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Jeff Jacoby

Something stinks, but it isn’t voters

By Jeff Jacoby
Globe Columnist / October 18, 2009

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IF YOU’RE a fan of the 1981 comedy “History of the World, Part 1’’ you may remember this bit of dialogue from the scene in which the Count de Monet, played by Harvey Korman, frantically brings King Louis XVI (Mel Brooks) some bad news.

“Your majesty,’’ says the count, “I have come on the most urgent of business. It is said that the people are revolting!’’

“You said it,’’ replies the king. “They stink on ice.’’

There were no knee-slappers when the honorable Ronald M. George, chief justice of the California Supreme Court, addressed the American Academy of Arts and Sciences in Cambridge on Oct. 10, but the message he conveyed was Brooksian: The voters of California are revolting, and they stink on ice.

The chief justice’s speech was titled “The Perils of Direct Democracy: The California Experience.’’ It was a lamentation about the use of ballot measures to change California law, a practice he finds unhealthily promiscuous. The US Constitution has been amended just 27 times in its more than 220 years, George noted. “In contrast, more than 500 amendments to the California constitution have been adopted since ratification of California’s current constitution in 1879.’’ And since California law bars the Legislature from repealing propositions enacted by voters, lawmakers and other officials are forced to obey them.

“Frequent amendments - coupled with the implicit threat of more in the future - have rendered our state government dysfunctional, at least in times of severe economic decline,’’ complained the chief justice.

California’s government may well be dysfunctional, and its constitution is indeed festooned with more than 500 amendments - 513, according to a 2006 report from the Initiative and Referendum Institute at the University of Southern California Law School. But only 43 of those amendments were originated by voters. The majority were placed on the ballot by the Legislature. It is perfectly legitimate to scold the voters for approving them, but not without making clear that nearly all of them were written by elected lawmakers.

Nor is California unique in having hundreds of constitutional amendments. According to the Initiative and Referendum Institute, that is true of more than half the states, including Massachusetts (120 amendments), New York (216), South Carolina (485), and Alabama (766). Why, I wonder, isn’t the chief justice of Alabama making speeches about how dysfunctional her state is?

Justice George isn’t distressed simply by the fact that voters in California have the power to initiate laws and vote them up or down. What really frustrates him is that they do so without the benefit of “legislative fact-gathering and deliberation’’ - and worse, that ballot initiatives are “often funded by special interests.’’ Presumably things are very different in the California Assembly and Senate. No doubt lawmakers in Sacramento would never pass a bill every line of which hadn’t been thoroughly vetted and openly debated. And no doubt they wouldn’t dream of considering arguments made by lobbyists paid to represent the “special interests’’ with a stake in legislation’s outcome. If California’s government is dysfunctional, it can only be the voters who stink on ice, not the political class that looks down on them.

It is fashionable to complain about ballot measures running amok. A few years ago, David Broder wrote a book denouncing voter initiatives as a cancer on American democracy, “alien to the spirit of the Constitution’’ and rapidly spiraling out of control. In his Cambridge speech, California’s George warned ominously about “the increasing use’’ of ballot campaigns in many states.

Actually, the number of initiatives being voted on hasn’t increased. In 2008, there were only 68 ballot initiatives nationwide. That compared with 79 in 2006 - and 93 a decade earlier. Nor are voters approving more initiatives. Most ballot questions have always been voted down. Voters last November said “yes’’ to only 26 of the 68 measures they were asked to consider. Even in California, 7 of every 10 initiatives that reach the ballot go down to defeat.

Those who fulminate against letting voters periodically vote on ballot measures believe that citizens are too dumb to judge the merits of legislation - and that such decisions are therefore best left to the lawmakers they apparently weren’t too dumb to elect. It’s a curious logic, but just think what Mel Brooks could do with it.

Jeff Jacoby can be reached at jacoby@globe.com.

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