A Proposed New Constitution Article 9, Referendums

Article 9- Referendums and Recalls

“1. Members of the public may propose referendums to pass new laws, recalls to remove for illegal or corrupt actions the President, Vice President, member of Congress, Supreme Court Justice, or any appointed official, or bring an end to wars or operations involving US troops.”

A referendum, done right, can be direct democracy at its finest. The public directly proposes and passes laws, completely bypassing both the Congress and the President. Referendums at their best show a public more far sighted than elected officials that may depend on elites for their office and fear angering them.

There have been over 500 national referendums in recent history in 56 nations. The region with the most national referendums by far is also the most democratic, Europe. Two nations account for over 300 of national referendums worldwide, Australia and Switzerland. Outside of those two nations, the most common reason for a referendum was to approve a new constitution or other change of government, especially after an overthrow, independence, or to prevent or end a period of turbulence. In a few cases, nations do have purely nonbinding referendums that simply force a legislature or president to consider an issue.

There are not any federal referendums in the US. But 24 states allow referendums within them. Most of these states are in the west, the best known being those in California. Puerto Rico has also held four referendums on their status, and they are perfect examples of doing them wrong. Each time, a pro status quo government worded the referendums to be confusing, hoping to defuse sentiment for statehood. Interestingly, sentiment for the status quo still keeps dropping, and for both statehood and independence it keeps rising, along with voter turnout on the issue.

California also provides some very good lessons in these problems. The most destructive of their referendums was Proposition 13, which not only rolled back taxes, it required a supermajority to raise taxes. It took several decades to undo the damage done by Proposition 13. Clearly, using a referendum for routine matters such as tax rates is a misuse, as is something as fitful and undemocratic as requiring a supermajority for a minor matter.

California also faced one of the more despicable examples of a witch hunt posing as populism, where Lyndon Larouche's organization of conspiracy theorists and bigots managed to stealthily force a proposition which would have quarantined AIDS patients. It's worth pointing out the measure was defeated by almost 3 to 1, and many of the signatures were gathered by a consultant later convicted of fraud.

The final example of abuse of referendums or plebescites is in fascist, communist, and other dictatorships. Dictators use them to claim to represent the will of the people. But very few people are fooled by such claims. Everyone can see that a dictatorship's elite proposal from above, with no debate or dissent allowed, is the opposite of actual direct democracy.

Recalls certainly have a better history. Most recalls in recent US history have been successful, mostly at the local level, mayors or town councils. Most efforts to recall governors have failed. Meacham of Arizona was recalled for an ugly history of racism, and Blagojevich of Illinois for corruption. The worst example of a successful recall was Gray Davis of California, orchestrated by officials in Enron, who were later convicted on other criminal counts. Enron officials ordered rolling blackouts across California, leading to Davis being blamed for a nonexistent power crisis. The recall overturned an election less than a year before. The simplest way to avoid such a debacle on a national level is to allow recalls only for lawbreaking or corruption.

A recall can and should be used to remove corrupt officials. Recalls could have removed Nixon far sooner and kept Reagan from avoiding responsibility for the Iran Contra Scandal. Recalls could have been used against partisan Republican leaders misusing the impeachment process against Clinton for the ludicrous matter of lying about oral sex. Recalls could have been used to remove the five partisan Supreme Court judges who halted a valid recount of the 2000 election. Had recalls been around in the 1850s, they could have been used to remove the judges in the Dred Scott decision, possibly making the Civil War less likely.

Referendums, had they been around at the federal level, could have ended the Vietnam War far sooner. The public opposed it by 1968, yet Nixon kept it going five years longer. A similar referendum could have ended the Iraq War as early as 2006, when the public first opposed it. There would have been tens of thousands of American soldiers still alive, many more not amputated or otherwise wounded, and hundreds of thousands of Vietnamese, Cambodians, and Iraqis surviving had the public been able to directly order these wars stopped.

“2. A referendum or recall vote happens 30 days after the certified collection of valid signatures of ten percent of all voters.”

A 30 day period is long enough to allow for informed debate and avoid a rush to judgement, but short enough to avoid a buildup of cynicism and disgust for the process. Ten percent is a high enough threshold to prevent most fringe groups of conspiracists or bigots from getting a measure on the ballot. Recall that Larouche's people had to use fraud.

Of course there are some groups large enough to succeed in still doing so. Birther conspiracy theorists were and are over 10% of the public. In that case, all a ballot initiative would do is rouse the anger of the public against them, as Larouche's people did in California. Referendums that sanction prejudices are explicitly barred by the clause below.

“3. No referendum may overturn, contradict, or limit anything in either constitution, and such efforts must be done instead by constitutional amendment. Nor shall referendums or recalls be funded by corporations, nor any private contributions except for individual unpaid volunteer work. Referendum advertising must be equally funded both pro and con, must be publicly funded only, and subject to reasonable limits.”

One of the arguments against referendums, and populism of any kind, is “What if segregation had been up for a vote?” It always was, and segregationists had to use force to impose it. For over a century racists used massive violence and intimidation to maintain separate and unequal divisions. Referendums are barred from being used for any form of government sanctioned prejudices by other proposed articles to this proposed new constitution.

What would be best for elections would also be best for referendums and recalls. Publicly funded elections only, so that corporations and wealthy elites cannot hijack them and do not have a greater voice than the average person. Neither side should be given an advantage financially. The time frame for recalls and referendums must be limited for the same reason as for elections, to prevent the overload, the burnout and cynicism and unnecessary waste that long election campaigns currently produce.

The founders, Madison especially, hated the idea of direct democracy. That is one of the strongest arguments for it, for we have been living with the destructive results of their limits on democracy for over two centuries.