Flammang, Janet A.

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Santa Clara University School of Law

Santa Clara Law ReviewVolume 41 | Number 4 Article 71-1-2001Democracy: Direct, Representative, andDeliberativeJanet A. FlammangFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Symposium is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationJanet A. Flammang, Symposium, Democracy: Direct, Representative, and Deliberative, 41 Santa Clara L. Rev. 1085 (2001).Available at: http://digitalcommons.law.scu.edu/lawreview/vol41/iss4/7DEMOCRACY: DIRECT, REPRESENTATIVE, ANDDELIBERATIVEJanet A. Flammang*Kenneth P. Miller's well-researched and thought-provoking article maintains that a useful way to understandCalifornia's initiative process is by comparing Populist andProgressive conceptions of direct democracy. While thePopulist impulse mistrusts and undermines the power ofrepresentative government, the Progressive stance trusts andreforms governmental institutions. Miller makes aconvincing case that the Populist view of direct democracyhas prevailed in California's initiative's structure (nolegislative input, hearings, or amendments), process (nochecks and balances, accountability, deliberation, oropponents' input), and substance (less legislative flexibility,majoritarian values at the expense of minority rights, andpressure on the courts). Miller supports Populist-constraining reforms that enhance the role of the legislature(legislative review, amendments, and counsel), and thatgenerally make the process harder (supermajority votes forconstitutional amendments, tightening the single subjectrule, word limits, signature-gathering hurdles, regulations ofpaid petition gatherers, and, with reservations, pre-electionreview by the courts or attorney general).I submit that the Populist-Progressive schema is moreuseful for helping us to understand how we got to this pointthan it is in mapping where we should go from here. While* Ph.D., University of California, Los Angeles; M.A., University ofCalifornia, Los Angeles; B.A., University of California, Los Angeles. The authoris an Associate Dean, College of Arts and Sciences and Professor, Department ofPolitical Science, Santa Clara University.1. Kenneth P. Miller, Constraining Populism: The Real Challenge ofInitiative Reform, 41 SANTA CLARA L. REV. 1037 (2001).1085SANTA CLARA LAW REVIEWthese two strands of thought have strongly influencedCalifornia's initiative politics, a Progressive call to constrainPopulism will not work in California's political climate, and anew framework is needed.To begin with the schema's historical relevance,conditions in California that gave rise to the governmentalreform measures at the outset of the twentieth century inmany respects resemble those in its last three decades, theperiod of heavy use of initiatives: recessions (in the 1890s andthe early 1970s), a marked increase in immigration (in the1890s and the 1980s), violence in the streets (against strikingworkers earlier, and in Watts and Berkeley later), and a non-responsive government (whether beholden to the SouthernPacific Railroad or sitting on a surplus budget as propertytaxes skyrocketed). Additionally, both Populist andProgressive strains are still heard in California's politicaldiscourse: Populists' individualism, suspicion of concentratedpower, anti-elitism, and faith in the common person;Progressives' reformist optimism, middle-class moralism, andfaith in experts and the educated person. Populists have adualistic analysis of power and politics: big/little, rich/poor,common/elite; while Progressives have a tripartite analysis:lower/middle/upper. So in the case of immigration, as we sawin the debate about Proposition 187, the Populist impulse isto see newcomers as needy, non-productive, foreign "them,"while the Progressive impulse is to see newcomers aspotential taxpaying citizens and members of the middle classthrough hard work and education. In debates around manyinitiatives, Progressives object to what they describe asPopulist xenophobia, demagoguery, and simplistic attacks ongovernment as the problem, while Populists take issue withProgressives' obscure jargon, endless tinkering withgovernmental structures, and simplistic view of governmentas the solution.The dominance of these two worldviews has beenreflected in California's choice of governors. Governor PatBrown presided over the Progressive late-1950s and early1960s. With the state's postwar industrial growth and publicinfrastructure expansion, government was the solution andcould be trusted. In the mid-1960s, in the wake of theBerkeley free speech movement and the Watts riot, GovernorRonald Reagan voiced Populist sentiments in describing1086 [Vol. 41DELIBERATIVE DEMOCRACYgovernment's irresponsible spending as the problem, andpromising to crack down on ungrateful students and otherdisruptive people. In the mid-1970s, Governor Jerry Brown'sadministration was a mix of Progressivism's cleangovernment and Populism's small government and anti-elitistcritique of the University of California. It was during hisadministration that Proposition 13 began to change thelandscape in Sacramento in the Populist direction describedso eloquently in Peter Schrag's Paradise Lost.2Given the historical importance of these two impulses inCalifornia politics, and agreeing with both Peter Schrag andKenneth Miller about the hamstrung condition of theCalifornia legislature, what is the problem with using thePopulist-Progressive framework for recommending reforms atthis point in time? Why not curb Populism in the name ofProgressivism? Two conditions markedly different fromHiram Johnson's time-weakened political parties and thepower of screen culture-have created a new climate thatnecessitates a new definition of democracy in which to framea call for reforms.Progressive direct democracy reforms (initiative,referendum, recall, and direct primaries) succeeded inlimiting the power of political parties. Progressives wantedcity contracts to be awarded on the basis of "what you know"(professional qualifications) not "who you know" (machinecronyism). "Good government" measures benefited not onlytheir sense of the common good (sanitary conditions, efficientagencies, and the like), but also their social class (educatedprofessionals). Political machines were corrupt, but they alsohelped earlier immigrant groups get an economic foothold anda partisan identity in the United States. Today's immigrantsin California have ties to local community groups, which mayor may not be politicized. But they do not have access topolitical parties the way their earlier counterparts did. Theyhave one less way to become informed and active citizens.Today's Progressives have to bear in mind that a middle-class, white, professional bias lurks beneath the surface oftheir analysis. They have to realize how their argumentssound to the newly arrived. Trust elected officials andexperts in Sacramento to represent you (even as they approve2. PETER SCHRAG, PARADISE LOST: CALIFORNIA'S EXPERIENCE, AMERICA'SFUTURE (1999).10872001]SANTA CLARA LAW REVIEWbillions of dollars of tax loopholes for their campaigncontributors). Understand their elaborate cost-benefit models(which presuppose a college, if not a graduate school, level ofeducation). Carefully read the voters' pamphlet beforedeciding how to vote for dozens of people and issues (withlimited English language skills and perhaps a high schooleducation). Given the high rates of immigration in the 1980s,it will take time for newcomers to be assimilated toparticipatory citizenship, given language barriers and, formany, experiences with repressive governments in theircountries of origin, for which Populist concepts make sense.Progressive calls to limit the initiative can sound like anelitist attempt to silence the voice of the people.Another new condition is the ubiquity of the screenculture: information, advertisements, and entertainmentcourtesy of computers, television, movies, and videos. Today'sinformed citizens rely less on people and more on screens;they have to tune out the self-serving ads and stimulatingentertainment to get at the relevant information; they canacquire phenomenal amounts of information without leavinghome; they support national referenda and global democracymovements. Just as the screen culture has extraordinarydemocratizing potential, it can also be a vehicle formanipulation, distortion, deceit, and infotainment. But thereis no denying its role in citizen education in recent years.With at least one television in most California households,citizens form their political views from news programs andtalk shows, and proponents of initiatives have to go to theairways to reach the voters. Any attempt to reform theinitiative process has to take as its starting point thepervasiveness of the screen culture.There is growing evidence that the rise of the screenculture has been accompanied by a corresponding decline inpersonal contacts, interpersonal trust, and trust ingovernment. Robert Putnam has written about Americans'shrinking access to the "social capital" that is the reward forcommunity activity, sharing, and connectedness.3 Over thepast twenty-five years, Americans have become increasinglydisconnected from family, friends, neighbors, churches andtemples, PTA, recreation clubs, and political parties. The3. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OFAMERICAN COMMUNITY (2000).1088 [Vol. 41DELIBERATIVE DEMOCRACYWashington Post conducted a study regarding citizen trust ofgovernment in 1995.4 It found a connection between decliningtrust in government and erosion of personal trust amongAmericans. Each generation was less trustful than the onebefore and government officials are equally skeptical of thecitizenry. A 1998 study conducted by the Pew ResearchCenter concluded that, "public distrust of government isparalleled by a belief among members of Congress,presidential appointees, and senior civil servants that theAmerican public is too ill-informed to make wise decisionsabout important issues."5In order to get out of this morass of mistrust anddisconnectedness, we need to look at democracy in a new way.The Populist-Progressive schema locks us into two choices:direct democracy and representative democracy. It is time toadopt a third alternative: deliberative democracy! Theproducts of both direct and indirect democracy can be eitherwell-deliberated or poorly-deliberated. It should not beassumed that California's governor and legislature willautomatically produce well-deliberated legislation and thatthe initiative process will automatically produce poorly-deliberated legislation. Admittedly, governmentalinstitutions are the venue we most often think of asdeliberative bodies: providing public accountability, the airingof different points of view, due consideration of outcomes, andweighing of public benefits. But they do not hold a monopolyas venues of deliberation. For years, the print and broadcastmedia, educational institutions, civic organizations, and morerecently the Internet, performed similar functions. Ratherthan valorizing the legislative process (representativedemocracy) or constraining the initiative process (directdemocracy), we ought to ask what reforms enhancedeliberation in both cases (deliberative democracy). There isnothing we can do to prevent California governors from usinginitiatives to bolster their anticipated Presidential bids, ordemagogues from inflaming the worst fears of voters. Buttrust in public officials will increase to the extent that their4. See DAVID S. BRODER, DEMOCRACY DERAILED: INITIATIVE CAMPAIGNSAND THE POWER OF MONEY 229 (2000).5. Id. at 230.6. For a discussion of the notion of deliberative democracy, see CASSSUNSTEIN, REPUBLIC.COM (2001).108920011SANTA CLARA LAW REVIEWbehavior is seen as deliberative, and the quality of initiativeswill improve the more deliberative the process that producesthem.Reforms on both fronts should stem from the definingconditions for and characteristics of deliberative democracy:an educated and informed citizenry with common civicexperiences; a public forum with an open airing of opposingpoints of view; a discussion anticipating social, economic, andpolitical consequences of legislation; a clear andstraightforward presentation of issues in languageunderstandable by citizens; conditions that foster theexchange of reasoning; disclosure of self-interests andarguments about the general good; accountability; andbuilding trust and the willingness to compromise.On these grounds, for instance, one would not object toan Internet referendum because it involves too many peopletoo directly, but rather because it is insular, cut off from otherpoints of view. One could defend the legislature'sinvolvement in the initiative process on deliberative groundsby providing its considered judgement of a measure, printedin the voter's handbook, aired on the radio, or in newspaperop-ed pieces. One could justify an increase in legislativepolicy staff on deliberative grounds. As long as we are lockedinto the Populist language of "bad big government" and "goodsmall government," then anything the legislature tries to doto regain its policy-making flexibility will be criticized as"more big government." We need to shift from thinking ofgovernment as good or bad, big or little, problem or solution,to lawmaking as more or less thought through in deliberativemanner.In 1992 the bipartisan California Commission onCampaign Financing published a report on the uses andabuses of the initiative.7 Many of its recommendations shouldbe promoted in terms of enhancing a deliberative democracy.First, require the Fair Political Practices Commission to holdpublic hearings on the merits of any initiative that hadgathered a quarter of the signatures needed to qualify.Second, require the legislature to hold a public hearing oneach initiative within ten days of its qualifying. Third, allowproponents to amend the initiative after the legislative7. See BRODER, supra note 3, at 210-12.1090 [Vol. 41DELIBERATIVE DEMOCRACYhearing. Fourth, create a forty-five day "cooling off period" inwhich the initiative sponsors and the legislature couldnegotiate compromise legislation. Fifth, allow the legislatureto enact the initiative during these forty-five days and thesponsor to remove it from the ballot. Sixth, require thelegislature to vote on any initiative reaching the ballot, andthe Secretary of State to publicize in the voter's pamphleteach legislator's vote. Seventh, limit the length of initiatives.Eighth, improve financial reporting, including disclosure ofprincipal sponsors in the ads. Ninth, make the voter'spamphlet more reader friendly.There are many deliberative opportunities that can beprovided through a reconceptualized voter pamphlet, a moreresponsible media, and a reinvigorated educationalcurriculum. Governments can increase levels of financing forpublic affairs programming on television. Media can increasetheir coverage of state politics. Schools can strengthen theirprograms in civic education. In the face of declining interestin political science as a major, the American Political ScienceAssociation recently embarked upon a nationwide effort topromote civic education. Universities can require a basicgrounding in American government, especially by tyingcommunity-service projects to the curriculum. Public officialshave to do their part to educate citizens in order to restorepublic trust. They should experiment with new Internettechnologies to make more information about governmentavailable to the public and to provide forums for thedeliberation of issues.8Many California voters say they turn out on Election Daybecause they care about a ballot initiative. This is not thetime for Progressives to put the breaks on popular interest invoting. It is the time to work for reforms that make thelegislative process, both direct and indirect, moredeliberative. When it comes to making policy choices forCalifornia, let's worry less about how we proceed-directly orindirectly-and more about the deliberative quality of thosedecisions.8. Many of these reforms are discussed in DEREK C. BOK, THE TROUBLEWITH GOVERNMENT (2001).10912001]

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