Comment: Ballot measures can mislead in judging voters’ minds

Because measures rely heavily on advertising, the side that raises the most money is often the winner.

By Sasha Issenberg / Special to The Washington Post

This month, Florida’s voters passed a $15 minimum wage, and Arizona’s raised taxes on the rich to increase teacher salaries and school funding. Ballot measures in Montana and South Dakota, hardly blue states, expanded legal access to marijuana.

“All over America, voters approved a progressive agenda,” Sen. Bernie Sanders I-Vt., wrote on Twitter. Meanwhile, conservatives found solace in California, where voters who backed Joe Biden by a nearly 30-point margin also opposed affirmative action at state universities and a local option to expand rent control. They defeated an attempt to exempt commercial properties from a cap on property taxes and declined to protect gig workers at app-based delivery and ride-share companies. “California proves it’s not as liberal as you think,” Politico concluded.

The desire to read ideological messages into these displays of direct democracy can be seductive. One can squint and see ballot measures as a kind of super-survey of the electorate, with much larger samples and actual stakes. The results then can be interpreted as a pure representation of voter preferences on discrete issues, without the vexing overlay of partisan polarization, incumbency, candidate personalities, scandal or gaffes.

Yet ballot measure contests operate within a framework so different from elections for public office — with few financial limits and a distinct approach to campaigning — that a like-for-like comparison of outcomes is foolhardy. Initiatives and referendums are crucial policymaking mechanisms in many states, but they do not generate lessons about public opinion that can be applied to the partisan sphere or illuminate the positions voters would reward in candidates.

Notably, many of the measures that received the most national attention this November featured a degree of lopsided spending unseen elsewhere in politics. Backers of Florida’s minimum-wage campaign, led by Democratic megadonor John Morgan, spent over nine times more than their opponents, largely restaurant trade associations. The $204 million raised to push Proposition 22, exempting delivery and ride apps from California’s gig-worker laws, made it the biggest-spending nonpresidential campaign committee in American history. Labor unions marshaled just $20 million against the measure.

In the five states that passed pro-marijuana initiatives this month — from authorizing its medical use in Mississippi to full legalization in Arizona, Montana and South Dakota — supporters spent a total of $19.8 million, compared with just $1.3 million by opponents, according to campaign finance summaries by the website Ballotpedia. In New Jersey, where more than two-thirds of voters said yes to legalization, supporters spent 65 times more than the leading opposition committee, Don’t Let NJ Go to Pot PAC, which spent just $8,875.

These multiples are unimaginable in the world of people running for office. When he found himself raising only two-thirds as much as his Democratic opponent this year, Sen. Lindsey Graham, R-S.C., started desperately soliciting contributions on live television. The most unbalanced of the year’s competitive Senate races, in North Carolina, featured Democratic challenger Cal Cunningham raising about two and a half times more than Republican incumbent Thom Tillis, although massive spending from outside groups brought the two sides closer to even.

A spending equilibrium between candidates establishes what political scientists Lynn Vavreck and John Sides, in their 2013 book, “The Gamble,” likened to a “tug-of-war,” in which two sides pulling at comparable force are unlikely to accrue significant advantage through campaigning. But ballot measures usually don’t feature high-profile debates or major media coverage, so with asymmetrical spending, most voters never hear an argument over the issue in question; just one side’s pitch. Why should we believe that these issue positions will necessarily be winners for candidates when they have an opponent tugging back?

In 1981, the Supreme Court struck down a Berkeley, Calif., ordinance that capped contributions to ballot measure committees at $250. The court, which a few years earlier similarly abolished a Massachusetts statute restricting corporate donations, determined that limits on issue-based campaigns violated a constitutional right to free association. The court effectively established parallel campaign finance universes: one for candidates, where most states enforce limits on who can give how much, and another for issue-based campaigns, which remain a free-for-all. Without spending caps, even the most well-funded committees fighting for or against ballot measures are now frequently backed by just a small cluster of donors, whether wealthy individuals, interest groups, companies or trade associations with a direct stake in the narrow policy matter at play.

Money is arguably more important in these ballot measure campaigns than in candidate races. Proponents of ballot measures often define not only the terms of the issue (a $12 or $15 minimum wage?), but also the policy particulars (should the new wage apply immediately or increase gradually?) and the political environment in which it comes up for a vote (a presidential year or a lower-turnout midterm election). Not only does this permit proponents to select their ideal electorate, they can also have pollsters and lawyers collaborate to draft a measure more narrowly or broadly as a means of controlling which interest groups have a stake in the outcome.

For backers of these initiatives, it amounts to an invitation to preselect allies and opponents. Those behind Arizona’s Proposition 208 structured their proposed tax increase on high earners so that its revenue would fund teacher salaries in both traditional public and charter schoolsl; so they managed to create an unlikely coalition of teachers unions and charter-school advocates, both highly invested in the policy change. Resistance to the surtax, which targets those earning more than $250,000, was diffuse enough that no interest group emerged with a sufficient concern to carry the opposition. While the pro-charter nonprofit Stand for Children and the National Education Association, in tandem with its Arizona affiliate, each donated about $9 million to pass Proposition 208, the Arizona Chamber of Commerce offered up just $350,000 against it. Ultimately, supporters spent four times more than opponents.

There were instances this year when the coalitions facing off over a ballot measure did reach parity in funding. A proposed amendment to Illinois’ Constitution to eliminate a required flat income tax featured almost identical budgets of just over $60 million on each side, largely from competing billionaires: Gov. J.B. Pritzkerin support, and investor Ken Griffin in opposition. California’s Proposition 15, which would have facilitated tax increases on commercial and industrial properties, drew about $63.4 million spent in its favor and $60.7 million against. Both the California and Illinois measures failed.

Some initiatives are likely to perform well regardless of broadcast ads and other spending: Polls show that a higher minimum wage and marijuana legalization are broadly popular. (Recent Pew polling has found that about two-thirds of Americans favor each.) But in areas where voters cannot be expected to arrive with well-formed opinions — a novel policy question, a highly technical one or one where issues are directly paired for the first time, like matching a tax increase to teacher salaries — the spending is likely to be influential.

Even well-funded ballot initiative campaigns typically operate with far fewer staffers and offices than candidates do, as they forgo much of the activity around candidate-centric travel, fundraising and media appearances; they also dispense with the party infrastructure that undergirds volunteer voter contact. They spend a much higher share of their budgets on persuasive communication aimed at voters. That spending seems capable of triggering the type of massive polling swings rarely seen in elections where public opinion is bounded by structural factors like partisan polarization.

In September, a survey by the Institute of Governmental Studies at the University of California at Berkeley showed that just 39 percent of Californians backed Proposition 22, the measure to exempt apps from the state’s independent-contracting law. Uber, DoorDash, Lyft, Instacart and Postmates put more than $200 million behind it, most going to television and digital ads. If public polling is to be trusted, about four-fifths of undecided voters appear to have broken for the side that spent exponentially more money trying to persuade them in the closing weeks of the race.

Yet despite these complications, ballot measure results are irresistible for those who want to argue that voters are actually closer to them on the issues, and that their side’s candidates are simply too moderate and cautious to win over the public. Reviewing results in Florida, where the minimum-wage increase did much better than Joe Biden did in most counties, New York labor activist and former Democratic congressional candidate Jonathan Tasini argued that “Biden should have put a wildly popular Amendment 2 at the forefront of his campaign” there. Likewise, in Arizona, the passage of Proposition 208 by about 3.5 percentage points, a much wider margin than the narrow presidential contest, proved that tax increases were “more popular than Biden,” Tasini wrote.

But even if ballot measures lend themselves to this sort of analysis — the comparison of electoral margins, down to precinct-by-precinct pointillism — we should resist the desire to imagine them as an idealized counterfactual election, in which citizens can choose the best policies without having to worry about flawed candidates. Instead, think of ballot measures as more like lobbying campaigns, but with a target audience of voters rather than legislators. The real factor in victory is not which policy citizens would support in a vacuum but which interest groups you can get on your side.

Sasha Issenberg is the author of “The Engagement: America’s Quarter-Century Struggle Over Same-Sex Marriage,” which will be published in 2021 by Pantheon Books.

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