Green is a specialist (law professor and director of the Willamette Center for Law and Government at Willamette University College of Law). He thinks specialists are the people who should make laws. Why?
Well, “choices can be confusing”.
The choices can be confusing, and most voters have limited access to information and time to study the proposed laws. Although the state Voters' Pamphlet will contain statements by proponents and opponents of the various measures, they usually offer more heat than light. Studies indicate that most voters make up their minds about initiatives at the last minute and often base their decisions on gut-level reactions to key words or concepts associated with particular initiatives, not on the language itself.
Of course, that’s an argument against democracy itself. Most voters don’t have a lot of information on candidates either. Gut-level reactions to candidates are, with few exceptions, more important than candidate positions on issues.
As to “heat” vs. “light” in the Voters’ Pamphlet, initiative petition arguments are light years ahead of candidate arguments. You gotta be really good to figure out even a candidate’s general political philosophy in the Voters’ Pamphlet, let alone a specific position on even the most major of issues. If we used Prof. Green’s standards, we would avoid the confusing process of actually electing public officials. That could be better done by a committee of specialists.
Green has another concern--these laws are drafted without “popular input”.
The problem with all initiatives, whether written locally or elsewhere, is that they are drafted without the transparency or popular input that we demand as a prerequisite for all of our other laws. The language is presented as a fait accompli -- take it or leave it.
Uh, I hate to tell Prof. Green this, but laws passed by government agencies come to the public without even that much choice. It’s always “take it”--never even a chance to “leave it”. Except, if the public can use another great tool of modern democracy: the referendum. But, one assumes that Green would have the same problems with referendum as he does with initiative petition. The voter cannot be trusted to understand budgetary, policy or legal implications.
The greater concern with lawmaking by initiative, however, is the law of unintended consequences. Oregon voters may be pretty bright and understand what a particular measure truly says. But that doesn't mean we necessarily appreciate the budgetary or policy implications for a measure or how it affects existing law.
Prof. Green believes a better way to discover the possible implications of a law is by “research and public hearings”.
It's the job of legislators to uncover the intended and unintended impact of a proposed law through research and public hearings and then, we hope, to refine the proposal's language to reduce the negative impact. This process is bypassed through the initiative system.
Elections are “public hearings”. The difference between election public hearings and the ones held by the legislature is that only an infinitesimal fraction of citizens are consulted when the legislature writes a law. And most of the citizens heard are from organized special interest groups.
When’s the last time someone in charge of a legislative hearing asked you how a proposed law would affect you? By contrast, 1.8 million citizens were directly consulted on initiative petition legislation in 2004. Sure, it was a yes or no question. But, yes or no is better than not being asked at all.
Oregon voters may not understand budgetary implications, but they can understand the implications of a law on their day-to-day lives. That’s something each voter knows better than even specialists like Prof. Green. Which is why the initiative petition and referendum processes were adopted by Oregon voters in 1902. They also voted in:
. . . Direct Primary Law (1904), extension of initiative and referendum to local laws, city home rule, indictment by grand jury, taxes on telephone, telegraph, and railroad companies (all 1906), a recall amendment to the State Constitution, the Corrupt Practices Act (both 1908), three-fourths verdict in civil cases, employers' liability act (both 1910), women's suffrage, prohibition on private employment of convict labor, eight-hour day on public works (all 1912), presidential preference primary (1913), prohibition, and an eight-hour day and room ventilation for women workers (both 1914). Other laws abolished capital punishment, the infamous Oregon Boot, a heavy manacle attached to legs of prisoners, and required publication of the Oregon Blue Book.
Not a bad list of achievements for non-specialist voters who didn’t “necessarily appreciate the budgetary or policy implications for a measure or how it affects existing law.”
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