Prop 8 and Direct Democracy
by Benjamin Studebaker
I ran across an interesting piece today, in which the author, Joshua Spivak, notes that by declaring that the supporters of Prop 8 (the proposition in California which forbid same-sex marriage) did not have legal standing to sue in its defense, the Supreme Court has made direct democracy through propositions and referendums much more difficult to defend. Implicitly assumed in the piece is that direct democracy is an ideal worth defending, and that the Prop 8 decisions amounts to a dangerous precedent. Today I intend to dispute that assumption.
First, a little background on how, precisely, Prop 8 came to die:
- In 2008, California’s voters approved Prop 8
- In 2010, a district court struck Prop 8 down, pending appeal
- The state of California declined to defend Prop 8 further
- Supporters of Prop 8 decided to defend it in their stead
- In 2012, an appellate court struck the law down again, pending appeal
- In 2013, the Supreme Court ruled that the supporters of Prop 8 did not have standing to defend it in the first place.
The court could have just ruled that Prop 8’s content was unconstitutional, as the district and appellate courts did, but this would have made gay marriage the law everywhere, a step the court seemed to have been unwilling to take. By denying Prop 8’s supporters standing, the court can strike down Prop 8 without setting a precedent that would destroy anti-gay marriage laws in the rest of the country.
I would have rather seen the court strike down all laws of this kind, but the court does have a history of cowardice, particularly when the decision in question has controversial consequences.
The question for me today is, are we better off in a world in which the state can refuse to defend propositions and referendums it doesn’t like in court, and thereby kill them?
I think we are, and the reason why? The public is bad at direct democracy. Very bad.
The state of California has itself suffered greatly by its own people’s hand. Howso? Here are a few examples.
First, there was Proposition 13 in 1978, which prevents the Californian government from raising property taxes, no matter how badly it needs additional revenue:
The maximum amount of any ad valorem tax on real property shall not exceed one percent (1%) of the full cash value of such property. The one percent (1%) tax to be collected by the counties and apportioned according to law to the districts within the counties.
This has starved both the state of California and its various local governments of funding. The local governments in particular, which are especially dependent on property taxes, have lost power and autonomy as a result. It has also forced California to replace highly progressive property taxes with regressive sales taxes, harming the poor and damaging income distribution. It also led to a reductions in funding for public services. Here we can watch California let its schools go to waste in the name of low property taxes shortly after the passage of Prop 13 in 1978:
This was a referendum that the Californian voters (who, in 1978, were probably better educated than they are now) approved by a large margin:
|Invalid or blank votes||236,145||3.4%|
How did Californians deal with the negative the consequences of Prop 13? They passed another proposition, Prop 98, which required the state government to spend a certain portion of its budget on education, and to increase the amount annually. Rather than increase revenues to fund more education through higher taxes, the Californians just demanded that the state spend more money on schools.
Of course, you can’t just lower taxes and raise spending perpetuity, and sure enough, California went into substantial debt. So how did the Californian voters deal with that? They passed another proposition, Prop 58, which required California to have a balanced budget every year.
The result of that? The state government of California constantly has to commit to massive austerity in order to avoid violating Prop 58. But how can it do that when it is required to increase education spending under Prop 98 and can’t raise property taxes under Prop 13? The government was hamstrung by its own voters. It ended up shredding everything that wasn’t education, drastically reducing health care and welfare spending, along with spending on law enforcement. Even this proved not enough, however, and two propositions were put to the voters of California:
- The first, Prop 30, proposed a temporary income tax increase exclusively on the rich to prevent the state from having to cut education funding for the time being.
- The second, Prop 38, proposed a permanent rise in taxes on everyone to preserve education funding for the foreseeable future.
The two propositions were mutually exclusive. If neither passed, education would be cut by $6 billion. If both passed, the one that got more support would prevail. Californians barely passed Prop 30, 55% to 45%, and rejected Prop 38, 23% to 71%. Once again, Californians have used direct democracy to stave off disaster, but the disaster is ultimately self-imposed. Prop 13 was the thin end of the wedge. By denying the state sustenance, libertarians have gradually starved it.
The Californian voters created their own budgetary crisis through their own incompetence. They were unable or unwilling to see how their desires for low taxes, great public services, and a balanced budget conflicted with one another. Even now, they continue to approve temporary budget measures rather than own up to the reality that they must choose between low taxes and funding their schools. The reductions in health care, welfare, and law enforcement spending are the legacy of their decisions. They have produced collectively massive suffering for themselves.
What good is direct democracy if the people lack the political acumen to use it competently? California’s people intervened in the operating of their state over and over, each time with facile, naive, simplistic, and contradictory propositions that ordered the government to do things it could not do. It was no different from telling a man to write a sentence while refusing to give him a pencil. They were completely irrational and unrealistic.
To this day, not a single one of the propositions I have mentioned (aside from the titular Prop 8) has been repealed. The Californian people still refuse to apologize to themselves for what they have done to themselves. They still continue to use their power to harm themselves, and they still aggressively refuse to learn from their mistakes. It borders on the pathological–Californian voters are not unlike individuals who self-harm.
Californian voters are not less competent than the voters of any other state. There’s no reason to believe that any group of people is any more likely to use direct democracy well. Given the power, I expect voters in any political locality would act with similar foolishness. If a political instrument leads disproportionately to bad governance, the instrument itself is bad. If the Supreme Court’s rejection of Prop 8 weakens the instrument that passed these propositions, I say good riddance.