Let the People Vote on Their Federal Laws - OZY | A Modern Media Company

Let the People Vote on Their Federal Laws

Let the People Vote on Their Federal Laws

By Daniel Malloy


Because why let other countries have all the fun?

By Daniel Malloy

You can vote for Dancing With the Stars contestants or Major League Baseball All-Stars or even a new Lay’s potato chip flavor. Why can’t you vote for your federal laws?

Sure, Americans pick their representatives in Washington, but they are often more responsive to campaign donors or party tribalism than the wishes of the vox populi. Now that populism is in, let’s get democratic for real and start holding national referenda.

Imagine being able to vote to legalize marijuana or to ditch the North American Free Trade Agreement, rather than leave the decision-making up to Washington. Of course, democracy is hardly smooth. Great Britain will take years to figure out exactly how to Brexit from the European Union. California’s state-based referenda have allowed legal weed, but also made questionable fiscal decisions — and banned same-sex marriage. Greek voters rejected the terms of an EU bailout, and Colombian voters rejected a peace deal with the FARC guerrillas as too lenient.

Direct democracy is popular with the public …

But allowing the people to have their say can’t be much worse than what goes on in gridlocked Congress. It could subvert special interests that block popular will, as when the Senate refused to require background checks on all gun sales when 90 percent of the public favored the policy. Referenda also could force people to tune in more on important issues, rather than just vote for the candidate with the best hair or TV sound bites.


While ballot initiatives are common at the state level, the U.S. Constitution does not provide an option for a national vote. This is because the Constitution doesn’t allow national votes on anything. Remember — because Hillary Clinton surely does — that the presidential election is merely a set of state votes to select the electoral college. Though there are duds, state initiatives can be an early indicator of a national tide: Both the alcohol prohibition and prohibition repeal movements bubbled up from the states, as did the direct election of U.S. senators.

Referenda are criticized for being costly, imprecise, driven by political interest groups and at times damaging for minorities. “These claims are disputed and difficult to evaluate as reasons for abandoning the initiative altogether, but can be cause enough for concern to justify imposing some limitations on the use of the device,” University of Missouri law professor William B. Fisch wrote in the American Journal of Comparative Law. Georgetown University professor of government and foreign service Kathleen McNamara labels Brexit-style referenda as “poor man’s democracy” and says questions as complex as leave versus remain should not be left up to Jane from Manchester. “To me, referenda only make sense when you have very narrowly defined questions with a really clear set of alternative outcomes that would flow from the question posed,” McNamara says.

I’d propose a maximum of two nationwide ballot initiatives on the November ballot every two years, each addressing a discrete subject and simply worded. Proponents would have to gather signatures of 1 percent of the actual voters in the most recent presidential election, and signatures must come from all 50 states. They’d be subject to the same legal challenges for constitutionality as regular laws, but Congress and the president would not be allowed to overturn popular votes on their own. Passage of constitutional amendments would require a higher bar: 60 percent of the vote in three-fourths of the states.

Direct democracy is popular with the public: 68 percent of respondents to a 2013 Gallup poll backed the idea of nationwide referenda. Meanwhile, institutions including Congress, the presidency and the Supreme Court are unpopular and untrusted. Give the rabble our shot, and if we don’t like the result, then we’d have no one else to blame.

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