What would the Founders think about the Taxpayer Protection Initiative?

6 minute read

I’ve probably already spent too much time on the proposed Howard County Taxpayer Protection Initiative, but there was one point brought up by an anonymous commenter on Wordbones’s blog post that I thought was worth addressing. Briefly, the commenter’s argument was that ballot initiatives and other forms of direct democracy were a perfectly valid way to counter a government that did not heed the word of the people, and that anyone who thought differently should hold their tongue until they educated themselves by reading the U.S. Constitution, the Federalist Papers, and DeTocqueville, and taking some university courses on the subject.

An interesting point about this line of argument is that the Founding Fathers themselves would likely have been horrified by the idea of the electorate directly voting on questions of the day. They would have been especially horrified by the idea of citizens drafting legislation themselves in the form of ballot initiatives (beyond just voting to overturn an existing law, or voting yes or no on a referendum drafted by legislators).

Even a casual inspection of the Constitution reveals it to be the work of men who were unenthusiastic (to say the least) about the idea of direct democracy and actively worked to restrict its operation. This includes the whole structure of representative government in the form of the House and Senate, the provision in Article I, Section 3 for Senators to be elected not by the people but by state legislators (not changed until the ratification of the 17th amendment in 1913), and the still-extant electoral college scheme created by Article II, Section 1 that vests election of the President in electors appointed according to state law.

Alexander Hamilton, John Jay, and James Madison, the authors of the Federalist Papers, made this animus against direct democracy more explicit, e.g., in the Federalist Paper number 10:

... a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. ... A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.

Now, I don’t happen to think that the Founding Fathers were infallible in everything they did, and I’m willing to entertain the idea that direct democracy could make sense in certain contexts. However I think it’s important to note that the idea of direct democracy through referendums and ballot initiatives isn’t sanctified by association with the Founders. It didn’t gain traction until the advent of the Progressive movement in the late 19th century, in reaction to the perceived corruption of state legislatures by corporate interests.

(For an overview of the history of direct democracy in the U.S. see Wikipedia. For a concise academic discussion of the history and pros and cons of direct democracy see the paper Direct Democracy in the United States by David Marcello of the Tulane University School of Law. For a cogent advocacy of ballot initiatives from a modern conservative perspective see the article Statewide Ballot Initiatives: Is It Time for a Change? by Mike Ball, a Republican state legislator in Alabama.)

The central justification for a given ballot initiative (and for ballot initiatives in general) is that the elected representatives of the people are not in fact expressing the people’s will but are under the malign influence of special interests, that the normal legislative process has been thwarted by a minority that prevents popular legislation from being passed, or has been hijacked by a majority dismissive of the popular will, and that the seriousness of this injustice warrants bypassing the legislative process and taking the question directly to the people.

For example, here’s Mike Ball on the question of states establishing procedures for ballot initiatives:

In a nation such as ours where political power is believed to ultimately lie in the will of people, one would expect that a concept with so much public support would be easy to enact, but that is not the case. The legislative process often allows interest groups to override public support. The traditional legislative process has many steps in it that tend to make the passage of legislation difficult, requiring broad support in the governing body. Preventing the passage of legislation is usually much easier, requiring the opposition of only a few key legislators, such as the presiding officer, the chairman of the appropriate committee, or enough members to sustain a filibuster. Having no desire to surrender their power to block legislation adverse to their interests, well-funded special interest groups team with legislators to oppose the initiative process.

The initiative process then becomes another component of the overall system of governmental checks and balances, in this case to act as a counterpoise to legislative intransigence, unresponsiveness, and overreaching.

Not a bad argument at all, and as I said above I’m willing to keep an open mind on the subject. But let’s look specifically at the two Howard County examples I’ve commented on, namely the unsuccessful petition drive to force a referendum on the Columbia Town Center redevelopment plan and the proposed Taxpayer Protection Initiative. How closely do they conform to the idealized vision of the people exercising their popular will to right a serious injustice?

I’ll leave to others the task of providing a full argument against the proposed Town Center referendum. I’ll simply say that given the long period of public consultation and the fact that the entire county council voted unanimously for the GGP plan, it’s hard to make the argument that an unjust outcome was forced on the populace by a legislative minority captured by special interests.

With the Taxpayer Protection Initiative I think it’s also hard to make the argument that the popular will is being thwarted in a manner that makes it imperative that the normal legislative process be bypassed. Given the recent 4-1 council vote to pass the Howard County 2010 budget and the lack of any apparent major public outcry over that vote, I think a more reasonable take on the situation is that Howard County voters have elected a solid council majority in favor of the current fiscal strategy, and for the most part are fine with that approach. Why then is the Taxpayer Protection Initiative necessary?

Going further, far from enshrining the popular will as the final arbiter of county fiscal prudence, by enabling only two council members to block tax increases favored by a council majority the Taxpayer Protection Initiative enables exactly the sort of minority intransigence that Mike Ball decried in the passage I quoted above.

I’m open to considering the Taxpayer Protection Initiative on its merits if someone comes forward with a compelling argument in its favor. However I haven’t seen any such argument yet. (In fact, I haven’t seen any real arguments for the initiative at all, at least not on the local Republican Party web sites.) In the meantime I feel fully justified in maintaining my previously expressed opinion, that the only problem with the county council addressed by this initiative is the problem that Republicans have getting elected to it.