Thursday, September 25, 2003

Rights and Reason: Recall vs. Republicanism

Ashland University professor John Lewis offers a valid critique of California's recall mechanism:
Under republican government, the citizens select official representatives, for defined terms, with specific powers. The officials then administer the government. The people may not demand the removal of an elected official unless his actions are manifestly illegal. This is so even if the majority favors the recall. The requirements of the constitution elevate the rule of law over the short-term desires of the people.

In contrast to a republic, a democracy runs on direct citizen action. The citizens may assemble, in the voting booth, and exercise their power directly, by affirming particular policies. This is what voters do when they remove sitting officials in the mid-term, in defiance of the terms mandated by the constitution.

The recall is a solidly democratic action. Power is no longer delegated by the people, but exercised directly, in the form of popularity contests that may descend on an official at any moment. This is a repudiation of republicanism in favor of democracy.

The clause in California’s constitution that permits this is a deadly concession to democracy, and a repudiation of the constitution’s own principles. A constitution that allows the people to override its own mandates provides no means to stop such popular referenda from becoming the norm. Such a constitution sows the seeds of its own destruction.
In Nike v. Kasky, CAC argued that California's "private attorney general" law, which gives every citizen in the state standing to sue any business for unfair competition without having to allege personal injury, violated the federal Constitution's requirement that every state maintain a "republican form of government". Dr. Lewis' criticism falls within that same argument. If the government is to serve as a monopoly on the use of force, the power to use that monopoly must be constrained under clearly stated procedures. Direct democracy, however, operates without effective constraints, and encourages mob rule over the rule of law.

Some have compared the California recall experiment to parliamentary democracy, such as that of Canada or Britain. But that's not a valid comparison. In a parliamentary republic, power is vested in a parliament, which in turn appoints senior government officials from its own ranks. While there is a maximum term a parliament can remain in office without an election, five years, early elections can be called. But such early elections are either called by the government itself, or following a vote of no-confidence by parliament--in essence, a self-imposed recall.

It's not a perfect system by any means. I've never cared for the idea of governments calling "snap elections" to take advantage of current political advantages. Yet this is still not the same thing as what's transpiring in California. For one thing, even a sudden parliamentary election takes place according to the same rules as any regular general election. Each party nominates candidates, the leaders hold debates, and elections are held within a fixed period. The California law completely obliterates the regular election order, instead permitting just about anyone to run without regard to traditional party organizations. I've never heard of a parliamentary contest with 135 candidates.

Electing a unitary executive outside regular election cycles is also far different than electing a new parliament on short notice. A British or Canadian prime minister only takes office if his supporters win a majority of parliamentary seats. The next California governor, in contrast, could take control with less than one-third of the total ballots cast. This makes it substantially more likely a governor beholden only to a particular, narrow interest group will exercise power. The very mechanism that makes such narrow victories impossible in a parliamentary system, however, is completely missing from the California process.

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