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Direct Democracy in Action

California is unique in many ways, and one is that it has three forms of Direct Democracy written into the State Constitution. In them, the people, by direct ballot, can recind laws created by the Legislature, propose new laws bypassing the Legislature and the Governor, and directly remove elected officials from office, again bypassing the Legislature and the impeachment process. They are: Referendum, Initiative, and Recall. The Initiative process is by far the most commonly used, however we did several years ago recall Gov. Gray Davis. Some of us are still trying to decide if that was such a good idea or not.

Every election, our ballots will have several of these "Propositions" on them. The campaigns both for and against them often involve more money than many campaigns for elective office. They are simply numbered, and every now and then, they start the numbering over. That happened in the 2008 November general election. I believe there were an even dozen on that ballot, probably the most notorious was Proposition 8 which modified the State Constitution to restrict "marriage" to the union of a man and a woman. It passed with a margin of something like 52% to 48%, and is now headed for the State Supreme Court.

Is Direct Democracy a good idea? Well, it's a mixed bag for sure. In California, it originated at the start of the 20th century, an outgrowth of a populist movement to allow the people to reclaim their government and state from hoplessly corrupt Legislatures and Governors. But, the Founding Dads of the nation were extraordinarily fearful of it since a majority of "the people" could impose very bad things on "the rest of the people." The "Tyranny of the Majority" they wrote. It is not a provision of the Federal Constitution, and the Dads opted instead for a Republic in which elected representatives act on behalf of all the people ... or at least that's the plan.

How has it worked in California? Well, that's even more of a mixed bag. It did allow the people to reclaim a government not so tightly tied to the railroads in the first part of the 20th century. However, there is no guarantee whatsoever that "the people" will always be right. Further, a great many laws enacted by the people via initiatives have turned out to have undesireable unintended consequences. And, in fact, since most initiatives are begun and supported by one or more special interests, it is quite common for those interests to word their initiatives to appear somewhat obvious and good, when it's really the non-obvious consequences they're after.

Is Proposition 8 A Good Example?

Yeah, it probably is. In 2000, a loose coalition of organizations, several of whom were right-leaning fundamentalist Christians, qualified an initiative for the ballot and a direct vote of the people. It was creatively named "Proposition 22," and it said, “Only marriage between a man and a woman is valid or recognized in California." Remarkably short for a law, no? It passed with about 60% of the votes cast, which also means about 40% [a sizeable number of people in a state with California's population] voted "no," thereby confirming the fears of the Founding Dads regarding Direct Democracy. Prop 22 became a law, specifically a new Section 308.5 of the California Family Code.

Marriage brings some civil benefits. A married couple can often enjoy some tax advantages by filing their tax returns jointly as one rather than individually. If you are sick or incapacitated, your spouse is entitled to information regarding your medical condition and to have some say regarding treatment if you are unable to do that. California is a community property state, so property acquired in the course of a marriage belongs to both parties, and your surviving spouse automatically inherits it upon your death, tax free. And, there are many others, one of which is the right to tell someone, "I'm married."

If there are civil benefits to a heterosexual marriage but two men or two women cannot marry, then clearly the two men and two women are being arbitrarily denied rights and benefits available to others on the grounds of their sexual orientation. Section 308.5 was challenged in court fairly quickly, but alas [or maybe "thankfully" depending on how much you trust them], the wheels of justice do not whirr, they grind, ever so slowly and sometimes backwards as well.

Eventually, one of the cases made it to the State Supreme Court. The primary grounds for the case were that Section 308.5 violated the State Constitution's guarantee of equal protection under the law by arbitrarily denying the rights and benefits of marriage to state citizens who just happened to be homosexual. Now, California, like a number of states, had tried to overcome this inequity by creating a new form of marriage called a "civil union" rather than "marriage," and that distinction was very important to those who voted for Prop 22. Civil unions conveyed most but not all of the civil rights of marriage. One that it did not convey was the right to be "married" in the eyes of the State. For those to whom marriage was denied by state statute, the civil union was another "Separate but Equal" ploy, and "Separate but Equal" had been tossed into the landfill of failed rationalizations a long time ago.

So, What Happened

In a nutshell, the State Supreme Court ruled (5 to 4, I think) that Section 308.5 did in fact violate the constitutional guarantee of equal protection under the law. As a result, it was unconstitutional, and since there was now no prohibition for two men or two women to marry, a number of licenses were issued and marriages took place. People in favor of prohibiting homosexual marriage complained, sometimes bitterly, about "activist judges legislating from the bench," and "circumventing the will of the people." Neither was true of course. The State Supreme Court is constitutionally charged with assuring that the provisions and requirements of the constitution are met by all statutes passed by the legislature or enacted by the people. In this case, they found that Section 308.5 [a statute or law] violated the equal protection clause. They didn't "legislate" anything from the bench. They ruled that "the people" had overstepped their constitutional authority. Unfortunately, the "will of the people" is fairly nebulous and the concept scared the Founding Dads. 60% of the electorate voted for it, which meant that 40% voted against it. 40% of the adult population of California is a LOT of people.

Enter Proposition 8. Whereas Prop 22 created a statute, Prop 8 modified the State Constitution itself by inserting the same langage directly into the document. I guess the theory was that it can't be unconstitutional if it is in the constitution. It passed but with a lot slimmer margin than Prop 22. This time, 48% voted "no," further clouding the issue of "What exactly is the 'Will of the People'?" The State Supreme Court has agreed to hear arguments on it ... arguments that center again on equal protection, and on the question of whether or not the Initiative process can be used to modify the constitution.

A huge amount of money was spent on both sides of the Proposition 8 battle. Support for it came mainly from religions - Mormons, Catholics, and a number of evangelical protestant groups. I doubt if the churches themselves contributed -- that would have likely done in their tax exempt status. Individual members were urged to contribute however, and many did and in large amounts. Those opposed to Proposition 8 were a collection of various civil libertarian groups, gay/lesbian groups, and surprisingly, members of some churches.

The campaign began honestly enough. Those in favor of it argued that the word marriage represented something special, a special solemn bond between a man and a woman. Those opposed to it argued that it arbitrarily denied certain civil rights to certain people. Near the end of the campaign, everything morphed. The argument in favor became an argument that if it didn't pass, teachers would be required to teach little kids about homosexual lifestyles. If you want to get people aroused, convince them that the government will be messing with their kids.

Unintended Consequences

Crafting laws is complex business, and one can (and should) question whether having "The People" do it directly is really a good idea. Many of the Initiatives we've voted on over the years fall into the "It seemed like a good idea at the time" class. Several years ago, Californians enacted the "Three Strikes, You're Out," statute. It removed much of latitude that judges had in sentencing convicted criminals by mandating a 25 year to life sentence on your third felony conviction. Indeed, it seemed like a good idea.

After it had been in effect for awhile, some problems developed. A lot of 3rd strikes were drug related, and did not involve violent crimes. The state prisons began to fill up, the costs of incarcerating all these people began to rise almost exponentially for a state that was already in a deficit condition.And that wasn't all. The number of assults on police officers increased, and it developed that some with two strikes would kill the officer knowing that if arrested and convicted a third time, he'd become a permanent resident of the "gated community for the ethically challenged." Obviously, these guys must have figured they could get away with killing the officer. Most didn't, but the officer is still dead.

Secret Intended Consequences

This is a bit more sinister. Originally, the Initiative process was populist in nature. Groups of people could/would solicit petition signatures for the proposition, if they got enough, it went on the ballot. Over the years however, the Initiative has gravitated to become a tool of special interests, and they don't always keep things transparent and tell the truth. Consider Proposition 7 this last November:

Prop 7 would have mandated that California energy production move toward renewables and less polluting fuels with a fairly aggressive time table. Probably stemming from the smog problems in the 50's, California has been more or less at the forefront of air and water quality issues for the Nation. We have some huge wind farms, get a lot of electricity from dams, we have at least two large nuclear power plants that I know of, and we have several geothermal plants up in the Sonoma/Napa valleys. All in all, Prop 7 seemed pretty much down the center line of the California runway. Foremost among its supporters was T. Boone Pickins, a billionaire oileman, who put a huge amount into television ads. Opponents hid behind euphemistically named "committees," but seemed to include the major power companies in the state.

But, look beneath the Prop 7 hood, and the picture changes dramatically. Getting to renewables would be a fairly long process with a lot of capital investment in the infrastructure. In the meantime, the fuel of choice to meet the proposed pollution standards was natural gas. Want to take a wild guess who has a huge supply of natural gas he'd like to sell at a profit? Don't get me wrong, conversion from gasoline and diesel to natural gas would be good for the environment and for Californians. It would be good for the Nation too. California, as the most populous state, could really make a dent in the imported oil picture. But, one has to wonder what other consequences might be lurking inside Prop 7. It was defeated by a fairly large margin, so we don't have to worry about that, however there will be more.

What Can We Afford?

Another problem with our direct democracy is two-fold. First off, on the ballot this last November was a proposition to fund the Cal Veterans' Home Loan program. I've never qualified for one of those loans, I always seemed to be making just over the threshold in income. But hey! I'm a Veteran, this is a good deal for a lot of people who deserve our thanks and help, no? Well, yes -- it is. However the State of California is broke. Actually, worse than broke, no one seems to be able to pin down just how broke we are. "OK, that may be true but let's not take it out on our Veterans," I hear you say. Look beneath the hood again and you find that approximately half of the previous bond funding is still available. The program won't go under, it's doing just fine, the State is broke, maybe we re-fund the program when it needs it. That proposition passed. While I feel good that Californians think that highly of their Veterans, folks, we just can't keep this up.

Secondly, initiatives have regularly mandated expenditures that become law, but do it piecemeal and over years. Each, by itself, maysound good, but the voters are never faced with the cumulative effects of their actions, until of course, the State runs out of money and needs to increase revenue [i.e. raise taxes]. We had a proposition some time ago [98, if I remember correctly] that mandated spending levels for education and annual increases. Now, of course we all want to fund our public schools adequately, it's our kids' future. But this one, and all the others a majority of Californians have passed have resulted in a situation where our legislature and governator have discretionary control over maybe 15% of the total budget. Cut all of that 15% out of the budget and the State is still broke.

Yet another proposition would have provided new funding to the Childrens' Hospitals at the Universities of California and other state institutions. Worthy? Of course. Do we have the money to do this? No.

Direct Democracy -- Good Idea?

At least in California, it is decidedly a mixed bag. The idea that "The People" can seize control of their government has a nice ring to it. It turns out that may be a fairly idealistic and naive position however. And, one can also ask, "Isn't that what we elect legislators for? What are they doing?" The unfortunate answer to that question is, "Not a whole lot." Andrea and I have adopted a "No On Everything" position unless we really understand what this proposed change to our government will do, actually think it is a good idea, AND we understand all of the consequences. Very few Direct Democracy propositions pass that test. We voted "No" on all of them in this last election..

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