Tuesday, November 10, 2009

When Direct Democracy means Bad Government

Over the last few days I have slowly been working my way through George A. Romero’s seminal Night of the Living Dead. It is an absolutely horrifying film, part art house and part grindhouse. Parallel to this uncharacteristic project, I have been reading about Gordon Wood’s Radicalism of the American Revolution. Wood’s book is largely about the defeat of the basically elitist legal project of the Founding Fathers and its displacement by the more radical democracy typically symbolized by Andrew Jackson. Wood’s thesis celebrates the replacement of disinterested elite with a broad-based system where the competing interests of many relatively ordinary citizens balance each other out. Getting back to the Zombie picture, the main problem of Night of the Living Dead is precisely that the self-interests of the various living characters utterly fail to achieve any kind of balance. They cannot agree on leadership, or see even a simple plan through to its conclusion. As a result, despite their relative intelligence, agility, secure position, and weaponry, they are easy prey for the mindless Zombies. So, although I find it hard to disagree with Wood’s description of the facts, I am not sure that I am as convinced of their unalloyed usefulness.

So this brings us to my real concern right now, and that is ballot initiatives. Ballot initiatives have a long and checkered history in this country, dating back to the Progressive era. The idea then (and the idea now, at least nominally) is that legislatures, especially at the state level, are easily held hostage by special interests or by ridiculously powerful leadership structures (this last is certainly true here in my home state of Massachusetts). But there is some evidence that ballot initiatives, under the guise of “direct democracy,” create many more problems than they solve, and disrupt other aspects of a functioning democracy.

The first problem is that ballot initiatives are usually calculated by their proposers to appeal to passion over reason. They tend deal with questions about which people have strong emotional reactions based on social values or self-interest. Tax policy, animal rights, gay marriage, minimum sentencing—these are the stuff high profile ballot questions are usually made of. If they aren’t appealing enough, you can always put a little girl’s face on it, and call it “Betty’s Law,” or something like that. Often a sensible ballot initiative (such as the one to allow alcohol to be sold in grocery stores here in MA) can be derailed by similar emotional tactics, stirred up by the infusion of incredible amounts of cash into the public discourse.

A second problem is the practical tendency of ballot initiatives to pile up and create conflicting mandates. The textbook case of this tendency is California, the state where the ballot process is possibly most open and frequently employed. Although it is probably the wealthiest state in the union, its government is hobbled by a complex web of voter-mandated restrictions on the state’s ability to raise revenue combined with a large number of voter-mandated expenses. To a lesser extent, even Massachusetts suffers from similar ballot driven madness, thanks to the thirty-year-old ballot initiative that led to proposition 2 ½.

The third, and most vexing problem with ballot initiatives is that, although they embody democracy in a direct and powerful way, they run directly counter to other, less glamorous, but vitally important principles of American government. One of these is the separation of powers. In most jurisdictions where ballot initiatives apply, the results of the ballot trump all three branches of government. And this leads to a profound imbalance, wherein the hands of the other branches of government become tied to whatever the outcome of the ballot question. It is hard to be effective at getting things done with tied hands, so we complain of ineffective government, and (to fix the problem) propose more ballot initiatives to tie those same hands tighter.

Related to this question of separation of powers, are the ends that such separation serves. One of these is the principle of civil rights. These rights, these freedoms which we prize so highly, are guaranteed in federal and state constitutions precisely because this is supposed to make it extremely difficult to modify or do away with them. At the federal level, this remains true. At the state level, in many cases, this has become a joke. If rights are acknowledged that a majority dislikes, then those rights can be done away with on the simple principle that a majority dislikes them. That is not true democracy; that is mere force majeure, a technical term for rule through the possession of strength, rather than moral or legal right.

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