End-run democracy needs to end, with Gordon Lloyd (Scripps Howard News Service) April 21, 2004

While the United States is busy exporting democracy abroad, a series of political end runs around basic constitutional processes is threatening the strength of democracy at home. From recall elections and overused ballot propositions to judicial activism and a proposed constitutional amendment about gay marriage, liberals and conservatives alike seem to have forgotten a core truth about democracy: It’s the process, stupid.

End runs are seductive because they appear as one-time opportunities to deal with seemingly exigent circumstances. But if you try end runs on every important play, you are then engaged in government by emergency and the fundamentals of democracy atrophy and die. Consider the major constitutional end runs of just the last several months:

* The Massachusetts Supreme Court and the mayor of San Francisco both decided that it was high time for same-sex marriage. Never mind that in a representative democracy voters elect legislatures to debate and elect legislatures to debate and enact such laws. With a one-judge voting margin in the Bay State and a one-mayor proclamation in the Bay Area, centuries of law and practice were toppled. If recent polls showing increasing tolerance toward gays and lesbians are correct, the same result may well have been reached by some state legislatures, which would have preserved the appropriate lawmaking role for the people and their elected representatives.

* Now come conservative Republicans, who have historically resisted changing a fundamental document such as the U.S. Constitution, seeking just such an amendment to ban same-sex marriage. Apparently if the ends are conservative, the constitutional end run not need by. This has at least kicked up a useful debate as conservatives argue whether pro-active governmental solutions — constitutional amendments or prolonged nation-building efforts in Iraq — are really conservative at all.

* Californians were frustrated by the economy and the failure of state government to deal with it. Rather than await the next election to express their displeasure, they reached for a handy emergency tool, the recall election. The path to this end run was far too easy — essentially, one for wealthy individual funded it, and the signatures of only 12 percent of California voters kicked it off. With more than 100 candidates, it was possible that a new governor could be selected with a ridiculously low number of votes and no mandate. Was this really an emergency, since the sitting governor had been re-elected less than a year before and little had changed since? Most Californians seem happy with the end, but a democracy should be equally concerned with the means.

* Examining the ballot propositions for the November California election suggests little was learned from the recall end run of last fall. Rather than restraining the use of extraordinary direct-democracy tools such as recall and ballot propositions, voters are approving more end runs around the legislative process. Already three propositions are approved for the ballot, three more have sufficient signatures and an additional 40 measures are in the works. Special interests offer collectors up to $3.50 per signature to qualify their favorite issue — everything from more casino gambling to universal preschool — for the ballot.

Enough already. Liberals and conservatives alike must be reminded that merely because tools of direct democracy are available does not make it wise to use them. And courts must be reminded that the power of judicial review does not give them the right to become mini-legislatures, imposing their will on the American people. When we shift important decisions away from popularly elected legislatures to ballot propositions and courts, we weaken the very system of democracy we now wish to export to other nations.

You can hardly pick up a consumer produce today that does not have some kind of warning about its dangers and uses. It’s time to add such a warning to our democracy: “Warning! Fragile. Frequent end runs cause core competencies to atrophy and lead to eventual breakdown of the system. Democracy should be used regularly and exercised vigorously as the founders designed.”