Ballot Measures Can Shape Congressional Debate

Posted October 27, 2004 at 6:38pm

When voters decide on Nov. 2 whether to approve or reject a broad range of statewide ballot initiatives, state-level policy won’t be the only thing at stake. In many cases, the sponsors of these initiatives hope to leverage victories in the states into policy changes at the federal level. [IMGCAP(1)]

As it happens, this year’s crop of ballot initiatives includes a variety of measures with potential for federal follow-up, on both the left and the right.

By sponsoring initiatives to boost the minimum wage in Florida and Nevada, labor unions and their liberal allies hope to pressure Congress into raising the federal minimum wage — something the Republican-led chambers haven’t done in years.

In the meantime, business interests and trial lawyers are battling over tort reform initiatives in a half-dozen states, hoping to gain momentum for yet another bruising battle in Congress.

In Arizona, all eyes are on a populist measure designed to squeeze illegal immigration — an issue that has received only glancing attention from Congress since it bitterly divides Democrats and Republicans. In California, voters will weigh a measure that provides funding for stem-cell research, an issue with bipartisan appeal that has been treated warily by President Bush and the Republican Congress for fear of alienating social conservatives.

Meanwhile, in Colorado, voters will decide whether to split their state’s electoral votes rather than awarding them in winner-take-all fashion — an idea that, even if it fails to pass, could hasten a national discussion about modifying the Electoral College, particularly if this year’s presidential election devolves into confusion.

Last but not least are the flurry of initiatives that would ban same-sex marriage. It’s a controversial social issue that flared up in the previous Congress, and is considered likely to come up again in the new Congress as well.

Laboratories of Democracy

In one sense, these efforts can be characterized as part of the tradition of states serving as the “laboratories of democracy.” On the other hand, it’s often national groups or wealthy out-of-state sponsors, rather than grassroots organizations in the states, that use ballot initiatives as part of a concerted, multi-track strategy to advance their policy goals.

“Many ballot initiatives are backed by national or regional groups, because it’s so terribly expensive to qualify something and then conduct a campaign for it,” said Jennie Bowser, a policy analyst at the National Conference of State Legislatures. “There are very few state-specific groups that have those kinds of resources.”

Whether an interest group heads to the states or to Washington, D.C., to push policy “depends upon the political alignment,” said one D.C.-based official who works with statewide initiatives. “Groups that feel they can make headway with their agenda in Washington typically spend fewer resources in the states. However, if the Washington, D.C., environment is not conducive to their agenda, they will usually spend more resources on policy changes in the states.”

Veterans of the ballot-initiative wars agree that in recent years, it’s been relatively easy to parlay success with a ballot initiative into a place on the national agenda. A case in point is the effort to decriminalize medical marijuana, which gained significant national attention after a successful run of statewide initiatives. The same goes for several other initiative topics in recent years, including term limits, public financing for campaigns, English-only laws and school vouchers.

But notice what each of these policy bids failed to accomplish: None has resulted in a significant change in federal policy.

Indeed, it requires some digging to uncover even one initiative that has led directly to federal legislation. One that has done so is an issue that some in Washington might consider obscure: cockfighting.

Voting for Animal Rights

Since 1990, the Humane Society of the United States has mounted an aggressive — and more often than not, successful — ballot-initiative campaign to outlaw animal-treatment practices it considers cruel. In 1998, the group’s initiatives to ban cockfighting won approval from voters in Missouri and Arizona. Four years later, Congress approved an omnibus farm bill that included language which criminalized the interstate shipment of birds for cockfighting. Another measure now pending in Congress would make that offense a felony rather than a misdemeanor.

“If you show you can succeed at the state level, it makes it easier to argue your case at the federal level,” said Wayne Pacelle, the HSUS president and architect of the ballot-initiative strategy.

Pacelle added that his group has been expanding its federal push into other animal-cruelty areas, based on its successful track record with statewide initiatives. After chalking up four initiative victories to outlaw bear-baiting, the society has been able to secure 165 co-sponsors for a Congressional measure on the same topic. And with a successful Florida initiative two years ago under its belt, the society now plans to promote legislation in the next Congress that targets the restrictive confinement of farm animals.

The National Taxpayers Union is another group that is trying to push its agenda from the states to the federal level.

NTU historically has backed a wide array of tax-limitation measures on state ballots, including many that, due to the structure of the tax system, have no precise analogue on the federal level. Now, though, NTU and the Heritage Foundation are brainstorming about ways to push a Taxpayer’s Bill of Rights through Congress.

The idea, commonly known as TABOR, emerged from a 1992 ballot initiative approved by Colorado voters that limits the expansion of state and local spending to a rate equal to inflation and population growth.

“To our mind, many of the best ideas for tax-limitation measures have originated in the states,” said Pete Sepp, NTU’s vice president for communications.

Anti-tax advocates also like ballot initiatives for another reason, he added.

“Once a ballot measure has qualified and been put before the people, it can’t go back on its word, like a politician,” he said. “It provides a fixed point of reference for a policy debate that candidates normally shun.”

Prop. 187 Goes National

Immigration reform is another issue that has periodically jolted national lawmakers from their cocoons. The hotly contested Prop. 187 in California, an immigration measure that passed by a wide margin in 1994, helped lend momentum to immigration restrictions passed by Congress two years later, said Dan Stein, president of the Federation for American Immigration Reform. This year’s Arizona initiative, if it passes, could have a similar effect.

“The federal government is where all the action is, but state initiatives help lay the groundwork by giving voters a say,” Stein said. “Initiatives primarily improve the atmospherics of an issue for Congress.”

Campaign finance reformers, for their part, achieved some of their policy goals with the eventual passage of the Bipartisan Campaign Reform Act, even though some of the specific proposals approved by voters on a state-by-state basis — most notably, public financing of campaigns — did not become part of the federal law.

“Even though the law is not a carbon copy of the state measures, I think it’s fair to say that the legislation owed a lot to the initiatives that preceded it,” Bowser said.

Common Cause, the government watchdog, continues to view initiatives as a tool for wider policy success. Barbara Burt, the group’s regional director of state program development, said that Common Cause has placed measures on the ballot in 15 Massachusetts legislative districts this year that would gauge opinion about making the redistricting process more independent of political parties.

“We decided to do a trial run, because it’s obviously going to be a very expensive undertaking,” Burt said. “We wanted to do it on a small scale first, in a diverse group of districts.” If the measure succeeds in Massachusetts, she said, “we don’t think it’s necessarily going to translate into something passed by Congress, but we hope it will have a ‘viral’ effect in the states.”

Of course, a failure to pass Congressional legislation shouldn’t necessarily be seen as a sign of failure, say initiative watchers. Term limits is a good example.

While Congressional term limits failed to reach the required thresholds for passage in both chambers of Congress, 14 states voted to cap their state legislators’ terms — a shift that continues to have significant ramifications today.

“I think in terms of popularizing the issue nationally, it was a successful strategy,” said Paul Jacob, who spearheaded the effort for much of the 1990s with the group U.S. Term Limits. “Without the initiative process, there would have been no way to do it. Career politicians would have had to have done it — but they wouldn’t have, and all the excitement would have dissipated.”

Elizabeth Garrett, director of the Initiative & Referendum Institute at the University of Southern California, agrees that passing Congressional legislation need not be seen as the be-all and end-all for initiative sponsors.

“Just being able to get something onto the national agenda is a pretty significant achievement,” she said. “It takes an aggressive policy entrepreneur just to do that.”