Ballot Pits Rights Vs. Protection
By David S. Broder
Nebraska, the home of William Jennings Bryan, a hero of the turn-of-the-century populist movement, is the site Tuesday of a battle over one of the flourishing legacies of populism: the initiative and referendum.
Voters in the Cornhusker State will decide the fate of a ballot measure that will, depending on whom you believe, either allow the legislature to cripple the voters' right to make law themselves or protect those same voters against logrolling schemes by interest groups.
The Nebraska fight is one front in an ongoing war between elected representatives jealously protecting their prerogatives and an array of organizations term-limits and tax-cap proponents prominent among them fighting to expand use of the initiative to enact their own agendas.
"There has been an increasing effort by legislators, directly tied to the circulation or passage of term-limits initiatives since 1991, to rein in this form of grass-roots activity," said M. Dane Waters, president of the Initiative and Referendum Institute (IRI).
A legal brief being prepared by Waters's group for Supreme Court argument this fall on Colorado legislation regulating initiative signature-gatherers recounts numerous examples of restrictive legislation in many of the 24 states that have the initiative process.
Alan Rosenthal, an authority on state legislatures who teaches at Rutgers University's Eagleton Institute of Politics, said, "I see no desire to abolish it [the initiative process], but some legislators want to restrain it from becoming more of a monster than it is."
The Nebraska proposal, which passed its legislature unanimously, would amend the state constitution to require that future initiative petitions deal with a single subject. In the past, voters could sign their name once to place several initiatives on the ballot. The attorney general is empowered to separate them by subject on the ballot and often has done so.
But state Sen. DiAnna Schimek, who sponsored the proposal in the legislature, contended in an interview that "people often don't know the petition deals with more than one subject and may sign on for issues they don't support." Loren Withem, a former speaker of the legislature, said the proposal is needed to curb "logrolling" by interest groups that combine forces to get signatures for unrelated causes.
Both he and Schimek cited a 1996 petition drive in which the Nebraska Farm Bureau, which wanted to roll back taxes, hooked up with the Nebraska Education Association, which wanted to earmark money for schools, on a combined initiative. "Neither one of them believed in the other's cause," Schimek said.
Opponents of the proposal see it as an effort to strangle the whole initiative process. Klaus Becker, chairman of an ad hoc group called Nebraskans for Petition Rights that includes leaders of the term-limits movement and the Christian Coalition on its board, said, "If this passes, it will give the people in the legislature and on the courts who are opposed to the initiative process every opportunity to destroy it."
Becker said that almost any initiative could be challenged for violating the undefined "single-subject" rule. Its fate would then rest with the Nebraska Supreme Court, which, he noted, already has invalidated three term-limits initiatives.
He is not alone in that view. Nebraska Attorney General Don Stenberg said, "I'm opposed to the change because it will put more power in the hands of the court to invalidate initiatives passed by the voters." Omaha Mayor Hal Daub, a former Republican member of the U.S. House, said: "Legislation rarely deals with just one subject. It's the height of arrogance for the legislature to say we're going to make it harder for the public to undo what we do."
Schimek said these fears are unfounded. "The single-subject rule will make it less likely initiatives are challenged in court and less likely the challenges will prevail," she said.
From the perspective of IRI's Waters, the Nebraska battle is just a skirmish in a much larger legal and political struggle. A veteran of the term-limits movement, Waters started IRI a few months ago with the goal of defending the initiative process against critics and expanding it into states that do not allow it. He said the first-year budget of $750,000, including salaries for the four-person Washington staff, is being financed by groups that use the initiative process to advance a variety of causes and by companies that collect petition signatures and run initiative campaigns. His board of trustees is heavy with conservatives, such as Mississippi Gov. Kirk Fordice (R) and former attorney general Edwin Meese III, but Waters said, "I'm going after some liberals."
An early project is preparation of an amicus brief for the Supreme Court's autumn arguments on a Colorado statute that would allow only legal residents of the state who are registered voters to circulate initiative petitions, require them to wear identifying badges and order full financial disclosure of payments to every circulator.
Challenges to the law were upheld in both district and circuit courts on grounds that it violated First Amendment guarantees of free speech. In 1988, a unanimous Supreme Court threw out another Colorado law that would have banned paid petition circulators. In that case, Justice John Paul Stevens wrote that the First Amendment right overrode the state's claim that the restriction was "justified by its interest in making sure that an initiative has sufficient grass roots support to be placed on the ballot or by its interest in protecting the integrity of the initiative process . . . [against] the potential danger that circulators might be tempted to pad their petitions with false signatures."
Attorneys hired by IRI have assembled data indicating that since that ruling, Florida, Mississippi, Washington, North Dakota, Maine, Wyoming, Oregon, Arizona, Idaho, California, Massachusetts and Nebraska have enacted statutes making it more difficult to get initiatives on the ballot often, it is alleged, immediately after term limits were either threatened or enacted.
Waters said he hopes the Supreme Court will "reaffirm the principle" of its 1988 decision and curb such efforts by legislatures. "But I know the fight will go on," he said.
© Copyright 1998 The Washington Post Company