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What is direct democracy / citizen lawmaking?

Direct democracy is any government process where the people make decisions directly instead of being limited to electing representatives to decide things for them or to appoint those that do. It can take many forms. The right of initiative is the ability of the citizens to propose and vote on laws they place on the ballot by petition.

There is plenty of information about direct democracy and e-democracy out there. The links page has a few places to start. If you are an American living outside New York City and looking to win the right of initiative, you might read this. For those interested, what follows is a quick history.

Though it goes back millennia, direct democracy, and specifically an initiative process for citizens to propose and vote on laws themselves, was first instituted at the federal level by the Swiss in 1891. They had already provided for the right of the people to block government actions by referendum since 1848.

In America a movement for initiative rights sprang up in many states toward the close of the 19th century. In the case of South Dakota the idea was homegrown. Most other places were introduced to the idea by James W. Sullivan’s 1892 book Direct Legislation by the Citizenship Through the Initiative and Referendum, which advocated for adoption of the Swiss process.

Citizens fed up with corruption in state after state managed to win the process, but the wave of reform was stopped at its peak by America’s entry into World War I, the ensuing repression, the red scare, the unfortunate spread among progressives of the cult of expertise, and the adoption of elite business oriented centralized planning, media, and education models.

Nonetheless, despite the hostility of government and corporations, and admittedly imperfect conditions, in the many states that have won the right of initiative, it has successfully been used to serve the needs of the citizenry. On any of the many issues where the interest of elected representatives or their backers conflict with the public good, it has often been instrumental.

Why have it in New York City?

Shouldn’t the people have a say in, for example, whether their entire community is going to be bulldozed, whether they’re permitted to peacefully assemble in public, whether they may dance to a jukebox, or any other decision effecting them that is in our supposedly democratic government’s jurisdiction? That after all was the premise for founding this nation. Over 9000 American cities, including most of the larger ones, already have the right of initiative.

This isn’t intended as an attack on representatives, many of whom serve with the best intentions. So instead of listing the many injustices, blatantly corrupt decisions, ridiculous laws, and grave, simple or ego-driven, mistakes inflicted on us by our own government, let’s focus on the positive reasons for reform. Sure there’s a few bad eggs in high places, but the root problem, hardly unique to New York, is the gross disparity in who gets a seat at the decision-making table, who has a voice in the public arena.

There are few places better poised to take advantage of real democracy, to advance the realization of citizens’ responsibility for their government. Few, if any, communities with a greater store of creativity, intellect, or diversity exist. Not only the errors of the past, but our future demands that we tap this wealth. Not just to check the excesses of concentrated power, to transcend the deep cynicism engendered by the current system’s lack of democracy, and to give the people a political tool when their public servants are non-responsive or astray, but to bring about the commonsense and innovative solutions the 21st century demands and which will most easily be accomplished when given a fair hearing.

From a legislative standpoint, many issues may be beyond our jurisdiction, and even most local problems are best addressed in other ways. But this is New York. Our town. Let’s make a space for our solutions.

What’s the city charter?

The charter is kind of like the constitution of the city. It lays out the permanent plan of city government. New York City’s is available in various formats via the links page under Drafting Resources.

The concept of a municipal charter has evolved over time and varies by country and state. In New York State, champions of democratic reform in the late 19th and early 20th century—though often stymied by the state’s notoriously corrupt machine politicians, their wealthy backers, and xenophobes—won the right for residents of cities to change their charters themselves. (Currently under §37 of the state’s Municipal Home Rule Law). It was last successfully used in New York in 1993 to impose term limits on City Council.

Can we really do this?

With your help, we think so! Power holders across town and elsewhere are sure to ignore us for as long as possible, endorse toothless alternatives, and put up one hell of a fight, but that much we all already knew.

It’s going to take at least 45,000—and because many will be invalidated, really closer to 100,000—signatures from registered NYC voters to qualify each of our charter amendments for the ballot, but historically the biggest hurdle to citizen charter amendments in New York has been overcoming government intransigence in court, where the vast majority have been kept off the ballot for various reasons mostly related to their noncompliance with state law.

We have read all of the related law, written our amendments with the help of lawyers and with the court fight in mind, and believe we have a good chance of winning it. In any case, instigating hundreds of thousands of conversations about democracy and the possibilities of implementing more ideal forms of it in our government is in itself worthwhile, let alone our obligation to explore every potential path towards democratic change, given the failures of our governments to address many of the critical challenges we face, the utility of planting seeds for democratic constitutional reform at the state and federal levels, and what a great day it will be if we succeed.

Aren’t ballot measures a problem in California?

This is a complicated question that for most people is primarily about concerns raised by other FAQs. But to address aspects not covered elsewhere, in sum, New York City is not California, and the initiative process being proposed here has key differences with theirs.

(Not that the experience in California or the other 24 states with initiative rights has been as one-sidedly negative as some would have you believe. Indeed some great advances on the good governance and progressive agenda, from political reform to environmental protection to healthcare reform to labor rights to educational funding to equality have been successfully championed. And most of the shortfalls of direct democracy in the varying but mostly simple forms currently employed in fact stem from failures of representative government and flawed jurisprudence at the federal level in not creating a level media and electoral playing field or a democratic public sphere—flaws that we now have the tools to correct.)

The key differences between California and the process proposed for NYC are scale and access. The cost of getting on the ballot in California and waging a statewide campaign closes its initiative process to real participation by most people until election day. In contrast, the city’s geographic density, our process’s more permissive signature requirements, including in the time allowed to collect them, and particulalry its leveraging of technology to allow easy collaboration and to reduce the role of money in every stage of a proposal’s drafting and deliberation, make New York City’s proposed version decidedly more of a citizens’ process, open to the collective wisdom of all residents and legislators.

Additionally, California’s legislature is effectively barred from improving or fixing problematic initiative measures once passed. That would not be the case here.

For answers to other questions tied up in the question of California, check out this op-ed and the other FAQs.

What about the unintended consequences of “tax reform” measures?

In principle the people—despite the learning curve involved in self-government—should have a say in how their money is spent. Such control results in a more positive view of government and taxes, and lower rates of tax evasion. Similarly, support for a government program should not make how we pay for it beyond discussion. Nonetheless, those worried about the unforeseen consequences of ill-conceived tax capping or reducing measures (the overwhelming majority of which are rejected), have nothing to worry about from our proposals.

Any citizen ballot proposal requiring a city expenditure or a loss or cap of city revenue must include a non-binding plan to make up its cost, the sufficiency of which will be assessed in the fiscal impact statement of the independent budget office that accompanies all initiatives appearing on the ballot. But even if passed, no such measure can take effect until after the next city budget has been prepared and adopted, giving ample time for the city council to make any changes it sees fit, including outright repeal.

Unlike some initiative processes that tie the hands of legislative bodies, ours does no such thing. (And the entrenched partisan gridlock that, in combination with state constitutional provisions, has hamstrung California’s budgetary process, for example, is not something the New York City Council has suffered from in living memory.) Additionally, any measure that attempted to limit the council or mayor’s abilities to execute their fiduciary responsibilities would likely be thrown out under state law.

What about minority rights?

It’s the courts’ enforcement of constitutional rights that protects individuals and minorities from unjust laws, not representative government. Historically, representative government has been far more damaging to the rights of minorities than the initiative process, and the courts are more likely to intervene when direct democracy infringes a minority’s rights than when a legislature does. Since our proposals are local, there is no possibility in this case of using direct democracy to circumvent or alter state and federal constitutional protections enforced by the courts.

The only minority representative government is really designed to protect is the rich and powerful, and though we have now managed to provide for the (sometimes token) representation of some racial and ethnic minorities, our winner-take-all election system is supremely adept at shutting out the most important political minorities: those of opinion.

In terms of race, New York City is unlikely to face the problem of tyranny of the majority, since there isn’t one. On issues from education to gentrification to law enforcement to land use, public opinion in the city is generally more aligned with the interests of minorities than their government often is. It’s also worth noting that rates of participation by minorities who can find themselves marginalized in traditional political deliberation can increase in colorblind online equivalents.

In a real democracy the ability of a political minority to communicate their position to all voters is guaranteed, so a minority is both more difficult to actively discriminate against legislatively since they are more difficult to demonize, and harder to neglect or ignore since they can force public consideration of any grievance as often as needed, provided it inspires sympathy among the small fraction of voters needed for ballot placement.

While superficially some of the state referenda on gay marriage might give pause to democracy advocates, they are in fact a perfect example of how in the long term the deliberation required by direct democracy advances minority rights. The anti gay marriage measures have backfired, as otherwise insulated holders of traditional viewpoints, which the measures’ placement on the ballot (most often by legislatures) sought to mobilize, were forced to confront a more diverse reality. The gay minority’s goal was spotlighted and legitimized, support for it was mobilized, and a continental shift of opinion on the issue was exponentially accelerated. Rarely if ever in American history has a struggle for minority rights made such huge advances in so little time, and it is largely thanks to its being on the ballot.

What about the influence of money/advertising?

If direct democracy were as big an opportunity for moneyed interests as is often claimed, you’d expect some positive coverage of the process in corporate media, some backing for its expansion to the states that don’t have it and its introduction at the federal level. But, even before the Supreme Court’s ruling in Citizens United effectively eliminated any difference between corporations’ capacity to spend money in candidate versus ballot measure campaigns, we have seen no such thing. Why?

Big money interests have a much easier time getting their way lobbying politicians, from whom they have less to fear, since politicians are vulnerable to character assassination, are in reality practically unaccountable to their constituents on most legislation, and need a lot of money to get and keep their jobs. They’re a much safer bet than debating an actual issue in the public forum, in front of most corporations' entire customer base.

Historically, money spent on an initiative campaign is in fact not a good predictor of an initiative’s success, especially if that money is corporate. Overwhelming corporate spending can be effective at defeating an initiative, but typically falls flat backing a proposal. Per dollar, it’s worth a fraction of the votes that one given by citizens is. In general, when people see a law being backed or funded by a group whose interest they know do not align with their own, like a corporation, it causes them to vote against it, (thus the degree of financial disclosure and voter information is crucial).

From a corporate perspective this all makes direct democracy essentially a giant liability, since the best they can typically hope for is keeping the status quo, at great expense, and they can’t prevent a damaging reform measure from being put on the public agenda, at least not without concessions. While some progressive groups and reformers may tire of having to fight big money, ballot initiatives are in fact one of, if not the most, effective way of doing so. Even when reform efforts are stopped in the short term by an overwhelming negative misinformation campaign, the debate spawned often results in eventual passage of equivalent measures.

It is also worth noting both that in New York City a grassroots media and outreach campaign can be much more effective on a lot less than across the typical state and that the citizenry here is among the most media savvy in the world.

To what extent the NYC Campaign Finance Board’s progressive voluntary campaign finance program would be permitted to apply to ballot measure campaigns as envisioned by our proposal remains to be seen, but it may offer even further amelioration.

All of this doesn’t even include the possibilities the Citizens’ Forum amendment begins to tap, of using today’s technology to reduce the role of money. Campaign finance decisions by federal courts and poor media regulation have incrementally entrenched money in our communal dialogue and political process (and which will take much work to effectively dislodge, particularly lacking direct democracy at the federal level), but we have the ability now to create an open and empowered democratic political space where money doesn't hold sway.

But aren’t citizens too busy/ignorant/stupid?

We may be capable of both hilarious and horrific stupidity, but even though politicians know better than anybody how easily people can be fooled, you won’t often hear them expressing anything less than the most profound faith in the judgment of the people. Doing so would lay bare the first absurdity of this criticism’s assumptions: that politicians are an exception, somehow endowed upon election with mental and altruistic abilities the rest of us can only dream of.

Similarly problematic is the notion that whatever shortcomings we might have when identifying our enlightened self-interest would somehow play a bigger role when we directly decide an individual issue affecting us than when we select someone to make all such decisions for us, a choice in which reason plays much less of a role.

It is precisely because humans are flawed, in more than just their intellect, that it’s important to get as much input, double-checking, and transparency for big decisions as possible, and in the context of a constitutional framework, citizen lawmaking provides just that as another big participatory check in our government’s system of checks and balances.

In terms of decision-making tools, today the people could easily institute a process many times more deliberative, informed, and accountable than anything our elected representatives do. Even in our current system, the amount of actual consideration the average bill receives is frighteningly small. When a decision is made at the polls, it generally receives far more thorough consideration.

The historical evidence for voter discretion, even between large numbers of similar proposals, is overwhelming. (Our measure nonetheless limits the number of initiatives on the ballot because of the relative ease of collecting electronic signatures.) Votes in favor of ballot measures that would not have been cast if the voter had had more information are an extreme rarity. When voters don’t have the time to fully inform themselves, they are guided by trusted endorsements, abstain, or reject the measure, retaining the status quo.

People don’t bother to inform themselves if they feel they have no say. In contrast, their participation and civic understanding are significantly higher in places with the right of initiative. That doesn’t mean they always do what we’d want them to. If they did that wouldn’t be very democratic! But dismissing those we disagree with as stupid is strategically about the worst thing one can do in a democracy.

The well understood role of the successful politician is surrogate parent, protecting us from whatever boogiemen—terrorists, immoral city dwellers, dirty immigrants, dumb hicks, complicated decisions—are effective, so that we can remain irresponsible children unable to grow up and fully take on our responsibility to engage with each other and our shared problems.

Not that we should get rid of representatives. They perform many valuable services, not the least of which is capably dealing with all sorts of issues in the interests of and at the behest of their otherwise occupied constituents. The best provide leadership. In the case of the current proposal, they stand ready to collaborate with and listen to their constituents, improve their proposals, and correct any errors they might make.

Incidentally, in contemplating how malicious or dumb humans are, it’s a good idea to parse fiction from fact. The basic conventions of narrative storytelling, media competition for eyeballs, and compatibility with advertising all require the employment of not very promising conceptions of human nature. Stories about everyday cooperation, sound judgment, everything being decided peacefully, having concerns beyond wealth and romance, etc., don’t often make for profitable television.

What about accountability?

In the case of the present proposal for New York City, since the City Council retains the power to amend or repeal anything the people pass, there is little loss of accountability for officials of conscience, and the overall effect, given the sure increase in civic participation, is the reverse.

The objection that in a direct democracy the decision-makers are not accountable is hard to swallow, since the supposed accountability of the decisions made in a purely representative system is tenuous, seriously compromised, and theoretically to…the People. As well as being at least as accountable to constitutional objections in court as representative lawmaking, citizen lawmaking is, unlike representative lawmaking, directly accountable to the People.

One of the real problems with purely representative government is that the People don’t feel accountable for the actions of their governments. Citizenship becomes a vague privilege stripped of real responsibility, with all blame reserved for politicians, the accountability of which is generally doubted. This problem of irresponsibility is corrected with a little direct democracy.

Boosters of the accountability objection sometimes like to point to fascist governments’ use of referendums to consolidate power. This again is an incomplete reference to a history that in fact illustrates the crucial difference between state actors controlling what questions the public can respond to, and the critical right of the people or a minority of them to place something on the public agenda. In fact, perhaps the Holocaust might have been prevented if German voters had had the right of initiative, and the political rights of German Jews had not been unanimously stripped by their supposed representatives.

Isn’t America a republic not a democracy?

The at the time bizarre definition of republic vs. democracy by Madison, trying to sell the US Constitution to the people of New York, being resurrected and accepted, is something that, along with many other often insidious anti-democratic rationales and institutions, arose as a reactionary response to the period of great democratic reform in the Populist and Progressive Eras. Despite valid, but separable then as now, considerations of deliberative process, it is, in short, total hokum.

A republic is dependent as much as possible on the will of the people. The writings of the founders themselves, dictionary definitions both at the time and today, the opening lines of both the Constitution and Declaration of Independence, the Supreme Court, and leading constitutional scholars like Sanford Levinson and Akhil Reed Amar, are all in agreement that what we today call direct democracy is entirely consonant with if not crucial to the republican ideal.

For more on the principles of republicanism, the author of this nation’s founding document is always a good read. As for Madison’s unique and, in hindsight, at times naive argument in the Federalist Papers regarding the advantages of a “republic”, it was not so misunderstood by the people of New York.

What about the digital divide?

Certainly there are issues of equitable access with internet facilitated participation that need to be solved as they do for traditional forms of political expression, but the main effect of employing these tools is to lower the cost of participation for everyone, and closing the digital divide is only going to be accelerated by their adoption.

The Citizens’ Forum amendment requires the city to “take all feasible steps to make the forum fully accessible to all of the city’s voters via all feasible means and mediums.” It requires the acceptance and provision of paper versions of forum content and reserves all excess funds generated by the forum and ancillary activities for projects that improve equal access to the forum and related public meetings.

How would the online Citizens' Forum avoid the anti-democratic pitfalls widespread on the internet?

Democratic dialogue faces several challenges on the larger internet that the Citizens Forum for the proposal, drafting, deliberation and ballot qualification of citizen legislation is designed to be free of, elevating the quality and productiveness of discourse. They are:

    Balkanization, where we seek out the views and information that mirror and bolster our own, and limit our exposure to opposing ones, resulting in less and less consensus about anything. By having a central designated place for debate, which really only works because of its lawmaking power, this problem is eliminated on the Forum, combating it in the wider world.
    Bad design for debate, typical of comment threads where the most recent argument wins, resulting in tit for tat flame wars instead of constructive dialogue. Debate on the Citizens Forum is structured more collaboratively, with each side honing its arguments as best it can on a single page.
    Bad behavior, encouraged online by anonymity, poor moderation, and limited consequences. Enforceable terms of use, mandated user moderation, and anonymity limited to individual speech not moderation on the Forum address this problem while teaching democratic practices and communal responsibility.
    Bad information is much more easily correctable on the transparent Forum open to all where all arguments presented can be duly challenged and countered, all evidence can be vetted and weighed, and any paid content is clearly identified and attributed.
    Fake accounts and bots are eliminated in the Forum by a tight account registration process and long-term accountability.
    Not so much an internet dialogue problem, but often brought up in this context: hacking the vote itself is not possible here as voting does not occur on the Forum. Signatures to qualify a measure for ballot placement are public, so easily verifiable.

In addition to addressing many of the problems encountered on the web, the Citizen's Forum has the potential to counter many of the problems we generally have in our politics, including the power of money, and the lack of access to information and meaningful participation. Each stage of the otherwise sometimes insular and resource dependent ballot measure process is opened up to participation and use by everyone.

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