I know I'm a nuisance

Gordon Silverstein gsilver at berkeley.edu
Sat Nov 5 14:21:22 PST 2005

As a California voter heading to the polls (yet again) on Tuesday, I'd like
to say that there were good reasons why Madison and others did not favor
direct democracy. If we feel that politicians are too driven by polls and
popularity ratings; unable or unwilling to make hard decisions or
demonstrate courage and conviction in leadership, then a recall provision
would be about the worst solution imaginable.
Micael Froomkin is right that the solution is oversight -- and Congress does
have instituitonal tools to deal with this. But I'm afraid I have to agree
with Eugene Volokh that just because a majority of people in the country
don't see a problem where many of us see a crisis does not necessarily mean
the system is a failure. We really need to identify the cause of the problem
(if there is one beyond the possibilty that a majority in the country really
don't yet care enough to bring pressure on their representatives to do
Jefferson assured the world in the Declaration that prudence dicates that
"mankind are more disposed to suffer, while evils are sufferable, than to
right themselves by abolishing the forms to which they are accustomed."
Indeed, prudence, he wrote, "will dictate that governments long established
should not be changed for light and transiet causes" So -- are these evils
sufferable? What should be the tripwire between sufferable and no longer
Watergate proved that there IS a tripwire in the system, but then again, we
certainly had to suffer some pretty serious evils before crossing that wire.
Direct recalls certainly move the tripwire significantly, but be careful
what you wish for. Turning a tripwire into a hair-trigger isn't necessarily
an improvement. Before we risk the law of unintended consequences, let's be
sure the problem is systematic and not something that should be addressed on
a more basic political level first. 
- Gordon Silverstein


From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Saturday, November 05, 2005 1:43 PM
To: froomkin at law.tm
Cc: ConLaw Prof
Subject: RE: I know I'm a nuisance

Many thanks to Michael Froomkin for his thoughtful post.  I suspect that
he's right about the deficiencies of the British parliament.  Though the
Tories did dump Thatcher (and, of course, replaced her with Major--they
didn't turn over the government to Labor or call new electios), though it
did take a while.  One of the things that kept Clinton in office, I'm
convinced, is that he convinced every Democrat who knew him that there were
no circumstances under which he would go quietly.  We owe a debt to Richard
Nixon, as a matter of fact, that he did resign rather than force the issue
to a vote.  
So, as a matter of fact, Michael's posting might support the idea of a
California-style recall mechanism to overcome the problem of "faction" as he
describes it.  Whatever our current system is, it isn't what Madison had in
mind (for better and worse).


From: Michael Froomkin - U.Miami School of Law
[mailto:froomkin at law.miami.edu]
Sent: Sat 11/5/2005 12:38 PM
To: Sanford Levinson
Cc: ConLaw Prof
Subject: RE: I know I'm a nuisance

There is a way.  When the incompetence includes mendacity on key issues
such as reasons for war, that means is called 'oversight' (and in rare
cases, ultimately, impeachment).  The problem is not the absence of a
device in the system, but system's vulnerability to the iron grip of
"faction" which has prevented the development of either sufficient
evidence to persuade the trusting, or sufficient exoneration to persuade
the suspicious.

I know the grass is always greener on the other side, but having watched
the UK's Parliamentary system up close during several years of residence
there, I cannot say that it would be better.  Worse probably, at best bad
in different ways.

The recent discipline of the GOP in the House is a long-standing feature
of British political life.  It has to be, since the system is optimized
for not losing, not even risking losing, votes of no confidence.  Through
a combination of the greatly expanded 'payroll vote' (MPs with
appointments in the executive) and whipping (iron career-ending discipline
if you don't vote right on anything bigger than the time of the annual
flower show), MPs have no discretion, carry on extraordinarily minimal
oversight, and generally are rubber stamps.  And it's the house of lords,
the UNdemocratic part of Parliament, that actually act as a limited check
on legislation.

Recall how long Thatcher held on even when it was clear she had lost the
mandate of heaven (and even MPs were calling her 'barmny')....

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