Sign My Petition or I’ll Lose My Job – Part Five
The Future of the Oregon Initiative Process: A Conversation
For the conclusion of EDN’s investigative series on Democracy Resources, R.L. Stollar asked two leading thinkers in Oregon to discuss their views on the Oregon initiative process: its history, its significance, the corruption present in the system, and how they see the process evolving in the future.
Phil Keisling, the current Director of the Center of Public Service at Portland State University, has significant experience in public policy. He worked for six years as a journalist for Portland’s Willamette Week (1978-81) and the Washington Monthly magazine in Washington D.C. (1982-84). He served for nearly a decade as Oregon Secretary of State (1991-99). He is a founder of several organizations (including the Oregon Progress Forum, the Oregon Public Affairs Network, and Smart Grid Oregon) as well as served on the boards of the Oregon Business Association, the Software Association of Oregon, the Understanding Government Foundation, and Childswork Pre-school.
Daniel HoSang, currently the Assistant Professor of Ethnic Studies and Political Science at the University of Oregon, is the author of Racial Propositions: Ballot Initiatives and the Making of Postwar California, a study in the controversial history of California’s ballot measures over the past fifty years. For this work, HoSang was selected by the Organization of American Historians (OAH) to receive the 2011 James A. Rawley Prize, which is given annually for the best book dealing with the history of race relations in the United States. In 2011, HoSang received the Junior Faculty Professorship Award from the University of Oregon for research on ballot measures and Oregon prison expansion.
This interview is presented as a roundtable discussion. Separate interviews were given, and the individuals’ answers were compiled together.
EDN: What is the historical and political significance of the Oregon initiative process?
HoSang: It comes from a particular time, especially in the western U.S., where there was distrust of elected representatives, especially from the influence of big corporations. The idea was, if we could put the power back in the hands of people, we could get things done. Ironically, the opposite has happened: direct democracy has been more beholden to wealth and special interests. In the name of helping the people, it’s been twisted.
EDN: You have a lot of experience with the California initiative process. How does Oregon’s differ from California’s?
HoSang: In California, it’s more beholden to wealth than Oregon, and it’s been blamed for a whole set of crises. There are strong feelings that the initiative process has played a major role in the crises. In Oregon, it hasn’t brought the state to a standstill. In Oregon, it has had its most significant impact on prison policies, though. It took Oregon from a modest penal system to a massive system—enacted entirely through a dozen ballot measures.
EDN: And you see this as bad?
HoSang: In 1994, Kevin Mannix helped qualify three initiatives extending sentences for nonviolent offenders, drunk drivers, etc. The public will almost always approve these with no discussion of how much they cost or their human toll. The legislature at least knows there are trade-offs—they ask the right questions. When posed to the voters — “sex offenders and drunk drivers on the streets?” — it is almost impossible to say something against it. But it’s literally one outside donor and one small organization that has the capacity to put it in front of the voters.
Keisling: The initiative process has often been a safety valve for ideas that have been thwarted through the legislative process. It has allowed citizens who cannot get issues addressed to go through the initiative process to do so. At the turn of the century, it was women’s suffrage. It took a while, but it’s one of the most significant milestones. The initiative process finally got the legislature to do it. Or there’s the income tax. From 1920-1930, the initiative process helped abolish the state dependency on statewide property tax in favor of progressive tax. More recently it has been used on the conservative side of the ledger to limit government and tax, but there are also progressive measures: vote by mail, assisted suicide, etc. It’s been a safety valve, and a source of outside money. It has made Oregon a national proving ground for other ideas from out of state, so it’s not all home grown—for example, term limits.
EDN: And what is the importance of having this safety valve?
Keisling: We let the legislature do it 99.99% of the time, and there are thousands of bills a year over the course of a century. But there’s been an average of 3-4 initiatives that pass per election cycle. It’s been a center for the really big battles. I encourage citizens to think this way: an initiative that has come after repeated legislative efforts has a bit more standing. It’s more meaningful to the people. A properly functioning system gives a last resort to the citizens. Oregonians will never and should never give it up. Historically, the initiative process has allowed us to do more innovative things.
EDN: How Does Oregon’s initiative process differ from other states?
Keisling: We were not the first to pass it but we were the first to use it. It’s been something that has brought well over 300 initiatives over the years. The success rate is a third or less in passing. Some are more consequential than others. We are among 24 states that have initiatives processes. Standouts: we allow more time to gather signatures than any other state and our signature thresholds are not out of whack. In fact they are on the low side compared to other states.
HoSang: Mainly the size. In some ways California’s is more accessible than Oregon’s. The signature thresholds are proportionally similar. Mainly in California, only corporations or very well funded unions have the capacity to pay the signature gatherers to get petitions on the ballot. In Oregon, you can still have policy entrepreneurs, like with one big backer like Kevin Mannix.
EDN: In 1994, you, Phil Keisling, said “As grassroots democracy becomes greenbacks democracy, it dilutes what’s best about the initiative process It is supposed to be a system of citizens banding together on behalf of something they want to happen.” What was good and what was bad about the initiative process in the 1990′s and what has changed since?
Keisling: That’s clearly happened, and it’s a trend that accelerated. Before the early 80′s, there wasn’t even an ability to pay for signature gathering. That of course has changed. But…
it’s almost now exclusively a necessity to pay for it. It’s now $300-400k for initiative. The vote by mail initiative was the last to pass solely by volunteers. It’s happened, of course, because the courts have allowed it. As more people do it, the more common it became, starting in the 1990′s. When people get less inclined to sign, volunteers have a harder time doing it. The number of initiatives is down in the last decade. I had 50 get on the ballot when I was Secretary of State. I had more pass on my watch than any other Secretary of State. They are down because more and more people are leery of it. Also, it is out of reach for larger numbers of groups.
HoSang: I think that quote actually doesn’t quite capture the fact that money has influenced the initiative process for the last 75 years. Special interests have done this throughout the 20th century. It is not a current phenomenon. The notion of a golden period is just not true.
Keisling: I think right now, it’s sort of settled out. I think much of what you hear about fraud and integrity issues, while it certainly is and can be a problem, you can’t go too far to depress normal citizens.
EDN: In 1994, State Rep. Kevin Mannix said, “There’s hardly any petition out there that’s a `pristine’ volunteer effort. Most are relying on paid circulators.” What do you see is the connection between paying circulators and an “unclean” initiative process? Or is there a connection?
HoSang: I think on that score Mannix is right. I think it’s been a long time since there’s been a purely volunteer effort. It’s like other forms of voluntary political involvement. People with money want to influence politics. I don’t think taking money out is necessarily helpful; it goes a lot deeper. It’s a free speech thing. You can’t not pay people to speak for efforts. Paying circulators isn’t the lynchpin.
Keisling: I think right now it’s become a pretty straightforward business. I was supportive of banning paying per signature. I thought it would help stop fraud. But I think the process we have to verify signatures is very safe and sound; it’s become a business. Are there some people going to use aggressive tactics? Yes. Are there people that forge signatures? Yeah. But there are processes in place to catch folk and there are very effective. The people that run the signature businesses have gotten better and better. They know they are being watched closely.
EDN: In 2002, Oregon voters agreed to amend the Constitution (Measure 26) to prohibit chief petitioners of initiative campaigns in Oregon from paying petition circulators on a per-signature basis, either directly or indirectly. What was the reasoning for this?
Keisling: The idea was to take the money temptations out of the system. Just better hygiene.
HoSang: There’s something unsavory about putting a price per signature. It’s an attempt for purity.
EDN: Do you think Measure 26 has been successful? In what ways yes and in what ways no?
HoSang: In California they still pay per signature. But here in Oregon, where you can’t pay per signature, you still see people with four or five petitions shouting out two sentences for each. “Save our children!” you know. The interaction is inevitably shallow and appeals to peoples’ base interests. There’s not a huge amount of difference in corruption between California and Oregon. It’s like any other campaign finance reform. This is no different. Minimal effect.
Keisling: In general it has been successful. It has taken the most direct, powerful incentive to cheat out of the equation. And put it more on a business-like basis. It took a dirty system and cleaned it up. It’s like better hygiene. But it wasn’t a profound change. Most signature gathering was being done legally. I’m pretty sure that any ballot measures that qualified would not have qualified due to fraud. And that’s a key distinction. It was good hygiene but it didn’t really do much either way.
EDN: In 2008, 6 years after Measure 26 passed, the Independent Party released this statement: ”the cost of gathering signatures using paid employees is so great — now $300,000 and up for each statewide initiative — that only the well-heeled or corporations or labor unions can afford it.” Do you feel that is true?
Keisling: It largely has become true, but sometimes wealthy individuals who are average voters can get an initiative passed. Sometimes vast majorities of donations come from individuals. There are certainly exceptions, but for the most part it’s corporations and unions and lobbying organizations that run most of the initiatives.
HoSang: It’s all a matter of proportions. In Oregon it is $300 thousand or $400 thousand to run a campaign. That’s out of reach for grassroots. But not for single donors. But in California you multiply that by 6 or 7. So it whittles down who can do that. In California you are looking at $4-6 million for an initiatives. Or Prop 8, $50 million. You won’t see that in Oregon. That’s why Oregon becomes a testing ground. If people are interested in testing an idea, Oregon is a cheap place to undertake that for someone who has a lot of money.
EDN: Do you feel that the average Oregon voter has an equal opportunity — compared to the rich, or corporations, or labor unions — to get a petition on the ballot successfully?
HoSang: Certainly a coalition or union or set of businesses has a chance. Also, if you have insider knowledge, that can help a lot.
Keisling: I think that the biggest potential for a change that’s not used much or appreciated is—well, you can, as of 2007, have people download a petition online. You can send out lots of emails with a link on it to download a form and then print the form, physically sign it, stamp and mail it in. It allows you to do a broad, internet-based campaign without going out on the streets. I do not think it’s inconceivable — and I don’t support it yet, but I must acknowledge it– it’s not a huge step to skip the print/download/mail stages and let a voter use an electronic signature and return it online. In a world where people are often signing documents for debts, we are increasingly getting comfortable signing electronic signatures. And if we can do that with other important legally binding documents, I don’t see what the barrier is to doing that with initiative petitions. So what’s the conceptual barrier to saying filing taxes online is OK but it’s not OK to sign a petition online? I don’t think that barrier will soon have a valid public policy reason. That’s something that could really change the process and make it more accessible to the average citizens. But as long as the law is as it stands and requires locating physical human beings, it’s going to take a lot of money. Like many things in political life, you need a lot of money to play. Then again, I do think it’s still possible to get 1000 people to get 100 signatures if people still feel strongly enough about an issue. I think often a part of it is a lack of imagination and lack of time and energy and peoples’ general weariness of politics. But with ideas that have broad appeal, they can still get on the ballot.
EDN: Recent research indicates that, while circulators do not get paid per signature, the pressures to obtain x number of signatures a day — to get paid per hour and not lose one’s job — often leads circulators to either commit signature fraud or misrepresent petitions to voters. Obviously this wasn’t the intention of Measure 26. Do you think it is an unintended consequence of the Measure or something unique to how particular companies choose to follow Measure 26?
Keisling: I think it’s a logical result of the law. To think otherwise is think naively. If you turn it into a system of employees and employers, people are going to hire people to perform a job. And if a job is to collect signatures, if people aren’t good at it, they ought to lose their job. If they collect a third of the signatures compared to others, they aren’t performing to standards. So it’s not a surprise. Will that tempt people to do fraud? Yes. But if you commit fraud, the consequences are huge. So does that make people oversell? Well, how many people do that in sales in general? Selling a car, selling a cell phone contract–it’s a sales job. In this case it’s getting signatures. It is going to tempt people to put the best possible face on things. But is it illegal? Probably not. And more importantly, how would you enforce it? But I think that’s why voters are increasingly getting skeptical. Some voters do it without thinking. But I think it’s a problem that’s not very comparable to its solution. How do you do it without violating free speech? Also, you can’t tell companies to not have standards.
HoSang: It’s more an unintended consequence. Though given the history of politics and money, it’s not surprising. Companies want to make money and don’t want to keep people that don’t make their quota. But when the rubber meets the road, you lose the ideal. And really, that is everything people detest about politics: complex issues that can’t be simplified, problems that can’t go away from a mere signature. It’s everything people hate about campaigning: appealing to base natures, acting uncivilized, etc. And that’s what the initiative process favors: simplistic arguments, simplistic ballot measures, simplistic solutions to complex problems.
EDN: Do you see any difference between fraud in California and fraud in Oregon, considering the differences in how they pay canvassers?
HoSang: At this point it’s a distinction without a difference. There’s a whole series of attempted reform and fraud has always stuck around.
EDN: What sort of responsibility should circulating companies themselves take to ensure their employees are following the rules? What sorts of new checks and balances should be in place in the government to ensure the companies are following the rules?
Keisling: I think that we seem to have lots of laws and rules and perhaps in some ways more than necessary. It is obviously the Secretary of State’s responsibility to enforce the rules passed by the legislature. Do I think more laws are needed? None of any significance that I can think of. The companies themselves are liable. So they should, like any company, make sure their employees are following the law. The system at least ostensibly encourages employers to make sure their employees are following the rules.
HoSang: I think it’s unrealistic to think companies would actually police their employees.
Keisling: Whatever system you have you will have the possibility of fraud. Significant and meaningful fraud versus occasional and trivial fraud is an important concept. If you are so obsessed with preventing the possibility of occasional fraud, you run the risk of shutting down or undercutting other values. And you see it precisely in the concept of voter ID law. Think of how Oklahoma just passed a law banning the enactment of sharia law. That’s ridiculous. You can’t chase away possibilities. You got to keep all this in perspective. There are always risks. If you try to prevent anything bad, you risk shutting down the democratic process and allowing people to get involved. You can get overly worried about the possibility of a small amount of fraud and react to the point that you are causing harm on the other side of the equation.
HoSang: In the current environment, where it’s legal to pay someone, this is how the market works. I don’t think it’s reasonable to reform the process through this venue—oversight of how the compensation works. Whether it’s government or private. It’s like telling marketing firms to make political ads less negative or more respectful. You could in theory but really, what would that look like?
Keisling: I think that treating people as employees rather than independent contractors, like most people in America are paid, is a better way to go than paying per signature. It definitely serves the initiative process well without the initiative process being burdened. It’s a reasonable balancing act. I know from enforcing laws for campaigns, it’s almost impossible to enforce a law about lying in public. Free speech is the most important value in this country. Signature gathering is by and large yet another business. But so much of politics is like that. It’s exactly what politicians do when they campaign. It’s unfair to single out people on the streets trying to eke out an existence. You can’t get too self-righteous about that situation.
HoSang: I am very cynical. I think it would be doing window-dressing on the process. Any reform in that area will be superficial. I don’t think it’s a problem that can be addressed with just regulation of the companies. Policing signatures and compensation and the pressures to produce signatures, I don’t think reform legislation can do that.
EDN: What do you foresee in the future for the Oregon initiative process–the path it is taking, how it will evolves, changes you hope to see, etc.?
Keisling: I think there’s something that definitely doesn’t work well with the ballot title process. It shouldn’t take so many months to decide on the language. There’s a system that allows people who oppose an initiative to run the clock out while language is being hammered out. Some of these things take that long. And a lot of people think that’s fine. That is a really abysmal standard of public service. When it takes 8, 12 months to get an initiative out to the public and most of the time is spent on finalizing language, it doesn’t matter if it’s Bill Sizemore doing it or Mother Teresa, that process ought to be much more straightforward.
HoSang: I think this is all tinkering around the edges. I’m more persuaded that a more effective reform allows legislatures to adopt or amend voter-submitted petitions. Though I don’t think there is a realistic chance that will happen. But in terms of its effect on politics and keeping extreme or one sided initiatives in check, I think allowing the legislature to engage the process is more effective. But there’s no public support for that. There could be negotiation, so for example a prison spending initiative that would drain higher education coffers, that could be taken into account. All these laws enter an existing environment, and you presumably elect the legislature to manage that environment.
EDN: What are the things that will facilitate the hopefully-not-mythical average voter to get their voice heard?
Keisling: You shouldn’t have to hire a legal team to get your initiative’s wording finalized. Also, the average citizen shouldn’t have to — if being a chief petitioner — be responsible for signing off on each petitioner hired by canvassing companies. It can put a chilling effect on the process. There is this presumption that there’s going to be so much fraud, so we need layers and layers of bureaucratic procedures. I doubt the average citizen will be so fraudulent. You can never disprove a negative, you know. You have to have people who look at this and see the goal as being having a balance and only tailor public policy to real and tangible threats. You can’t make the democratic process collateral damage of people’s fears of fraud. We’ve got to strike the right balance.
HoSang: Frankly, it’s not as bad as it could be. Because of the size of the state, Oregon is one third the size of Los Angeles county. Legislators are still accessible, campaigns are accessible. Sure, it’s driven by a small handful of wealthy donors, but it’s not captive to every single special interest like in California. In the end, it’s a hundred year old system reflecting the best and worst of our money-dominated political culture. We need to be sober and aware of that history and what kinds of reforms will arise. I no longer sign anything, for example, at the University. A healthy amount of skepticism and cynicism on the part of the voters is what is needed. Anyone suggesting one signature solves our problems deserves some scrutiny. I think that’s why signature gathering is becoming so competitive: people are getting skeptical, as they should be. We need more skepticism. That’s healthy.
Background, discussion and details are available on the R.L. Stollar, Journalist blog.
Note: Democracy Resources did not respond to numerous attempts on EDN’s part for comments or an interview on this or any other part of the investigative series.