More thoughts on the Initiative process
By civil truth Posted in Archived — Comments (4) / Email this page » / Leave a comment »
Blue Collar Muse has written a very thoughtful post concerning the current debate in Connecticut over convening a Constitutional convention and the efforts to introduce an initiative process.
I started to write a comment, but it got so long that I thought it better to turn it into a diary.
Having lived some twenty-five years now in an initiative state, I must say that I have mixed feelings regarding the wisdom of having an initiative process.
The key point is that if legislatures did the task they they were elected to, we wouldn't need initiatives.
However, that often time is not the case, which leads to people seeking initiatives as a safety valve.
Unfortunately, at least in California, the consequence has been 1) the initiative has become a parallel legislature, where well-funded interests can put laws at the ballot box that together hamstring the state like Lilliputian ropes on Gulliver; and 2) they further push the legislature into impotence because the legislators dump all controversial issues to initiatives rather than doing the tough parts of their jobs, thereby cementing their incumbencies (less controversy, less opportunity for an opponent to challenge you).
Achance also points out the ability of urban islands to hijack the process.
The result has been legislative incompetence on the few areas that they can't outsource to initiatives: budget, redistricting - which leads to further initiatives to fill the vacuum left by a lack of legislative leadership.
The end is a downward spiral: the legislature becomes increasingly ineffective, and the initiative process is taken over by well-funded interests and obfuscators (I'm referring to the increasing tactic of phony initiatives set up to directly compete with genuine initiatives in order to confuse voters), which has become a staple of elected officials and interest groups alike.
Overall, the problem is a breakdown in representative government - initiatives may buy more time, but they don't stop the underlying rot.
So I've got mixed feelings - Mr. Satter does make some compelling points about the adverse consequences of the initiative process and the wisdom of a system of elected representatives. There is a very good reason the U.S. and our States are republics operating with elected representative rather than democracies operating by pleblicite (and/or initiatives).
However, it's the breakdown of the legislative process that opens the door to people understandably wanting an alternative. The legislators aren't doing their jobs, and the people aren't holding the legislators accountable - in fact they often rewards those who are bringing down the system because they "bring home the bacon".
The wild card is the judiciary, which in recent years at the federal and state levels have expanded their power to negate the legislature and the executive by voiding laws on the basis of their being unconstitutional. The arrogance of the judiciary to increasingly rewrite the constitutions according to their personal judgments rather than deferring to the elected branches of government also serves to make it more appealing make it easier for the citizens to override the courts through an initiative process rather than to have to rely on a cumbersome amendment process dependent on legislative action.
On the other hand, it you make it too easy to amend the constitution by initiative (especially when you set the threshold not too differently from statuatory initiatives) then you create a chaotic constitution over time as the multiple accretions keep piling on. And this complexity and increasing incoherence opens the door to mischief.
In the end, it is us the voters who ultimately bear responsibility to make our system work - no process alone can make government work, whether legislature or initiative or internet pleblicite, or whatever.
There is no perfect system "out there" that will painlessly relieve us from the work that we citizens need to do to make government work. People aren't perfect - and that screws up "perfect" systems every time. Just look at the history of utopias - whether socialist paradises or thousand-year Reichs or intentional communities that started out more benignly.
Thus the debate over initiatives is really secondary; the primary issue is whether enough citizens in this nation are willing to make the sacrifices to make representative government work - at all levels.
Or will we will lazily slide into the tyranny, selling our birthright for a bowl of gruel.
Ultimately then, it comes down to a Esau's choice, a moral choice - not just a technical problem with an engineering solution.
We just got tricked into passing a terrible constitutional amendment.
The mass transit crowd got a amendment on the ballot saying "Shall the Minnesota Constitution be amended to dedicate revenue from a tax on the sale of new and used motor vehicles over a five-year period, so that after June 30, 2011, all of the revenue is dedicated at least 40 percent for public transit assistance and not more than 60 percent for highway purposes?”
Initially it was sold as a common sense idea: the tax money collected from selling cars was used to fund roads. Who could argue with that? But only after it already had widespread support did the local media do its job and notice the catch - that at least 40%, if not all, of the money had to go to light rail. Their response was that is was a clumsy mistake in wording, and not a deliberate ploy to cement a constitutional mandate for mass transit funding.
And of course the local media let them slide on their claim on innocence (as if they made up the wording for the amendment while they filled out the form to get it on the ballot). "It's too late to change it now, I guess we will have to vote for it as is" was their response. That and "Oh don't worry about it, they will never put all of it for light rail." Someone can correct me if I am wrong, but I believe that in the very first budget passed since the amendment took effect, 45-50% of if went to light rail. I'm sure that number will only go up once the bills for the new University line come due.
Naturally, the biggest supporters were construction companies who stood to gain a huge, guaranteed amount of business.
In a sad commentary of what citizen-run government has turned into, other groups on the public dole came out against it (the teachers union being the loudest). See, the money used to just go into the general fund, which meant less for all the other special interest groups. It turned into a fight over who got what share of the public's money. Not "do we need this, or are we justified in doing that," but how A and B are going to divide up C's money.
Have you added to the population of the McCain 2008 minicity yet today?
I drive a car powered by hydrogen - C8H18 to be exact.
You've done a good job looking at pluses and minuses. Like you I have mixed feelings, but adding it all up I come down more strongly in favor of the intiative process than I think you do.
Gerrymandering of legislative districts is far worse than it already was in earlier decades, thanks largely to improved technology enabling legislators to reliably select the voters they want in the next election. Thus the legislative majority is often able to defy the majority of the voters in their state knowing they don't need to worry about voter payback in the next election; the only elections legislators need to worry about are the primary elections, where the right or left fringe of the electorate as a whole wields disproportionate power.
They still can't gerrymander statewide elections, so initiatives provide at least the opportunity for the electorate to overrule the legislators.
I agree on initiatives often being the only effective remedy for judicial abuse, and have little to say that you haven't already said better.
The issue of same sex marriage in my state of California illustrates both. Voters had decisively barred same sex marriage in a referendum a few years ago, though not with the force of constitutional amendment. That didn't deter the legislature from passing a law recognizing same sex marriage (though it never took effect because the governor vetoed it). I'm sure almost everybody here is aware that the California Supreme Court subsequently enacted same sex marriage, with a twisted interpretation of legal text that's more suited for the Modern Language Association.
Fortunately because of the initiative process, the voters will decide the issue of same sex marriage this November with a constitutional amendment referendum (decided by simple majority). I support same sex marriage, but I support democratic rule of law as a higher priority. I expect that a majority will reject same sex marriage, but if that does in fact happen, then it's right for same sex marriage to wait longer until it has majority support.
First some background. I live in Washington state, fairly near to the Glorious Workers Paradise of Seattle. I generally have another name for it, but this is a family friendly site after all. The governor is a democrat. The legislature solidly democrat majorities, most county level officials on the west side of the state, democrats. Courts? Solidly D.
They have proven time and again that there isn't a social program or tax that they can't love and support. We have a bit of the California problem here, where the heavy population of one city (Seattle) pretty much trumps the entire rest of the state.
So, given this setup, if you don't happen to agree with the legislature/governor/court, you what other option do you have?
A specific example, we are in the midst of an ongoing eminent domain problem (Kelo IS the gift that keeps on giving). The government loves to grab land for Sound Transit. They post the notice of their intentions to seize your property on their website, 3 layers down in fine print. If you don't happen to find this notice and appear at the hearing so advertised, suprise! The state now has your property! Of course, I say 'your' property, but everybody here knows the state just lets you use it at their pleasure.... When this was challenged, the state judiciary promptly vacated their responsibility to be a check on the legislature by declaring that whatever the state wanted to do in this case was just peachy with them (that's darn near literally the way the opinion read).
So what do you do? There's another year+ before most of these guys come up for elections again, and they can do a LOT of damage in that time. Initiatives at least allow us to force the question much sooner, and get the conversation our elected officials would NOT like us to have out in the open.
We have the groups now filing counter-initiatives to muddy the waters (usually funded by various state agencies, imagine that), the occasional 'you gotta be joking' initiative that somebody floats, and a legislature that is working tirelessly to curtail the process every opportunity they get. Several have been struck down by the court shortly after they are passed, giving rise to crying about the amount of time and money spent getting them passed in the first place.
Even given all that, I still would have to say the process does more good than not, if nothing else because it drags issues into the light that governments doesn't want to talk about or has a vested interest in ignoring.
"He either fears his fate too much, or his deserts are small, that puts it not unto the touch to win or lose it all" Marquis of Montrose
I'm not one of these people who automatically recoils at the idea of so-called "money interests" buying their way on to the ballot.
The only time that's a problem is when someone, with a lot of money, gets something on the ballot when the opposition has basically *no* money to fight it, and so the voters are left with a one-sided advocacy of an initiative rather than a true two-sided debate. Luckily, that doesn't happen too often (and sometimes even when it does, it doesn't matter - Term Limits, for example, I think passed when the people opposing it had way more money than the proponents; ditto Prop. 209).
But the number of "bad initiatives" is dwarfed by the number of "bad laws" either passed by the legislature, or the number of "per curiam ruling" created of whole cloth by a corrupt and out-of-touch judiciary.
If it comes down to trusting the average will of the people, or either the laws of the Legislature or the whims of the Judiciary, I'll choose the people every time.
Bottom line - I feel very sorry for the people who live in states without I&R (and they're usually the same states that lack legislator Recall, as well) because they have virtually no recourse when the Legislature goes wacky and hijacks the legislative process.
P.S. I also don't agree that the Legislative process in CA is broken by the initiative process - the Legislative process is broken because the bulk of California keeps electing loony leftists to the Legislature. I don't think that has anything to do with I&R.