Reflections upon the law and Democracy

Neither I nor PD Dude have had many comments about our discussions about initiatives, which is really a shame. His earlier post was awesome, and mine was a riff about Prop. 13. One problem with talking about initiatives is that they are boring. Most voters are normal people, and normal people just don't understand the inner workings of government. Call me whatever you want, but it is true. Most normal people are more concerned with raising kids, going to work, paying their bills, and leading their lives than in figuring out how the law and government works. In fairness, I was like that until I went to law school. And I never saw anything wrong with it until I actually understood how something becomes the law. Now I know the truth.

As an example, we have a graduated income tax. No one likes paying taxes, and for most of this country's history we have had no income tax. This doesn't mean that income taxes are wrong - for a pretty good chunk of our country's history we also had slavery and we all agree now that that wasn't right - but it took a Constitutional amendment (the 16th) in 1909 to have an effective one (disregarding the Civil War income tax). Most economists agree that a graduated income tax is pretty fair, and that the more money someone makes, the more taxes he/she should pay. The higher the income, the higher the amount of taxes. You derive it from our fair land, you pay it back to help everyone else.

But the truth is that so much lobbying goes on about taxes, of all sorts, that any discussion of "fairness" generally gets thrown out the window immediately. Any political representative, at ANY level, has to consider his/her own political survival. In 1993 Democrats in Congress passed Clinton's tax plan, with a small increase in taxes on the really rich, and that tax plan is largely credited with balancing the budget in the Clinton terms. But so many Democratic congressmen and women lost their jobs in 1994 that I seriously doubt we will see that kind of political will any time soon. Despite the fact that the tax increase was the "right thing to do," those who voted for it were punished severely. Likewise, with oil companies making the vast sums of money they are these days, and with people truly hating oil companies so much, clearly price gouging the way they do, why is that we haven't had ANY good debate about an oil company "windfall tax?" A bill was voted on in Congress, but how long were the hearings? Does anyone remember them? I'm not crying out "conspiracy" or anything like that. I'm just saying that the oil companies know how to pay attention to the laws and lawmakers and have the money to do so, and they get, usually just about anything they want. And normal people, going to their jobs and worrying about their families? They get just about as much government as they put in.

When I am at home I love watching C-Span. My wife and kids scream and moan at me (not really, but they do complain) and instead watch some other crap on TV that "relates to them." You know, some cartoon (for the kids) or Bridezillas, or some other crap that entertains them, yet gets them farther and farther away from knowing anything about the world. Sorry, but it's true - most Americans are like my family. They are interested in what is important to them and quite indifferent to "government," except when it comes time to vote or whatnot, and will not take the time to inform themselves about what is going on.

That being said, our various levels of government are also slow to get voters involved. If they truly cared about Democracy, all voting agendas would be available online in conspicuous places. Even city councils would advertise their meetings and would have agendas available online, and would make sure that people knew what was going on. But they don't usually because they are afraid that if more people really know what is going on, and if more people read the bills and understood who stands to gain, more people would show up and slow things down (i.e. - participate). All politicians are more concerned with making themselves look good to get re-elected, rather than getting normal people involved, because that is the nature of politics. And, in fairness, because getting elected to just about any office requires advertising and money, you can't expect a politician to throw away what he/she has earned for something abstract. Like Democracy.

Enter the initiatives in California. These initiatives are paid for by some special interest. Call it whatever you want, but those things take money to get on the ballot, because initiative petitions don't just sign themselves. You have to pay signature gatherers a small fortune to get the signatures to qualify it for the ballot, the initiative has to be drafted by attorneys to make sure it is workable, and then someone has to bankroll television and radio advertising. And even the most well-intentioned initiative often gets hi-jacked by OTHER interests, interests that have little to do with the those of the drafters. Here's a good example.

Recently the Cal. supremes ruled that the anti-gay marriage initiative violated the California Constitution, and invalidated it. In re MARRIAGE CASES (2008) 43 Cal. 4th 757. The anti-gay marriage initiative was put on the ballot in 2000 by some family values group. But that group couldn't and didn't bankroll the initiative. The funding behind it was right-wing groups, because 'family values voters' are traditionally motivated to vote on these kinds of issues. And they did in 2000. A LOT of money went into this initiative, and it passed by a pretty fair margin. But I remember when it was on the ballot, and I knew even then that it had a fatal flaw. The initiative did not modify the California Constitution, something that has a right to privacy, an area where gay rights had already been recognized in some small degree. This could have been fixed by essentially obtaining about ten thousand more signatures, a drop in the bucket compared to the number that were signed.

The upshot of the story is that this little flaw, the failure to have Constitutional amendment, rather than just a simple initiative, resulted in an otherwise conservative Supreme Court invalidating this initiative. With all that money and access to lawyers, why didn't the right wing, especially the Republican Party, not see this error? Answer: I am sure that they did. I was it, and I am a nobody. Of course they saw it. But they didn't CARE about what the initiative did, or even whether it passed. They wanted those voters at the polls for other reasons, to vote for their people, and to vote against the Democrats. And now they get a two-fer - in a year when Republicans are desperately searching for ANYTHING to argue about, they now have a new anti-gay initiative on the ballot to bring voters to the polls, this time modifying the . Whether it actually motivates Republicans to vote or not (gay bashing just isn't as juicy a topic as it once was) remains to be see. Oh, and I'm not saying that those who bankrolled the first anti-gay-marriage initiative KNEW it would invalidated - I am only saying that they really didn't care whether it passed and what effect it had. That's why they drafted it so carelessly.

Look at all those initiatives that were passed to build this project or that project. People who voted for them thought, "hey, finally, we can bypass the do-nothing legislature and the know-nothing governator and get roads built." Pools of money were established for the projects. Billions of dollars going into separate coffers to do the will of the people. Meanwhile, legislators of both parties were further allowed to abdicate their duties and say: "I can't get this passed because of obstructionists in the other party - why don't you vote for it?" And so, billions of dollars were borrowed in bonds for these wonderful projects, all sitting in little pools, read to be used. You know what's coming, right?

Here's the headline from the LA Times today: "Legislature considers raiding voter-approved funds. Money earmarked for transportation and government services would help close massive budget shortfall. Schwarzenegger says it isn't a good idea but doesn't rule out signing off on it." Did you really not see that one coming, people? Did you really think that with the budget 15+ billion dollars off that our legislature would take those funds? Do you want them to shut down the schools? The prisons? What do you want them to shut down?

This, in essence, is what our Democracy has become. Far too many uninformed voters who refuse to do their homework, constantly wondering why, WHY things are so screwed up. Answer: You're not paying attention. I was a Republican a long time ago, before I knew what the party really stood for. I was told that Republicans are hard-working (most are), they believed that people should be responsible for themselves (they ought to be), they shouldn't rely on government to hand them everything (they shouldn't), and all sorts of other neat stuff. I still believe those things today. But the Republican agenda has a lot more to it than I signed on for. And, in a way, I was committing citizen malpractice for not knowing the things that my name was being signed onto, if you will, the sins being committed in my name.

Our law today, especially criminal law, has been on autopilot. Our Democracy is moribund. The horribly broken 2000 presidential election, where obvious fraud was committed, happened here. Not some 3rd world country - here. And our criminal justice system, once vaunted as being one of the fairest one around, has become a sham. And it is our fault.

Now, what should we do about it?

Dennis Wilkins
The Guest PD Blogger