The Dual Path Initiative Framework

43 Pages Posted: 19 Jul 2006

See all articles by Elizabeth Garrett

Elizabeth Garrett

USC Gould School of Law

Mathew D. McCubbins

Department of Political Science and Law School, Duke University

Date Written: July 17, 2006

Abstract

In this Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the processes through which initiatives are passed may make welfare-reducing decisions inevitable. Second, initiatives, once enacted, often fail to be implemented by government officials. In response to these two problems, we propose a new comprehensive framework of postqualification reforms that keeps both the spirit and intent of the initiative process: the Dual Path Initiative Process with a Citizens' Initiative Implementation Oversight Commission.

First, the Dual Path Initiative Framework includes three distinct stages for each initiative. The first stage occurs when only a brief description of the proposal, providing the purpose of the initiative and the general outline of the solution to be adopted, is circulated for signatures. This process is designed to gauge public support for the general objective of the proposal's backers. When sufficient signatures have been obtained and the process moves to the second stage, the proponents and legislature have the opportunity to draft legislative or constitutional language to submit to the people for a vote. During this second stage, lawmakers and ballot measure proponents can negotiate so that a compromise can be passed as a statute through the traditional legislative process or a mutually acceptable constitutional amendment can be submitted for a vote. Even if there is no agreement reached, this period provides flexibility so that drafting errors can be identified, likely consequences of the new policy can be assessed, and language can be revised. At the end of this time, if the proponents of change are not satisfied with the legislature's response, they can submit to the people a detailed proposal designed to advance the purpose of the originally-qualified brief policy. The third stage occurs after a popular initiative is enacted through a vote of the people. Popular constitutional initiatives will expire after ten years and must be re-enacted; popular statutory initiatives will also be less durable because the legislature may, after a period of time, amend or repeal any such initiative.

Second, we propose a Citizens' Initiative Implementation Oversight Commission (CIIOC) to ensure that enacted initiatives are faithfully implemented by state and local officials, who might otherwise work to obstruct or delay ballot measures they opposed. The CIIOC will include a representative named by each successful popular initiative, and it will have the ability to conduct hearings, produce reports, participate in administrative proceedings, and even pursue litigation. A statewide citizens' oversight commission is a novel reform, not currently used by any state.

Suggested Citation

Garrett, Elizabeth and McCubbins, Mathew D., The Dual Path Initiative Framework (July 17, 2006). USC Law Legal Studies Paper No. 06-14. Available at SSRN: https://ssrn.com/abstract=918075 or http://dx.doi.org/10.2139/ssrn.918075

Elizabeth Garrett (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
213-740-0064 (Phone)
213-740-5502 (Fax)

Mathew D. McCubbins

Department of Political Science and Law School, Duke University ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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