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Extra resources for A Theory of Direct Legislation (Law and Society)
The fact is that, ultimately, most initiatives proposed at the ballot are not enacted. 76 Defenders of direct legislation also argue that claims of initiatives being inherently conservative are unfounded. As pointed out, there are no conclusive empirical findings that can justify these claims. 77 This is hard to measure and that is why any empirical findings in this matter are problematic and partial. 78 5. CONTENT-ORIENTED ARGUMENTS AGAINST INITIATIVES Much of contemporary criticism regarding initiatives is focused on the content of direct legislation.
A stark example of an intentional Trojan horse is California’s Proposition 36, placed on the 1984 presidential ballot. Proposition 36 was an initiative sponsored by a lottery company. The initiative called for establishing a state lottery whose earnings would help fund education. Obviously, marketing the bill as a means of promoting education did not harm its popular appeal. But what the drafters were able to conceal in an innocent looking provision was the fact that the initiative not only called for establishing a state lottery but it also aimed at creating a monopoly with one main beneficiary, the sponsoring corporation.
36 In the context of initiatives more votes are counted and less face to face deliberation occurs. Thus, according to this scholarship, initiatives are likely to produce more moderate and unifying results. Furthermore, it is unlikely that an uncompromising measure, representing narrow special interests, is likely to win a majority of Toward a Legal Theory of Initiatives 45 the voters. Success would be predicated either on the ability of initiative sponsors to mislead the public as to the contents and implications of a proposition, or on the will of the majority to run roughshod over the wishes of minority groups and individuals.