Initiative and Referendum

How People Reacted to Proposition 13

Twenty years ago, on June 6, 1978, Proposition 13 passed in California. The measure not only limited taxes for land speculators and homeowners, but also touched off nationwide debate on citizen initiatives. As The Texas Observer put it, "in certain quarters, the measure's blunderbuss attack on the property tax system is seen as a sure sign that the initiative procedure lends itself to abuse by a distempered electorate."

For the next three days, The Progress Report will print three reactions to Proposition 13, each written just after its original passage. Here is the first.

Direct undiluted democracy for Texas

By Walter Mengden (a member of the Texas Senate)

But wide variance between popular sentiment and legislative response is not confined to California, or to the tax issue--it is a regrettable commonplace of American politics. Both the Texas Legislature and the U.S. Congress have frequently failed to approve measures for which polls and questionnaire results have demonstrated consistent, overwhelming public·support.

The reason for the disparity between what people want and what legislators do in their name lies in the nature of the American representative system. Neither the legislature nor the Congress is now, or was ever intended to be, a microcosm of the state or nation. Instead, the framers of our representative institutions sought to ensure the election of respected, right-thinking notables who would go off to Austin or Washington and wisely conduct the public's complicated business.

John C. Calhoun gave classic expression to this philosophy in explaining how he voted as a congressman and senator from South Carolina during the first half of the 19th century: "I never know what South Carolina thinks of a measure. I never consult her. I act to the best of my judgment and according to my conscience. If she approves, well and good. If she does not and wishes anyone to take my place, I am ready to vacate." As a U.S. senator in the 1950s, John F. Kennedy made the same point more circumspectly in his Profiles in Courage: "It is difficult to accept such a narrow view of the role of U.S. senator that assumes the people sent me to Washington to serve merely as a seismograph to record shifts in popular opinion.... This may mean that we must on occasion lead, inform, correct, and sometimes even ignore constituent opinion, if we are to exercise fully that judgment for which we were elected" (emphasis added).

Kennedy also described the trouble even the most conscientious legislator sometimes has in figuring out what his constituents really think: "I frequently find myself believing that forty or fifty letters, six visits from professional politicians and lobbyists, and three editorials in Massachusetts newspapers constitute public opinion on a given issue. Yet in· truth I rarely know how the great majority of the voters feel, or even how much they know of the issues that seem so burning in Washington." The will of the people is often a lot clearer than that, of course, but legislators can usually get away with some deviations from the views of the voters as long as their overall record remains reasonably representative. And when individual legislators agree with prevailing public sentiment, their bills may still die at the hands of unsympathetic legislative leaders or committees.

Twenty-one states provide for initiatives and referendums as a way around these obstacles to full representation. (Eleven other states, including Texas, permit these procedures only at the local level.) Citizens in those 21 states can bypass unresponsive legislatures and directly enact or repeal state laws.

The current effort to obtain for Texans a similar version of direct, undiluted democracy dates back to the 1974 state constitutional convention. Several different initiative proposals were defeated, and the record discloses that conventiona1 ideological labels were no clue to the positions legislators took on the issue. The likes of Key Bailey (note: she's now a U.S. Senator) and Lane Denton made common cause on the pro-initiative side, while the anti-initiative majority included such strange bedfellows as Mickey Leland and Billy Clayton. With some personnel changes, these unlikely alliances remained intact in subsequent sessions of the Legislature.

The fate the initiative idea met in the 1977 session illustrates precisely the problem of relying on the usual legislative process for action on a popularly supported challenge to the familiar way of transacting the people's business. The House version of the proposal never even got a hearing in the constitutional amendments committee chaired by Rep. Tim Von Dohlen, a foe of initiative and referendum. The Senate version, which Ron Glower and I co-sponsored, was not given a hearing in the Senate state affairs committee until a week before the session came to a hectic close, when Sen. Jack Ogg of Houston quickly moved to kill the measure by sending it back to subcommittee. His motion passed five to one, and that, for 1977, was that.

I do not mean to suggest that no legitimate concerns were raised by opponents of the initiative procedure. One reasonable' objection is that Texas ballots could be flooded with citizen-initiated proposals. Another is that without legislative-style committee review, a proposal sound in principle could be crippled by poor draftsmanship, effectively denying voters the option they meant to have.

But the number of ballot propositions could be limited simply by requiring more signatures on the initiative petitions. For statutory measures, for instance, Texas could set the required number of signatures at a number equal to 15 percent of the total vote cast in the preceding gubernatorial election; for constitutional amendments, the threshold could be raised to, say, 20 percent (which, incidentally, would make initiatives harder to place on the ballot here than in any state that now permits the procedure). And to see to it that poor draftsmanship does not defeat the petitioners' purpose, it might be feasible to interpose an initiative review committee, with citizen members designated in the petition itself.

To create such a committee would admittedly be a departure from the pure initiative system, but it might help win acceptance for the basic idea that citizens should be able to directly introduce measures now left solely to the vagaries of the legislative process. To meet legitimate objections, I am willing to make any reasonable accommodation.

But some objections admit of no compromise. It is said, for example, that a clever advertising campaign could dupe the electorate into approving a measure a majority would not really want. Or, it is argued, ordinary citizens should not be allowed to vote on matters best left to experts.

There is no basis in a democratic system for an argument so blatantly elitist; logically extended, it could stand as the philosophy of every king, dictator or despot in the world, for it applies with at least equal terce to the fitness of the people to choose their representatives. By the same token, the Legislature's present practice of submitting constitutional amendment propositions for popular approval would have to be called into question, for it presumes that the people can be trusted to act wisely.

The argument does, in the end, come down to a question of trust: do we dare to let individual Texans have a direct say in proposing,·passing and sometimes repealing the laws they live under? I submit that we must--that the voters of Texas are entitled to substitute their judgment for that of a legislature all too often submissive to the claims of entrenched interests rather than the wishes of the voting public.

Therefore; when the Legislature convenes next year, I will again introduce a proposal to amend the Texas Constitution to create an initiative and referendum system. The challenge to liberal and conservative members of the Legislature will be clear: do they have enough confidence in the persuasiveness of their political views to submit them to the test of direct democracy?