Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Friday, June 10, 2005

Plebiscitary Democracy

In California, as in quite a number of other states, there is an increase in the use of initiatives (somewhat incorrectly referred to as "direct democracy") to achieve specific legislative results. In CA, we are seeing an increase also in the use of initiatives and special elections as part of executive-legislative bargaining. The word plebiscite is in disfavor because the plebiscite was a tool of dictators to gin up a legitimacy by having the whole public vote (usually under conditions less than free and fair) on such things as whether to still be independent, whether to grant the leader absolute power, and so forth. This word is appropriate for what we see now in California (and other states) where large numbers of particular laws are funded by private special interest groups (nearly all right wing) and then cleverly sold to the public through fancy P.R. campaigns against largely disorganized opposition. The situation is particularly grave where Democrats have control over most traditional levers of power, as in California, so they are organizationally disinclined to combating such maneuvers.

The interesting thing that I am beginnng to wonder about is whether or not this process actually entrenches the legislative majority. In CA, Dems retain power (well over 50%, but not quite 2/3) in the lege because they share the people's values. Wedge issues fail to defeat them. Instead, Republicans use them as ballot measures. Some (like the infamous prop 187) become central issues in legislative and gubernatorial campaigns. On most, the major politicians tend to take no position whatsoever (as with Prop 22, the "Knight Initiative" that pre-emptively banned gay marriage in California in 2000). The initiative did not drive the election. In fact, the proposition passed, but the Democrats (who largely opposed it, at least privately) actually increased their margin in the Assembly to 60%. Thus, rather than peeling away part of the electorate to vote Republicans, the electorate chose to vote Democratic and vote for the popular Republican-inspired wedge issue. Having their cake and eating it too.

The Governator is now using intiatives for another purpose: because he cannot possibly get anything through the legislature. He threatens that unless they negotiate with him on a more favorable basis, he'll get his special interest groups (he doesn't call them that) to fund his own legislative agenda through initiatives or even, if necessary, a whole special election devoted to them. His massive personal popularity won't do diddly for the Republican party - indeed, he loses points if he associates himself too brazenly with Republicans, so he all but pretends to be an indpendent. But, he can get the public to vote as he wishes a plebiscite.

You're asking the right question if you ask, "Why don't the Democrats do the same thing?" Is the problem lack of star power? I doubt it. The answer appears to be the comment I made earlier about how legislators aren't good at fighting against initiatives, so they're also bad at running them. Somehow by holding the legislature the Democratic Party of California (and interest groups aligned with it) they are just not set up to make end runs around the normal legislative process. If the Democrats had only a blocking minority instead (it takes 2/3 of the lege to get a budget, if you non-Californians can believe that) they'd be better at the intiative process.

I bring all this up because this is a huge difference between state and federal politics. There are no federal referenda. I just wonder if that's why the federal courts are so active -- because they remain the only way to bypass the legislative process.


Anonymous said...

I don't believe that Schwarzenegger has "massive personal popularity" anymore (your words). The Public Policy Institute of California recently released a survey and the results were not good for the Kindergarten Governor: his overall approval rating was down to 40% (from a high of 65%), his approval on the issue of the budget and taxes down to 37% (down from a high of 58%) and only 35% said they thought California was going in the right direction. It might not be a great idea for him to call a special election right now. 

// posted by Bell Curve

Anonymous said...

OK, shoot me. This is really long.

LTG: You raise the question if federal courts are active (i.e. busy, at the forefront) because they are a way to get around the legislative process. And this sparks all sorts of thoughts in my head at one time. I’ll try to organize them.

I say yes. Federal courts are an end-run around the legislative process. Let’s be clear that the Founding Fathers did not mean for this to be the case. In their thinking, the judiciary would check the legislature and the executive. And the federal courts would check the excesses of state courts- not legislatures.

The Courts are being manipulated in many different ways. For starters, they are political footballs. Stack a court with your favorite color ideology and you win the game. They are appointed for life. Legislatures come and go.

In the absence of regulatory bodies, courts are now left to the task of mediating regulatory disputes- medical malpractice, environmental issues, financial and securities fraud, etc. Everything has gone tort. Even crime has gone tort. If we can’t get Michael Jackson on child molestation, let’s sue him for damages in civil court.

All of that should be handled by regulatory agencies with the power to inflict punishment on violators, not court systems. Rather than seeking private redress with regulatory agencies, individuals must try to find a lawyer or some agency willing to work pro-bono to fight big business, polluters, doctors, etc. In fact, here is a good research project: Does the growth in special interest groups has any connection to de-regulation. Suddenly, the Sierra Club morphs into an environmental group to a legal aid society type thing.

The irony in all of this is that conservatives say they believe in small government and more local control while they wrest power away from states by making federal courts king. Consider that something like 132 U.S. mayors have decided to make their cities comply with Kyoto Protocol. That is wonderful, but counter to Bush& Co. polices. So stack a federal court, and get the Heritage Foundation to bring a suit against Mayor Bloomberg for his city environmental policy. Now you are not just end-running state legislatures, but city councils.

And this an opportunity to properly define “Activist” and “Strict Constructionist” because I think they are grossly misunderstood. LTG, correct me if I am wrong.

Activist judges interpret the constitution broadly, and usually focus on civil liberties. They usually are creating new precedents upon which new law will be based and protect. Some see this as a positive thing because it allows courts to check legislatures and to prevent a tyranny of majority.

Strict Constructionists interpret law in terms of the original intent of the framers. Under this view, neither women or blacks should be allowed to vote because those people weren’t considered by the framers when they wrote the Constitution. Oddly enough, in the research, these strict constructionist judges come under much less criticism than the activist judges.

Then there is Originalism, which is sort of a mix of the other two. The originalist believes in original intent, but she isn’t literal in her look at the Constitution. She is capable of broadening her scope. For example, if the law says listening to a phone conversation without a search warrant is not permitted, the Originalist will see that at the time the law was adopted, the only concern was illegal phone taps. But she would interpret this as meaning that any form of surveillance of electronic communications in the absence of a search warrant is not permitted. So no, you can’t use Carnivore to read my e-mail.

Activist gets tagged as “liberal” while strict constructionists gets tagged as “Conservative”. Orginialists gets ignored because no one can handle the idea of a 3rd possible way. But in fact, Janice Rogers Brown is a conservative activist who loves to legislate values from the bench.

I think you need a mix of all of these to make the bench solid. But when you start trying to stack the court (which Roosevelt tried to do, remember. So it isn’t just a Republicans thing) you damage its credibility and this its power.

// posted by Uswest

Anonymous said...

Courts are active not because some undefined popular will needs to "get around" the legislative process. But rather because the legislature is so divided and disorganized that they cannot prevent the courts from taking power for themselves.

Referenda are a well intentioned progressive component of many constitutions. In practice however, as LTG points out, they are a tool for radical fringe groups to get policies passed that no legislative majority would touch with a ten foot cattle prod (Prop 13 is the most infamous example).

I think the reason the Republicans and the far right use referenda and Democrats don't is because the Democrats are more in touch with the median Californian. They don't need the advantage given by the ballot measure process. The radical right on the other hand can only succeed by manipulating the median voter by using the closed rule voting (that is no amendments possible, you only get to vote yes or no) involved in the ballot measure process. Democrats don't need to manipulate the median voter because the median voter in California is a Democrat.

The problem with referenda, and LTG already aluded to other problems, is that they force the median voter to consider a proposed law under a closed rule. This gives a HUGE advantage to the wingnut who wrote the thing. The advantage is greatest the worse the status quo appears. Ad campaigns for these measures often concentrate on alarmist imagery of doom and gloom if the measure fails. Voters are told that the status quo is so bad that this bad policy is at least marginally preferable.

In the normal legislative process these laws would get amended agressively and or killed in committee. And frankly most of them should be!

Prop 13 was a pefect example of this problem. The property tax rates were flawed. But a solution to it was difficult to pass through the legislature at the time (not sure of the make up of the CA legislature in the 1970s). Rather than lobby the legislature, a group of radical right wing tax resisters put Prop 13 on the ballot. Among other things Prop 13 bases property taxes on the assesment at the time of purchase not the current value of the property. This means that many rich home owners are paying taxes on million dollar homes based on their sale value from decades before! Since local governments get most of their revenue from property taxes this devastated California local governments' ability to collect revenues. The result is California schools are among the worst in the country. California cities are among the most under-policed and have the worst trafic problems in the country. California suburbs are gated communities for rich people (who pay lower taxes now) that provide private police protection. Rich families send their kids (again with money saved by not paying reasonable property tax rates) to private schools. And the list goes on and on. All because local government can't raise revenue needed to address these problems and all because of Prop 13.

The other problem is that referenda assume that regular people are qualified to make technical decisions. Are voters really qualified to approve the text of the tax code? And by closed rule vote no less?  

// posted by Raised By Republicans

Anonymous said...

RBR: Courts may be active for both your reason and mine. In any case, they are a political tool.

On a different thread, prop 13: if it were to be changed, you'd have to build in protections for older people who have lived in their homes for long periods. My mother, for instance, has lived in her home for over 50 years. The taxes would be so high, she might not be able to afford to keep it. And in areas like the Central Coast, older folks are in the same situation. They aren't rich, but they are sitting on decent looking houses that in this screwed up bubble of a market are selling at over a million dollars when 10 years ago they were work $200K. And looking at how hot the housing market in this state is, many people don't seem to mind the high taxes on the "median" priced family home of $560K. In fact, they are buying multiple homes for investment!

Let's also keep in mind that there are many reasons someone's property might be reassessed. Anytime you take a second mortgage or you re-fi your house, you have to have it appraised. I am not certain, but doesn't this affect your property taxes?

Anyway, not to loose the point: when people walk up to me outside Trader Joes and ask me to sign a petition to get something on the ballot, I now refuse. Not everything needs to be on the ballot. And I am sour on petitions since the recall election. And the sad part about this is that groups that might have good legislation get thrown in with bad. I think the real apex of absurdity for me was in this last election they had to put two propositions on the ballot so that one would cancel the other out. I worked elections and many people wanted help to figure out how to vote on ballot measures. We couldn't do a thing for them other than hand them the voter guide. So what people do is latch on to a voting list from a trade union, a church group, or some other special interest they are affiliated with and they vote the line. That isn't how democracy is supposed to work. Then the courts get bogged down having to test the constitutionality of all that stuff. So Courts not only check the legislature, but the people as well. In this state, the referenda process is a good intentioned idea gone bad.

// posted by USWest

Anonymous said...

Regarding the courts. Its possible we are both correct, true. I don't know of any evidence pro or con your point. But my understanding of the history of the evolution of judicial authority is mainly one of the courts taking powers on their own initiative.

You point out, rightly, that before Prop 13 the property tax situation was getting out of hand. But that doesn't mean that Prop 13 was the only solution. What I'm arguing is that the Prop 13 "solution" was at least as the problem it was supposed to fix. Any tax regime will have distributive implications. Right now we have a system that takes from the poor to give to the middle class and rich.

It's kind of cold hearted to point this out, I know, but what we have now is a system whereby all of society is subsidizing a spacious way of life for a generation of Californians whoes only claim to that entitlement is that they got their houses before the housing market started booming. In the process our schools, police and fire services, and roads are deteriorating.

Keep in mind that if these old people sold their supposedly over taxed houses, they would realize hundreds of thousands - if not millions - of dollars of profit far in excess of inflation. I have a hard time having sympathy with someone who complains about the tax rate on a fair market value of their forcing them to sell under such circumstances.

I'm not a real estate expert but I'll float a suggestion. One part of the reason the price of houses in California is so inflated could be because once people get a house, the tax code is set up so that they have an incentive to hang on to it for a long, long time. Because of the tax rules, they are much more likely to add on or renovate an older house than sell out and move to a new house. This may be tying up houses that would otherwise be in circulation. I have no idea if this last point is valid at all but I thought I would toss it out there.

As for ballot initiatives. I can't think of any "good policies" (I'll define "good" as policies I agreed with) that came about because of the referendum process in California. If we chucked out the entire procedure I can't think that it would be any great loss. On the contrary I think the state would be far better off.

// posted by Raised By Republicans

Anonymous said...

I agree that Prop 13 is not a good solution to the problem. And I agree that its passage has done great damage to the educational system in this state. Monterey schools are falling apart. People are buying vacation homes here, young families are moving, and the schools are getting nothing for all of this turn over in the housing market. But try to get it overturned. Hey, here's an idea, let's pass Prop 31, the anti-prop 13 initiative!

If my mother was unable to afford her home, pray tell me where she would go? Live with her children? Go to a pasture in a retirement community, paying $3000 a month for an apartment? People like my mother are not going to sell their house for a million. A house bought in 1950 for $8000 is now selling for $175,000, maybe $200,000 and has had work done over the years to improve it. That isn't making anyone rich. And it wouldn't be enough to replace her home. Now I would agree with you if we were talking about some wealthy grandma. But I don't think many of our grandma's are that wealthy. Basically, some form of means testing would have to be part of any reform to the tax system. That is all I am saying.

I would wager that most homes in this state are not being held for long periods of time. I think that is generational. I would wager that the average family moves every 4-5 years. People are buying starter homes, living in them for 2 years (long enough to clear the capital gains tax), selling or renting it, and moving up. Property speculation is big now. That is why there is a shortage of homes. Those with the money are buying multiple homes to rent to those without. Investment properties- like stocks are the thing. And in some areas, like Monterey, it is all built out. So there are few if any new housing developments. And investors are buying up what is here because even if the market goes soft, this market is likely to hold pretty solid. The state is a patchwork of zoning rules and building moratoriums. I have heard that the problem isn't that there isn't enough housing to fill demand. People, the younger ones, are leaving the state entirely. The problem is that the number of people who can afford to buy is shrinking. And new immigrants are willing to pool their resources and buy homes together, long enough to get started and then to move on.

But all of that is for another Post. I don’t' want to stray from LTG's main point. Where is LTG in all of this?

// posted by USWest

Anonymous said...

Between posts, I occasionally go into the office. Sorry for my absence.

I feel like we got sidetracked, but then my point wasn't that clear. I was curious if anyone agreed that referenda seem to be a way of preserving (oddly enough) liberal rule in CA by turning wedge issues from election issues into special issues with no impact on the legislature.

As much as I think there ought to be ways to prevent huge runups in residential property taxes for those on fixed incomes, the truth is that every other state with property taxes has a regular system of taxation as a % of value of home. We can all deal with it. 

// posted by Law Talking Guy

Anonymous said...

Hello !.
might , perhaps curious to know how one can make real money .
There is no need to invest much at first. You may begin earning with as small sum of money as 20-100 dollars.

AimTrust is what you haven`t ever dreamt of such a chance to become rich
AimTrust incorporates an offshore structure with advanced asset management technologies in production and delivery of pipes for oil and gas.

Its head office is in Panama with offices everywhere: In USA, Canada, Cyprus.
Do you want to become a happy investor?
That`s your choice That`s what you desire!

I`m happy and lucky, I started to take up real money with the help of this company,
and I invite you to do the same. If it gets down to choose a correct companion who uses your funds in a right way - that`s it!.
I earn US$2,000 per day, and my first deposit was 1 grand only!
It`s easy to start , just click this link
and go! Let`s take our chance together to become rich

Anonymous said...

Good day, sun shines!
There have were times of troubles when I felt unhappy missing knowledge about opportunities of getting high yields on investments. I was a dump and downright stupid person.
I have never thought that there weren't any need in big starting capital.
Nowadays, I feel good, I started to get real income.
It's all about how to select a proper companion who uses your money in a right way - that is incorporate it in real business, and shares the income with me.

You can get interested, if there are such firms? I'm obliged to tell the truth, YES, there are. Please get to know about one of them:

Anonymous said...

You may probably be very interested to know how one can manage to receive high yields on investments.
There is no need to invest much at first.
You may begin to get income with a money that usually is spent
on daily food, that's 20-100 dollars.
I have been participating in one company's work for several years,
and I'll be glad to let you know my secrets at my blog.

Please visit my pages and send me private message to get the info.

P.S. I earn 1000-2000 per day now.

[url=] Online investment blog[/url]

Anonymous said...

Hello everyone!
I would like to burn a theme at here. There is such a nicey, called HYIP, or High Yield Investment Program. It reminds of ponzy-like structure, but in rare cases one may happen to meet a company that really pays up to 2% daily not on invested money, but from real profits.

For several years , I make money with the help of these programs.
I don't have problems with money now, but there are heights that must be conquered . I get now up to 2G a day , and my first investment was 500 dollars only.
Right now, I managed to catch a guaranteed variant to make a sharp rise . Turn to my web site to get additional info. [url=]Online Investment Blog[/url]

Anonymous said...

Good day!

Sure, you’ve heard about me, because my fame is running in front of me,
friends call me Peter.
Generally I’m a venturesome gambler. all my life I’m carried away by online-casino and poker.
Not long time ago I started my own blog, where I describe my virtual adventures.
Probably, it will be interesting for you to find out how to win not loose.
Please visit my diary. I’ll be interested on your opinion..

Anonymous said...

buy tramadol online tramadol for dogs dosage usa - tramadol rxlist