Collateral damage: the endangered center in American politics.

• Author: Issacharoff, Samuel

Arnold Schwarzenegger's election as governor of California is a crowning achievement of the plebiscitary movement in American politics. A celebrity with built-in appeal, no political experience, no connection to the political machines, no clear fiscal policy, (1) and no readily discernible programmatic mandate, he nonetheless swept through a field of over 100 candidates, (2) received about half of all votes cast, and easily dislodged a recently elected incumbent. (3) How could this be? For Gray Davis and the activist core of the Democratic Party, this was another manifestation of a massive right wing conspiracy, (4) a refusal to let the electoral will of the people prevail, and the continuation of a political trajectory that ran through the impeachment of Bill Clinton and the Florida recount fiasco. For the Republicans, the election seemed more hopeful. Perhaps the party could restore its appeal from the days before Pete Wilson launched a presidential campaign based on hostility to immigration and affirmative action. (5) Perhaps the charge of tax-and-spend had finally taken hold and the Republican message would again prevail. (6)

In this Essay, I will suggest that both the Democrats and Republicans miss the mark. Schwarzenegger's election was neither the product of a vast conspiracy nor the realization of the Republican agenda for California. More precisely, there may have been a conspiracy and there may have been those suddenly absorbed by the Republican platform, but neither appears to have been the animating force behind the rather stunning electoral victory. Rather, it was the rebellion of the median voter, the center of American politics, against the perceived closing-off of the political process to competitive pressures. In setting out this claim, I will touch on three broad themes. The first is the troubling and complicated role of the plebiscite in a representative democracy. Here my argument will be that whatever the difficulties associated with bypassing the structured political process, the referendum/initiative process has emerged unexpectedly as a last ditch safety valve for the electorate at large to claim some accountability from the governing political class. The second is that the move toward plebiscitary democracy is tied into the increased non-responsiveness of the political process. The added step here is to argue that there has been a marked drop in competitiveness of legislative elections and that this has prompted repeated efforts to breakup the results of gerrymanders and other mechanisms that function to lock up the political process. The third is the role that constitutional law has played in furthering the decrease in competition in the political process and the consequences from this reduction in competitiveness. I will conclude by looking at the issues presented in the California recall as reflective of the historic tension in democratic governance between the need to reward majoritarian preferences and the protection of minority interests.

1. PLEBISCITES AND THE HISTORIC COMMITMENT TO REPUBLICANISM

   Plebiscites, as well as most forms of direct democratic rule, in many ways form the vulnerable underside of democracy. Majorities swept along by passion or factional interest can command the instrumentalities of power to reward the useless unduly or immunize themselves from electoral accountability. As John Ely once summarized one of our Nation's founding concerns, "an untrammeled majority is indeed a dangerous thing...." (7) In constructing the Constitution, the founding generation sought to constrain the power of local majorities to oppress minority interests. (8) As a result of this tension between majority and minority interests, the Constitution guarantees republican government in each state by interposing numerous institutional barriers between the direct preferences of voters and levers of power. (9) In composing the federal government, the Constitution expresses distaste for direct democracy with differing degrees of separation between popular voting and the election of officials. Under the unamended Constitution, the electoral college and state legislators served as barriers between state populations and the election of presidents (10) and senators. (11) All of these procedures and guarantees expressed a general dislike of the Founding era for the processes of direct democracy. The use of representative democracy naturally complemented the balance of power structural barriers in place against the immediate exercise of the political will of the majority. (12)

   In spite of this initial disfavor, plebiscites and other forms of direct democracy persist, in the form of initiatives, referendums, and now, famously, recalls. Particularly in the states west of the Mississippi--those whose foundings reflected the political impulses of populism--some variant of referendum or initiative is a common part of the political landscape. (13) A century ago, in Pacific States Telephone & Telegraph Co. v. Oregon, (14) the Supreme Court confronted head on the constitutionality of the referendum in the context of a special tax levied against a utility. (15) In many ways, this case presented the Madisonian nightmare: a mobilized majority, swept along by its passions, using direct elections to seize the wealth of a disfavored minority. The Court avoided the deep constitutional question by declaring the entire matter non-justiciable and delivering the Republican Guarantee Clause to the constitutional purgatory known as the political question doctrine (16)--a state of limbo from which that clause has yet to emerge. Through a rather tortured logical chain, the Court found that if the presence of an initiative meant that the government of a given state was not republican, then the entire state government would be illegitimate and in need of replacement--a matter for which the Court was institutionally not competent. (17)

   Even beyond its role as a form of plebiscitary democracy, the recall suffers another infirmity in the eyes of the Framers. The Madisonian concern for majorities succumbing to passion also manifested itself in the Framers designing constitutional protections for governors against immediate accountability to the preferences of the electorate. Thus, Alexander Hamilton wrote that an executive without the sinecure of a fixed term of office "might lay [his office] down, unless continued by a new choice; and if he should be desirous of being continued, his wishes conspiring with his fears would tend still more powerfully to corrupt his integrity, or debase his fortitude." (18) According to Hamilton, the

   republican principle demands, that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. (19) Madison tied the length of office to a belief that sensible government requires the occasional adoption of "well connected measures, which have a gradual ... operation." (20) Since these operations will not bear immediate public fruit, though they may incur immediate costs, officials must be guaranteed a stay in office long enough to ensure the public cannot overreact to costs without witnessing the benefits. (21) According to Madison, "it is evident, that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result." (22) The need to plan over extended time horizons while preserving accountability is a perpetual tension in governance, as much in the public domain as in the private corporation. (23)

   Yet plebiscitary mechanisms persist. Leaving aside its questionable constitutional pedigree, two major arguments have been advanced as to why we should, at the very least, be willing to give direct democracy some credence. First, direct democracy may counter problems of legislative entrenchment. My colleague Richard Briffault, for example, points to the repeated invocation of initiatives and referenda, in states that have them, to compel unwilling and self-interested legislatures to submit to term limits, campaign finance regulations, and the like. (24) I confess to being sympathetic to destabilizing mechanisms that can thwart the tendency of incumbents to lock in their political positions by constricting competitive challenges. (25) My former colleague Lynn Baker advances another position, arguing that direct democracy mechanisms allow well-developed and controversial issues to be decided as first-order matters not subject to legislative log-rolling. (26) In her view, legislative politics may be freed to consider more clearly the public good if not forced to play out issues, such as gun control or abortion, that are both divisive and subject to intense special interest factionalism. Leaving aside the constitutionality of specific state regulations on such controversial matters, there is a strong argument that democracy functions best when certain issues are off the table. Thus, one "enabling" function of constitutionalism is precisely to set the ground rules and allow democratic politics to play out without everything being up for grabs. (27)

   I will now add one further consideration that ties direct democracy back to the Schwarzenegger election. Direct democracy may serve to restore competitiveness to the political process and thus ensure that legislative politics not be hijacked too far from the preferences of the median voter.

2. REGRESSION TO THE POLITICAL MEAN

   At first blush, to speak of the preferences of the median voter not being honored, or as in the title of this Essay, to speak of an endangered center in American politics, appears bizarre...