By DAVID H. EVERSON and JOAN A. PARKER

Should Illinois
take
the initiative?

Should Illinoisans have the power to legislative matters of public policy? That question may be answered in the November '82 (lection if either of two voter initiative amendments make it to the ballot. The concept of the initiative is not a new one, but it is a controversial one, raising legal, constitutional and philosophical issues

WHEN ILLINOIS voters go to the polls in November of 1984, they could decide issues such as the disposal of nuclear wastes, recycling cans and bottles, limits on taxes and spending or myriad other public policy questions. How could citizens directly exercise these legislative powers? If either of two proposed constitutional amendments to add a legislative initiative to the Illinois Constitution is adopted, Illinoisans could become legislators at the ballot box.

Pat Quinn, pointman for the Coalition for Political Honesty, whose "Cutback Amendment" passed in 1980, is now seeking radical surgery on basic legislative powers through passage of his "Illinois Initiative." Paradoxically, the coalition is seeking this change without waiting to gauge ! the benefits of the cutback — which was supposed to increase legislative accountability. A similar proposal, dubbed the "Lincoln Amendment," is being proposed by Ward Hertsted, an Evanston assessor, and his Lincoln Amendment Committee.

Either or both amendments could be on the ballot this November if the requirements for petition signatures are met and if the amendments are deemed to be valid under the 1970 Constitution. In Illinois, a proposal put before lie voters by initiative must be a constitutional amendment on structural and procedural subjects contained in the legislative article (Article 14, section 3). The crucial question is whether or not the two proposed amendments go beyond the scope of the limited initiative. Assuming either the Illinois Initiative or the Lincoln Amendment gets as far as the court, it would be the third time the Illinois Supreme Court has been asked to interpret the Constitution's initiative provision.

Aside from the legal and constitutional issues, the arguments over initiative go right to the heart of the principle of representative government. Should the people directly decide matters of public policy? If so, under what conditions and limitations?

Some of the arguments raised by opponents and supporters of initiatives can be judged against the experiences of other states. Such a comparison makes it clear that neither side has all of the valid arguments. The expansion of the initiative power would definitely change the style and direction of Illinois politics, perhaps radically. But there are many imponderables. And there is a very good chance the court would find both initiatives to be unconstitutional.

The two options

Both the Illinois Initiative and the Lincoln Amendment propose "indirect statutory initiative" powers. In broad terms, their intent is the same: to expand the present limited power of initiative to amend the Constitution's legislative article into a general power of initiative to propose legislation on all topics.

The Illinois Initiative and the Lincoln Amendment are similar in many but not all respects. Both allow citizens to initiate legislation by gathering enough signatures to bring a proposition before the legislature. Both provide that if the legislature — and the governor — do not approve the proposition, unamended, it goes directly on the ballot for voters to decide. And both are indirect initiatives because they allow the legislature a role in the process. The legislature can: pass the proposition, and of course, it becomes law; fail to pass it, and it goes directly on the ballot; or submit an alternative measure to be placed on the ballot at the same time as the citizens' initiative proposition.

The Illinois Initiative and the Lincoln Amendment both require that petitions circulated on behalf of a proposition must have signatures equal to at least 6 percent of the total vote cast in the last governor's race. This is fewer signatures than required for petitions under the present constitutional limited initiative which requires 8 percent. In order to be submitted to the legislature, a proposition's petitions must be declared valid by the secretary of state, which parallels the present constitutional provision.

There are differences, however, between the Illinois Initiative and the Lincoln Amendment, and these raise issues.

The Illinois Initiative gives the secretary of state only three days after receipt of a petition to transmit the proposal to the General Assembly, while the Lincoln Amendment allows 30 days. The obvious question is whether three days is enough time to validate the petitions.

An initiative measure submitted to the voters under the Illinois Initiative becomes law if "approved by a majority of votes cast thereon" and approval by a majority would "have the same force and effect as if it were a bill passed by a vote of three-fifths of the members elected to each house of the General Assembly and signed by the Governor [also applied to a legislative alternative if it's on the ballot]." This appears clear but the Lincoln Amendment is ambiguous in this area. It provides that the measure shall become law "if approved by the required majority of votes cast thereon," and then defines the "required majority" as "the same proportion of votes cast as would be applicable if introduced in the General Assembly other than pursuant to the initiative power and voted on by the General Assembly." It is unclear whether the Lincoln Amendment requires a majority of those voting on the question or a majority of those voting in the election.

The Lincoln Amendment specifically declares that an initiative enacted into law could not be "amended or repealed ... for a period of 2 years after its effective date except by a vote of three-fifths of the members elected to each house of the General Assembly and the signature of the Governor." The Illinois Initiative makes no such restriction concerning amendment or repeal of an initiated statute. If this latter ommission means that initiatives, when passed, could be amended immediately by the legislature, then it would seem to defeat the purpose of initiatives.

April 1982/Illinois Issues/25

The Illinois Initiative permits submission of measures to the electorate only at general elections, while the Lincoln Amendment would allow submission at either a general or a primary election. Given the smaller turnout in primary elections, there are implications for passing a proposition, under the Lincoln Amendment, by a small minority of eligible voters.

Finally and most noticeably, the Lincoln Amendment adds a 119th member to the Illinois House elected from the state at large, whose duty it is "to introduce the complete text of the proposed [initiated] law in the House. . . ." In addition, the at-large representative "shall have all privileges, immunities, rights and duties of a Representative as provided in this Constitution or by law." When one considers the possiblity of an evenly divided House, cut to 118 members by the amendment passed in 1980, the significance of a 119th member could be crucial in passing any legislation.

Constitutional issues

The Illinois constitutional initiative provision is unique in restricting changes to "structural and procedural subjects contained in Article IV [the legislative article]." The Sixth Illinois Constitutional Convention (1970) considered and rejected a more general initiative provision. The limited initiative provision was adopted because it was thought unlikely that the legislature would propose to reform itself. As delegate Louis Perona said: ". . . it's unlikely that the legislature would propose an amendment reducing the number of legislators or in changing from cumulative voting ... to single member districts." The delegates conceded that the scope of Article 14, section 3 would ultimately be defined by the courts.

The Illinois Constitutional initiative is triggered by a petition with valid signatures equal to 8 percent of the total vote cast for governor in the previous election. Whether a proposed amendment fits within the limitations is a matter for the Illinois Supreme Court to decide. In 1976, the court held that only amendments which propose structural and procedural changes are valid (Coalition for Political Honesty v. State Board of Elections, 65 Ill. 2d 453, 359 N. E. 2d 138 [1976]). In 191 the court may have backed away fnul that interpretation somewhat in rulingl that the Cutback Amendment, whkkl altered the structure but not the prw cedure of the House, was a vail measure under Article 14, section 3. IT remains to be seen how the court wil decide the thorny constitutional issues I surrounding the two current proposals.

Bluntly stated, both proposals seal to be attempts to use the constitutionaI initiative provision for purposes not intended by the framers of the 1970 Constitution. Two significant constitutional questions cloud the future ofl these proposals. One is whether the 1970 Constitution even allows th adoption of a constitutional amendment for a statutory initiative under the constitutional provision. One analyst of the convention debates, David R. Miller, concludes that "ifthe; intent of the delegates were to govern, neither of the proposed constitutional amendment initiatives currently being circulated would be valid ...."Illinois Legislative Council Memorandum, File 9-242, p. 10). Miller goes on to say that it seems clear from ihi debates that the convention did not intend to establish a statutory initiative in Article 14, section 3. The convention explicitly rejected a statutory initiative, and apparently did not intend thealj ternative limited provision to be used to establish the power it had rejected.

A second issue is whether the proposals fall within the "structural ani procedural subjects" restriction of Article 14, section 3. It is arguable thi the Illinois Initiative does not modify the structure of the General Assembly at all. The Lincoln Amendment does alter the structure of the General Assembly by adding the extra House member, yet that provision appears to be merely a device to put the entire proposal into compliance. Neither proposal, in fact, is primarily intended to change either structure or procedures, Both aim at establishing a new method of legislating, largely outside the framework of the General Assembly.

While not strictly a constitutional issue, the question of whether tl statutory requirements for collecting signatures are being met by the coalition will have to be dealt with by thi court. The law restricts petition gatherers from circulating petitions outside their own election jurisdiction. Apparently, Lincoln Amendment proponents are complying with this law. The coalition, however, is now challenging this law in federal court and is instructing its workers in an ambiguous Banner. In a newsletter from the coalition this "tip" was offered to petition circulators: "You may circulate a petition anywhere in Illinois but do your best to keep the signatures on a petition page from the same county .... Hen you meet someone from a new county, just start a new petition page for that county . . . ."

26/April 1982/Illinois Issues

While it is best not to predict the decisions of the Illinois Supreme Court, it is safe to say that vigorous constitutional challenges will be made to the proposals should they garner enough signatures for ballot certification.

Pro and con

Assuming one or both of these proposals is certified for the November ballot, there should be debate on the merits and drawbacks of the legislative initiative in general.

The broadest argument for the legislative initiative is that it is a logical extension of democracy to encourage direct popular participation in framing and deciding public policy issues. In effect, proponents ask: How can anyone who believes in democracy oppose initiatives?

Opponents counter with notions of the desirability of representative government. They say that the legislative process, which is short-circuited by initiative, has several critical stages which aid representatives in reaching sound policy decisions: committee hearings, amendments, floor debates and the possible check of an executive veto. Initiatives do not allow for the process to shape the final product — the only alternatives are yes and no. Furthermore, the availability of initiatives may serve to further fragment and weaken important institutions of representative government — the political parties and legislatures themselves. The process totally bypasses the parties and allows the legislature, at best, a passive role. Yet in Illinois, according to proponents, there are issues, such as the RTA, which are not resolved by the legislature. The indirect initiative would force it to act, according to proponents.

Another argument for legislative initiative power is that it can provide access to the public agenda for groups espousing causes which do not get a hearing, or what they consider to be a fair hearing, in the legislature. It is often claimed that the special interests have the legislature "locked up." The mere threat of initiative may spur the legislature to act on an issue it otherwise could have ignored.

Opponents claim, however, that the initiative process can become dominated by well-financed special interests who are organized on a single issue to gather signatures and to use the mass media to support or to oppose initiated legislation.

Another frequent argument in support of the initiative is its potential to stimulate political interest, public discussion and participation where there is apathy. But opponents state that the average citizen may not have the technical information to make sophisticated judgments on complex issues. Initiatives could result in ambiguities in the law, but so can statutes passed by the legislature.

April 1982/Illinois Issues/27

Some arguments over initiatives are neither inherently pro or con. One perspective is that initiatives favor liberal or progressive policy changes because they bring more people into the process. This argument supposes, of course, that the legislative process is normally dominated by agents of the status quo. (While that may be true, the status quo in some instances may favor liberal interests, e.g., Propositions 13 in California and 2 1/2 in Massachusetts.) The exact opposite argument is that initiatives favor conservative policies because the process can be manipulated by those who have the financial resources to do so (and these are likely to be conservative), or that the public is inherently conservative on some issues (e.g., a referendum on capital punishment). It should be kept in mind that the terms liberal and conservative are quite ambiguous and what might appear to be a progressive policy to one observer could be conservative to another.

The basic conflict over initiatives is between direct democracy and representative democracy — a conflict that cannot, and perhaps should not — ever be fully resolved. But conclusions can be reached about the validity of the various pro and con arguments and the use of the initiative in other states.

It is clear from the experiences of other states that the use of initiative does not drive special interests out of politics, it simply creates another arena for conflict. At times, the opportunity for initiatives may stimulate the grassroots formation of "public interest" groups around such issues as nuclear energy, hazardous waste and bottle bans, but they are likely to be opposed by well-organized and well-financed special interest groups. There is some truth to the assertion that initiatives expand the political agenda. For example, Proposition 13 in California was an outgrowth of public frustration over the unwillingness of the California legislature to deal with a budget surplus in the face of escalating property taxes in that state. But initiative campaigns do take on all the trappings of modern political campaigns. This can be seen in California where initiative campaigns began in the 1930s. Dollars and organization are often the keys to victory in such campaigns. Initiative battles in states such as California, Colorado and Massachusetts are not merely rational debates on the merits of public issues. They involve all the hoopla, hype and hyperbole that we have come to expect from candidate politics. In California, for example, an anti-smoking initiative was turned into a campaign against "big brother" by its opponents. The crux of the issue is often less important than the way in which the "image" of the issue gets defined.

Initiatives normally do not enhance voter involvement and participation. The electorate which actually votes on initiatives is unrepresentative of the larger population. In fact, initiative voters are an "elite" segment of the population. This is directly contrary to the idea of mass democracy. More-over, turnout is no higher at elections in initiative states than in noninitiative states. In states with initiatives on the ballot, more votes are cast for the highly visible candidate races than are cast on propositions. Minorities, not majorities, decide initiative contests. On the point of an uninformed public deciding a complex issue, it can be argued that some legislators are as uninformed as the public. However

28/April 1982/Illinois Issues

The results of initiative elections favor neither the left nor the right. In 1980, for example, liberals scored vic-lorics in limiting nuclear waste disposal in Montana, Oregon and Washington but were unsuccessful in restricting nuclear power plants in Missouri and South Dakota. Such mixed results are also characteristic of initiatives on tax and spending limitations in other states.

At the time of this writing, there are many "ifs" connected with the adoption in Illinois of the two current proposals for indirect statutory initiative.

Possible fate

If either the Lincoln Amendment petition or the Illinois Initiative petition garners enough valid signatures (252,000) by May 1, then it is eligible for ballot certification. It is then likely to face a validity test by the State Board of Elections, somewhat akin to the strenuous scrutiny involved in certifying the Cutback Amendment.

If either initiative proposal is certified by the State Board of Elections for the November 2, 1982, ballot, it probably will then be subject to a court challenge, If the board fails to certify, that will also be subject to a court challenge. If either proposal comes before the court, the basic constitutional issues should include: whether the 1970 Constitution permits the adoption of a statutory initiative and whether the proposals meet the court's earlier test of making both "structural and procedural" changes in the General Assembly.

If either the Lincoln Amendment or the Illinois Initiative is approved by the court for the November ballot, it must then attract the attention of enough voters to win the necessary votes for passage. Assuming that the proponents and opponents of the measure will articulate many of the arguments presented earlier in this article, we still must suggest that in these difficult economic times voters are not apt to get too excited about "good government" matters. Furthermore, currently there is no issue popular enough to spark enthusiasm for the statutory initiative, as there was in 1980 when the legislative pay raise aroused enough of the citizenry to vote for the Cutback Amendment.

And finally, If the voters become legislators in Illinois, the skies will not fall nor will the full flowering of popular democracy take place. What will happen is that another arena will open up where contesting interests can fight it out, an arena which is neither more nor less democratic than existing political battlefields. □

David H. Everson is director of the Illinois Legislative Studies Center at Sangamon State University, and Joan A. Parker is a research associate in the center. They were authors of Illinois Issues Special Report: The Cutback Amendment, and have co-authored other articles on election topics.

April 1982/fllinois Issues/29