Initiative Process Deserves Support
I’ve intended for the past couple of weeks to respond to Justin Hauke’s last attack on the initiative process — specifically, his praise for a bill that would outlaw paying petitioners based on the number of signatures they gather, under the rubric of "preventing fraud." I’ve kept putting it off, though, both because other projects keep crowding my attention, and because I wanted to make sure to hone a particularly good response — initiative & referendum is worthy of a vigorous and comprehensive defense.
Sometimes it takes money to do things. Say, to collect signatures for a petition. If you want folks to be hitting the sidewalks all day inviting support for a ballot question, you might want to pay them so they can pay the rent while they’re doing this.
Critics of citizen initiative rights often complain about paying people to gather signatures — especially if they’re paid per signature. They even try to outlaw it. If workers are paid per signature, aren’t they motivated to commit fraud? Concoct fake signatures?
Let’s think this through. If the possibility of fraud justifies outlawing a paid activity, how many paid activities could then be outlawed? Well, all of them.
Outlawing fraud and outlawing a freedom that might be abused are two different things. All freedom can be abused. […]
There are bad guys. But we don’t criminalize all conduct, even the good, because of the possibility of bad. Instead, we make laws against bad conduct.
This deserves emphasis: It is unjustifiable to outlaw an activity just because it might provide an incentive for individual acts of fraud — especially when that activity is associated with such a crucial right as political speech. Officials should investigate and prosecute cases of fraud that have actually occurred; engaging in prior restraint based on what officials imagine could happen is a subversion of the First Amendment.
And, yes, it is a First Amendment issue. Paul goes on to mention that, less than a week ago, an Ohio appeals court overturned a similar law that had banned pay-per-signature initiative efforts. The court’s decision is rooted in basic constitutional free speech provisions:
As with the law in general, the First Amendment is a jealous mistress. It enables the people to exchange ideas (popular and unpopular alike), to assemble with the hope of changing minds, and to alter or preserve how we govern ourselves. But in return, it demands that sometimes seemingly reasonable measures enacted by our governments give way.
The State of Ohio enacted a provision making it a felony to pay anyone for gathering signatures on election-related petitions on any basis other than the time worked. It did so for the sensible purpose of reducing fraudulent signatures. The provision, however, runs afoul of the First Amendment because it creates a significant burden on a core political speech right that is not narrowly tailored. Accordingly, we affirm the district court’s grant of summary judgment against the State.
The judge recognized that the Constitution also gives government officials "the authority to determine ‘The Times, Places and Manner of holding Elections,’" but noted that this authority can’t place a significant or severe burden on individuals or groups who organize to engage in otherwise lawful political expression.
At any rate, Justin’s argument has another noteworthy hole. He, again, points out that initiatives are "responsible for terrible legislation" — a point I had already ceded in my earlier defense of the initiative process. But, as with any other phenomenon, it’s important to judge the effects of initiatives on balance, and the ratio of good initiatives that voters have passed is far, far better than the ratio of good legislation that politicians have passed.
It’s no contest, really. For all the bad that initiatives could do, they have an excellent track record of the good far outweighing the bad. That’s no small thing. In practice, the initiative process is one more check and balance on ever-growing government power.