Tuesday, July 01, 2008

Direct Initiative Or Why The Judge Is All Wet

Judge Robert Satter, is a trial referee in Hartford Superior Court and author of "Under the Gold Dome — An Insider's Look at the Connecticut Legislature."

According to a piece written by the judge for a Hartford newspaper, he is not comfortable with what is called direct initiative.

Every 20 years, the judge notes, Connecticut citizens are asked by law whether or not they wish to hold a convention for the purpose of amending their constitution.

This year, special interest groups have sprung up in the state like dragon’s teeth, all of them clamoring for a change in the state constitution that will allow direct initiative.

In an opinion column, “Why Voters Shouldn't Pass Laws: Initiatives Serve Special Interests And Undermine Responsible Governance,” the judge advises, “When initiative proposals are voted upon, representative democracy is supplanted, the legislature and the governor are cut out of lawmaking, and the people rule directly.”

Some of the judge’s language is highly charged. Voters do not “pass laws” when they respond to direct initiatives, no more than Supreme Court justices “pass laws” when they strike down measures as unconstitutional? In both cases, voters on the one hand and justices on the other, instruct legislatures. In our representative democracy, no one has as yet suggested that a vote on a single ballot question “repeals” representative government. Representative democracy therefore is not “supplanted” by direct initiatives; it is not even severely damaged by such measures.

If that were the case, town government long ago would have been “supplanted” by voters who routinely, in some towns, vote on referendum and budget issues.

The state constitution itself provides that the general public every 20 years should be given the opportunity to vote on the question whether they wish to amend or change their constitution. Does the judge believe constitutions should never be amended because to do so would be to render legislatures pointless? Isn’t the constitutional provision itself open to the same objections that the judge urges against direct initiative?

What are the judge’s objections?

The judge fears the people will fall prey to propaganda. Ballot questions will be designed by special interests. These special interests will cast a spell over the general populous, and before you can say “three strikes and you’re out,” people will be led by Svelgalis into voting in favor of a law that will compel judges to put in the hoosegow for life convicted criminals who have committed three violent felonies.

The question arises, which group of people – the general public or their elected representatives – is more likely to fall prey to special interests?

In supporting direct initiative, it is not necessary to show that special interest groups will never have a hand in directing the votes for or against the measure, whatever it may be.

There will always be factions in government. But a general vote opens questions to the broadest possible influence and by doing so deprives the factions involved of much of their force. It will always be easier for a faction – say, unions or their opposition, employee administrators – to exert influence on a legislative body, because they are organized to influence legislators. The bulk of voters represent more broadly what has been called “the general interest,” which is simply the sum of all special interests added together. Special interests that influence a body of legislators are more likely to run athwart the general interests of the people as expressed in direct initiative ballots.

Indeed, in the early republic, the founding fathers, who mistrusted direct democracy, provided in the US Constitution that congressional representatives should be elected not directly by the people in general elections but rather indirectly by state legislatures.

Over the course of years, we have come to realize that the general interest is an unorganized interest beset on all sides by special interests, some of which are practiced in bringing politicians over to their way of thinking by such means as provisioning them with campaign contributions and hot tubs. It is not the general public but organized interests that are likely to exert a factional influence on congresspersons.

Direct initiatives are ballot questions. Ballot questions are common in town government. So, for that matter, are budget referendums. In both cases, the public by a majority vote instructs governing officials in towns to do something; in the one case, to accede to the wishes of the majority on a specific question put to voter on the ballot, and in the other to accept or reject a budget proposed by town officials.

In municipalities, such procedures are considered part of the usual business of politics. And no public official in any town that has referendums, being told that the people they serve have rejected a budget because they feel it is too burdensome, would consider the vox populi destructive of representative government. Since the whole town votes on these issues, the vote is less likely to be manipulated by special interests, though it is true that special interests may have had a hand in shaping the vote.

The usual objection brought against direct initiative – that direct initiative is redundant because it lies within the power of the people to direct their future through the ballot box -- is itself highly misleading, especially when one considers budgets.

Both municipal and state budgets are driven precisely by the forces that judge Satter fears. These forces, organized special interests, consistently drive budgets higher and higher, with rarely a thought to reasonable limits. And when such forces have a legislature in their fierce jaws, they will no more let go of it than a dog will let go of his bone.

What the dog needs is a master who will say, “Enough!”

That master is the people laying claim to their future through direct initiative.
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