By: Jack Thuon
WASHINGTON – As gridlock continues to slow down progress, voters are looking to the past to solve current issues. But special interests, sometimes from within the government itself, are fighting back.
Voters in 38 states decided on 167 ballot measures in 2018, with 116 statewide measures being approved and 50 being defeated. One measure in Kentucky is still pending a court decision.
Jon Russell is a town councilman for the city of Culpepper, Virginia and the National Director of American City County Exchange, a group focused on pushing limited government and free-market principles at the local level. Russell says ballot measures must take place during primary or general elections in order to ensure the will of the voters is being represented.
“Direct democracy within our constitutional republic is such a unique thing and a big responsibility that it needs to be done on the most up and up way possible,” Russell said in an interview. “Obviously, we have a representative democracy where we elect people to go and represent us either on town council or state house or congress. Direct democracy removes that so if states or localities are going to engage in direct democracy it needs to be done at a time when there’s the most transparency and most people looking at it as possible.”
There are two main types of ballot measures: referendums, which come from legislation that has already been passed, and initiatives, which come from petitions receiving a certain number of signatures from registered voters to bring about a public vote on a proposed statute or constitutional amendment.
Variations of ballot measures have been used in the United States since the 17th Century, when New England, citizens would vote for ordinances during local meetings. The use of direct democracy became particularly popular again in the late 19th Century, when populists and progressives began pushing for increased power against state legislatures they viewed as corrupt and controlled by special interests.
South Dakota became the first state to allow statewide ballot measures in 1898. Many western states followed, with California striking the major blow to a corporation in the 1910s when Gov. Hiram Johnson was elected and created a commission to reign in the Southern Pacific Railroad.
Ballot measures were long seen as a way for progressives to ease corporate influence in politics. However, beginning in 1978, conservatives and businesses began to change that when California passed Proposition 13, lowering property taxes from 2.5 percent of the market value to 1 percent. The state then struggled to provide proper funding for services such as education and law enforcement due to the lack of revenue.
The Battle Over Ballot Measures at the State Level
Since 2010, when Republicans were swept into power at both the state and federal levels, ballot referendums and initiatives have been viewed as progressive tools aimed at undermining the democratic process.
One of the most famous cases comes from Maine, where voters approved a ballot initiative that would expand Medicaid under the Affordable Care Act, only to see Republican Gov. Paul LePage deny the will of the voters and refuse to expand healthcare.
But even nonpartisan organizations such as the National Conference of State Legislatures have voiced concerns with initiatives.
Wendy Underhill, the Director of Elections and Redistricting at NCSL says her organization does not support the use of citizen initiatives.
“From our perspective, citizens initiatives are not better than bills that go through the legislature,” Underhill said in an interview. “In fact they are often constructed without the same level of discernment as bills, and they do not go through the negotiating or amending process that bills do.”
Russell warns that initiatives enter a gray area.
“That gets a little hairier because then you kind of start trampling on representative democracy,” Russell said. “But at the same time I kind of look at initiatives as sometimes if you’ve tried everything you can to try to get the legislature to move then, you know, what other choice do you have, you know if you can’t change who represents you at the ballot box?”
Many voters share Russell’s point of view, often arguing citizen initiatives are the only choice in some circumstances.
Voters in Idaho, Nebraska and Utah, states with Republican-controlled legislatures and governorships, petitioned for Medicaid expansion to be on the ballot as a citizen initiative. All three states approved expansion with over 60 percent of the vote.
Leslie Barnes, a legal counsel at Bolder Advocacy, a group that provides legal guidance to nonprofits, says lobbying from private charities, labor organizations, PACs, and other non-profits have played a huge role in major policy changes enacted through initiatives.
“The fight to raise the minimum wage – the fight for 15 – has been a coalition of non-profits and individuals … community organizations and even some for-profit [organizations],” Barnes said in an interview. “So it’s like the faith communities have joined together with the labor organizations, and the other non-profits that are concerned with like economic security and workers justice, those types of issues, and they’ve joined together to initiate ballot initiatives in both cities and states across the country to raise the minimum wage, and they’ve been really effective.”
Similar to Medicaid expansion, minimum wage initiatives were approved in November in Arkansas and Missouri, both states are controlled by Republican legislatures and Republican governors.
Lobbying in Ballot Measures
Ballot measures have increasingly become a target of lobbying groups, with both corporations and non-profits active in ballot measures.
“A lot of non-profits are permitted to support and oppose ballot measures and they’ve been doing [so] more frequently,” Barnes said. “And [they have] been successful.”
However, with certain non-profits such as public charities, or 501(c)3’s as non-political non-profits are known under IRS tax law, becoming involved in ballot measures can be tricky.
“Public charities, they can engage in limited lobbying,” Barnes said. “So we help them to understand what type of communications rise to the level of lobbying versus non-lobbying advocacy so that they can educate around ballot measures but also advocate, say vote for [or] vote against, the ballot initiative.”
Public charities, which are organizations such as churches, universities and scientific organizations that conduct research for the public interest, are not allowed to directly engage in advocacy for ballot measures.
“But they could work together with like a labor organization, a 501(c)5, or other social welfare organizations, a 501(c)4, and those groups can do unlimited lobbying,” Barnes said. “So, let’s say the labor organization provides a lot of money for a ballot initiative: then the 501(c)3 can join in and they can do a limited amount … but it helps to multiply the message and spread the word.”
Of course, non-profits are not the only groups allowed to lobby. Corporations, including those who may have direct stakes in what the ballot measure addresses, can also poor money into campaigns aimed at approving or defeating measures.
Of the ten most expensive ballot measures in 2018, eight were defeated. When taking a closer look at the measures that failed, it is not hard to draw the conclusions on what groups may have spent a considerable amount of money to defeat them.
According to Ballotpedia, in California, over $111 million was spent defeating a measure that would have limited the amount of revenue dialysis clinics could make. Of the $111 million in contributions opposing the measure, $66 million came from one company: DaVita Healthcare, a publicly traded, for-profit company focused on kidney disease and dialysis.
In Nevada, $63 million was spent defeating a measure that would have broken up the state’s electricity monopoly. All $63 million in contributions came from NV Energy, the very company the measure would have broken up.
In both cases, the measures were defeated easily, begging the question of whether or not groups with direct stakes in laws should be allowed to lobby for or against them.
Betsy Mullins, former Deputy Director of the Democratic Governors Association (DGA), says she saw the corporate influence a lot when she worked at DGA.
“Since companies can circumvent the legislative process,” Mullins said. “It is just another way for dark money to disproportionally affect election results.”
Mullins also says that sometimes the actual ballot measure may have nothing to do with the plan to influence results.
Voters in Alabama approved a ballot measure in November that “states that the Alabama Constitution recognizes and supports the sanctity of unborn life and does not protect abortion.”
This measure has no actual power, as abortion is legal under U.S. federal law. This ballot measure could have been used to draw support for Republican Gov. Kay Ivey, who was elevated from Lt. Gov. in 2017 after former Gov. Robert Bentley was arrested, and subsequently resigned, over ethics violations.
“[Ballot measures can be used] as wedge issues to motivate conservatives to come out and vote even if they were not excited about the candidate,” Mullins said.
Ivey won by more than 20 points over her Democratic challenger, but after Sen. Doug Jones’ stunning 2017 upset, the Alabama Republican Party may not have been willing to take any extra risks.
The Battle Over Ballot Measures at the Local Level
The fight against ballot measures has even slipped down to the local level, where cities and towns have turned to lobbying to stifle movements it does not agree with.
The city of Stockbridge, Georgia, located south of Atlanta, faced controversy earlier this year when residents of Eagle’s Landing, a group of neighborhoods in southern Stockbridge, announced it would break with Stockbridge and form its own town.
The move was faced with heavy criticism, with Stockbridge officials claiming the move was racially and economically motivated.
Molly Aziz, a policy analyst in the Georgia House of Representatives, says Stockbridge spent more than $600,000 to fight the movement from even appearing on the ballot in the first place.
“The city of Stockbridge was trying to stop them from even having a vote on it, to even create the referendum people could vote on,” Aziz said in an interview. “They did not want that referendum to be put on the ballot.”
Despite the $600,000 in taxpayer dollars spent, the Eagle’s Landing referendum did appear on the ballot with some help from bills passed in the Georgia State Senate. However, the referendum failed in November.
“In any law there’s going to be people who lobby for and against it,” Aziz said. “Counties have lobbyists, cities have lobbyists. If a local county or city has an issue they’re concerned about they would pay someone to lobby on their behalf.”
Despite ballot measures being over one hundred years old, advocates, corporations and governments are still figuring out ways to tip the scales in their favor through lobbying and weak campaign finance laws.
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