What could a law professor who is an election law and redistricting expert, who worked for Governor Jerry Brown, have in common with a crusading conservative rabble rousing intellectual and writer who is hated by the Left?
Both of us passionately oppose California’s Proposition 77 – Governor Arnold Schwarzenegger’s ill-conceived measure to take redistricting out of the democratic process and put it into the hands of three randomly selected unaccountable partisan retired judges – who volunteer for the job. Prop 77 would empower this panel to require a completely unnecessary mid-decade redistricting.
While both of us sit as chairmen of sister committees against Prop 77 (like most sisters we disagree about a lot: political strategy, we seek different suitors/contributors, etc.), we come at our opposition from different backgrounds and different perspectives.
The conservative politico sees, from his perspective, the disastrous political effects were 77 to pass. To understand the Horowitz partisan perspective, click here.
The election law-redistricting expert sees, among other things, the specific governmental flaws of the proposal. To understand the Lowenstein analysis, see his committee’s White Paper.
Primarily, what puts us together is one unambiguous fact: Prop 77 is a "Rube Goldberg"-style political experiment designed to take an important power from the people (and their elected representatives) and give it to a group of unaccountable elites. It is another attempt at social engineering and political tinkering by those who think there is a less messy way of dealing with things than through "the sausage factory" that is the democratic process.
We can almost see the upturned "Ivy League" nose (and the Ivy League educated professor should know whereof he speaks), the elitist know-it-all looks, the compulsive impulse for order that demands of redistricting: neatness on a map, no ignorant input from the common people, and power only to "the best and the brightest."
Other than being a retired judge (state or federal), there are no qualifications required to serve on this panel, no interview, no accountability – all the power to decide who you get to vote for will belong to three faceless judges – who volunteer for the job! And voters have no right, no power to hold these retired judges accountable for what they do. This is the ultimate in elitist tinkering with the democratic process.
Why is this necessary? The proponents of 77 are obsessed with two slogans: "conflict of interest" and "rigged districts."
Conflict of Interest
It is not a conflict of interest for the state legislature to draw Congressional districts. Congressmen do not vote in the state legislature! And for state legislators, term limits and retirement eliminate the supposed conflict for many. Of the legislators who voted on the new lines in 2001, 39 percent of State Senators and 29 percent of State Assemblymen never won another election in the redrawn districts. Three of the four party leaders who had a controlling influence on the lines never ran for reelection.
For the remaining members of the legislature, we do not contend that they all act with pure motivations – we are not shocked to find that gambling is going on in here. Nor were the founding fathers so naïve as to believe that all men are saints. Claude Raines had nothing on the founding fathers when it comes to understanding human nature, as anyone familiar with Federalist 51 knows. They designed a system of checks and balances precisely to constrain the actions of self-interested men (and now, women).
The founding fathers controlled self-interest in two ways. First, they made representatives accountable to the people through elections. Second, they made it very difficult to pass a law. They created multi-member bicameral legislatures in which the interests of members of the legislature would conflict and compromises would have to be reached to achieve anything, and allowed an executive veto to check legislative excess. The 2001 lines received overwhelming bipartisan support, including the unanimous support of the minority party – all 45 Republican state legislators. This was an unprecedented instance of compromise given the contentious history of redistricting in California.
By contrast, Prop 77 would force judges to take a legislative role with none of the aforementioned checks. The judges are not elected or otherwise accountable to the people – they are randomly selected volunteers. There is no control to assure their competence or fairness. Whereas collectively the legislature is an expert on every inch and aspect of the state, these judges, at most, will hail from three of 58 counties and 3 of the 475+ cities. Three unaccountable judges acting with no external constraints – that’s the proposal!
The arbitrary lines drawn by blindfolded judges (or judges pretending to be blindfolded) will throw incumbents of the same party into the same district together. The result will be a massive increase in special interest monies to finance the resulting internecine primary bloodletting.
The proponents say reform is necessary because the district lines are rigged. Governor Schwarzenegger knows better than anyone the silliness of this contention. In the 2003 recall, Republicans overwhelmingly dominated a safe Democratic seat…California. After all, California had a Democratic governor, two Democratic senators, every other statewide office was held by a Democrat, and the state has not voted for a Republican candidate for president in 17 years. Yet, in the Recall election, the two leading Republican candidates, Schwarzenegger (48.5 percent) and McClintock (13.5 percent) doubled the votes received by Bustamante (31.5 percent).
This victory did not come from the Republican areas of the state alone. In the "rigged" Democratic Congressional seats, Schwarzenegger beat Bustamante in 48.5 percent of the seats. In 73 percent of the "rigged" Democratic seats, a majority of the voters preferred a Republican candidate.
The Recall election proves that the right Republican candidate can win virtually any seat in the state, and the same is true in reverse. However, this is not to say that many Congressional and legislative races were competitive, just that they have the potential to be. The reason why there were not many competitive elections is twofold. First, voters like their representatives – if not the legislative body as a whole. Second, the political preferences of Californian voters have not changed much. The lack of turnover in California was typical of the nation as a whole. As Michael Barone says:
The reason that we have seen such a high percentage of incumbents re-elected and why such a large number of House seats continue to be safe for one party or the other is that we haven’t seen any major shifts in the contours of votes in the past 10 years. Nationally, the balance of votes for the two parties in House races have remained almost identical in five successive elections.
Just like there is no "McCain-Feingold" style quick-fix to campaign financing abuse (and all too often loss of freedom of expression and new forms of evading the law), there is no quick fix to either party’s losing elections. Stop the whining…and convince the voters. It’s the American way!
Professor Daniel Lowenstein is the Chairman of "No on 77," and David Horowitz is the Chairman of "For Judicial Restraint – No on 77." UCLA Law School Professor Lowenstein is a Democrat, an expert on redistricting, the primary drafter of the Political Reform Act, the first Chairman of the FPPC, and a former member of Common Cause’s National Governing Board. David. Horowitz, a conservative Republican, is President of the Center for the Study of Popular Culture, the Editor-in-Chief of FrontPage Magazine, and a nationally known author whose works include Radical Son and The Art of Political War.
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