This is already starting to happen. The legislatures of five states have scheduled referendums for this year, including two on amendments granting the right to abortion (California, Vermont); two on amendments declaring that their constitutions do not contain the right to abortion (Kansas, Kentucky); and one establishing that children born alive have the right to medical care (Montana).
Kansas shocked many political watchers on Tuesday with a landslide victory for abortion-rights supporters, when voters refused to open the door to a comprehensive abortion ban. But the result is not so surprising to those who follow public opinion, which shows that Americans of all political stripes are strongly in favor of compromise policies on abortion. It is a reminder that the opinions of the public on an issue are not always reflected in the position of a state’s political leaders. The result can also serve as a cautionary tale for lawmakers: Pursuing an abortion policy that goes too far in either direction risks causing a backlash.
Citizens take the lead in other states: Abortion advocacy groups in Michigan appear to have garnered enough signatures to qualify an initiative guaranteeing abortion rights, while in Colorado, anti-abortion groups are asking for a proposal that would ban abortion unconditionally.
Initiatives allow citizens to propose their own laws, while veto referendums allow them to repeal laws passed by the legislature. Running either kind of campaign is expensive. Signature requirements vary by state, but typically range from 5 to 10 percent of eligible voters, or about 40,000 in a sparse state like Wyoming and about 1 million in California for constitutional amendments.
Collecting signatures is time consuming and cannot be done by grassroots volunteers. This usually requires hiring a signature collection company, which can easily cost millions of dollars. Social issues campaigns have had some success raising funds from small contributors, but most campaigns rely on a deep-pocketed individual or organization to shoulder the costs. In Michigan, abortion rights activists spent more than $1.6 million collecting signatures according to the latest campaign finance reports, nearly 90% of which came from the ACLU. Sometimes the investment is wasted, as happened this year to a group in Arizona that managed to collect only about half of the 350,000 signatures needed.
In some states, sponsors will have to decide whether they want to seek a constitutional amendment, which usually requires more signatures but cannot be struck down by state judges, or an ordinary law. Once a measure is eligible, even more funds are needed to run the campaign itself, especially for publicity.
The use of referendums has certain advantages over the more traditional legislative route. More importantly, it allows citizens to overrule their elected representatives if they do not like the policy choice of the state. Abortion opinion polls tell us that most Americans favor a policy compromise somewhere between what activists on both sides want – legal abortion early in pregnancy, with increasing bans on as the fetus becomes viable. If lawmakers push abortion politics in an extreme direction, a real risk in this age of hyper-polarized parties, initiatives and referendums is letting voters drag politics back to the center.
Some fear voters may support extreme policies, but the historical record inspires cautious optimism. Over the past two decades, Colorado, Mississippi and South Dakota – all deep red states – have overwhelmingly rejected ballot measures that would have banned abortion in almost all circumstances, and there is no There is no recent example of voters endorsing an extremely restrictive policy. The Kansas vote is an example of this: it’s a red state, but voters have rejected the idea of moving towards a total ban on abortion – they want to keep the current compromise policy that allows abortion. abortion in the early stages and restrict it later. Nor is there an example of voters endorsing an extremely permissive policy, although California will be a test case in November; citizens will vote on a legislative proposal that appears to allow abortions without any viability restrictions, going further in the permissive direction than any Western nation. Europe’s record of national referendums also points to the adoption of centrist policies when voters are involved.
Another advantage of referendums is that they can provide more lasting solutions. A defeat in the legislature leads the losers to redouble their efforts to seize power, while a defeat in the referendum can only be reversed by persuading voters to change their minds. A comparison between the United States, which legalized abortion by court order in 1973, and Italy, which did so by referendum in 1981, is enlightening: abortion never became the controversial policy in Italy as it has become in the United States. Although the political temperature rises during a campaign, citizens seem more inclined to accept the legitimacy of a decision taken by their fellow citizens than that taken by political elites.
There is, however, a risk that legislatures will sponsor extreme proposals as a way to increase turnout from their bases. This cynical use of democracy can exacerbate divisions instead of giving voters a chance to choose a middle course.
Congress could also get involved. In principle, lawmakers could simply pass a national abortion law that strikes a balance between the two extremes, though it’s hard to see an appetite for compromise in either party.
But there is also a way to make the voice of the people heard at the national level. Although the initiative and referendum are not available at the national level, Congress could call an advisory vote asking citizens for their preferences and using this information to build consensus policy. While it may seem fanciful to many Americans, in most countries governments hold national referendums from time to time on important issues, and two-thirds of Americans tell pollsters they would like to vote on issues as well. important. A practice that works well for other democracies should not be dismissed out of hand. Ultimately, our system is only strengthened when people have a say in how they are governed.