Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and ‘Disclosure Plus,‘ 50 UCLA L. Rev. 1141 (2003).
Abstract: Lawmaking by direct democracy, whereby the public votes directly on initiatives and referenda, is an increasingly popular and frequent feature of American politics. But critics of direct democracy point out that voters do not know basic facts about ballot measures, seem confused about the issues, and appear unduly influenced by superficial advertising. I argue that the source of voter confusion in direct democracy is not political ignorance or heavy campaign spending, as commonly alleged, but the scarcity of “heuristic cues” — cognitive shortcuts that voters customarily use to make political decisions. In this Article, I draw on political psychology to describe what heuristic cues are and how they help voters make difficult choices in other contexts, most importantly in candidate elections. I argue that strengthening heuristic cues in direct democracy offers the best means of rehabilitating voter competence pragmatically, at low cost, without trying to force voters to adjust the way they think about politics. I advocate an aggressive approach to direct democracy regulation that advances beyond the basic disclosure regimes currently in place. Under the “disclosure plus” framework presented here, the government should attempt not only to produce heuristic cues in direct democracy through increased campaign finance disclosure, but also to increase public awareness of those heuristic cues by broadcasting them to the public in highly visible ways. Although the U.S. Supreme Court has frustrated attempts in the past to advance voter competence, I introduce a new constitutional approach to campaign regulation of direct democracy that comports better with Buckley v. Valeo and accommodates the government’s significant interest in voter competence.
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