Direct Democracy and Discrimination: A Public Choice Perspective
70 Pages Posted: 19 Oct 2015
Abstract
This Article, which was prepared for the John M. Olin Foundation Conference on "The Law and Economics of Local Government" held in November 1991 at the University of Virginia School of Law, takes up two major questions. Are plebiscites more likely than representative processes to produce laws that disadvantage racial minorities? And should the courts, which have not historically varied their analyses because of a law's popular origin, begin to employ different standards when reviewing the enactments of plebiscites and legislatures? Thus far, scholars have largely agreed that the answer to both questions is "yes." In this Article, I argue that the answer to both questions is "no."
Part I discusses the important but overlooked reciprocity of effect of any systematic differences in the plebiscitary and representative lawmaking processes. To the extent that a given difference in the two lawmaking processes makes it more difficult for a racial minority to block disadvantageous legislation in a plebiscitary than in a representative process, that same difference will make it easier for the minority to pass advantageous legislation in a plebiscitary than in a representative process.
Part II examines the major differences in the direct and representative lawmaking processes: (1) state legislatures, but not plebiscites, are nearly always bicameral and their enactments subject to an executive veto; (2) representatives have more opportunities for logrolling than do plebiscite voters; (3) the author of the initiative almost always and almost entirely sets the agenda in a plebiscite, while agenda-setting in a representative body is a much more complicated process; and (4) representatives' votes are public, while plebiscite votes are anonymous. Employing public choice theory, I show that whether these differences result in plebiscites being systematically more likely than representative bodies to enact legislation that disadvantages racial minorities is a much closer theoretical question than previous commentators have thought. Part II concludes by addressing the claims that representative bodies engage in more deliberation than do plebiscites, and that they therefore are systematically less likely than plebiscites to enact legislation that disadvantages racial minorities. I determine that both this premise and conclusion are seriously flawed.
Part III considers what, if anything, should be done if plebiscites were empirically found to be systematically more likely than representative bodies to enact legislation that disadvantages racial minorities. I conclude that those who, despite the analysis in Parts I and II, remain interested in providing racial minorities still greater protection from potentially disadvantageous plebiscitary legislation, might more productively focus their attention on remedying any perceived defects or weaknesses in existing plebiscitary procedures than on altering the standard of judicial review.
Keywords: direct democracy, initiatives, referenda, legislation, discrimination, minorities
JEL Classification: K1, K10
Suggested Citation: Suggested Citation