Too Much Democracy? The unintended consequences of the recall election, with Gordon Lloyd (San Francisco Chronicle) October 8, 2003

Sometimes the best thing about the past is that it’s over. Unfortunately, in the case of California’s recall, it’s not over even when it’s over. While others celebrate or bemoan the election’s immediate results, we are concerned about the unintended, longer-term consequences of this crazy recall chapter of our history.

As Benjamin Franklin left Independence Hall after signing the U.S. Constitution, he was asked, “What kind of government did you give us, Dr. Franklin?” His reply seems apt in the republic of California today: “A republic, if you can keep it.” At first blush, one might think of citizens taking it upon themselves to recall a governor, and 135 candidates lining up to take his place, as signs of a healthy republic. In fact, however, the recall election has released the dangerous forces of direct democracy, in which the courts impose their notions of electoral fairness.

Direct democracy has now become a cottage industry in California, with 280 ballot propositions taking end-runs around the Legislature in the past 20 years. About two-thirds of the California budget is locked up by voter initiatives and federally mandated spending. It would be daunting for experienced legislators to operate on budget deficits wearing those handcuffs. Not that we have a lot of seasoned legislators, because another tool of direct democracy, term limits, has removed most of them.

The toolkit of direct democracy is best when it sends a message and worst when it attempts to govern. Proposition 13 sent a message about taxation without representation but, in practice, resulted in an unintended transfer of power from localities to Sacramento. Term limits were to reduce the role of special interests, but we still have special interests and now also a Legislature without an institutional memory. We use recall to control the budget and confine the administrative state, but we get a demagogic circus of an election campaign.

Now, with the recall of Gov. Gray Davis and the election of Arnold Schwarzenegger to replace him, we face an uncertain political future, having damaged the toolket of representative democracy that Franklin and other designed to keep the republic.

The recall campaign also spotlighted another growing threat to the republic: hyperactive federal courts with expanding notions of equal protection democracy. The remarkable three-judge panel decision from the Ninth Circuit U.S. Court of Appeals — overturned a week later by teh pan judges’ own colleagues — illustrates the problem. Despite the fact that the elected officials had properly certified a process authorized by the California Constitution, these judges deemed their ideas about democracy to be superior. They argued that waiting for a more perfect election in March trumped the people’s desire to bring this extraordinary recall to a timely conclusion.

Now federal courts and their equal protection doctrines are overriding the people and their elected representatives everywhere. Congressional legislation, supported by 50 million people, to limit marketing calls; the congressionally approved wording of the Pledge of Allegiance; and whether state officials can put plaques with the Ten Commandments on their walls have all been declared unconstitutional by one or more federal courts. Commonsense self-government is giving way to equal-protection democracy ordered by federal judges.

Self-restraint by voters and federal judges is a first step on the road to recovery. But it won’t be enough. Winners and losers alike in this election should discuss a state constitutional amendment to set the recall bar higher, requiring perhaps 25 percent of the voters to approve an election. The U.S. Supreme Court needs to hear an equal-protection case soon to put that cow back into the barn. We should consider removing term limits. And we need to make placing propositions on the ballot more difficult.

We don’t teach it in law school, but we should: the law of unintended consequences. It means that even the most well-intentioned proposals have effects that are unintended. And so the republic will pay a price for unrestrained judges and impatient voters.

This op/ed appeared on Page A-29.