What is "Direct Democracy"? What is "More Democracy"? What is Less?

 

The dawn of the 21st Century in the U.S. resembled the opening of the 20th in producing an explosion of interest in participatory democracy. This was true particularly on the West Coast, where "the Oregon System" got going around 1902 and the Schwarzenegger Party of One took over in 2003. Both eras were fueled by a desire for direct democracy--The Initiative, The Referendum, and The Recall--to take its place alongside (if not entirely supersede) government by elected or appointed representatives of the people.

If we think that arrangements according to which citizens make policy themselves is necessarily more democratic than those in which others make it for them it will seem obvious that use of initiatives (where "the common folk" write their own laws rather than relying on legislatures and executives) must make a jurisdiction more democratic.

But, to quote Ralph Fiennes's Laurence Laurentz in Hail Caesar, "Would that it were so simple." 

Is it the making of the law or the opportunity to be involved that counts? Suppose that, on average, about 60% of a populace votes in their legislative elections but only 20% vote on some ballot question. If we know in advance that those are the likely levels of participation, will we still say that a law enacted via initiative is the result of a more democratic process than one enacted by a legislature?

Or take term limits. It is often argued that without relatively short terms of office we cannot have real democracy, because of "the power of incumbency." If incumbents almost always win, the results of elections can seem predetermined. On the other hand, barring a favorite candidate from running simply because she has already had the job seems the opposite of system in which the electorate can get what it wants.

These "paradoxes of democracy" can even stymie well-known experts in the field. For example, in his review of three books on California's move toward a "hybrid democracy" of legislature and the people working side-by-side, Rick Hasen concludes that although voters are judicious in the types of things they think should be passed by ballot initiatives, they "might be used to enact political reform....Though the public policy of the state cannot be directed primarily by the voters through plebiscitary democracy, voters can take steps to improve the system by which the legislature and governor make policy....This is, perhaps, a more modest version of hybrid democracy, but also one that is a more realistic vision of what voters can do at the ballot box."*

While that may be an encouraging take on the matter, it seems to me to reflect Hasen's own sanguine attitude rather than sound logic. It seems to me, on the contrary, that if there is a single area that ought to be off-limits to voters, it is that within which electoral rules are made. For democracy can be restricted as easily as enlarged. While Hasen certainly seems to want democracy increased (without saying precisely what that would mean), surely some majorities would like it lessened. Basic electoral principles and systems must therefore be enshrined in constitutions in ways that prevent alteration....or democracy will always be imperiled.

It seems, then, that we need to provide a few definitions, even if a couple of them turn out to be stipulative, or we will never make any progress in determining what provisions make a scheme more or less democratic. We can start by laying down this basic principle:

A. A population P enacting a law L is more democratic than representatives of P enacting L.   

Obviously we will need to be more specific about what it means for a group to actually enact something. So let us add that 

B. A population P has enacted a law L whenever every adult in P has been given the easy opportunity to either accept or decline L and, pursuant to a basic constitutional provision setting forth the manner in which prospective laws may be put before the people, a majority of those voting have opted to accept L. 

(I do not here attempt to define "easy opportunity.")

Now, here are a few relevant (and I hope uncontroversial) facts:

1. Elections cost money. 

2. Any particular period of time chosen within which it is assumed that voters will not have changed their minds since last making a choice on an issue will be arbitrary.

3. There is such a thing as voter fatigue: constant elections may result in decreasing interest regardless of the relative importance of the issue(s) involved.

4. Signature requirements for forcing a special election vary quite substantially among jurisdictions. That is because, other than a majority requirement for success (which is a simple function of the assumed equality of voters and their votes) any particular percentage used in an election rule (e.g. of voters in the last election or of registered voters or to override a veto) will be arbitrary--a mere matter of convenience rather than a basic axiom of democracy.

5. Paying residents enough to encourage substantial increases in electoral participation is likely to be costly.

5. Making electoral participation compulsory is unpopular, and even if it is associated with fines for failure to vote may also be costly to administer.

With these definitions and factual propositions stipulated, we can safely claim that even if successful initiatives are "more democratic" than traditionally enacted statutes, there may be reasons for opposing such changes anyways. That is, even for a democracy zealot like me, there are other considerations that likely come into play. We may know, for example, that few people will vote in a given initiatives, or that that an initiative is more likely to be dominated by special interests than would be an enactment of the same provision by a legislature. Again, we may understand that numerous policy issues are much too complicated to be correctly handled via initiative, or that ballot questions provide insufficient opportunity for deliberation and may nevertheless be wildly expensive. We may even understand that signatures may easily be bought. 

As we actually DO know all of those things. I think we should conclude that even if initiatives provide more democracy than conventional methods of passing bills, they are a bad way to run a railroad. 

But what about recalls and referendums? They also require special elections, so many (if not all) of the same hurdles seem to arise. To determine the democratic value provided by those mechanisms, I think we will need to agree on an additional principle. 

C. It is essentially undemocratic for a populous to put up with either a provision of law or an elected official that the majority disapproves of for more than one year, and this is the case even if the law or the official has been put in place by democratic means.

No doubt, picking one year for all terms of office is arbitrary. But perhaps it will be agreed that one day is too little and six years too much. In addition, it seems obvious (especially today) that an incredible amount of damage can be done by a single unpopular leader within a year. Because of the above financial and other costs of special elections mentioned above, I believe that if recall elections are allowed within a year, an extremely high signature requirement should be required: even perhaps something like more than the votes received by the recalled individual when elected to the office in question. That, seems so high a bar, that shorter terms of office might be a preferable alternative.

While the democratic shortcoming of being stuck with an unliked representatives for a long periods can be handled either by allowing for recall elections when some percentage of the people demand it, or simply by shortening terms of office, that is not the case for many provisions of enacted policy. Not all sorts of statutes or regulations may allow for "sunset" provisions--rough equivalents of term limits. Thus, authentic democracy seems to require the possibility of repeal by referendum, which is a rough equivalent of recall. 

It will be argued that we should have the same concerns with respect to referendums regarding participation levels, domination by special interests, opportunity for deliberation, and high costs that were set forth above for initiatives? I don't think that is correct, however. In some important ways, NO is different from YES. 

Few regular citizens, if any, may have a very good sense of what will be produced by a successful initiative.# The situation is quite different with referendums: the populace may know quite well that they don't like what has been foisted upon them. After all, a new law may be having clearly deleterious affects on them personally. Furthermore, as repeal will put them in the position they held prior to the statute's (or regulation's, or executive order's) enactment, there need not be the same "What the heck are we doing?" anxiety surrounding the proceeding.

Of course, many bills are constantly being made into laws: in some jurisdictions the process is nearly continuous. As mentioned above, elections may be tiresome, costly and corrupt, and signature requirements are sure to be random. My (perhaps not even half-baked) suggestion here would be to allow for repeal votes at annual, scheduled elections, on any matter enacted within the prior eighteen months, so long as such referendum is requested by a small number (say, two hundred) registered voters. This might subject many policies to referendum, but, not only could those who dislike "radical democracy" ignore every question that doesn't interest them, if all terms of office were reduced to one year, and initiatives abolished the public could be relieved of dealing with more volatile ballot questions entirely.

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*Rick Hasen, "Assessing California's Hybrid Democracy," California Law Review, October, 2009.

# In fact, one canny observer, after moving to Oregon eventually decided that the most prudent course of action would be to vote NO on every ballot question regardless of its subject matter. I'm referring here to Richard Ellis, who came to have no use at all for initiative petitions, but, in my view wisely brings no similar case against referendums or recalls. See his 2002 book Democratic Delusions: The Initiative Process in America.

A Psychological Interlude (Or: Let Me BE the Constant Dancer)*

 

Something different today: I will dump little or no democratic theory on anybody, and hold off on my discussion of Recall until next time. Instead, here is a quick muse on the psychological toll that living in a country that is now so obviously corrupt, power-hungry, and simply evil may take--even on those who were never under any illusions about their country ever being particularly altruistic. 

I have written here before about the current administration causing me to hide under my bed,  but I should admit that was partially based on the theory, formerly held by J.D. Vance, that Trump might be America's Hitler. That, along with my half -Sephardic (Damascus), half Ashkenazy (Munich) bloodlines and the "Jews will not replace us!" business scared me. (My father was a Holocaust survivor, my mother's family was expelled in a Syrian pogram.) 

But the close Roy Cohn, Jeffrey Epstein, Stephen Miller connections  seem to have held. In any case, I have come to doubt there will be much danger from the current Administration on the anti-Semitism front. Maybe every dark-skinned or foreign born resident has good reason to worry, but it seems pretty clear to me that there is no imminent personal danger to me or my non-observant family.

As indicated, though, my bed-burrowing was only partially a result of that particular fear. Most of it stemmed from constantly watching, reading or seeing news or commentary that clearly demonstrates how awful we have become as a nation. So, maybe not Hitler, but Putin or Netanyahu. Worse than Orban or Berlusconi anyhow. 

This has not merely been mildly troubling to me, but painful, just as it is to a number of my friends. And some of these poor souls have entirely given up watching  or reading news. Of course, these decent folk likely have better--or at least less obnoxious--reasons for their psychological state than I do. Many of them think--or thought--that the U.S. was special: a beacon of decency in the world. They admired our post-WWII activities as well as our Constitution and now suffer from what they consider a precipitous fall from virtue. However we may be doing personally, as a nation pretty much everything that can be ruined has been ruined.

But how were we as a nation prior to the current thuggery? I have never been particularly knowledgeable about U.S. foreign policy myself, but have had the pretty clear sense that, at least since Vietnam, it has quite often been contemptible. And, as any regular readers of this blog will know, I think our Constitution is, in a word, terrible. Maybe OK for its day, but nearly useless today. So....why am I so upset every time I now hear the word "Greenland" or "Midterms" on the news now? And why do I (just as the asswits on Fox News accuse me each day and night) take no pleasure from any new high reached by any stock exchange or a promise of checks soon being sent to every poor citizen? 

Certainly, at least part of my response has a noble element: I don't want my (the? this?) country to hurt more people, to discriminate further or to accelerate its abuse to Earth's fragile environment. That aspect seems defensible. But honestly, my psychological torment mostly doesn't stem from anything so noble. And I recognize that the country has never been much like a real democracy, so I don't--and shouldn't--have any feeling of personal responsibility for the terrible things the U.S. is now up to. It's them, not me.

Could it be that others, both here and abroad nevertheless find each American culpable--at least to some minute degree--for the country's current degradation, and I am pained by that? It's possible, but I really don't think so. My friends, along with most people with any sense anywhere, realize that MAGA is not the U.S. 

Well, what is it then? 

Let me say first that I have no idea who the kind and likely masochistic people are who read this blog (Thanks, btw). I note that I have begun forwarding these posts to Substack, where one's reader list is public. Here, there's not even a whiff of a hint of a clue available to me, just a numeric total. So there's no way to know, e.g., if any of my readers here also (at least occasionally) listen to a bit of my music. For all I know, every one of you is a poli-sci student in the Balkans who is required by his/her instructor to read at least one example of bad American political philosophy once every two months. Or maybe it's just to help recognize awkward English.

I wonder about this, because the (also teensy, of course) number of people who do care to take in a bit of my musical rants once in a while may know that my improvs have been pretty melancholy of late. Consider this and this. Those dear souls will therefore recognize my inflamed state and may already have attributed it to things I have denied above. 

Well then, what the heck is causing it? If it's not either a fall from prior grace or a fear that others may think I sympathize with the evil, stupid grotesqueries of Trump and his associates? And if it's also not anything that is likely to personally affect me or my family or friends in the near future, what is producing my increased sickness unto death?  Am I really more altruistic than I let on? Feverish about the harm being done to those I don't know and will likely never meet?

Well, if anybody cares, I think I may have figured it out; and in my own particular case (I absolutely make no accusations about anybody else!) I have to admit that it isn't very flattering. I believe it is the result not just of hyper-polarization, which, of course, is affecting pretty much everybody in the world at present, but mostly results from what is simply an unappealing personality trait of mine. 

I want MAGA supporters to suffer, and it pains me deeply when they prevail on any matter. This, I believe, is partly a matter of wanting to be right, even hoping that a little harm befalls those who disagree with me. So, e.g., when the Dow goes up, or Hegseth kills some poor fisherman, or we "annex" another country, and this makes MAGA gleeful, I am consequently desolate. 

In my defense, while this way of reacting is sure to be more a function of childish habits of handling conflict than anything one ought to be proud of, it is also deep-seated and not anything that it would be easy for any septuagenarian to "fix."#

Again, I don't mean even to hint that more than the tiniest fraction of my fellow-sufferers share this unseemly characteristic. But in my own case, I can't deny a long-standing proclivity to revel in the failure of those with views adverse to mine, and to agonize over their successes. 

Anyhow, even if you are wildly different from me with respect to this unattractive characteristic--as you almost certainly are!--you too may benefit from figuring out precisely why the nightly news pains you so much. If, e.g., it is purely altruistic in your case, that is something you can be proud of. Perhaps that will help.

Whatever may be the causes of your own feelings of helplessness, I sincerely hope that you can benefit from a similar investigation into their emergence. (And maybe in your case--unlike mine-- attending protests or having discussions with like-minded others will help.)

So, hang in there!!  IT may not ever get better, but YOU can.

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* I apologize for not trying to explain this cryptic title, but tbh, I don't really understand it myself. It came to me in a dream....even with an accompanying tune! (And it may actually have been "ready" rather than "constant" and/or "player" rather than "dancer.")

# In a way this sort of flaw isn't very different from my rooting for opponents of the New England Patriots football team. It's partly anti-homer, partly anti-favorite, partly anti-Kraft. Undeniably, there is a nasty, contrarian streak in me that results in my rooting not just for underdogs, but against those who identify with favorites.