Academic journal article William and Mary Law Review

Collateral Damage: The Endangered Center in American Politics

Academic journal article William and Mary Law Review

Collateral Damage: The Endangered Center in American Politics

Article excerpt

Arnold Schwarzenegger's election as governor of California is a crowning achievement of the plebiscitary movement in American politics. A celebrity with built-in appeal, no political experience, no connection to the political machines, no clear fiscal policy, (1) and no readily discernible programmatic mandate, he nonetheless swept through a field of over 100 candidates, (2) received about half of all votes cast, and easily dislodged a recently elected incumbent. (3) How could this be? For Gray Davis and the activist core of the Democratic Party, this was another manifestation of a massive right wing conspiracy, (4) a refusal to let the electoral will of the people prevail, and the continuation of a political trajectory that ran through the impeachment of Bill Clinton and the Florida recount fiasco. For the Republicans, the election seemed more hopeful. Perhaps the party could restore its appeal from the days before Pete Wilson launched a presidential campaign based on hostility to immigration and affirmative action. (5) Perhaps the charge of tax-and-spend had finally taken hold and the Republican message would again prevail. (6)

In this Essay, I will suggest that both the Democrats and Republicans miss the mark. Schwarzenegger's election was neither the product of a vast conspiracy nor the realization of the Republican agenda for California. More precisely, there may have been a conspiracy and there may have been those suddenly absorbed by the Republican platform, but neither appears to have been the animating force behind the rather stunning electoral victory. Rather, it was the rebellion of the median voter, the center of American politics, against the perceived closing-off of the political process to competitive pressures. In setting out this claim, I will touch on three broad themes. The first is the troubling and complicated role of the plebiscite in a representative democracy. Here my argument will be that whatever the difficulties associated with bypassing the structured political process, the referendum/initiative process has emerged unexpectedly as a last ditch safety valve for the electorate at large to claim some accountability from the governing political class. The second is that the move toward plebiscitary democracy is tied into the increased non-responsiveness of the political process. The added step here is to argue that there has been a marked drop in competitiveness of legislative elections and that this has prompted repeated efforts to breakup the results of gerrymanders and other mechanisms that function to lock up the political process. The third is the role that constitutional law has played in furthering the decrease in competition in the political process and the consequences from this reduction in competitiveness. I will conclude by looking at the issues presented in the California recall as reflective of the historic tension in democratic governance between the need to reward majoritarian preferences and the protection of minority interests.

I. PLEBISCITES AND THE HISTORIC COMMITMENT TO REPUBLICANISM

Plebiscites, as well as most forms of direct democratic rule, in many ways form the vulnerable underside of democracy. Majorities swept along by passion or factional interest can command the instrumentalities of power to reward the useless unduly or immunize themselves from electoral accountability. As John Ely once summarized one of our Nation's founding concerns, "an untrammeled majority is indeed a dangerous thing...." (7) In constructing the Constitution, the founding generation sought to constrain the power of local majorities to oppress minority interests. (8) As a result of this tension between majority and minority interests, the Constitution guarantees republican government in each state by interposing numerous institutional barriers between the direct preferences of voters and levers of power. (9) In composing the federal government, the Constitution expresses distaste for direct democracy with differing degrees of separation between popular voting and the election of officials. …

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