Well, surprise, surprise. Stymied once again at the ballot box, Florida Republicans want to change the rules for statewide ballot initiatives…

On Tuesday, the Florida House Judiciary Committee proposed PCB CDJ 19-01, a cynical power grab by the majority party to crack down on the citizen initiative process.  Over the past 20 years, Floridians, in a state dominated by Republican lawmakers, have consistently approved progressive ballot measures–from High Speed Rail, to Raising the Minimum Wage, to Fair Redistricting, to Medial Marijuana, to Felon Re-infranchisment.  When fellow citizens place these statewide constitutional amendments on the ballot for public consumption, Florida voters consistently gobble them up.

Now Republican lawmakers want to crackdown on the initiative process itself, changing the rules of the game so as to stymie future efforts to have citizens approve statewide ballot issues the majority party can easily bury in the legislative process.

PCB CDJ 19-01 is not the only attack on the process of direct democracy in Florida this session.  SJR 232 would require citizen-initiated constitutional amendments to pass with a 2/3rds supermajority, up from 60% (which, itself, was jacked up from a simple majority by a statewide referendum placed on the ballot by the Republican legislature in 2006).

This is all part of a coordinated attack on the initiative process, and not only in Florida (see what’s happening in other states in this Brennan Center piece). It’s not new (I wrote about similar efforts more than a decade ago); as it was then, it is clearly motivated by partisanship and control of the policy agenda.

So, it’s not rocket science as to why Republican-controlled legislatures try to change the rules of the game, curtailing the power of citizens to use the initiative process.  Progressive statewide ballot measures often are approved in states where conservatives dominate the state legislature. In these states, Republican lawmakers aren’t used to, nor do they like, ceding the legislative agenda to the people. After all, in the first part, in many states they control state government precisely because they were able to successfully gerrymander legislative districts–drawing favorable districts to afford them a majority of seats in both legislative chambers, thus controlling the policy agenda.

Of course, direct democracy is no panacea for what ails our republic, and over the past 25 years I’ve written critically about the process. But as Woodrow Wilson, no fan of the initiative process himself, conceded in 1911 while on the presidential hustings, citizen lawmaking can serve as the “gun behind the door–for use only in case of an emergency, but a mighty good persuader, nevertheless.”

Ballot Measure Disclosure in California

Unfortunately, I do not have time right now to chime in on the very important ballot measure committee contribution disclosure lawsuit, ProtectMarriage.com, which is before the U.S. Court of Appeals for the Ninth Circuit.  I’ve served as an expert in several campaign finance lawsuits across the country, including the case California Pro-Life Council v. Getman (9th Cir. 2005), when my research was used to bolster the constitutionality of California’s ballot measure disclosure requirements.  I must say that it’s gratifying to see that my 2005 Election Law Journal article with Elizabeth Garrett that details the deceptive practices of “Veiled Political Actors” is once again being used to support the case for the public disclosure of the activities of ballot issue committee, as required under California’s Political Reform Act.

If you’re interested in the topic, I’d urge you to read the Campaign Legal Center’s amicus brief filed in ProtectMarriage.com v. Bowen

As the Legal Center points out in its press release, “In the last decade alone the Supreme Court has upheld disclosure laws by votes of 8-1 three times, most recently in Doe v. Reed.  In his concurrence in the case, Justice Scalia made very clear the importance of transparency to the health of our democracy:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.  This does not resemble the Home of the Brave.”

As the lead author of the “Direct Democracy Scholars” amicus brief in Doe v. Reed, I couldn’t agree more with Justice Scalia’s wise words or the Campaign Legal Center’s analysis.