There is a lot of debate about the importance of the 2020 elections. But one thing is clear: it was not a “libertarian moment”. Both major parties ran on clearly non-libertarian platforms on most issues (the Democratic position on immigration is a major exception). At least in economic policy terms, both have moved further away from libertarian ideas instead of being close to them in recent years. The Trump-era GOP has welcomed protectionism and high spending, while Democrats have also become more interventionist on various fronts. Although the Libertarian Party candidate, Jo Jorgensen, performed well by the very humble standards of previous LP candidates, no one can argue that the LP is becoming a serious competitor for power at the national level or even in state and local agencies becomes .
However, there was one big bright spot in the libertarian elections: our positions were extremely good on numerous referendum votes. In California, voters rejected rental controls, racial preferences, and property tax increases, while allowing a rollback of AB 5 – a state law designed to cripple ridesharing and other parts of the “gig” economy. In four other states, including two deep reds, they voted to legalize recreational marijuana. Oregon voters went much further and agreed to an initiative to decriminalize possession of drugs that were virtually previously illegal. Cato Institute economist John Cochrane and Walter Olson describe a number of other notable referendum wins for libertarian reasons.
This is nowhere near the first time that libertarian concerns have performed better in referendum elections than in parliamentary and executive elections. The root cause of marijuana legalization has long benefited from referendums, at least dating back to the landmark 2012 legalization votes in Colorado and Washington. In my book on the Kelo Case and Significant Post Kelo Domain Reform, I describe how the reforms passed by the referendum have generally brought more protection for property owners than those enacted by state legislatures. There is also a long history of tax cap initiatives that prevail in referendum votes to a far greater extent than in state legislation. In recent years, the reform policy of the criminal justice system has developed well, including in referendum votes, especially in blue countries.
Referendum votes are anything but an unalloyed good for libertarians. Both liberals and conservatives have sometimes taken initiatives to impose clearly unlibertarian policies. Liberals have had some success with policies including increasing spending and requiring higher minimum wages. In the 2000s, numerous states passed referenda in which same-sex marriages were constitutionally prohibited.
Yet many libertarian concerns have succeeded in referendum votes. This is especially true in the areas of drug legalization, property rights and tax restraint. Libertarians can benefit disproportionately from referendums, as such votes can transcend conventional divisions between the two major parties. This is important for adherents of an ideology that neither fits into the “red” nor the “blue” camps. Partisan bias and polarization play less of a role in referendum votes, and the openness to new ideas can therefore be significantly greater.
Libertarian organizations and activists should do all they can to learn from and build on this story. Here are some preliminary suggestions:
First, libertarian think tanks and other public policy research organizations should conduct a survey of each state with an initiative process and how well various libertarian causes have evolved there in recent years. The next step would be to determine which policy areas could be ripe for progress in future referendums by examining public opinion in the country concerned and identifying potentially vulnerable statistical strategies.
Such research should particularly focus on areas where libertarian ideas have performed well in referendums in the past. These include property rights, tax restrictions, and drug legalization, among others.
When it comes to property rights, we should consider whether the success on issues such as significant domain and rental control can be extended to tighten the exclusion zone. The latter is the greatest property rights problem of our time because it harms so many millions of people. There is already an active zoning reform movement in many parts of the country. Additional progress may be made through referendum initiatives. This approach could bypass the opposition of powerful interest groups that have hindered reforms in California, among others.
In this context, we should examine whether victories against measures to extend rent control can be incorporated into future initiatives to reduce them where they already exist. In 1994, voters in very liberal Massachusetts approved a referendum that severely restricted rent controls in that state. If it can happen in Bay State, maybe it can be done elsewhere.
We should also consider building on Oregon’s dramatic drug decriminalization breakthrough by promoting similar initiatives in other states. Perhaps it is time to attack the war on drugs on multiple fronts, not just marijuana.
There may also be an opportunity to encourage tax capping initiatives in countries where they have not been seriously tried. At the federal level, the “Hunger the Beast” tax capping strategy is a poor way of limiting the government because Uncle Sam can easily spend a lot by relying on debt. At the state and local levels, things are different, as governments find it harder to borrow and many are constrained by budget balance rules.
Another area that should be explored is immigration policy. With the help of recent fluctuations in immigration in public opinion, particularly among Democrats, it may be possible to use referendum initiatives to pursue stronger “sanctuary” policies than have been previously adopted by state and local governments. We know that protective measures can significantly reduce deportations without increasing crime. At least sanctuary referendums have a good chance of success in liberal and moderate states.
With each of these causes, libertarians should also think more about how they can seek relevant allies on the left and right, if necessary. In terms of immigration and drug legalization, this primarily means left-wing and moderate allies. Regarding tax restrictions and some property rights issues (zoning is an exception), allies may be easier to find on the right. One of the advantages of referendum initiatives over legislation is that such alliances can be more easily built outside the straitjacket of conventional partisan divisions, which tend to dominate the legislature.
The above is far from an exhaustive list of possible referendum ideas for libertarians. My goal is to start, not end, a conversation on the subject. I hope and expect that others will have more and better ideas than me.
Referendums are not a panacea for libertarians. Among other things, they cannot directly change federal government policies (although they can make some of them more difficult to enforce, as in the case of drug laws and federal immigration restrictions). And some libertarian ideas are just not popular enough to win referendums – at least so far. Widespread voter ignorance can lead to poor results in referendum votes, as it does in conventional representative elections.
But the best shouldn’t be the enemy of the good. Referendums are a promising tool for libertarian progress that has been shown to be successful. Much can be done to build on and expand on this data set.