First, a way too brief history of citizen initiatives in Ohio…
• Before 1912: Corporate interests capture The Ohio General Assembly. Laws are passed by House and Senate members beholden to corporations who ignore the needs of average citizens and who overturns municipal laws, including those promoting municipal ownership of public utilities.
• 1910: In response to corrupt state public officials, Ohio progressives and populists call for a statewide constitutional convention. Voters approve the calling for a convention in the November elections.
• 1912: Ohio Constitutional Convention held. Forty-two proposed amendments are approved for the ballot, over 30 of which are approved in November. Among the most important items were 3 “direct democracy” measures – the initiative (creation of a law), referendum (repeal of a law) and recall (removing an elected official from office). These measures provided direct citizen rule – providing them with the exclusive power to “do democracy directly” with surrogate middle- (wo)men politicians playing virtually no role in the process. These measures decentralize and democratize political power.
• Over the next 100 years, only 15 other states provide citizens with this powerful direct democratic tool to create laws bypassing the state legislature as a means of promoting public accountability and responsibility and to offset the power of corporate interests.
• 2015: Voters approve Issue 2. Cast as an “anti-monopoly” amendment to the constitution, the ballot measure empowers a five member “Ballot Board” to decide whether a proposed citizen initiative promotes the creation of a “monopoly,” “oligopoly,” or “cartel;” or a non-uniform tax rate (say, imposing a higher tax rate on large corporations vs locally-owned ones); or “confers a commercial interest, commercial right…” to some person(s) or entities but not all similar ones. If just three of the five Board members (composed by the way only of Republicans and Democrats with no Independents or third party representation) determine that a proposed citizen initiative is, for example, a “monopoly,” the proposed initiative would be labeled as unconstitutional. Citizens would then vote on the Ballot Board-branded unconstitutional monopoly as a separate measure before actually voting on the citizen initiative itself.
Implications of Issue 2
While the desire and need to prevent monopolies, oligopolies and cartels are legitimate and needed; the above-mentioned key terms contained in the amendment are undefined. This leaves incredible latitude to the Ballot Board members – all existing politicians. The Ballot Board’s kiss of death’s unconstitutional label of a citizen initiative will virtually kill the chances of the citizen initiative’s passage.
Legitimate citizen initiatives are already extremely difficult to pass. If and when a strong grassroots social movement arises in Ohio by itself or part of a larger national movement seeking real political or economic reform, the corporate captured majority of state legislators and statewide office holders may hope that Issue 2 provides many potential hammers to strike down any initiative they don’t like. If the federal level is any guide, hundreds of laws passed in the 19th and early 20th century were overturned by the courts as impeding “commerce” under the Commerce Clause that furthered workers, consumer and community rights (including those favoring local businesses over non-local ones). These laws were seen through the lens of protecting workers, consumers and communities by city councils and state legislatures. The Supreme Court saw these identical laws very differently — exclusively through the lens of “commerce.”
What’s to prevent the monopolistic Ohio Ballot Board from using Issue 2’s vague language from defining citizen initiatives brought before them any way they and they alone determine? It may not happen right away (it didn’t with the Commerce Clause either), but the anti-democratic tools are now baked into the Ohio Constitution for usage by this politically concentrated entity. No state law can reverse it. No regulation can overturn it. Political power is further concentrated – away from the public. Only another constitutional amendment can overturn it. How achievable will that be when the amendment will be framed primarily once again by its defenders as protecting citizens from “monopolies?”
Prior to 1912, corporate interests had to corrupt a majority of General Assembly members or committee members for their economic or political benefit. Passage of Issue 2 makes “influencing” elected officials much more efficient, not to mention cheaper. Only three politicians now need to be the recipients of legalized bribery or any number of other inducements.
Elected officials have now substantially weaseled their way into the citizen initiative process. The citizen initiative, intended as a direct democratic tool by citizens to bypass elected state officials, now must pass through the gauntlet of Ohio elected officials – where many of them may not make it through unmarked.
The wealthy 1%ers and corporate CEOs have, of course, hijacked the citizen initiative process at different times via huge sums of money by creating “astro-turf” campaigns, but at the same time tried to assume the appearance of being “grassroots.” Issue 3 was Exhibit 1 (actually probably 10,001) across the country over the years.
Rather than perceiving the problem as the profoundly undemocratic “right” of money being defined as “free speech” – which allows the 1%ers and mega corporations to spend unlimited sums of cash to distort, deceive and discombobulate issues, messages and voters, the strategy was instead to perceive the problem as one of We the People’s few remaining democratic tools. The need to “reform” (more like deform) the supposedly inadequate citizen initiative process under the guise of targeting concentrated capital became the solution.
It turned out Issue 2 was not needed to take down Issue 3 and the blatant greed behind it. Voters did that all by themselves.
Issue 2 may legitimately prevent or deter actual monopolies, oligopolies and cartels even as written if we lived in a genuine democratic culture. The problem in reality will be its ultimate illegitimate application by a monopolistic Ballot Board, interpreting vague language, and operating in a political culture that isn’t broken, but fixed — as in rigged to benefit the super wealthy and corporate interests.
The big mistake was singularly focusing on changing the citizen initiative process to solve the immediate problem at hand (i.e., Issue 3) without assessing the potential unintended antidemocratic consequences, whether knowingly or unknowingly, of Issue 2. The new amendment provides another potential avenue to corrupt the citizen initiative process – this time, though, from the inside out.
When single issues or problems are addressed in a reactive or defensive mode, long-term solutions can easily be put off for another day. The growing corporatization and plutocracy of our country is a root cause of our ever-expanding democratic crisis. What is needed to prevent the 1%ers and the corporate crowd from completely redefining the political culture – which will continue to find outlets through citizen initiatives, candidate elections, regulatory agencies, lobbying, the courts, privatized/corporatized public assets, media, schools, think tanks and other societal institutions?
Reforming/deforming citizen tools is a very poor answer.
There is no single solution. Dealing with gerrymandering is a piece of it, which can happen at the state level. But there are some solutions that go beyond the state. Specifically, if the problem is corporatization of (you fill in the blank of your favorite issue) and plutocracy, then one fundamental solution is abolishing the constitutional doctrines of money as speech and corporations as legal persons with inalienable constitutional rights.
In the case of corporations, this extends far beyond the first amendment to include other never intended Bill of Rights rights (4th and 5th Amendments), the 14th Amendment, and the Commerce and Contracts clauses.
While there was division of opinion among good people of concern and conscious on Issue 2, I believe there is growing awareness by individuals of diverse views and backgrounds that profoundly fundamental solutions that go beyond single issue reactions, responses or defensive actions are needed.
To explore and take effective collective action on any of these, we need all that is left of our democratic tools – many of which haven’t even been mentioned.
The citizen initiative is a tool too important to be in the hands of the power elite.
We have our hands full.