Bypassing the Representational Filter? Minority Rights Policies under Direct Democracy Institutions

One common critique of direct democracy posits that minority rights are endangered by institutions like ballot initiatives and referenda. Empirical research testing this claim, however, has produced conflicting results that leaves the question of direct democracy’s effect on minority rights open to debate. This study extends upon the previous research by providing a more direct test of this criticism – it compares antiminority policy proposals from direct democracy states to similar proposals from states without direct democracy institutions. Further, it examines both ballot proposals and traditional legislative bills in order to account for both the direct and indirect effects of direct democracy. Examining anti-minority proposals from all fifty states from 1995 to 2004, the analyses show that direct democracy states are, indeed, more likely to pass these proposals than states without direct democracy institutions. A familiar critique of direct democracy contends that the rights of minority groups are at higher risk under governmental systems with direct democracy institutions, like ballot initiatives and referenda. By circumventing traditional, representative institutions, such as the legislature and the elected executive, direct democracy avoids filtering mechanisms that serve to protect minorities from a unified majority faction. Put simply, under direct citizen legislation, minority groups (by definition) are disadvantaged relative to the majority. This concern has long been voiced in the scholarly literature (Bell 1978; Eule 1990), but empirical research into this question has produced conflicting results that have left scholars agnostic (Matsusaka 2004). Previous empirical studies have generated results both supportive of this critique (Gamble 1997; Schildkraut 2001) as well as in opposition to it (Donovan and Bowler 1998a; Frey and Goette 1998). Though these existing studies reach divergent conclusions as to the impact of direct democracy on minority rights, most of their research designs share a common feature – a singular focus on outcomes from citizen legislation. This approach presents limitations in fully assessing the policy impact of direct democracy institutions for two reasons. First, the anti-minority critique is a comparative one – representative democracy is better equipped to protect minority rights than direct democracy. In order to directly test this argument then, it is necessary to compare both types of governmental systems, and not just focus on direct democracy systems. Second, direct democracy institutions not only affect policy outcomes directly when ballot initiatives and referenda are passed, but they can also indirectly influence policy by affecting the behavior of elected officials (Romer and Rosenthal 1979; Gerber 1996). It follows that a full assessment of the total policy impact of direct democracy would have to account for this indirect impact by including traditional legislation from systems with direct democracy institutions in the analysis. This study accounts for the comparative nature of this critique by examining policy proposals that target minorities in direct democracy states as well as in states without direct democracy. The indirect impact of direct democracy is also accounted for by examining both proposals introduced into state legislatures as well as proposals considered by the public on ballots. Analyzing these anti-minority 2 proposals, it is possible to compare the passage rates in direct democracy states to the passage rates in non-direct democracy states. The results suggest that the concerns for minority rights are valid, revealing that anti-minority proposals are more likely to pass in direct democracy states. DIRECT DEMOCRACY & MINORITY RIGHTS While the debate over direct democracy in the United States began with the Progressive and Populist movements in the late 19 th century, concern about the rights of minorities in democratic societies extends back to the beginnings of American democracy. In designing the nation’s democratic institutions, the framers of the Constitution frequently cited the protection of minority rights as justification for their form of representative government. James Madison asserted the value of guarding “one part of the society against the injustice of the other part,” and warned that, “If a majority be united by a common interest, the rights of the minority will be insecure” ([1787] 1999b). He went on to argue that pure democratic systems, where citizens participate directly in policymaking, cannot adequately control the ills of factions because there is no check on the power of the majority to rule at the expense of minorities. As such, Madison forcefully opposed many forms of direct citizen participation, from citizen legislation to direct election of Senators and the President, and offered representative government as an alternative governmental design that would better protect minority rights. According to Madison, the mischief of factions could be dampened by the filtering processes of representative democratic government. The Federalists argued that raw public opinion could be “refine[d] and enlarge[d]... by passing through a medium of a chosen body of citizens” (Madison [1787] 1999a). In a representative democratic system, the legislative process provides multiple filtering mechanisms that can limit the ability of a majority to restrict minority rights. In particular, there is ample opportunity and incentive in the process for deliberation, consensus-building and compromise. First, minority concerns can be voiced during policy deliberations through their elected representatives. Second, in order to gain passage, bills must gain a rather large consensus to be repeatedly approved at each stage of the legislative process. In order to build this necessary consensus, policy proposals need to attract a wide range of support. Compromise and moderation are essential tools to build consensus 3 around a successful policy proposal. Furthermore, the legislative process places a premium on building relationships. Legislative decision-making is not a one-shot game. Rather, legislators work with each other again and again across a myriad of issues and policies. Therefore, it would ill-advised for legislators to completely shut out their minority group colleagues on one issue since they may be needed for consensus on another issue. Direct democracy institutions, meanwhile, can avoid these filtering process, and as a result afford little opportunity for minority voices to be heard while creating more rigid legislation that requires far less consensus, especially from interested minority groups (Eule 1990; Cain and Miller 2001). Direct democracy also provides opponents of minority rights a relatively easy way to achieve their goals by quickly expanding of the scope of conflict from the legislative arena to the public forum (Schattschneider 1960; Haider-Markel and Meier 1996). Compared to a ballot measure, where millions of citizens may participate, the relatively small arena of the traditional legislatures allows minority voices to be part of the deliberation and debate. As such, minority groups can often contribute to the policy debate through the filtering processes of representative government. However, in expanding the scope of conflict to the mass level, majoritarian preferences can quickly overwhelm any consideration of minority rights. The upshot of all of these arguments is that by circumventing the representational filters of traditional representative democratic system and allowing for quick and easy expansion of the scope of conflict, states with direct democracy institutions should be more likely to restrict the rights of minorities.