The Urban Diffusion of Local Direct Democracy between Switzerland and the United States

Chapter 8
The Urban Diffusion of Local Direct Democracy between Switzerland and the United States

Thomas Favre-Bulle

Introduction

‘Similar but different’ is how Nicolas Von Arx compares direct democracy in Switzerland and in California.¹ They are in fact the two places in the world with the most intense use of direct democracy.² Twenty American states, mostly in the West, have implemented some form of direct democracy. In Switzerland, studies are abundant on ballots at federal level. In the United States, studies are numerous at state level. In both, the local level is only sporadically looked at. Yet, the local is where the ballot originates from, and its use prevails in municipalities.

Nowadays, there are many debates in Switzerland and in the United States on the way that direct democracy influences democratic governance in general. Many scholars engage in public debate expressing contrasting opinions on how the system dysfunctions and how it should evolve. Furthermore, discussions on the ballot are deeply enshrined in the continuous debates on the spatial political organisation of these places. Looking at how the spatial phenomenon of urbanisation played a key role in the emergence and use of direct democracy informs our way of devising the evolution of this form of democracy.

The three instruments of ballot-based direct democracy – initiative, referendum and recall – are the same in Switzerland and the United States.³ Switzerland and the United States both knew some form of assembly-based direct democracy prior to their adoption of ballot-based direct democracy. Between the end of the nineteenth and the beginning of the twentieth century, accelerating urbanisation raised issues that led in both cases to the adoption of the ballot-based form. Switzerland has been the main reference in the United States for the implementation of this form of direct democracy. Today, urban trends are still leading the use of local direct democracy, more intensely in large, urban and diverse communities than in rural, small and homogeneous ones. Moreover, metropolitan areas present new challenges to local democracy. These challenges of size and accountability are analogous to the issues that led to the adoption of the local ballot.

There are two forms of direct participation to law making and public administration labelled as direct democracy. One is the attendance, in person, at assemblies where those decisions are taken. The other is voting on legislative matters, as opposed to voting to elect a representative. The former is the oldest in both countries and continues to function in certain areas. This assembly-based form of direct democracy developed independently in Switzerland and in New England. The second form, direct democracy through the ballot was implemented in the United States between the end of the nineteenth century and the beginning of the twentieth century by reference to Switzerland, the 1848 Constitution of which included legal provisions for it. Many authors see both types as contrasting, if not competing, forms of direct democracy. Joseph Zimmerman, in his synthetic work on direct democracy in the United States published in 1999, describes them in two separate books.⁴ He does not integrate the two into a single narrative of direct democracy.

The two countries differ in their way of implementing ballot-based direct democracy. As will be seen, in Switzerland, the ballot was introduced as a solution to keep direct democracy active as it was challenged by urbanisation. Urban communities were getting larger, and could not hold direct assemblies anymore. The ballot was a substitute ushered in around the middle of the nineteenth century. Conversely, in the United States, there was a clear rupture between the Town Meetings and the ballot-based direct democracy. The first ones date from the colonies, the second was inspired by Switzerland as a remedy to corruption and the unresponsiveness of representatives during what became recalled as ‘the Progressive Era’, at the dawn of the twentieth century.

Before the Ballot, Assembly-based Direct Democracy

The Swiss Landsgemeinde – the legislative popular assembly – has been traced to the old German institution of the Thing – the judicial assembly of free men – and the Allmend – the exclusivity of jurisdiction of a community within its domain.⁵ As cantons and communities gained more independence with charters, especially with rights of jurisdiction, the bailiff, representing the Lord of the land in the administration of public justice, were replaced by the Landamann, elected by the assemblies.⁶ These public administrations of justice have progressively gained more legislative and administrative competences to develop into proper assemblies with extensive political power. The Landsgemeinden only subsists in two cantons today, Glarus and Appenzell Innerrhoden, both of which have a small population. The direct assembly, however, is still the form of legislative power in 80 per cent of Swiss municipalities today, mainly in the German-speaking part of the country.⁷

In the United States, assembly-based direct democracy started in the English colonies, before Independence,⁸ and worked in a way very similar to the Swiss assemblies. Established from 1620 by Puritans, Town Meetings were from the beginning law-making bodies, contrary to the Swiss Landsgemeinden that only became so later. Today, Town Meetings are confined to New England and were never implemented further than in the original colonies. Scholars such as Frank Bryan,⁹ as well as journalists, such as Amy Crawford,¹⁰ sometimes describe Town Meetings as the ‘true form of direct democracy’ and even as the ‘true form of democracy’, in contrast to elected representation. The opposition between assembly and ballot in the United States can be understood because there is no continuity between the two.

On the one hand, Andreas Ladner presents empirical evidence demonstrating that smaller Swiss municipalities are significantly more likely to experience higher participation rates in assemblies.¹¹ The turnout of voters tends to be higher at both ends of the demographic scale, in municipalities with assemblies and no ballot, typically small ones, and in municipalities with no assemblies but with ballot, typically large ones.¹² On the other hand, Frank Bryan presents empirical evidence that small communities are significantly more active in the number of meetings they hold.¹³ Consequently, in Switzerland as well as the United States, the vigour of assembly-based local direct democracy is inversely correlated with size. The smaller the community, the more frequent meetings will be (US) and the stronger the attendance will be (Sw).

Too Many to Congregate: Urbanisation and Adoption of the Ballot in Switzerland

Joëlle Salomon-Cavin explains the uprising of direct democracy, first in assembly, and then unassembled by the ballot, by the struggles between urban and rural communities.¹⁴ In the Ancien Régime, the political situation in Switzerland was a loose confederation of largely independent communities organised through feudal networks. Unlike the rest of feudal Europe, fealty hierarchies were dominated by cities, and not by lords or seigneurs, although wealth was largely generated in the countryside. Landsgemeinden appeared in the more independent mountainous rural communities, while cities were largely ruled by corporations. The participation was at first limited to a selective number of burghers,¹⁵ and only progressively extended to the larger number of citizens. It is to be noted that the Landsgemeinde of Appenzell Innerrhoden only allowed female participation in 1991, and only as a result of an injunction from the Federal Supreme Court.¹⁶

Between 1830 and 1900, Switzerland transitioned from a regime of assemblies to a regime of ballot.¹⁷ Parallel to the French Revolution, Switzerland experienced a period of political turmoil leading to the creation of a short-lived centralised Helvetic Republic. As in France, the creation of the Republic carried debates about a radical levelling of political competence with new and equal political wards that would eliminate the relative power of cities on the countryside.¹⁸ But more than the Republic, the revolution of 1830 and the new federal constitution of 1848 consecrated ballot-based popular rights in Switzerland. With the 1830 revolution, suffrage was extended and citizens gained veto rights in many cantons. The constitution of 1848 created the right of initiative and referendum at the federal level. Most of the experimentations in the cantons took place between these two milestones, with the adoption of veto and initiative rights.¹⁹

Ballot-based direct democracy originated in Switzerland in the urban growth that made the continuation of assemblies of new bodies of citizens impossible because they were too large. Switzerland exhibited a steady growth in the number of larger municipalities from 1800 and throughout the nineteenth and twentieth centuries.²⁰ But for Joëlle Salomon-Cavin, the initiative and referendum also contributed to the shaping of new urban societies by preventing the establishment of a dominant minority ruling the cities.²¹ Formal equality of rights deactivated formal dominations and empowered the working classes. Labour laws, for example, are thus an urban product in Switzerland: they were passed by the ballot.

Autonomy of Local Governments in the United States

Direct democracy started locally in the United States and was driven by urban issues. It was then implemented at state level in 20, mostly Western, states. However, it never made its way to the federal level. In California, San Francisco and Vallejo, in the Bay Area, were the first cities to introduce popular initiatives as early as 1898. They had the power to do so because towns and cities were granted municipal home-rule by California in 1879, only preceded by Missouri in 1875.²²

Similarly to Switzerland, municipal law is not a federal matter in the United States: it is defined by the states themselves. Fifty states thus hold 50 different municipal statuses with different levels of autonomy. These statuses have been shaped by urban issues and in return determine the possibility for municipalities to engage in direct democracy. Between 1850 and 1914, the United States experienced a fierce ‘urban competition’,²³ a race of demographic growth and economic development that profoundly changed the organisation of American cities and urban environments. They became more polarised, between city centres sheltering the lower classes along with old factories and entertainment areas, and newly developed suburban areas with the rising middle class and the new industrial development. This ‘reversed exodus’²⁴ was partly the result of the new services provided by new urban corporations, such as mass public transport, leading to what Samuel Warner identified as the ‘streetcar suburbs’.²⁵ Local government was already overtaken by systematic patronage in utility franchising to private companies.²⁶ The shift to publicly operated utilities indeed only happened in the twentieth century.²⁷

John Dillon, a judge of the Iowa state court in the 1860s, was particularly concerned with the collusion between private companies managing public utilities and local government. He perceived local government autonomy as the major problem. In order to solve it, he ruled in 1868 that every competence that was not explicitly granted to local authorities by the state legislature remained in the hand of the state and municipalities had no legal ground to intervene in it whatsoever. Local governments are thus creations of states, and as such states retain all authority over them.²⁸ This rule of zero autonomy for local government made its way to other states and is now referred as Dillon’s Rule.

Almost at the same time, in 1871, Judge Thomas Cooley, of the Michigan Supreme Court, expressed a diametrically opposed view on local autonomy. Local governments have for him an inherent right of self-administration.²⁹ From 1875 to 1912, 13 Western states adopted the Home Rule, granting greater autonomy to local government.³⁰

Dillon’s Rule and Home Rule are two extremes of a scale and not a nominal distribution. Zimmerman makes an ordinal classification of the 50 states ranked by their degree of municipal autonomy,³¹ as all states know some forms of local autonomy but in none of them are municipalities completely independent from the state. The localisation of the state on this scale can be defined by its state constitution and municipal law, as well as with the ruling of the state supreme court.³² So, in practice, the legal foundations for municipal autonomy rests on provisions by the state, even though, placed in the state constitution, it can lack impact for the legislature.³³

With reference to the local autonomy scale, California holds an intermediary position, where charter cities are granted Home Rule and general-law cities are submitted to Dillon’s Rule.³⁴ On Zimmerman’s scale of local autonomy, the state ranks 18th out of 50.³⁵ Interestingly, states with Town Meetings fall to the bottom of the list. Town Meetings are described as the only ‘true democracy’ because of their assembled character by scholars like Frank Bryan.³⁶ But in these states local governments remain limited in their autonomy from the state and as Charles Péguy remarked of Kantianists, ‘[they have] pure hands. But [they have] no hands’.³⁷

Two different paths led to the adoption of initiative and referendum at the local level, depending on where the state was on the Dillon’s Rule and Home Rule scale. In some states, cities and counties were granted this right by a statute. Nebraska passed such a law for its municipalities in 1897. California passed a similar one for its counties in 1893. In other cases, Home Rule