Last week’s appeals court decision barring the legislature
from writing titles and summaries for its own measures has sparked predictable
commentary that the court did the right thing. After all, lawmakers have
routinely used this power to write titles and summaries that are favorable to
their views – but not scrupulously accurate (or event all that useful) to
voters.
But does the decision leave us any
better off? Probably not. Because the court’s decision puts the power to write
such measures in the hands of the attorney general. Politics presumably will
continue to play a role. If anything, giving power to one person and one office
may make political gamesmanship with titles and summaries more common. One a.g.
playing politics can draft such labels alone (and there’s plenty of recent
history of this). In the legislature, any such label had to be a compromise.
Despite this, the decision offers a
bit of good news – or at least an opportunity to design a better system for
drafting titles, summaries and other public information on ballot measures.
There are many good models. Here are 3.
1. Having an office of experts who are part of the
government but are unelected civil servants. This might be called the Swiss
model. There, even the initiatives themselves are drafted by a special office,
which employs experts in all manner of subjects as well as a number of
linguists, so that the initiative uses the plainest, clearest language possible
(a crucial point in a country with four national languages).
2. A title board. Ohio, for example, uses a
five-member board chaired by the Secretary of State. This brings some politics into the process
but tempers it by not placing all power in one official.
3. Citizens’ juries.
This last idea, the citizens’
juries, would seem to make the most sense, given that ballot initiatives and
measures are supposed to be the realm of the people. A group of randomly
selected citizens could be drafted to read each ballot measure and give it a
title and summary. The same group could and should also draft ballot arguments.
Oregon has begun an experiment with
this kind of approach, with citizens’ juries studying each measure thoroughly
and then writing pro and con ballot arguments. You can learn more here.