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The Supreme Court’s Gay Marriage Decisions Reverberate Through The States (Forbes.com) July 31, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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The U.S. Supreme Court dropped a rock in the same sex marriage pond, and the ripple effect has spread rapidly to state and local governments across the land. After the Supreme Court held that the federal Defense of Marriage Act (DOMA) was unconstitutional, but declined to find a federal right of same sex marriage, Justice Scalia said that a second state-law shoe seemed likely to drop in the Court next year. He might have been wrong on both the timing and location—state law shoes are already dropping from Pennsylvania to Ohio to California and beyond. In fact, the muddled Supreme Court reasoning in the two same sex marriage decisions invited the unsettled and confusing reaction we now see.

In Ohio, for example, a federal judge recently held that, despite a provision in the state’s constitution banning same sex marriage, Ohio officials had to recognize a same sex marriage of Ohioans performed in Maryland where it was legal. Citing the Supreme Court’s decision, the federal judge said that, since Ohio recognized other marriages not legal in Ohio but performed elsewhere such as a marriage of first cousins, it could not discriminate against same sex marriages. Thus, in effect, the Supreme Court decision which purported not to decide same sex marriage for the states has already been used to make just such a decision in the case of out of state marriages for Ohio.

Although only 13 states (and still counting) allow same sex marriages, the Ohio case may foreshadow a larger effort to recognize marriages performed in those states on a nationwide basis. Article IV Section 1 of the U.S. Constitution holds in part that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” Just as a driver’s license issued in California is valid to drive in Nevada, there could be an effort to require states to recognize legal same sex marriages from other states, which presumably creates less controversy and difficulty in some more conservative jurisdictions.

In Pennsylvania and California, we see another ripple effect from the Supreme Court same sex marriage decisions. Local officials in Montgomery County, Pennsylvania have begun issuing licenses to same sex couples in the face of a 1996 state law defining marriage as a contract between a man and a woman. Since couples are not required to obtain a license in the Pennsylvania county in which the ceremony will be performed, Montgomery County could become one-stop shopping for gay couples in the state. After reading the U.S. Supreme Court DOMA decision, the county’s register of wills decided that “the Constitution trumps the (state marriage) statute.” It is not yet clear how this unilateral action by a local official in contravention of state law will hold up in court, and what the ultimate status of marriages performed under these licenses will be.

In San Diego, California, a local official went the other way, asking the state supreme court to stop same sex marriages while the constitutionality of the state’s Proposition 8 (banning gay marriage) is determined for all counties. The legal question arose because, technically, the federal court’s decision overturning Proposition 8 only applied to the parties and officials before the court, not to the entire state. But the California Supreme Court refused to halt same sex marriages immediately, reserving further legal argument on the larger question for a later day.

In a much earlier time, Prince von Metternich said, “When France sneezes, all Europe catches a cold.” In announcing a pair of muddled decisions on same sex marriage, the Supreme Court has triggered a reaction across state and local governments that will continue until the matter ends up in the Supreme Court again. Perhaps the most troublesome aspect of this legally is the growing perception that government officials are free to ignore the law if they don’t personally believe in it themselves. That’s a contagion the legal system can ill afford.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/07/31/the-supreme-courts-gay-marriage-decisions-reverberate-through-the-states/

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Is Gay Marriage The Product Of Judicial Activism? (Forbes.com) July 2, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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One practical definition of judicial activism is when a court makes a decision with which you disagree. Not surprisingly, then, conservatives objected to judicial activism in last week’s same sex marriage Supreme Court decisions, while liberals decried judicial activism in a case announced just the day before (on voting rights). But taking the two same sex marriage decisions as a case study, to what extent could they fairly be called the product of judicial activism?

Asking the question begs another more fundamental question: What is judicial activism? There are lots of opinions on that, but none is definitive. Apparently the origin of the term came not in a legal opinion at all, but in a 1947 Fortune magazine article by historian Arthur Schlesinger in which he described the sitting U.S. Supreme Court as having 4 judicial activists, 3 judges who practiced “self-restraint,” and 2 in the middle. The distinction, Schlesinger argued, was based on their legal worldview, with the activists finding the law more malleable and subject to interpretation, whereas those engaged in self-restraint felt that legal terms had real meaning and it was not their place to provide a lot of interpretation.

Since then, there have existed many understandings of judicial activism. Perhaps the most basic is when a court usurps the role of one of the other branches of government and takes up the work of the legislature or executive. Indeed, Justice William Rehnquist in Roe v. Wade found the majority of the Court engaged in judicial activism or “judicial legislation.” Another variation is when a judge is results-oriented, wanting to reach a particular conclusion and searching far and wide to find some strained legal interpretation to support it. Black’s Law Dictionary says it is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors to guide their decisions.” I would submit that when a Court becomes an engine of change, rather than a brake on the illegal actions of another branch, it is engaging in judicial activism.

Under virtually all of these definitions, it is fair to conclude that there was judicial activism, or at least what New Jersey Governor Chris Christie called “judicial supremacy,” in both of the same sex marriage cases. On the surface, the Supreme Court did not appear to engage in judicial activism in the Hollingsworth case challenging the lower court ruling that California’s Proposition 8 was unconstitutional, since the Court used the narrow legal doctrine of standing to decide it. But the effect of that narrow decision was broad and activist indeed. The ruling effectively meant that no one could challenge the decision of a single federal judge that gay marriage could not be banned by a vote of the California people. Since the Governor and Attorney General of California refused to defend the law, and the Supreme Court said the proponents had no standing to appeal the case, the lower court decision stands unchallenged. A sweeping change in California law, nullifying the votes of 7 million people, was made by a single federal judge.

In the second same sex marriage decision declaring the federal Defense of Marriage Act (DOMA) unconstitutional, there were several steps of judicial activism. Most fundamentally, the Court decided that there is a right under federal law (not yet in state law, though as Justice Scalia warned in his dissent that can’t be far off) to equal protection for same sex marriages, overturning Congress’ and the President’s opposite determination when DOMA was enacted in 1996. Second, in order to satisfy his newly constructed test for the constitutionality of equal treatment for same sex marriages, Justice Kennedy, writing for the majority, had to find and did conclude that Congress and the President were motivated by a bad animus or purpose. So good for you, Justice Kennedy, your righteousness exceeds all those 342 members of the House, 85 members of the Senate and President Bill Clinton who supported and signed DOMA. Way to ignore the purpose stated by the bill’s Senate sponsor that if states wish to recognize gay marriage they may, but this bill would ensure that “the 49 other states don’t have to and the Federal Government does not have to.”

It’s too bad Justice Kennedy wasn’t listening more carefully when President Ronald Reagan said at the justice’s swearing-in ceremony that, unless judges accept their role to interpret laws, not make them, “the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.” Insulated as they are by lifetime appointments, the justices might also take a peek at this week’s Rasmussen poll, showing the people’s confidence in the Supreme Court at an all-time low, a drop of 32 points among conservatives and 21 points among moderates in recent years. And 41% find the Court increasingly hostile toward religion.

The legalization of same sex marriage started with the vote of a single judge in Massachusetts ten years ago, and pressed forward with a single unappealable decision by a California federal judge. As in Roe v. Wade and the fury it caused about abortion, the courts would do better to leave social change to the people and their elected officials.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/07/02/is-gay-marriage-the-product-of-judicial-activism/

President Obama’s Executive Power End Run Around The Constitution (Forbes.com) January 16, 2013

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Reports that President Obama is considering the issuance of 19 executive orders on gun control raise a new round of questions about presidential power. Frustrated by his inability to work with Congress, Obama seems willing to do more and more unilaterally, to the ultimate detriment of the republic. It’s hard to overlook the irony that part of his brief against his Republican predecessor was George W. Bush’s willingness to stretch presidential power—the use of signing statements explaining why Bush didn’t accept parts of bills Congress passed, for example. But Obama himself is taking presidential power to new heights.
Consider his use of executive orders. There’s no real Constitutional authority for these, but presidents have long allowed themselves this privilege. The theory is that they are essentially “executing” laws Congress has already passed. But, as the Supreme Court told President Truman when he attempted to use an executive order to place all steel factories under control of the federal government, executive orders may not be used to make laws, only to execute them.
What’s new is Obama’s use of executive orders to initiate action where, in his view, Congress is moving too slowly, rather than to execute laws Congress has already passed. Everyone understands the need for comprehensive immigration reform, but rather than working this through patiently, Obama last year issued executive orders to get the ball rolling. One allowed immigrants who entered the country illegally to remain during a waiver process. Another directed officials to stop detaining undocumented immigrants arrested for lesser crimes. Yet another, which triggered a huge response, eased the rules for young immigrants who came to the U.S. illegally as children. Whatever the president calls it, all this constitutes major change to immigration policy right at the very time the country is trying to work through comprehensive reform.
Quite naturally the fear is that Obama is preparing to follow the same path on gun control. Rather than working things through the Congress, he could throw down the gauntlet, saying here’s a series of reforms I will do by executive order, deal with it! Hardly a good way to start a national conversation and a potential series of reforms on gun control.
Another example is Obama’s extensive use of czars, amassing and deploying yet more presidential power in the White House, avoiding Senate confirmation that is normally required of people as powerful as cabinet officers. Depending on how you count them, Obama has appointed a record number of czars—somewhere around 38—on a wide variety of matters from his car czar and green jobs czar to the more standard drug and Middle East policy czars. My personal favorite is the Asian carp czar (who apparently couldn’t bend the fish to his will after all). Surely a gun czar—a role temporarily being held by Vice President Biden—can’t be far behind. All these are unelected and unconfirmed senior White House officials with considerable power.
Frankly I’m surprised (and pleased) that the President says he will eschew another huge stretch of executive power: minting a platinum coin to cover the federal deficit. Defenders of this ridiculous idea pointed to the Treasury’s legal power to issue platinum coins. That, of course, was never the constitutional question. The real question was where the President could find the power to use such a coin to cover the national debt. Despite constitutional defenses mounted by Harvard constitutional scholar Laurence Tribe and others, Obama has wisely walked away from this option, at least for now.
Obama, lacking the charm of Franklin Roosevelt, nevertheless seeks to follow his path in growing executive power. Starting with President Woodrow Wilson, and culminating in Roosevelt’s New Deal, progressives sought to undermine the power of the legislature in favor of consolidating power in the executive branch. From passing the sweeping healthcare reform bill on a party-line vote, to the largest use of executive czars in our history, to initiating new policies on things like immigration and gun control by executive order, Obama seeks to leave 225 years of constitutional separation of powers behind. This needs to be exposed for what it is: a series of constitutional end-runs and a power grab by a frustrated and legacy-driven president.

Please click on the link to view the op/ed on Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/01/16/president-obamas-executive-power-end-run-around-the-constitution/

The Tale of Two Cities, by Sarah Fisher (Pepperdine Magazine) August 3, 2012

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“Although I generally reserve this site for articles I write, I’m quite proud of the important work of the Davenport Institute at Pepperdine, and its Executive Director, Pete Peterson, in helping local and regional governments solve public policy problems through civic engagement”.  Here is one great example: 

July 27, 2012

Pete Peterson and the Davenport Institute help revive public trust in the city of Bell.

By Sarah Fisher

In July 2010 the Los Angeles Times infamously outed the City of Bell, California, for awarding its city officials the highest salaries in the nation.

The report opened up the city’s government to scrutiny, since the salaries were disproportionately large compared to bell’s underperforming economy and particularly high rate of unemployment.

Eventually, a number of city officials were arrested—leaving the citizens of bell without a functioning government and the city’s coffers depleted.

In stepped Ken Hampian, the recently retired city manager of San Luis Obispo and an advisory council member of Pepperdine’s Davenport Institute for Public Engagement and Civic Leadership at the School of Public Policy. He was named Bell’s interim city manager in September 2011 and turned to his longtime allies at Pepperdine for advice, launching what has become a significant partnership in the city’s reconstruction.

Pete Peterson

In a series of discussions beginning January, Davenport director Pete Peterson began advising Hampian and Bell’s new leaders about the 2012-2013 budget drafted this spring. “I was brought in as an advisor to their budgeting process, as one of the first things they’ve tried to do is open up their annual budgeting process to more public scrutiny,” Peterson explains. “New city staff are in place, as well as an entirely new city council, and they want to make the city more participatory and transparent – particularly in its financial dealings.”

The city is crippled by its reputation right now, he says, and the citizens of the town are furious about the betrayals levied against them, which allegedly include the city officials discouraging or repressing civic engagement, inflating property taxes to line their pockets, and instigating voter fraud in order to quietly pass self-benefiting decrees. Though angry, however, the citizens are not sure of how to approach healthy civic engagement.

“The history there, or at least the recent history, is of Bell’s government being so private that now you can see people coming to budget workshops with a fair degree of caution,” Peterson observes. “The concept of engagement with the local government is such an entirely new experience.”

When Hampian, Bell’s staff and council wanted to engage their residents, they asked Peterson to consult on a regular program of annual budget workshops in which the budget would be assembled with participation from taxpayers. He helped kick off the process in January by co-facilitating the first “Goal-Setting Community Forum” in Bell’s Community Center, which drew a modest crowd of intrigued citizens for a Saturday morning of brainstorming, discussion, and informal vote casting on the most important issues needing immediate attention.

The meeting gave ordinary, tax-paying residents of Bell the chance to prioritize for themselves what action was needed after years of governmental isolation and neglect. “It was very encouraging to see a fairly decent turnout from folks that had simply never been invited to something like this before,” Peterson notes, adding that the feeling throughout the forum was quietly hopeful about a new era for the city.

Since his involvement with the city began, Peterson’s partnership with Bell’s new and interim management has served as a living, breathing case study of public engagement and civic renewal, one that he hopes will inspire other cities to adopt further dialogue between local government and residents. “I’ve been tremendously encouraged thus far by both the citizens of Bell and the new city leaders, who have been at the forefront of trying to change the identity of a city now known as a symbol of corruption.”

The partnership also strengthened ties between the Davenport Institute and Hampian, who was named the institute’s 2012 city manager-in-residence. After three months as an advisor, Peterson has transitioned into a consulting role, while Hampian visited the Malibu campus in March to present a lecture about his experiences rebuilding Bell in the wake of scandal. Peterson hopes that the Davenport Institute will continue to work with Bell and other California cities in crisis in the future. This summer, Peterson helped place a recent SPP graduate in a summer-long position at the City, and this fall, Peterson is due to bring a Bell council member and staff person out to Washington, DC’s Hudson Institute to talk about the public’s role in budget processes.

“What’s been interesting for us as a small nonprofit institute that supports legitimate public policies around the state is that if we can make these leaps as an institution in just seven years, then anything is possible for us.”

WEB EXCLUSIVES:

Listen to Episode 54 of the Pepperdine People Podcast series, in which Peterson and Hampian discuss their roles in, and the future of, the City of Bell.

School of Public Policy graduate Sandeep Kaur (MPP ’12) received a summer internship with the City of Bell. In the following Q&A, she shares her experiences on the front line of a new era in Bell’s history…

Did the City of Bell case interest you when the story broke?
The City of Bell is a very interesting case. I still wonder how this all happened when we have auditors’ set, who audit cities thoroughly. The roots of corruption were only spread out among the senior management. Why didn’t anyone raise their voice to say something? It’s still a mystery to me.

As a California resident and public policy master’s student, what were your thoughts on the situation at first?
A lack of good leadership and policies explain this situation really well. The city manager was corrupted so much that he didn’t even consider the impact on Bell residents. After all, a city generates revenue through its residents and their money paid those high salaries. Instantly, I recalled a lecture on leadership from professor Ted McAllister’s class, about why a good leader is important for the society. Public Policy isn’t just making a difference as everyone mentions, it’s about fixing policies and leading the right way.

What did you hope to accomplish through your internship?
I hope to learn to differentiate between right and wrong. City of Bell is in this mess because there was no one who questioned the policies and instead followed the leader with blind trust. Obviously, I hope to gain experience that will take me far in my future goals.

What have been your responsibilities as an intern at the City of Bell?
So far, my responsibilities have been generating content for the new website that the City of Bell is planning to launch in January 2013. I gather all the information on the six divisions of Community Services Department, so the Senior Analyst can turn it to the web designers. In addition, I have written letters in response to residential complaints and assisted with policies for the Community Services Department, for instance, what types of rules and regulations need to be followed when alcohol is permitted in private events held in hired public buildings.

Have you encountered any challenges personally, as an intern?
Gathering information can be a bit challenging because the recent problems and staff turnover has created inconsistencies. I interned with the City of Anaheim last summer and it was noticeably more efficient.

Are you pleased with the progress made so far in Bell?
Somewhat. I believe my primary focus should be on lack of policies that the Community Services Department is suffering. My degree has taught me how to think critically and analyze situations before tacking them. This internship ends on September 1 and my plan is to work for a local government, even if it’s out of California.

Issue:  summer 2012

Please click on the link to view the article in the Pepperdine Magazine:  http://magazine.pepperdine.edu/index.php/2012/07/a-tale-of-two-cities/

 

How Free is Your State (Townhall.com) March 13, 2012

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Justice Louis Brandeis wrote about states’ rights in 1932, saying “a single courageous state may serve as a laboratory and try novel social and economic experiments.”

One problem with state experiments today is that federal courts so quickly strike them down, but another problem is illustrated in the Mercatus Center ranking of which states are the most free, noting that large states such as California, New York and New Jersey, all in the bottom 5, use their experimentation to limit freedom.  Laws banning transfat, or mandating health insurance or family leave will quickly push a state down the list.

Do you know where your state falls on the freedom scale?  If you like freedom, maybe you should move to New Hampshire, South Dakota, Indiana, Idaho or Missouri, all in the top 5. 

Take a look yourself at the Mercatus Center website and live free!

To listen to the audio please click on the link:  http://townhall.com/talkradio/dailycommentary/635977

Testimony Submitted to CA Senate Standing Committee on Elections and Constitutional Amendments June 8, 2011

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California Senate Standing Committee on Elections and Constitutional Amendments
AB 459
June 8, 2011

Testimony Submitted by David Davenport, Research Fellow, Hoover Institution, Stanford University

Conclusion:

When asked what kind of government the founders had established, Benjamin Franklin is said to have responded: “A republic, if you can keep it.”

AB 459 and the National Popular Vote bill will undermine the carefully constructed federal republic and violate the intent, and even the letter, of the U.S. Constitution, all accomplished through an end-run and not even through a straightforward and transparent Constitutional amendment. It will also adversely affect elections in significant ways that have not been sufficiently studied or understood. Further, there is a reform readily available that could accomplish many of the goals of the proponents of AB 459 without violating the Constitution. I therefore urge members of the Committee to vote against AB 459.

Read the entire submitted testimony here: California Senate Testimony 060811

Davenport Institute Fostering Civic Engagement in California (Santa Barbara Challenge) May 8, 2011

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Common Sense California Takes Public Engagement to a New Level with Noozhawk Project

Using high-tech tools, Pepperdine University affiliate teaches cities and counties new ways to engage more effectively

By Taylor Orr, Noozhawk Contributing Writer | @NoozhawkNews | Published on 05.08.2011

  • [Noozhawk’s note: This is one in a series of articles on Noozhawk’s Santa Barbara Challenge, our public-engagement project on the city of Santa Barbara’s budget. Related links are below.]

Pete Peterson, executive director of the Davenport Institute for Public Engagement and Civic Leadership at Pepperdine University’s School of Public Policy in Malibu, says one of the biggest obstacles with public engagement is educating people on the definition of public engagement.

 “The main reason public engagement has failed is a failure of communication,” Peterson told Noozhawk recently. “Someone will say, ‘Let’s engage the public on the budget,’ and they want to hear suggestions from the public. Someone else will think that engaging the public means informing the public.”

In 2006, two longtime and well-known California educators launched Common Sense California as an independent nonprofit organization. The founders — Steve Weiner, former associate dean of UC Berkeley’s Graduate School of Public Policy, and former Pepperdine University President David Davenport — had an idea to bring together Democrats and Republicans in a nonpartisan and trans-partisan way, and find issues the two sides could agree on at a statewide level.

“We wanted to find a way to address issues in Sacramento, as the Legislature was not touching budget issues,” Peterson said. “There are common concerns about the future of the state, and the state government had become disengaged from everyday Californians.”

What the organization soon learned is that it’s very hard, if not impossible, to affect state-level policy from the outside.

But the group also discovered that public-engagement efforts were not lost at the county and civic levels. In 2008, CSC put together an advisory council of city managers from throughout California. These individuals became the “eyes and ears around the state to connect us to public-engagement projects and to connect cities and counties to Common Sense California,” said Peterson, who added that the engagement appeared to work best under more localized circumstances.

That same year, Common Sense California launched a public-engagement grant program that provided more than $200,000 for cities, counties and special districts to engage residents on local projects.

“The way we work to promote participatory governance is to work as a matchmaker for cities and counties to resources and to fund the efforts,” Peterson said. “We train city and county officials all over the state how to do public engagement.

“Essentially, it was the training piece that connected us up with Pepperdine University. To do the training most effectively, we wanted to offer it through an academic institute.”

Common Sense California created the collaboration with Pepperdine through the Davenport Institute to train and support public engagement efforts around the state. Peterson said that CSC has consulted on about 25 public-engagement projects, with case studies being the main thrust of the training.

The typical training session is a half-day meeting hosted by a city or county. Peterson said between 50 and 75 local officials attend the workshop-style conferences that include lectures and small group exercises. Educating officials on what public engagement is and can be is a main focus of the events.

“Legitimate public engagement is a spectrum of different things that starts with informing the public about a specific policy,” he explained. “Consulting occurs when the public is provided with enough information about a decision that gives them the opportunity to wrestle a number of policy options. Full direct participation is what happens when the public is not only consulted on options but also asked to participate on an issue.

“At the root of projects that don’t work, you see a confusion of terms.”

Common Sense California tries to help make meetings engaging, and Peterson said that even the layout of an engagement can be unproductive.

“At the front of every nonproductive engagement is a three-minute time frame and a microphone, which is neither deliberative nor engaging,” Peterson said. “We teach how these civic leaders can structure these public engagement processes to be more deliberative and instruct how reports happen, how people get invited and how to structure a meeting.”

A key challenge in supporting public engagement is removing the public’s perception of public engagement as a lazy and expensive decision-making process.

“One of the ways we frame that discussion is to say that by not engaging the public at the beginning, you’re inviting possible obstruction by the public,” Peterson said. “One thing we’ve learned a lot, especially with the Internet age and easier networking, is either you engage your public or they engage you. This can happen on your terms or you will do it at their terms, at the ballot box or in a courtroom.”

Peterson said public engagement is not meant to be uncontrolled, random or out of control.

“Public engagement is not meant to look like those health-care town hall meetings where there is a bunch of screaming back and forth,” he said. “It’s a perception many city leaders have had, and we’re trying to help them understand that there is a different way to engage your public. It is still a new concept.”

The Davenport Institute chose Noozhawk as a partner to engage the Santa Barbara public in helping the city of Santa Barbara tackle its budget issues. Noozhawk publisher Bill Macfadyen was part of Common Sense California’s original statewide organizing efforts, and the institute’s board and leadership have closely followed the development of the professional online local news publication since before it was launched in late 2007.

“One of the challenges municipalities face to make online public engagement work, is that you not only have to do the public engagement thing but you also have to think like an Internet marketer,” Peterson said. “You have to be very intentional about driving traffic and participation — which don’t sound like government things, but it is part of online engagement.

“With Noozhawk, you not only have readers who are engaged but are also knowledgeable about local events,” he added.

Common Sense California and the Davenport Institute will continue to help cities and counties engage the public to make policy decisions.

“With the continuing fiscal crisis,” Peterson said, “we’re going to help cities and counties make more decisions they didn’t think they’d find a way to make by giving them extra tools of leadership — instead of making decisions from the top down, which is no longer sustainable because some decisions are so big. It’s not enough to say the council has made a decision and this is how you’re moving forward.

“At the Davenport Institute, we’re playing a small role in helping local leaders to understand this new leadership skill. I’m still dubious as to whether this will work at the statewide level,” Peterson said with a laugh.

Click here to see the original article http://www.noozhawk.com/article/050811_santa_barbara_challenge_common_sense_california/ .

Click here for more information on the Davenport Institute for Public Engagement and Civic Leadership.

 Noozhawk contributing writer Taylor Orr can be reached at torr@noozhawk.com.

National Popular Vote Bill & Keeping the Republic (Ronn Owens Show/KGO Newstalk am 810 Radio) April 28, 2011

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Please click on the following link to hear the live interview from this morning’s Ronn Owens Show where David discusses his recent SF Chronicle article on “How to Lose the Republic.”

Audio link:  http://vaca.bayradio.com/podcasts/owens042811_10am.mp3

How to Lose the Republic w/Gordon Lloyd (San Francisco Chronicle) April 12, 2011

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When Benjamin Franklin was asked what kind of government the newly signed Constitution established, he responded, “A republic, if you can keep it.” The National Popular Vote bill, recently introduced in the California Legislature, is a poster child for how to lose the republic.

The genius of a republic is that it combines checks and balances along with structures of stability to temper pure democracy. Specific elements – such as the composition of the U.S. Senate or the functioning of the Electoral College or assigning roles to states as well as to the federal government – may seem obstructionist or even anti-democratic on their own, but they function together to assure that the deliberate sense of the people is carried out in a stable, orderly way. But with 2012 presidential politics already in the air, those who fear the Electoral College seek to circumvent it through a bill that would require state electors to vote for the winner of the national popular vote.

This is a clever attempt to eliminate the role of electors – required by Article II of the Constitution – and even the role of states in national elections without the difficult and more deliberative (and transparent) process of amending the Constitution.

Because we are a nation of states as well as people, the Constitution provides a role for both in the election of a president, a national popular vote and a state electoral vote. Before we effectively do away with the electoral vote system, we should consider several practical benefits it provides even today:

— It alters the way candidates campaign, requiring them to seek electoral votes all over the country, rather than concentrate on a few large population centers.

— It limits the uncertainty of any recount to one or two states, rather than the national recount we would otherwise see.

— It also makes more difficult the proliferation of candidates many countries experience in a national popular vote.

So why have a Republican and a Democrat joined to introduce the national popular vote bill in California? Their primary concern seems to be that California get more attention in presidential campaigns – presumably more candidate visits and television commercials (the latter a mixed blessing in hotly contested states, we hear). Then, in a year when the election may be close, there are fears of a repeat of 2000 when Al Gore won the popular vote, but George W. Bush won the presidency. This has happened, by the way, only four times in our history, leaving a “success rate” of over 90 percent.

Is that a sufficient case to allow an end-run around the Constitution and the erosion of the republic? We think not.

If there is to be electoral reform, then let states consider assigning electoral votes by congressional districts, rather than winner-take-all, as Nebraska and Maine now do. Or let them challenge the Constitutional system directly through the amendment process. In the meantime, let’s follow Benjamin Franklin’s admonition and keep the republic.

David Davenport is a research fellow at the Hoover Institution. Gordon Lloyd is a professor of public policy at Pepperdine University.
To view the article:  http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/04/12/EDNJ1IUBJ2.DTL

The States Are Pushing Back (Townhall.com) March 24, 2011

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After decades of growing federal power nearly wiped out 

Courtesy of Townhall.com

 the 10th Amendment protection of states’ right, newly emboldened leaders in state capitals are finally pushing back:

– In TX, Governor Rick Perry refused to participate in the Dept. of Education’s “Race to the Top” grant program, fearing more federal encroachment on state control of education;

– In Montana, a bill has been introduced to permit the state to nullify federal laws protecting endangered species;

– While in Kentucky, the State Senate is considering a bill declaring the state a “sanctuary” from intrusion by the Environmental Protection Agency.

This is on top of 27 states challenging Obamacare in court and other court cases over regulation of greenhouse gases and immigration.

It’s about time we remembered that our federal republic depends on local and state control, and not just a federal giant in Washington.

To listen to the audio:  http://townhall.com/talkradio/dailycommentary/572825