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(X-posted from the California forum)
The United States of America is a Republican Democracy. As such we elect representatives who are supposed (at least in theory) to bring our interests into government and represent “we the people” (at least in the House of Representatives, the Senators represent the States themselves). As lobbying, corruption and general legislative incompetence, coupled with the creeping usurpation of the the Legislature’s prerogatives by the Executive have lessened the people’s faith in their representatives, there has been rising enthusiasm for popular initiatives voted on by the masses to be given the force of law on the national level. Indeed, one of candidates for the Presidency during the Primaries, Democrat Mike Gravel, openly advocated this strategy. As a citizen of the state most heavily “blessed” by this experiment with direct democracy let me submit my $0.02: The referendum system is the most pernicious, foolish and dangerous innovation to ever undermine the foundations of our republic. Under no circumstances whatsoever should the referendum system ever be instituted on the national level. In frankness its use should be abolished within California itself.
At its inception the referendum system was not a bad idea. At the turn of the 20th century, reformers found themselves stymied in their efforts by a legislature that was essentially bought and paid for by various business interests, particularly the Railroads. Under such circumstances, the introduction, much less the passage of reform legislation was utterly futile. Therefore, in order to bypass the legislature and effectively nullify the corporate stranglehold on that body, Progressive Governor Hiram Johnson managed to pass through legislation that amended the state constitution allowing referendums brought before the electorate to have the force of law. This power gave grass-roots organizations within the state a way to make policy while sidestepping the entrenched powers in the Legislature. In theory, this was democracy at its best, the “people” would have a direct voice in the laws of the state, much like in ancient Athens, but with a far wider franchise.
The gap between theory and practice is always present and in the case of the referendum system, it is wide indeed. In theory the referendum system was designed for grass-roots organizations to pass meaningful reform, allowing citizen-legislators to generate well-written, honest and clear laws to better the lives of all Californians. In practice the system allows anyone with enough signatures and an axe to grind to add whatever poorly written legislation they want to the corpus of state law, as long as they can whip the mob into a sufficient frenzy. Furthermore, instead of serving as it was intended to, as a bulwark against entrenched corporate hegemony over the legislative process, corporations have long exploited the referendum system as a way of wringing concessions from the state government that the Legislature would otherwise have baulked at. A case in point was this year’s Proposition 11, which would have poured billions of dollars into investment into energy generation for the state via natural gas. While the idea is not bad in and of itself, one need only to look at the major backer of this Proposition, natural gas tycoon T. Boone Pickens, to realize that the interests of the public are obviously secondary for this ballot issue.
Furthermore, the referendum system has become the last resort for those whose political leanings are so extreme that their opinions wouldn’t even get a hearing in Sacramento. As case in point consider Propositions 187 and 209. The first, in language reminiscent of the Nazi Nuremberg Laws, sought to strip illegal immigrants to any access to public services, and require schoolteachers to inform law enforcement of any students they suspected of being here illegally. The second, passed in reaction to 187’s being declared unconstitutional after passing by an embarrassing margin, sought to mandate English-only education in the state, effectively doing away with English as a Second Language education in schools. In both cases these propositions were put forward by paranoid Southern California conservatives, particularly in Orange County, who were finding their privileged position in the state’s political culture threatened as demographic shifts turned their former reliably white and conservative neighborhoods increasingly Latino. Never mind the fact that both of these propositions were patently unconstitutional, (and in the case of Proposition 209 in violation of the 1847 Treaty of Guadalupe-Hidalgo, which brought California and the western states into the Union) the existence of the referendum system allowed a few men to whip up anti-immigrant hysteria to such a degree that the mob voted to endorse laws which were both inimical and repugnant to the very values enshrined in both the U.S. and California Constitutions.
The referendum system has also lead, albeit indirectly to our current state budget woes. While Proposition 13 passed before my time, the rise of the California Taxpayer’s Association, with their adamant opposition to any taxation whatsoever, was fueled in large part by this proposition, which was effectively a Taxpayer revolt led by Howard Jarvis. While on the upside, California property taxes have not skyrocketed as have happened in other states, the state government on the other hand has been perpetually starved for cash and, as our current budget debacle demonstrates, unable to pay for the basic programs needed to keep the state running. From a purely Libertarian point of view this may be seen as excellent, as eventually the state may have to cut all those pesky programs that take care of those “lazy poor people,” but such thinking fails to consider the hundreds of thousands of state employees who don’t get paid, the fact that Tuition to state universities (which is technically illegal, by the way) will have to be raised yet again, and that both law enforcement and prison guards (particularly necessary in a state with as large a prison system as ours) will be underfunded and will have to be cut back as well. A sad truth of government is that you never ask the people to set the level of taxation they want to have, because it will inevitably be 0%. (And this only because we can’t set a negative tax rate.) For this reason our state has become overwhelmingly dependent on bonds, because regardless of our tax aversion, the state must be funded, hence our credit rating is in the toilet.
And then we have the current bugbear, Proposition 8. The passage of this measure, removing the right previously granted by the State Supreme Court allowing Same Sex Marriage, illustrates the final problem of the referendum system, it is obstructs law, by allowing the effective undoing of everything decided upon in Sacramento. Regardless of your position on Same Sex Marriage, the problem inherent here is that no one has the last word under the referendum system, as the buck effectively never stops. After all, Proposition 8 was on the ballot primarily because of the court’s striking down of Proposition 22, an earlier law with the same prohibition. Now Proposition 8 faces the same legal challenges, which will bring it before the same State Supreme Court that struck down the earlier proposition. If the fact that it is a Constitutional Amendment manages to dissuade the Judges to overturn the decision, (hardly a forgone conclusion as there are valid arguments that it violates the Constitution’s equal protection clause, and therefore would place a bizarre contradiction into it) then it will go on to the U.S. Supreme Court. If nothing else, the force of demographics makes this law unlikely to stand for long, as in the 8 years between the passing of Proposition 22 and Proposition 8 the margin of victory for these measures shrunk from 21% to 5%, suggesting that a future measure to repeal this amendment and legalize Same Sex marriage would likely succeed. Hence, thanks to the inconclusive nature of the referendum system, as nothing in California politics is ever settled.
Finally, there is the effect which the referendum system has on the Legislature. As any controversial decisions by the legislature could lead to incumbents losing their seats, it has become common practice, to leave controversial lawmaking to the masses. At the same time, as Governor Schwarzenegger demonstrated, albeit unsuccessfully, during his first term, the referendum system also allows the Executive to bypass a recalcitrant legislature, by sending bills directly to the people. Such moves wreck the carefully constructed balance of the separation of powers as delineated in the Constitution, and are reminiscent of the authoritarian plebiscites which Napoleon Bonaparte used to legitimise his regime.
So what blessings has the referendum system granted the State of California? Bankruptcy, a gutless Legislature, massive infiltration of special interests into the public sphere, and a succession of bad laws that have made us the laughingstock of the Union. While those who brought us this system might have had the best of intentions, we all know where the road leads that such intentions pave. The California referendum system is a threat to the continued freedoms of its citizens, far from being adopted on a national basis, it should be abolished altogether.
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