Act, Section 3-C

An initiative shall pertain to a matter of public policy relevant to the government jurisdiction to which it is applicable. The Sponsor shall determine the wording of the initiative. The Title and Summary shall be subject to the approval of the Electoral Trust.

Comparison with State Initiative Law

Pre-circulation review of state-level initiatives is summarized in Waters (2003, p. 15):

Prior to circulating a petition, the proposed initiative and a request to circulate must be submitted to the designated public officer such as the Lieutenant Governor, Attorney General or Secretary of State for approval. Nine states require the proposed initiative to be submitted with a certain number of signatures---ranging from five in Montana to 100 in Alaska. Five states require a deposit that is refunded when the completed petition has been filed---Alaska ($100), Mississippi ($500), Ohio ($25), Washington State ($5), and Wyoming ($500).

Depending on the state, the petition may be reviewed for form, language and/or constitutionality. Ten states require the Secretary of State's office or the Attorney General to review initiatives for proper form only. Twelve state require some form of pre-circulation/certification review regarding language, content or constitutionality. However, in all but four of these states, the results of the review are advisory only. In Arkansas, the Attorney General has authority to reject a proposal if it utilizes misleading terminology. In Utah, the Attorney General can reject an initiative if it is patently unconstitutional, nonsensical, or if the proposed law could not become law if passed. In Oregon, the Attorney General can stop an initiative from circulating if he believes it violates the single amendment provision for initiatives and in Florida, the State Supreme Court---during its mandatory review---can stop an initiative if it is unconstitutional or violates the state's very strict single subject requirement for initiatives.

NI4D adopts Illinois-style pre-circulation review. In Illinois, the title and summary are subject to approval by the Board of Elections. At this point, there is no judicial review (e.g., to determine constitutionality or whether there is a violation of the single subject requirement).

How the initiative appears on the ballot is called the "ballot title." Waters (2003, p. 16) provides a summary of state law:

How an initiative's ballot title is worded can make or break the initiative. In some states, proponents get to recommend a ballot title with final approval being left to the state---but in most states, government officials write the ballot title. Regardless of who writes it, the exact language appearing on the ballot may end up being a subject of a court case. Proponents will sometimes file multiple initiatives very similar in nature but not exact, in the hopes of getting a ballot title that they "like." They will then begin circulating that petition. This is only possible, however, in states in which the ballot title is set before proponents begin gathering signatures. In many states, the ballot title is decided after proponents turn in their signatures and the measure is qualified for the ballot.

Under NI4D, the deliberative committee may rewrite the initiative, setting a new ballot title (see Act, 3-I). If the deliberative committee does not modify the initiative then the circulation title (pre-qualification title) and the ballot title (the title appearing on the ballot) are the same.

Parrish Report

"Matters of public policy" is a broadly inclusive term incorporating policy decisions that may be reflected in a wide variety of documents, such as constitutions, charters, laws, ordinances and resolutions. The governmental jurisdictions covered by this act include federal, state, county and municipal governments or their equivalents (e.g., Parish). An initiative must be applicable to one, and only one, of these levels of government jurisdiction. So, for example, a single initiative could, if enacted, establish law at the state level, affecting every city in that state, if that were the desired intent, rather than have many individual city initiatives. At each governmental level, every law established is applicable in all jurisdictions subordinate to that for which an initiative is written.

Before an initiative can be accepted to begin the qualifying process, the Electoral Trust must approve the Title and Summary submitted by the Sponsor to ensure that the Title and Summary accurately reflect and describe the initiative in its entirety. The Electoral Trust, at its sole discretion, may determine that either the Title or Summary, or both, do not accurately reflect the content of the initiative, but it has no power to change either the Title or Summary. In this case, the Sponsor will have the opportunity to revise and resubmit the initiative, multiple times, if necessary. If differences between the Sponsor and the Electoral Trust are not reconciled by negotiation, the Sponsor may sue to require the Electoral Trust to fulfill its ministerial responsibility to approve the Sponsor's Title or Summary. In that event the court can, among other possibilities, specify the wording of the Title and Summary.

The entire reason for this point of control is to enforce the principle that there should be no surprises cloaked in a profusion of words while voters are enticed by innocuous language in an attractive but misleading Title or Summary

Feedback from the 2002 Democracy Symposium

Jacob, 2002, p. 3 wrote:
When the proponents submit the original language, the Electoral Trust -- not the partisan proponents -- should determine the language of the ballot title and summary. Once the Electoral Trust sets the language, which should be done quickly (with clearly set deadlines), there should be an appeals process open to both proponents and opponents. This process should also be expedited so that bureaucratic or legal delays do not thwart the interests of those who propose a new law. Furthermore, final decisions need to be made at the beginning of the process so that courts cannot derail efforts, as they have done in a number of initiative states, mere weeks before voters come to the polls -- and after proponents have invested all the work to gather the necessary petition signatures and invested significant resources into the campaign.

Stern & Holman, 2002, p. 3 wrote:
The Act requires that the sponsors prepare not only the text of the initiative but also the Title and Summary, subject to the approval of the Electoral Trust. Experiences in state jurisdictions have shown that it is a mistake to have the sponsors prepare the Title and Summary. These are the most important materials that are presented to the public. It would be better to have the Electoral Trust or some other entity prepare the Title and Summary.

The act no longer requires the sponsor to or prohibits the sponsor from preparing the Title and Summary. Prior to qualification, the Title and Summary must be approved by the Electoral Trust. After qualification, the Title and Summary may be modified by the deliberative committee.

The precise mechanism for evaluating the Title and Summary is not specified in the Act. The review process needs to be cheap and fast because anybody can submit an initiative. The poor Electoral Trust will probably receive many absurd initiatives shuffled with legitimate initiatives.

What will probably happen is that the Electoral Trust will recruit volunteers from the public to evaluate initiatives. To ensure accuracy, every initiative can be independently evaluated by three randomly assigned citizens. If all three citizen reviewers agree then the Title and Summary are approved (or rejected). If there is disagreement between the reviewers then the review process can be escalated to an Electoral Trust lawyer. The process might work something like that. It does not seem difficult to devise a workable process.

Donovan, 2002, p. 4 wrote:
"An initiative shall pertain to a matter of public policy relevant to the government jurisdiction to which it is applicable."

Does this mean administrative matters are to be made subject to citizen initiatives and referendum? An expansive definition such as this, if applied as a national standard, could provide for a dramatic expansion of initiative use in states and communities with active direct democracy at present. Consider that the popularly elected state Supreme Court of Washington state, for example, interprets the state's Constitution to limit the use of local initiatives to matters that are deemed "legislative" as opposed to "administrative" actions. One major impact of this is limiting the type of land use questions that voters may place on their local ballot. In Washington, amendments to existing zoning plans and rezone decisions are considered administrative, and are not subject to initiative and referendum. Oregon, Utah, and other states also limit initiatives to general ordinance matters, not decisions on specific pieces of property. The Act, it would seem, expands direct democracy to every micro-level decision about local land use and zoning. (see also Section 4. E. 1). Over-zealous use of local land-use initiatives have the potential to create greater segregation by race and class.

The Research and Drafting Service (Section 4-F-4) and the Public Hearing (Section 3-H) are intended to fully air the implications of a proposed law. The general approach taken by the National Initiative for Democracy is to foster good lawmaking by fostering education, not by trying to constrain initiatives to a certain type.

Donovan, 2002, pp. 4-5 wrote:
The Act does not include specific limitations on subject matter, other than a single-subject clause. Several American states may suffer from fiscal crises brought about by initiatives that limit the legislatures ability to set long-term budget goals. Although initiatives may bring some state policies to more closely match the state's voters' preferences, the initiative process is not well equipped for matching public preferences over revenue sources (taxation, debt) with public preferences for spending on specific programs. Individual tax initiatives and spending initiatives can serve as an effective ways for the public to send signals to legislators about their preferences, but these discrete ballot measures cannot substitute for the legislative budget process.

If legislators are given the ability to amend initiatives, particularly fiscal measures, initiatives may complement the legislative budget process. However, if multiple, discrete fiscal issues can be decided by initiative and enshrined permanently into the Constitution, Congress would be left with no way to reconcile the inevitable contradictions that will arise from such initiatives. If California is any model, voters may happily approve indebtedness, tax cuts, and greater spending, but approve few new taxes. Research suggests that the long-run effect of initiative-influenced state fiscal policy may be greater indebtedness, more regressive taxation, and deterioration of credit ratings. Voters will limit certain revenue streams while approving spending on some popular programs. Discrete initiative choices do not reconcile such contradictions - Congress must remain engaged in such activity.

The difficulties in California are likely due to well documented weaknesses in California's initiative process. See chapter 3 of Center for Governmental Studies (2008). Switzerland has not encountered difficulty maintaining a balanced budget despite the direct democratic approach employed there. Also see John G. Matsusaka, Fiscal Effects of the Voter Initiative: Evidence from the Last 30 Years, 103 J. Pol. Eco. 587-623 (1995).

Allen, 2002, p. 3 wrote:
John G. Matsusaka compared the fiscal effects of initiatives, comparing states with and without the procedure. He found that while “demographic factors are by far the most important determinants of fiscal behavior, availability of the initiative does matter as well. After one controls for income, population density, metropolitan population, population growth, mineral production, ideology of U.S. senators, and federal aid, initiative states have lower combined state and local direct general expenditure, spend more locally and less at the state level, and rely less on taxes and more on charges to generate revenue than pure representative states.” State spending, in short, is somewhat less in states that allow initiatives than in other states, but importantly the distribution of spending does not differ: “[O]ne might expect to see initiative effects in specific categories of spending, for example, pure transfer programs such as welfare. However, I estimated a number of exploratory regressions on categories of expenditures, including welfare, education, and highways, and was unable to find significant initiative effects.”