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Policymaking Through Direct Democracy

Policymaking Through Direct Democracy

Using public referendum as a tool for licensure reform

By: Protik Nandy

Middle Tennessee State University

The Knee Center for the Study of Occupational Regulation

 

Background on direct democracy.

America was founded in an era where the political system had a complex understanding of the role of people. The Declaration of Independence provides the ideological foundations for the democratic government which was founded to protect the “unreliable rights “of “all men “and derive “the just power from the consent of the governed.” The governments derive their powers from the “consent of the governed,” or the will of the people as expressed through elections. James Madison argues in Federalist Number 10 that a system of representation passed through a body of citizens is more likely to institute checks and balances to balance the power of the government. This understanding of democracy is interpreted as an ode to individual liberty, but frequently we come across politicians who act upon their own self- interest and bend the rhetoric of popular sovereignty to their ends. This has reinforced political reform by paving the right of citizens to voice their opinion, thus leading to more “democratization “of key American political institutions. The drift has been to fix the problem by reducing politicians and lawmakers’ influence and putting a limitation on government who betrayed the trust of people. Direct democracy, where citizens initiate a proposal on the ballot in addressing the current political crisis, addresses the majority’s will. In the last one hundred years, there has been a rising mandate for fostering democracy at a local level (Auer and Morel 2001). The scale of administration of local governance is directly affected by the degree of centralization in a country. The role of local governance in a country’s federal system may be substantially different from the role of local authorities in small, highly centralized countries (Wolman H. 1996). Sustainable development is achieved if the role of local governments is founded on recognized principles of participation and transparency and in a manner that follows basic human rights (Bowler et al 2004). There has been a substantial rise in local elections, especially in countries experiencing or undergoing a transition from authoritarian rule to more open political systems (Butler et al.).

The influence of the referendum on the political agenda depends on whether being initiated by a special interest group or by a certain number of citizens (popular initiative). In the referendum analysis, it has often been perceived as tyranny on the minority (Gamble,1997), although it seems to be particularly inadequate or unfair. Riker (1982) argues that social choice theory may be taken as an argument against the theories of majoritarian democracy. Still, it is not about the realization of ‘the will of the majority, as no such social choice method exists which would reveal the majority winner in every possible preference profile. This is because there is no majority winner that exists in situations with multiple alternatives and three voters.

The core of this conception is that there is a substantive concept of public interest, that cannot be reduced to an outcome of the aggregation of individual preferences. In Rousseau’s theory, citizens are regarded as judges, and democratic decision-making is seen as the correct interpretation of the law ironing out individual prejudices on the common good for the society. (Barry 1965; Sartori 1987,313.)

Direct democracy offers a provocative alternative view grounded in the actual human nature of democratic citizens encouraging in political decision-making to develop the qualities of good citizenship. The idea of citizens partaking directly in public decisions is as old as human societies and historically dates to the ancient Greeks. Solon with his liberal measures succeeded in making the transition from Dracon’s laws to the first shackled Leviathan[1] in history.

The constitutional setting determines to a large extent which issues are put on the political agenda, but advocates of direct democracy claim that it delivers more representative policy outcomes than a purely representative democracy (Holden, 1974: 27). The primary institutions of democracy seem incapable of fulfilling the fundamental purpose of democracy when there is a significant gap between the preference expressed by the ordinary citizen and the policy proposed by the political elites. Over the past decade, local governments and people have learned how to work together, which are inherently linked to the nurturing and promotion of local democracy. Without adequate resources either produced at the local government source or passed down from the provincial or central government, it would be tough for local democracy to survive.

There is growing interest in the use of referendum (Auer and Morel 2001) to eliminate or mitigate public choice concerns (Buchanan and Tulloch 1962[1999]; Mueller 1996; Mueller and Murrell 1986; Peltzman 1980). Are the states that allow initiatives and referenda more receptive to public opinion than in states where initiatives and referendums do not exist? Political science theory remains divided on it, with contradictory evidence. Direct democracies empower citizens a direct voice in public policy, which may, directly and indirectly, shape policy to their wishes whereby allowing citizens to directly create public policy, where the institutions evade the filtering mechanisms of representative democracy that provide a check on the power of the majority (Butler & Ranney, 1994: 12).

On the contrary, collective choice questions the capability of direct democracy to produce policy that resonates with the underlying mass distribution. However, the jury is still out on conflicting results produced by empirical research that leaves the question of the effectiveness of direct democracies open to debate. In the United States, most citizens do exercise a degree of influence over public policies. The evidence establishes a clear link between mass preferences and policy outputs at all government levels (Erikson, Wright, and McIver 1993; Page and Shapiro 1992; Wlezien 1995). Traditionally, any representation highlights the importance of elites competing in elections as the apparatus through which the governed exercise control over their leaders (Fiorina 1981; Key 1966; Miller and Stokes 1963).

Direct democracy as a tool for mitigating regulatory capture

Regulatory capture, especially in health care, is given minimal attention in public discourse but deserves attention. Direct democracy primarily alters the course of political decision-making. Direct democracy protects ordinary citizens in political decision-making from self-interested betrayal by political elites. Referendums and initiatives, in theory, have allowed citizens to share policymaking with their representatives on a much more frequent basis. California tops the list on regular use of referendums and citizens initiatives. California voters voted on 12 statewide ballot measures in areas including criminal justice, rent control, and privacy laws in the last general election of 2020, with voters passing Proposition 22, allowing companies like Uber and Lyft to exempt their drivers from state labor laws. Californians also decided not to expand rent control in the state through Proposition 21, denying local governments the ability to impose new rent control laws. In representative democracies, when politicians repeatedly fail with governmental performances, misrepresentation, and incompetence, direct democracy serves an important function through a referendum. The initiative has played a significant role in California’s politics for the most part of the twentieth century. The citizen-initiated laws have restricted California’s legislators on spending, term limits, and declaring English as the State’s official language in the past. California, being the most populous state, is also the highest-paying state for nursing in the country. The processing time for a license takes up to three months because thousands of nursing roles go unfilled

Local democracy consists of local government institutions, i.e., mayors, councils, committees, and administrative structures, and the relationships between civil society from the official government. The rubrics for social interaction in highly dense urban areas must consider communities’ close interaction and encourage cooperation and conflict management. For that reason, large cities are also susceptible to further subdivision and decentralization within cities into sub-metropolitan units such as districts, boroughs, neighborhoods, and other smaller entities.

The unprecedented number of patients affected by COVID-19, in addition with the growing demand of the health care providers has increased awareness of the NLC, mainly in the states that have not joined yet. Compact states benefit due to zero delay for licensing processes than non-compact states as they were subject to various state regulations. The pandemic has left a long-term effect. To tackle the pandemic crisis, states, for the most part, had no options other than relaxing their regulatory control as an emergency policy in light of public health emergency declaration to meet the current emergency. The State has taken action to suspend or waive certain practice requirements for treatment and care of patients. The state analyzed health care licensing waivers and guidance issued by the Department of Consumer Affairs under the authority of Governor Newsom and issued an Executive Order on March 30, 2020. The waiver authorizes the California Department of Public Health to suspend licensing requirements in Chapter 2 of Division 2 of the Health and Safety Code during the emergency period. It allows the Emergency Medical Services Authority (EMSA) to allow out-of-state medical personnel to practice in California. From a nursing licensure perspective, states will use critical lessons from the pandemic and put measures in place to ease the burden of healthcare staffing across borders in the future.

However, the broad influence of the referendum has led to creating legitimate meaningful outcomes, with two states legalizing marijuana in 2012 in direct contradiction to federal law. The effect of popular initiatives showed how involving people in political processes had generated a better understanding and responsibility in making political decisions. The set of ideas has led to believe that the cure for the ills of democracy is more democracy as a remedy to the incompetence of elected representatives. Voting against the status quo has redirected the power and reduced political influences by institutionalizing a potent form of direct democracy.

Direct democracy in California.

The history of direct democracy in California dates to the progressive era with governments started arming citizens with more direct political power. Direct democracy allows voters in a state to write laws. In 1849, the state constitution drafted a new form of democracy, shaping California’s political culture and legal landscape. The California counties were given initiative rights in 1893, with state-level initiatives and referendum being adopted in 1911. Direct democracy takes many forms, either local or statewide. The most common form of direct democracy is the initiative or proposition. A popular referendum by which citizens can place a measure on the ballot is alternately called the veto referendum, citizen referendum, statute referendum, or statute remand. Article II, Section 9 of the California Constitution grants the citizen the right to vote directly on constitutional amendments and to vote on specific other measures through a referendum process. Article II Section 8 provides the following:

An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the constitution, of the votes for all candidates for governor at the last gubernatorial election. The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The governor may call a special statewide election for the measure. An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.

 Direct legislative measures like ballot initiatives and referendum were instituted in California in the early 1900s, allowing citizens to participate in the policy process and end impasses when the legislature refuses to act. Up to 31 days before an election, a referendum can be qualified on a statewide ballot. The petition must be signed by at least five percent of the votes cast in the last gubernatorial election. There has been a distinct increase in citizen-initiated ballot measures in the past two election cycles, with 2016 recording the highest number of ballot measures in a decade (76). It is not a new phenomenon that ballot initiatives are seen as an answer to legislative gridlock and a check on the special interest group power. Since 2011 in California, when Senate Bill 202 was approved, all referendum measures have appeared only on general election ballots.

California’s most famous initiative was Proposition 13, approved by voters in 1978. Still, in recent times, California has led the nation in high profile initiatives on a wide variety of significant social, economic, and governmental issues, which includes term limits, bilingual education, racial preferences/affirmative action, medical marijuana, punishment for crimes, taxes, government debt, and same-sex marriage. California was also the first State to allow the use of medical marijuana; after the passage of Proposition 215 in 1996. In 2008 Californians voted on Proposition 8, titled “Eliminates Rights of Same-Sex Couples to Marry.”  The most defining feature regarding referendum is voters determine policy outcomes at the state and local levels. Any amendment proposed with the prerequisite signature may then be submitted to the voters at the next general election. The significance of the initiative and referendum as institutions is a political question that has been raised from time to time. However, measures like referendum and

Initiatives have been used to enact or challenge most legislative measures. Could this mechanism be utilized for licensing reform in California? In the next section, I highlight the case of a recent Senate bill that failed and note how to direct democracy may have resulted in a different outcome for the initiative.

Using the referendum for licensure reform:

The eNLC and California Senate Bill 1053 (SB  1053)

Like most states, California was a different place when it achieved statehood versus what it is today. In 1850, when California became a state, the population was only 92,597 – now, there are 80 cities in the State with a much higher population. The Nurse Licensure Compact, which originated in early 2000, was formulated to allow nurses to relocate quickly and engage in practice with one license in any Compact states. It is governed by a commission made up of member states to protect the public by acting on the nurse’s ability to practice in a compact state. Whenever existing political systems have failed over time, there has been an effort to expand the scope of control by examining the deterioration of political institutions. This kind of revolution has brought social turmoil along with political disruption. The reforms were envisaged with the motivation to increase the influence of ordinary citizens by reducing the influence of politicians and lawmakers. Even after a century of progressive era reforms, states kept empowering their citizens by instituting initiatives and referendum in their constitution to transfer the power of framing laws from official lawmakers to non-official lawmakers. Public participation in democratic politics should be seen as an inherent good critical to human flourishing (Altman,2011). Bruce Cain, a political scientist with ample experience in California politics, reinforces that a direct form of democracy has empowered a new class of election entrepreneurs to formulate policy and decluttering the asymmetric information that exists in voters’ minds. Cain (2015,8-9) states, “organized interests are a constant presence.”

Critics of direct democracy would be quick to argue that it is not always necessary that policies that are overwhelmingly preferred by the majority may not be good policies in the broader context with citizens’ interest, but a balanced assessment of the impact of direct democracy have shown consistent persistence of such reform. California has been hesitant to join the compact states citing concern about maintaining state training and quality standards. Lawmakers have argued that nurses practicing in other states have varied standards and may lack the necessary knowledge or experience to practice in a different state. The promise of NLC has yielded a new generation of nurses who find themselves wishing to practice across state lines. The Nurse Licensure Compact allows registered and licensed practical nurses to work across states that are part of the compact, replaced by the Enhanced Nurse Licensure Compact (eNLC) on July 18, 2018. The NLC works toward the same goal as that original compact, simplifying the licensure process and smoothing out cross-border movement. The NLC began on January 19, 2018, with Maryland being the first State to join its original Nurse Licensure Compact.   According to the National Council of State Boards of Nursing (NCSBN), over two million nurses currently located in NLC states can practice in other compact states without waiting for licensure. The NCSBN also emphasizes that licensed nurses can practice via telenursing in other NLC states and respond to national disasters and staffing shortages in other NLC states. The NLC helps remove the roadblock of licensing by facilitating more efficient cross-border movement and acknowledging that telehealth is now significant assistance of that simplification.

The revised Nurse Licensure Compact has 34-member states to date, with twelve additional states and one U.S. territory having pending legislation waiting on approval to join the NLC. New Jersey went through partial implementation to enact the NLC. Unfortunately, the remaining states outstanding observed their hesitations and were cautious to join due to the loss of state revenue and patient privacy concerns. Increase access to healthcare, reduce overall costs to insurance companies, hospitals, and the patients, while supporting efficient and robust health care deliver.

SB 1053 would have allowed California to join the Enhanced Nurse Licensure Compact (NLC). The NLC allows registered and vocational nurses in bordering states to work in California. The bill would have let Nurses to transfer their license more easily from other NLC states. Despite the possible benefits associated with passage of the bill, The Senate Business, Professions, and Economic Development Committee, with California Nurse Association’s support, instead lobbied against the bill.

 The pandemic shedding light on the need for reform:

The COVID-19 crisis is now broadly seen as the most significant economic catastrophe since the Great Depression. Governments worldwide set to play a more significant role in combatting the pandemic and providing economic support to people and firms.[2] The crisis sharpens our focus on governance due to the pandemic’s distressing effects and costs for people and economies. Nurses continue to play critical roles and responsibilities in combating the pandemic. They continue to be at the front line of patient care in hospitals and are actively involved with evaluation and monitoring. The nurses continue to be the key stakeholders providing optimal nursing care and facilitating informed decision-making by assisting patients’ needs.

The pandemic has strained nurse staffing at hospitals and clinics throughout California with an estimated deficit of 44,500 registered nurses.[3] It is three times the deficit compared to the next shortest state. California is expected to add 110,500 new registered nurse positions by 2030. As health systems in many states are overloaded with managing the coronavirus pandemic, there has been an unprecedented demand for “travel nurses,” or nurses from out-of-state nurses according to Nurse Fly, a temporary health care staffing platform. Some of the most significant spikes in demand were in the states with the most confirmed COVID-19 cases are ironically not part of the NLC. As the crisis grew and the situation got intensified, the lack of adequate staff highlights the importance of relaxing licensing state guidelines to permit out-of-state medical professionals to enter the state and begin practicing.

When COVID-19 patients continued to flood the California emergency rooms, the state issued a waiver permitting hospitals to evade the nation’s only strict nurse-to-patient ratios temporarily. California is the only state in the U.S. to require specific nurse-to-patient ratios, requiring hospitals and private facilities to provide one nurse for every two patients in intensive care and one nurse for every four patients in emergency rooms. The waivers will only temporarily bypass that law. In 2004, California implemented the nurse staffing ratio law limiting the number of patients that nurses could treat at any given time. During the nationwide public health emergency due to COVID-19, California started changing licensing restrictions allowing more out of state practitioners to practice in California. The regulatory barriers stopped prompt and efficient responses, which fueled the crisis and affected healthcare consumers

The COVID-19 pandemic has forced to alter the healthcare system and deliver patient care by the American health system, with many hospitals and practices have transitioned to telemedicine. The emergence of medical technology, including telehealth technology, has allowed nurses to monitor patient health and help patients with illness or injury remotely. Telehealth technology permits nurses to interact with doctors and specialists in real-time, connecting patients to the best care from anywhere in the country. The World Health Organization (WHO) defines digital health as incorporating the growing use of technologies for health services by conducting “virtual visits” via videoconference or phone virtual visits may not be as typical as a traditional in-person doctor’s appointment, however, with the growing popularity, 76% of hospitals now connect with patients using some form of telemedicine. Considering the current pandemic in the United States, using computers and tablets for telemedicine can reduce staff exposure in ambulances and hospitals. It is primarily up to the state Governments whether they want to practice determining how to regulate telemedicine. Still, the delivery of patient care in the American health system has officially evolved, as the new reality of virtual care has arrived. The COVID-19 pandemic has shown governments they must ensure budgetary resources for quick solutions to respond appropriately in time to avoid severe impact.

Conclusion.

Public opinion shapes policy formation in a democracy. Political scientists in the past fifty years have provided great deal of systematic evidence that direct legislation have gradually expanded.  The frequent usage of initiatives and referendum can be interpreted as a manifestation of an intense struggle of ordinary citizens with the political elites. There has been a demand for comparative analysis with the rise of referendums emerging as a rational decision-making process for policymaking (Cronin, 1989). An estimated 281 initiatives4 were placed on the ballots since the enactment of Prop 13 in 1978 (Jacobson 2004). Most of the elections held in United States are held to facilitate indirect democracy. Since the Progressive Era, governments started empowering citizen with more direct political power. The states that joined the United States after the Civil War frequently would trust their citizens of directly implementing laws or getting rid of corrupt politicians. Citizens exercise their powers at the ballot to change laws and implement policy in their states. This has led to a renewed interest from a state interventionist model to a more democratic model of economic governance. The increasing usage of direct democracy amplifies the views of ordinary citizens. The usage reminds its usefulness in the state Political system also indicative of the increased partisan politics in the electorate. The shift is also an indicative of the more confrontational politics that California is currently going through resisting strong special interests’ group who. Issues ranging from auto insurance to property tax have all appeared on the ballots,

Various kinds of referendums have been justified by different theoretical arguments: popular initiatives have been promoted by ordinary citizens allowing voters to approve or repeal an act of the legislature, whereas advisory referendums5 have been used by governors in the past to gauge voter opinion. Although, for advisory referendum the outcome is non-binding, but it is still held as a successful constitutional instrument that can promote citizen participation and policymaking process. It is important to distinguish as who is setting the agenda for the referendum as these distinctions are crucial in understanding the strategic character of referendum.

In California, the question still remains as to how to regulate and reimburse for telehealth services. The temporary telehealth policies expire at the end of the COVID-19 public health emergency. State legislatures seem reluctant to abolish or ease licensing restrictions for out of state providers, despite some public support.  Removal of such licensing barriers would ease challenges in delivering telehealth services in the state. The critical question on post pandemic telehealth policy changes should be viewed as key to continuing to be providing care beyond the public health emergency. The current Biden administration has recently supported telehealth services and appointed The Medicare Payment Advisory Commission to provide for a long-term path forward for telehealth policy. The committee failed to come up with a long-term substantial plan, but did recommend that Congress continue telehealth expansions temporarily with continue Medicare coverage. Although dozens of bills related to telehealth services have been introduced and many are in the process of being reintroduced there is a rebuttable presumption that political elites do not perceive the need to increase the access of available healthcare worker. Additionally, states should pursue policies addressing various barriers patients may face when seeking services through telehealth. Michigan authorized telehealth in school settings while Idaho, Mississippi, New Hampshire, South Carolina, and Vermont allocated special fund for improvement of broadband services in the rural area to bolster telehealth services. In a period of scientific citizens need to implement strategies with speed and innovation. The link between democracy and good health outcome is through greater freedom of expression. A society that is open to suggestions encourages public trust and leads to a robust healthcare infrastructure. The outcome of the voting would be the right step to reform and the way forward to a low-cost telehealth platform for all. Telehealth has the capacity to mitigate health care access, costs, and even remediate certain chronic diseases of vulnerable groups of people. Despite its importance, not much effort has been placed to make it more accessible with an adoption of remote health care service. The regulatory conditions have contributed to the persistent and growing health disparities. Representative democracies remain the preferred form of government worldwide, but if the political elites do not react to demands formulated by ordinary citizens, a popular initiative can pave a pathway for the future of California’s telehealth policy.

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[1] The Shackled Leviathan is the “Narrow Corridor” between the Absent Leviathan and the Despotic Leviathan, characterized by parallel changes in the power of the state and the society, such that each checks the other: The Narrow Corridor: How Nations Struggle for Liberty- Daron Acemoglu

[2] https://www.un.org/development/desa/dpad/publication/un-desa-policy-brief-79-the-role-of-public-service-and-public-servants-during-the-covid-19-pandemic/

[3] https://www.registerednursing.org/articles/largest-nursing-shortages/

4 spending, environmental protection, gay rights, gun control, language rights, illegal immigration, and affirmative action.

5 2002, RI- for a change in the state constitution

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