Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy

Abstract

Successful ballot measures are commonly perceived as a pure reflection of "the will of the people." Yet initiatives do not appear magically on election ballots or in statute books as a result of the electorate's wishes. Rather, such measures are conceived, drafted, and vigorously promoted by identifiable initiative proponents, who often represent particular special interests and may not even live in the communities in which their measures are proposed. The myth of popular sovereignty in direct democracy should be rejected. Instead, initiative measures should be characterized as lawmaking by initiative proponents, whose general objective is either ratified or rejected by the voters. Rejecting the myth of popular sovereignty in direct democracy would alleviate many of the problems of judicial review that commentators have identified. By treating the initiative proponents as the relevant lawmakers, courts would be able to identify impermissible motives underlying a measure's enactment and continue using an intentionalist methodology of statutory interpretation without resorting to a counterproductive fiction of "voter intent." On the other hand, express recognition that direct democracy involves lawmaking by initiative proponents intensifies the tension between direct democracy and representative government, the problems associated with the delegation of lawmaking authority to unelected actors, and the absence of safeguards to encourage careful deliberation and reasoned decisionmaking in the initiative process. Initiative proponents are not the only unelected lawmakers in our democracy. Administrative agencies have freely enacted binding rules based on broad delegations of authority since the New Deal. This development has always been considered constitutionally suspect, but courts have allowed it to continue unabated largely because administrative law has developed alternative safeguards to replace those provided in the legislative process by representation and the requirements of Article I, Section 7. Specifically, administrative agencies must comply with the notice-and-comment procedures of the Administrative Procedure Act, and their final rules must withstand hard-look judicial review. Those safeguards ensure that agency officials engage in careful deliberation and reasoned decision-making and have thereby legitimized agency lawmaking. A similar model is needed to constrain the proponents of ballot measures and thereby legitimize the use of direct democracy. This Article therefore draws on the agency model to propose amending state laws that regulate direct democracy to subject the proponents of initiatives to the requirements of public deliberation and reasoned decisionmaking that presently constrain administrative agencies. The Article argues that unlike previous proposals, such reforms would promote careful deliberation, improve the legislative product, and provide a heightened standard of judicial review that is well established and directly responsive to the serious structural shortcomings of the current method of lawmaking by "the people."