Who should get more leeway when writing laws: the Legislature, acting as representatives of the people, or the groups who write and circulate initiatives, which are ultimately voted upon by the people themselves?
That’s the question at the heart of a rambunctious lawsuit filed by veteran Las Vegas lawyer Kermitt Waters, who is seeking to kill the now-infamous “single-subject” rule that confines initiatives to addressing one subject only. His contention: The 2005 law that enacted the single-subject rule itself violated a constitutional provision that says the Legislature can only pass bills on a single subject.
Wade through the muck and the classic Nevada question emerges: Who really runs the state? Waters contends it’s the powerful interests such as gambling, mining and big business, which, having already captured the Legislature, now seek to choke off the initiative process so rabble-rousing citizens such as Waters can’t threaten their oligarchy. Or as the casino lobby puts it: “Measures of popular passion and self-interest, the two dangers which were meant to be controlled by the deliberative process of representative government, must be rigorously restrained in the process of direct democracy.” Easy to say when you virtually own the former!
Sadly for Waters, it appears the special interests may have the upper hand: He’s asking the state Supreme Court to undo the 2005 single-subject law, undo another law that requires signature-gatherers to visit all four congressional districts while qualifying petitions, and review and bless an as-yet-unfiled ballot initiative that would raise a bevy of taxes for a variety of reasons. Reed Richards couldn’t overreach like this.
Plus, Waters’ opponents in the case — the secretary of state’s office, the Legislative Counsel Bureau with generous assistance from the Nevada Resort Association, the Nevada Mining Association, the Las Vegas Metro Chamber of Commerce, the Nevada Retail Association and others — actually have good arguments.
They make a compelling case that bills introduced in the legislative process — in which bills are debated, amended, scrutinized at public hearings, require broad support to pass and are subject to a veto — should face a looser single-subject standard than initiatives, which can’t be changed once written. Whether the 2005 single-subject law violated the constitution is an open question, but it appears that law was passed in a way not inconsistent with prior court rulings and 149 years of legislative practice.
But Waters’ points are undeniable, too: Many citizen initiatives (and even some proffered by big business or big labor) that have been proposed since 2005 have been challenged under the strictly interpreted single-subject law, and most have been killed by it. That the law frustrates direct democracy is virtually undeniable.
The state and its allies argue the stricter standard is necessary because initiatives are otherwise subject to fraud, deception and abuse. But they should know better. Drop by the Legislative Building in the last 48 hours before final adjournment if you want to see real fraud, deceit and abuse: unread amendments voted upon; unvetted ideas snuck into final bills by clever lobbyists; and back-room deals the public never sees. Besides, the public has a good track record of seeing through deception. In 2004, two trial-lawyer backed initiatives sought to undercut medical malpractice caps, but both were soundly defeated. In 2006, opponents of an anti-smoking initiative introduced a confusing alternative, but lost. The voters are smarter than many cynics think.
“The Nevada Legislature will never change this oligarchy of power,” Waters writes. “As the public’s representatives [sic] loyalties are compromised to the power brokers of the state. The public require [sic] direct democracy to ensure that they have at least one avenue to pursue their common interests.”
A powerful — and accurate — statement, even if made in service of a doomed legal effort. So what’s the answer? Can the Legislature and citizen initiatives coexist? On Sunday, I’ll take a look at the one and only attempt by lawmakers to fix the single-subject law, a good idea that, of course, died in the process.
Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or firstname.lastname@example.org.