 2006), there is no way that voters would support the eradication of an institutional mechanism that, in theory, provides the electorate with greater control of governmental outcomes. Similarly, any proposal to increase the time that the Nevada Legislature is in session so that legislators would be able to attend to the state's numerous needs instead of working frantically to pass a budget in a hundred and twenty days is a political non-starter.

Thus, the best we can hope for is that in the next legislative session the rules governing the initiative process will be refined and clarified. Of course, the last time legislators tried to do this we ended up with the single subject rule, so don't hold your breath. But if it turns out that the state legislature is interested in tinkering with the process one change that they might consider is the elimination of the requirement necessitating that signatures be gathered in all seventeen counties. Then maybe some interest might think to propose an initiative requiring that all state revenue be spent in the country from which it was generated.