The Genius of America (21 page)

Reagan's statement that America's problem was the government was politically, and rhetorically, powerful. But it probably had an unintended consequence. It took Americans off the hook. They were not asked to take responsibility for their own divisions and factionalism. The system created to force them to resolve differences or face paralysis was now redefined as the source of the paralysis.

Over the next twenty years, this rejection of the value of the institutions began to pervade the institutions themselves. The Congress became a pitch for partisan warfare. As the liberal consensus of the New Deal crumbled, many on the left became more fervent and moralistic in pursuit of their claims. On the right, Reagan, who had been a leader of conservative clarity and political flexibility, was replaced by politicians who revered his clarity and forgot his flexibility. The framers' notion that conciliation and compromise were essential values was replaced with a winner-take-all fever. A Republican president had been driven from office (albeit by bipartisan consensus), so Republicans impeached (but did not convict) a Democratic president. In 2007, the former majority leader of the House of Representatives, Tom DeLay, the driving figure behind the impeachment of Bill Clinton, summed up the political approach that now dominated Washington: “No retreat. No surrender.”

Tom DeLay's approach to government is an illustration of how the mood of the 1970s and 1980s—disaffection with government— came home to roost in our own time as disrespect for the institutions of government. The most significant impact of this attitude has been the decline of Congress as a coequal branch of government. The framers saw Congress and the presidency as essential checks on each other (and the House and Senate as checks on each other, too!). The balance was essential. But in recent years the institutional role of Congress has deteriorated to the point where two of the nation's leading experts on Congress, Thomas E. Mann and Norman J. Ornstein, have called it the “broken branch.” In President Clinton's second term, the Republicans in Congress set out not so much to check the president as to destroy him. Then, after President George W. Bush's excruciatingly thin victory (perhaps because of it), the Republicans in Congress effectively adopted Lloyd Cutler's call for a parliamentary system, one in which the legislature follows the instructions of the executive. They did not amend the Constitution. They simply became the president's loyal lieutenants. “The institutional rivalry designed by the framers gave way to a relationship in which Congress assumed a position subordinate to the executive. Party trumped institution.” There is no better example of the decline of our Constitutional Conscience.

Reagan's attack on government did not create all of this, of course. He was a reflection of the times, but as president his voice was more important than all others and through it he gave encouragement to the growing national attitude that government itself was broken.

The decline of respect for institutions was widespread in the country when Reagan took office, and began with Vietnam and Watergate. The governmental leaders of our time grew up amid the strife and cynicism of Vietnam and Watergate. It is easy to see where they developed the attitude that the institutions of government— and the process of government—were tools to an end rather than responsibilities to be safeguarded. They brought these attitudes with them from the society. Tom DeLay was inspired to enter politics by Ronald Reagan. But Reagan's attack on government was tempered by his faith in America, the hard-won faith of the Depression and world war generations. On the other hand, DeLay's attitudes toward the constitutional system combined the antigovernment message of the Reagan era with the cynicism of the Vietnam and Watergate eras.

T
HE
“P
EOPLE
” R
EBEL

As with so many ideas in American politics, the antigovernment sentiment grew outside of Washington. Indeed, as with Reagan himself, the notion that government was the problem came out of the West.

One of its prime expressions in the late 1970s was the initiative movement, and one of its prime spokesmen was Howard Jarvis.

Howard Jarvis was interested in a revolution, a tax revolution. For years this Californian had watched as the state legislature took no action on what he considered to be suffocatingly high property taxes. “We're mad as hell” was Jarvis's reported message in a
Time
magazine cover story dated June 19, 1978. And from that anger grew Jarvis's and his allies' determination to do something.

The California Constitution provided the opportunity. During the Progressive Era, Californians and the citizens of a number of other states added an initiative and referendum process to their constitution that allowed citizens to amend both their state constitutions and state laws directly. All it took was a petition drive to secure a minimum number of signatures of support for a question to be put on a ballot for voter consideration. There would be no governmental interference.

The Progressives themselves had come to realize that the reality of this direct democracy was a lot less than the promise. The initiative system fell into disuse but remained on the books. The frustrations of the 1970s led to its rediscovery. In California, as elsewhere in the country, people were deeply divided over what they wanted their government to do, so it did little. On Jarvis's particular issue, high tax levels generally and property taxes specifically, the California legislature could not act without a consensus. And while there might have been a consensus on cutting taxes, Californians had supported the establishment of the many services the state provided, and there was no agreement now on which ones ought to be reduced.

Jarvis cut this knot. Through an initiative he separated the integrally related issues of taxing and spending. He asked Californians if they wanted to reduce taxes. On June 6, 1978, they overwhelmingly voted yes on Proposition 13, under which there would be a limitation on their property taxes and on the legislature's capacity to increase state revenues of any sort by requiring a two-thirds vote of each house. The legislators were left holding the bag. They had to decide what programs should be eliminated without the necessary revenues.

Many applauded this action. California governor Jerry Brown, chastened by his opposition to Proposition 13, called it “the strongest expression of the democratic process in a decade.” From this vote grew a movement of initiatives in the twenty or so states where they were available. People were being put back into politics, supporters said. But it was more radical. The essential elements of the framers' version of democracy—struggle, debate, compromise—were stripped away from government decision making by “minimizing, even spurning, the role of the representative intermediaries that stood between the public and its government—parties, legislators, private interests, ultimately politics [which is after all the art of compromising] itself.”

Over the next years, citizens in various states would cast their votes with varying outcomes on such controversial topics as voters' rights, auto insurance rates, gay rights, immigrant rights, abortion rights, taxpayers' rights, minority rights, housing rights, language rights, victims' rights and the rights of the terminally ill.

Direct democracy, as initiatives are called, can be, as Jerry Brown said, a strong expression of public sentiment. But it is certainly not the process invented by the framers or envisioned by the Constitution. Indeed, initiatives represent the very antithesis of the representative, deliberative process the framers invented to stabilize democracy. Through initiatives, a tyranny of the majority is possible, even a tyranny of the minority. Every state legislature (and both houses of Congress) require at least a majority of all legislators to enact a law. But states do not require that a majority of all registered voters support an initiative for it to pass. In fact, a minority of voters can change the law. Proposition 13 is such a case. The proposition won in a landslide among those who voted. But even so, fewer than 50 percent of California's registered voters cast a yes vote for the proposition. Thus a minority of registered Californians decided to reduce tax burdens and limit the capacity of the government to increase its future revenues.

It was appealingly easy to adopt this initiative. There was none of the scrutiny of normal legislative process nor the need for coalition building and compromise. No committee of one legislative house and then of the second could block its path to a vote. No requirement that a bill pass two separate legislative houses stood in the way. No executive stood waiving a veto pen. No colleagues were hovering around demanding compromise for support. No lobbyists were demanding changes. No time-consuming hearings from which concerns of the public or experts had to be addressed and weighed. No long public debates in which legislators had to explain why they favored or disfavored the issue. No arcane procedural rules blocked a vote in either a committee or legislative house. No worries that a wrong step might anger constituents. No competition among this idea and the thousands of other ideas wanting legislative attention. In short, the initiative did not have to pass through any of the screens that in the legislature protect against the tyranny of the majority or even the minority and require deliberation and consensus.

The reformers who introduced the process of initiative and referendum to America did not favor tyranny. They thought that American government—particularly state government—had become corrupt, which for them meant that it worked against the “people's” interests. Through initiatives, these reformers wanted “the restoration of the classic republican constituency,” the simple government of Tom Paine. They “would put Madison aside.” And putting “Madison aside” meant that these reformers would replace Madison's and other framers' realistic view of human nature with the idealistic one envisioned by America's revolutionary leaders in 1776. John Q. Public, the Progressives called him, a man who thought for himself, who “would study the issues and think them through,” a man who had the time, intellect and curiosity to inform “himself in ample detail about the many issues that he would have to pass on,” a man who “could master their intricacies sufficiently to pass intelligent judgment.”

But soon the reformers realized the weakness of their view. They could not push Madison aside. Just as the generation of the Revolution was forced to reevaluate its view of human nature in the face of real conduct, the reformers of the early twentieth century realized human nature was not as they had hoped (but rather as Madison had understood). Using initiatives and referendums to resolve society's major conflicts was asking voters to be something they were not, wrote the journalist Walter Lippmann: “In ordinary circumstances voters cannot be expected to transcend their particular, localized and self-regarding opinions. As well expect men laboring in the valley to see the land as from a mountain top. In their circumstances, which as private persons they cannot readily surmount, the voters are most likely to suppose that whatever seems obviously good to them must be good for the country, and good in the sight of God.”

Instead of the people speaking through initiatives, the reformers found the results disappointing, as the historian Richard Hofstadter explained: “Small and highly organized groups with plenty of funds and skillful publicity” made “use of these devices,” and then faced with “an array of technical questions, often phrased in legal, the voters shrank from the responsibilities the new system attempted to put upon them.”

Just as the Progressives needed to relearn the political lesson the framers learned between 1776 and 1787, so by the 1970s the lesson of the Progressive Era had been forgotten. Again frustrated by the workings of government, Howard Jarvis and other citizens revived the initiative process. Again, the motivation was to make government respond. Again, as the journalist David Broder recorded, the outcome was at best flawed: “Government by initiative is not only a radical departure from the Constitution's system of checks and balances, it is also a big business, in which lawyers and campaign consultants and signature-gathering firms and other players sell their services to affluent interest groups or millionaire do-gooders with private policy and political agendas . . . These players . . . have learned that the initiative is a far more efficient way of achieving their ends than the cumbersome process of supporting candidates for public office and then lobbying them to pass or sign the measures they seek.”

Howard Jarvis saw initiatives as the means of getting what he had failed to persuade the state legislature to do: cut taxes. Through the initiative process he could provide a means for citizens to vote on an isolated issue without being held responsible for the larger consequences of their vote, in this case the impact of the cuts on the services funded by them. Additionally, the initiative process is stripped of any deliberative characteristics. In the darkness of the voting booth, a voter can vote his or her self-interest without worrying about being held accountable for a greater good. And these voting decisions are “typically the result of snap judgments based upon superficial emotional appeals broadcast on television.” Of course, such television campaigns can cost many millions of dollars.

The point is not whether Jarvis was right about tax levels in California. Clearly, many Californians thought so, and their government was not addressing their concerns. The point for our story is that the initiative movement is one important example of how Americans by the late 1970s were pulling away from an allegiance to the constitutional process the framers had devised to balance competing interests. There are other, even more explicit, examples.

I
NSIDER
S
REBEL

The supporters of the initiative movement were so determined to win that they ignored the lessons of half a century earlier. No one could accuse Lloyd Cutler of forgetting American political history. By 1980, he felt the Constitution had outlived its usefulness. Cutler was the consummate Washington insider. “A commanding presence among the capital's power elite for decades and at home in the highest levels of industry, government and politics,” wrote one reporter. A graduate of Yale and Yale Law School, Cutler had apprenticed for a major New York law firm, moved to Washington, D.C., served the government in a number of roles, including in army intelligence, and started one of the nations largest law firms. In 1980, he was just ending his services as counsel to President Jimmy Carter.