NEW YORK STATE NEEDS INITIATIVE AND REFERENDUM

This piece, though slightly dated, gives an overview of initiative and referendum and the how New York State would benefit if it joined the other states that have it. In recent history the state legislature has come close to passing legislation that would have instituted initiative and referendum, but if has never been approved by the full legislature. Hopefully efforts will continue and the people of one of the most populated and economically significant states of the union will have this tool of direct democracy available to them at the state level. - Editor


Little Initiative

By Sydney Fisher

Source: http://www.academic.marist.edu/shaffer/lilin.html

In California, it succeeded by outlawing mandatory quotas for hiring practices and admittance to public institutions. In Massachusetts, it has put an annual cap on previously unchecked property taxes, making it more difficult to call the New England state by its notorious nickname: "Taxachusetts." But in New York state, the initiative and referendum (I&R) process continues to elude voters.

As the Republican candidate for governor in 1994, George Pataki vowed had bring I&R to New York. He issued a promise in his inaugural speech, saying, "I will ... give the people ' the dean unmistakable democratic voice that is theirs with the right of initiative and referendum."

While making good on other campaign promises-from reinstating the death penalty to lowering taxes--the governor has shown no sign of advancing I&R beyond his failed attempt in 1995, when he circulated his proposed bill in the Legislature. His spokesman, Michael McKeon, says the governor still hopes to bring I&R to New York. But currently, it is not among PataUs priorities. "Right now the governor is focusing on ending Darole for first-time violent felons, building on his welfare reform success; and job creation," McKeon says.

For New York's recently reform-minded Legislature, which has embraced conference committees and has approved making campaign funding information available over the Internet, I&R also remains on the back burner. For many lawmakers, the primary argument against I&R is that it undermines the deliberative process of government by allowing the electorate, rather than the people in elective office, to make the laws.

"The systems of campaigning and electing representatives every two yew for legislative office are working properly," says Mark Hansen, spokesman for Senate Majority Leader Joseph Bruno, in dismissing I&R , which frequently is used to enact policy-such as term limits--opposed by many lawmakers.

Conservative and liberal advocates and certain lawmakers and candidates for office, nevertheless are continuing their crusade to bring I&R to the Empire State. Polls, too, show as many as two-thirds of New Yorkers favor the process.

I&R is about "my voice counts," says Mark Dunlea, chairman of the legislative committee for New York Greens. It gives voters a stronger voice on issues, he says. And if "citizens feel they are listened to, they'll get more involved," Dunlea says.

In April of this year, the New York Public Interest Research Group (NYPIRG) released a report that analyzed 20 years of election data from all 50 states and the District of Columbia. The study revealed that the average voter turnout for states with I&R was 52 percent compared to states without I&R, which reported an average of 46.5 percent. New York ranked 37th out of 50 states, with 44 percent of voters going to the polls .

Initiative and referendum is often referred to as "direct democracy" or "citizen lawmaking." An "initiative" is a process allowing people to petition and put amendments or legislation on the ballot for voter approval. Referendum, used less often, is a ballot measure that allows for final voter approval of a newly enacted law, by petition, from the Legislature. In both cases, the process enables the electorate a more direct, immediate say on public policy matters such as tax, campaign finance and tort reforms.

I&R had its antecedent in the 1600s when New Englanders held town meetings. The people used the forums to place ordinances and other issues on the agenda for discussion and a vote. Contemporary I&R is adapted from the Swiss, who have used it since the mid-1800s. In this country, I&R was first adopted by South Dakota 100 years ago when the progressive movement -which ushered in reforms such as women's suffrage and the direct elections of U.S. senators-swept across the western United States. Progressives hoped I&R would eliminate the ills associated with certain political machines.

States today can adopt the I&R process by having their legislatures approve an I&R amendment, or by holding a constitutional convention in which the delegates decide to adopt an I&R amendment. In either case, the proposed amendment must be placed on the ballot for voter approval.

From 1898 to 1997, voters in the 24 states with I&R have approved 39 percent of the 1,650 measures placed on state ballots. I&R's use has accelerated in recent years, making it one of the most prevalent mechanisms for altering and influencing public policy on the local, state and national levels. In 1996 alone, 20 states voted on 90 initiatives, an unprecedented number. In 1 986, the total count was 41.

Dane Waters, president of the Initiative & Referendum Institute in Washington, D.C., says this trend toward increased use of I&R stems from the legislature's inability or unwillingness to act because of self-interest and/or conflict of interest. While the states allowing I&R have increased their use of the process, non I&R states are not rushing to join them. In 1992, Mississippi became the first state to adopt I&R since Florida implemented it two decades earlier.

Opponents point to California to justify their disdain for the process. You need to be mindful of the California experience," says Patricia Lynch, spokeswoman for New York Assembly Speaker Sheldon Silver.

Many of I&R's critics point to California's Proposition 13, considered the grandfather of initiatives, which froze property taxes at 1978 values and drained the state of a major source of revenue, causing its infrastructure to fall into further disrepair.

Tracy Westen, president of the Center for Government Studies in Los Angeles, says California's I&R process is too rigid. Once a bill is given an official title and summary by the state Attorney General's Office and circulated, it can't be amended by anyone, including its proponents, for any reason, even if mistakes are found. Westen's organization is trying to pass a ballot initiative in 2000 that would build greater flexibility into the process.

Dale Maharidge, a journalism professor at Stanford University, is. critical of the knee-jerk response at the voting booth when it comes to initiatives like California's Propositions 187---considered an anti-immigration measure-and 209-which ended affirmative action-that he says disproportionately affect minorities. "Its like using a sledgehammer to solve the problem that needs a scalpel," he says.

In his book The Coming White Minority, Maharidge examines how some propositions pander to peoples' xenophobic fears, especially those of wealthy whites over the age of 50 who comprise 42 percent of Californias electorate. "I&R makes the lawmakers reluctant to do anything," he says. "lt's a cop-out for the legislators who delegate the unpleasant task to the voters."

Maharidge's advice to those considering the adoption of I&R: "Get on your horse and ride the other way. The disadvantages outweigh the advantages. Most of the time, big money and, xenophobia speaks."

But the Center for Govemmenes Westen says I&R frequently performs its traditional role, and does so positively. "It puts out measures to get things done when the legislature refilses to do anything," he says.

In 1988, for example, California lawmakers tried to increase the sales tax on cigarettes, but the bill never got out of committee. Voters bypassed the Legislature, raising a ballot initiative. The measure passed, even after tobacco interests spent $21 million on a media campaign to quash it.

Advocates also point to California passing three initiatives on campaign finance reform, two in 1988 and one in 1996 concerning contribution limits and expenditure ceilings for public financing. All three have been declared unconstitutional by the courts.

Waters of the I&R Institute says New York's neighbor to the east exemplifies how a "Partnership between the people and the legislature" can work. Massachusetts, which adopted I&R by constitutional convention in 1918, has the nation's 14th highest voter turnout rate and uses what's called an indirect initiative to pass statutes. Instead of appealing directly- to the voters, indirect initiative requires petitioners to gather signatures from at least 3 percent of the total number of people who cast ballots for governor in the last gubernatorial election to send their initiative to the Legislature. If it is approved, and petitioners agree to any amendments made, the measure is signed into law. If it is rejected or the petitioners don't like the Legislature's proposed, changes, they may gather an additional half percent of the signatures and place the bill on the ballot.

Dorthea Vitrac, executive director of LIMITS, a term limits organization based in Braintree, Mass., says I&R is stiff homegrown and largely volunteer-based in her state, unlike in California, where millions of dollars are needed to fund a campaign. "On this year's ballot, voters will decide on tightening up campaign finance reform, whether or not to cut taxes on investment income, and whether tollbooths should be removed from the state turnpike," she says.

In 1980, Massachusetts voters approved the state's most significant ballot measure to date, Proposition 21/2. Like California's Proposition 13, it capped property taxes at 21/2 percent of valuation annually. Without it, Vitrac says, no one would be able to afford to live in the state. "They didn't call us 'Taxachusetts' for nothing," she says. "Its tragic for states that don't have it. It's a tool for the people. It's a way to get around the Legislature when they don't respond."

The procedure for enacting I&R in New York is a long one. A constitutional amendment authorizing it must be passed by two consecutive, separately-elected legislatures. The measure then would go to voters in, of all things, a statewide referendum.

In 1995, legislators rejected Pataki's proposed I&R bill, which called for direct initiative, limits on campaign contributions and gathering signatures equal to 5 percent of the total ballots cast during the last gubernatorial election. Similarly, the legislators have consistently ignored a bill sponsored by Republican Sen. Frank Padavan of Queens, which calls for indirect and direct initiative, along with gathering signatures equal to 6 percent of the total votes cast in the previous gubernatorial election.

According to NYPIRG's April report, I&R bills have also been circulated by Sens. Richard Dollinger, a Rochester Democrat, and Michael Nozzolio, a Seneca Falls Republican; and by assemblymen Joseph Robach, a Rochester Democrat, and John Bonacic, a Middletown Republican. But the first discussions of bringing I&R to New York date to the states first constitutional convention in 1894.

At NYPIRGs Albany press conference to release the report in April, groups from the liberal New York Greens to the conservative New Yorkers for Constitutional Freedoms, a Bible-based lobbying group, voiced their support. NYPIRG's legislative counsel, Russ Haven, believes I&R would be a healthy addition to what he says is New York's entrenched, ossified Legislature. "[I&R] would hold legislators accountable," Haven says. "Legislators would be more responsive to voters' needs and would put more pressure on their jobs."

But I&R also has its drawbacks, he warns, since image-conscious lawmakers could "Punt" on sensitive issues, leaving it up to the electorate to make difficult choices. Dunlea of New York Greens, however, says, It's possible for citizens to vote on issues they care about. Like what type of health care system we want, what type of gun controls ...we want in our state, or how ... we regulate the utility companies." Without I&R, says the Rev. Duane Motley, executive director of New Yorkers for Constitutional Freedoms, citizens are largely locked out of the government's Affairs. "If we had I&R,we would have passed the death penalty long ago," he says. "Polls showed that 70 [percent to] 80 percent of New Yorkers were in favor of the death penalty."

Bringing I&R to New York state is a daunting task because it threatens lawmakers, says Tom Carroll, president of CHANGENY, an anti-tax group favoring the process. In 19 of the I&R states, he notes, the people imposed term limits in addition to other measures not always popular with politicians, such as tax and campaign finance reforms. "It's a 'Catch-22,"' he says. "Those who give up power to the people are the ones who get to decide if voters will get the power."

Lynch, spokeswoman for Silver-a critic of term limits-contends the speaker's opposition to I&R has nothing to do with fear of elected officials losing power. Rather, she says, the purest form of democracy is the voters' privilege to cast a ballot every two years for their elected officials.

While New York doesn't have I & R statewide, it does hold referenda to approve not only constitutional amendments but also certain bond issues. Voters in 1996 approved the $1.75 billion Clean Water/Clean Air Environmental Bond Act, for example. In 1997, they shot down a $2.4 billion school construction bond act and a measure that would have convened a constitutional convention.

On the local level, 63 chartered cities and municipalities have limited I & R under Section 37 of New York's Municipal Home Rule Law(MHRL), which "grants authority to localities …. To pass laws."

According to a report on intergovernmental affairs by Columbia Law School professor Richard Briffault, the current version of the law, adopted in 1963, extended home rule to towns and villages. New York's first home rule law was enacted in 1894 to protect cities' "property, affairs, and government" from legislative "Meddling."

Putting a measure on the ballot has proved extremely difficult and costly. In 1993, Allen Roth, executive director of New Yorkers for Term Limits, petitioned to get an initiattive placed on the ballot that would impose term limits on NewYork City's mayor, city council members, borough presidents, and selected other elected officials. After what he calls a "strenuous and exacting process" of gathering the required 35,000 signatures (the organization gathered 100,000 to be safe), Roths group submitted its petition to the city clerk responsible for seeing that the bill complied with the MHRL criteria. The city council rejected the petition limiting officials to two terms in office.

Before campaign organizers gathered another 15,000 signatures to put the measure on the ballot, the city clerk sued RotEs orga:nization, charging that the bill wasn't a valid charter initiative.

The state Court appeals declared the proposed amendment legal and placed it on the ballot. To the politicians' disappointment, the measure passed and ten-n limits were installed. The city council tried unsuccm0y to overturn the amendment in 1996.

Even with the tradition of home rule, Rochester Sen. Dollinger, a vocal I&R proponent, says he believes the chances of New York adopting the process statewide are slim to none. "I don't think it'll ever happen," he says. "I don't think the Legislature will voluntarily give up the power." But, he adds, New York could perhaps get I&R by amending the state's constitution during a constitutional convention.

The I&RInstitute's Waters plans to help New York adopt the process. He recently founded Americans for Sound Public Policy (ASPP), a conservative advocacy group whose mission is to protect the rights of I&R states and to bring the process to the 26 states that do not yet have it. Waters says he is looking to become active in New York by the year 2000.

"With a concerted, multiyear process, lots of money and ongoing education, New York has a good chance of getting it," Waters says. 'A few years ago, privatized Social Security was unthinkable, now its very realistic. The same could happen with I&R."