Wednesday, December 23, 2009

Craig Ruff of Dome Magazine and Public Sector Consultants on constitutional convention

I was looking up some writings on the constitutional convention proposal which we will be voting on in 2010, and found some interesting stuff in Dome Magazine. Surprisingly to me, I haven't been familiar with it. It's quite interesting, and has some interesting comments on the articles, including Bob LaBrant and Richard McLellan, two individuals whom have earned my respect with their political knowledge.

Recently, Craig Ruff (former Milliken/Brickley staffer) of influential Public Sector Consultants in Lansing wrote several columns in Dome Magazine in support of the constitutional convention proposal and gave reasons for them. Some of his proposals I those I'd support. On other proposals I have strong disagreement. That does not change my opposition to a con-con in any matter largely because of the risks and processes involved in a con-con due to the rules of the game which I discussed in length several times, most recently on December 6th. That won't change at all even if it looks like 2010 will be a repeat of 1994. 

There are six columns Ruff wrote which are all at the Dome Magazine website. I recommend taking a look at them, as well as the comments, and my previous writings on this, no matter which side of the con-con debate you stand.

The first was titled Really Big Changes which is his introduction on this issue. He has his pros and cons on a con-con. Here are the pros. I didn't post his cons in the except because they aren't much different than what I wrote.

A Few Pros
The people of Michigan may gain from a convention looking over a document nearly 50 years old and amended 32 times since 1963.
Compare the history of the U.S. Constitution to Michigan’s constitution:
  • The U.S. Constitution has been amended fewer times, even though the national document is 218 years old and the state constitution is 46 years old. Since 1789 and with the exception of the first 10 (the Bill of Rights) coming right off the bat in 1789-1791, the U.S. Constitution has been amended 17 times in 218 years, compared to the state constitution being amended 32 times in its 46 years.
  • Since Michigan adopted its current constitution and adopted 32 amendments, we have added four amendments to the U.S. Constitution (Amendment 24 prohibiting poll taxes; the 25th prescribing presidential succession; the 26th setting 18 as the voting age; and the 27th requiring that the compensation to federal legislators be set after the election of new House members — this guy had been sitting on the “proposed and to be resolved” desk since 1792!).
  • The state constitution’s length dwarfs by thousands of words that of the nation’s. Put the two in the same font size on a scale. If you weighed what the state constitution does, you’d call an 800 number for a weight-loss pill or 911.
Bogged down in excruciating detail, the state constitution is less a template for how government governs and how we balance the rights of individuals and the powers of government than a laundry list of this is how you should do that details.
How detailed is the Michigan Constitution? Allowing for space, I must deflate fonts to give three examples.
  • For the retirement of notes and bonds issued under Section 26 of Article X of the 1908 constitution there is hereby appropriated from the general fund each year during their life a sum equal to the amount of principal and interest payments due and payable in each year.
  • The legislature may authorize lotteries and permit the sale of lottery tickets in the manner provided by law. No law enacted after January 1, 2004, that authorizes any form of gambling shall be effective, nor after January 1, 2004, shall any new state lottery games utilizing table games or player operated mechanical or electronic devices be established, without the approval of a majority of electors voting in a statewide general election and a majority of electors voting in the township or city where gambling will take place. This section will not apply to gambling in up to three casinos in the City of Detroit or to Indian tribal gaming.
  • State Police Troopers and Sergeants shall, through their elected representative designated by 50% of such troopers and sergeants, have the right to bargain collectively with their employer concerning conditions of their employment, compensation, hours, working conditions, retirement, pensions, and other aspects of employment except promotions which will be determined by competitive examination and performance on the basis or merit, efficiency and fitness, and they shall have the right 30 days after commencement of such bargaining to submit any unresolved disputes to binding arbitration for the resolution thereof the same as now provided by law for Public Police and Fire Departments.
Dorothy Parker inscribed her tombstone and gave us good advice: If you can read this, you’re standing too close.
 As strong as my opposition to a con-con is, those are good points. It has been amendment, more often than it should have been. However, those amendments can also be repealed in the same way. I remember the gambling proposal quite well. Look how that's worked with the new Indian casinos (which I have no problem with). I voted no for the record.

The big push is for abolishing one of the legislature chambers. Ruff suggests the following:

You can argue that two houses are better than one because they protect against hasty decisions. Three, four, or more legislative chambers would be even better if that is your goal. To my knowledge, Nebraska has not enacted policy any smarter or dumber than 49 two-house states.

To me, the gravest threat to democratic progress and governmental efficacy is paralysis, not haste or recklessness. The people still have a governor who can veto; courts that can render rulings on the constitutionality of statutes; and future elections and legislators who can reverse bad decisions.

No Michigan county, city, township, or K-12 school system elects two or more legislative bodies. Why not? If it makes sense for state government, wouldn’t it be rational for local units to do so? The trickle-down philosophy behind the federal system extends to nearly all states, yet not their local jurisdictions. Was that because it looked clunky, confusing, and duplicative to have multiple bodies setting policy? Very likely

A unicameral state assembly has made sense since 1962. It would make smoother sailing for policy change with plenty of protection against nutty change through gubernatorial vetoes, court reviews, and future elections. It would lessen confusion among voters about who should be held accountable for legislative decisions, their senator or their representative or both. It would marginalize those frequent, petty squabbles between the members; the aura, turf, and legitimacy of each chamber; and those persistent “look at who’s angling for your seat” shenanigans

Two legislative chambers in Lansing slow down policy change. They cause unnecessary friction in serving the customers of democracy. Two legislative chambers are anachronistic.

As much as I think there are too many salaries and politicians in government, I can't go along with this. The big reason is that I prefer slow change to rush jobs. We need checks and balances, and eliminating a check and balance on a level the size of the state or federal government is a risk I don't think we need to take. Bad laws often pass one chamber. They normally don't get taken up in the other. Sometimes good laws pass and don't taken up in the other chamber. That's a price I'm willing to pay, along with the salaries. We'd have a lot more taxes and spending if there was a unicameral legislature.

Two columns that are very interesting that I haven't thought about are regarding two members per seat and parliament. Regarding two members per seat

Can you handle two people representing you in the state legislature?

Picture that voters in each district send to a single legislative body the two highest vote getters in the general election. Each gets a percentage of a single vote on the state Assembly’s floor equal to the percentage of the vote s/he received in the last election.

For example, Assemblyperson Judith, a Democrat, garners 55 percent of the vote against her Republican challenger, John, who receives 45 percent. Judith gets 0.55 percent of one vote on the Assembly floor; Raymond gets 0.45.

What’s the point of this? Parties, if rational, would nominate candidates who can maximize the general election vote; presumably, nominees would appeal to independents and folks who tilt toward the other party. We would get more moderate, less sharply partisan people in the legislature. Currently, in so many safely Democratic or Republican areas, rabid partisans nominate the most extreme candidates.

All political parties would strive to mount strong challenges in all districts. There is little point, today, for a Republican to run in a Detroit district or a Democrat to run in Ottawa County. They are sacrificial lambs. If, however, the two leading vote-getters get seated, Republicans shrewdly would contest Detroit districts (and Democrats, Ottawa County seats) because even a small percentage of the vote would give the loser some clout in Lansing.

I don't think it would pass the one person one vote standard under federal constitutional law (Equal protection). That aside, it's an interesting concept. Democrats in state rep districts usually get 28-40 percent of the vote here in Livingston County based-races. I think Donna Anderson got almost 40% in her race against Valde Garcia in 2006, mostly due to running almost even in the Ingham County portion of the state senate district. I haven't researched or thought about this idea to have a strong opinion one way or the other. It has advantages and disadvantages. However, one thing it would not change is that candidates need to fit the district.

I couldn't disagree more with the parliamentary system, for the same reasons I opposed a unicameral legislature. This is a case of different philosophies. As Ruff says in Parliament Works Better:

Previous columns have called for a unicameral legislature with two members elected in each district, each with a legislative vote equal to the share of the popular vote. In case readers view that as too timid, I propose that Michigan adopt a parliamentary system.
When then-Lieutenant Governor Jim Brickley chastised me for thinking small about America’s policy making machinery and its flaws, he said: “Our system’s antiquated. The fear of a throne drove the constitution’s framers to shackle the public will. Today, I fear the tyranny of paralysis.”

Judicial appointments, which Ruff supports,  are something I can not support. Judicial appointments by chief executives I support even less. It goes back to my Jeffersonian views when it comes to checks and balances. I've seen way too many political appointments run roughshod over the constitution with judicial activism. It is nothing new. It goes back to Dred Scot, and really rears its ugly head post-reconstruction. Slaughter-House, Cruikshank, Plessy, Presser, and Lochner. After FDR gets his people, we get Wickard v Filburn. Brown v Board of Education was the right judgment, but should have been written better on clear 14th Amendment grounds. With the Burger Court onward - Roe and Doe kickstarted judicial activism. Then we get the baffling O'Connor with her look to foreign laws with Gratz and Grutter cases. I may get flamed, but Bush V Gore wasn't all that great either - although SCOTUS wasn't AS bad as Florida's Supreme Court on that one. Both could have done better.

State courts aren't perfect, and neither are electing judges. He uses the Irish judges stereotype. As he says "Erin wins."

Democratic adrenaline drives people to assume that their sheer act of voting produces judicial competence. Excuse me as I try to hold back from projectile vomiting. I do not buy the pretense that voters actually know enough to judge judicial candidates.
Aside from a smattering of partisan, special interest, or personal adherents, few honestly can defend Michigan’s politically charged system of picking judges. Running successfully for judgeships are people with good solid names (once in a blue moon has a Cavanagh/Cavanaugh, Kelley/Kelly, Corrigan, Hathaway, or Mc-something lost a judicial race) and often have good track records winning other elections, i.e., have name recognition, fundraising abilities, and solid organizational bases.
Are these political assets judicial assets?

That's true. Brennan.

He goes on, but his proposal isn't as bad as most "appoint judges" proposals I've seen. It's similar to the Missouri system.

Since the Democratic-controlled U.S. Senate’s rejection of Robert Bork in 1987, presidential appointees all have been nondescript ciphers or ideological purists. I was disgusted by the U.S. Senate’s rejection of Bork, among the most cerebral and intellectually inquisitive people a president has sought to place on the U.S. Supreme Court since Woodrow Wilson nominated Louis Brandeis. Since Bork’s rejection, every nominee has faced sharply partisan and ideological badgering in the Senate.
Call me an elitist, but here is a plan to award critically important judicial posts to the well-deserving. The governor appoints every state judge or justice to a term of 10 years. The governor must select from three highly/exceptionally qualified people recommended by the State Bar Association. The governor selects one, or if the governor rejects all three, the State Bar Association nominates three more candidates, one of whom the governor must pick. The nomination goes to the state Senate, where it takes a two-thirds super-majority to reject.
Upon appointment, the judge or justice must seek voters’ approval at the next general election. The referendum before voters is, “Do you wish to retain Judge/Justice _______ in office or not?” If a plurality votes “yes,” the judge may serve out the 10-year term. If a plurality votes “no,” the judge vacates the office, and the appointment process starts over.
While a sitting judge may be renominated and reappointed for a second 10-year term, voters still must ratify the choice at the next election. After 20 years, a person may not win reappointment to the same bench. A judge who reaches the age of 70 must retire.

I prefer a choice of names instead of an up or down vote, but at least that has a check and balance. I'd rather have it be as it is now, flawed as it is. I also think that Supreme Nominations should be the same process as appeals court nominations is now (not party nominated - straight up elections or appointment of vacancy and election).  I don't want the State Bar of Michigan however getting involved in this. You can't take ideology out of judicial selections in the post Lochner and Post Roe eras. It is a requirement for attorneys to join the State Bar of Michigan, which is understandable. It is best that the State Bar is removed at least from direct politics - on either side.

Lastly is the Fusion ballot. This is similar to the New York style of system.

Imagine a ballot on which you may vote for a candidate under several party lines. You may like a candidate because he or she is identified on the ballot as a Democrat or Republican, our safe, big-tent binary choices. You may like a candidate who is a conservative, liberal, libertarian, or socialist. Personally, you hold a value of right-to-life or pro-choice. You demand that government cuts taxes or increases them to maintain and expand public services. You are willing to sacrifice jobs for a cleaner environment, or you prefer to sacrifice a cleaner environment for more jobs.
Craig runs for the state Senate. Democrats have nominated him. So, too, have the Liberal Party, the Right-to-Life Party, the Environment Protection Party, and the Friends of Transportation Party. You may cast a vote for him under any party line, and come election evening, the clerk totals every vote for Craig under every party. Craig loses to Sally because she has gathered more votes combined cast for her on Independent, Republican, Economic Growth, Pro Choice, and Champions of Less Regulation partisan lines.
This is called fusion. More than one political party may nominate and endorse the same candidate as other parties. In the end, their votes for Craig and Sally are combined.
What is the advantage of a fusion ballot? Voters get to express a more customized opinion, but do not have to throw away their votes on a candidate who cannot win. A voter may be voting for Craig because he opposes abortions. Another may vote for him because he is a staunch environmentalist. Yet another may prefer him because he pledges to put more funding into transportation. Many people will vote for Craig because he carries the brand of Democrat. The voter gets the right to express a specialized or brand name opinion of Craig, but is not forced to waste a vote on a candidate who has no chance in hell of being elected. When the final tally is in, Craig or Sally goes to the state legislature more bound to specific values than general pabulum.
If you are a Republican candidate in what otherwise is a pretty safely Democratic district, you might work hard to peel off some Democratic voters by being pro-choice, pro-environment, and/or pro-transportation funding. Similarly, a Democrat running in a safely Republican district may win the backing of Right-to-Lifers, economic free marketers, and smaller government types. Fusion ballots encourage candidates to niche market, while also being part of a big tent.
A recent example comes from Long Island’s Nassau County. In a race for county executive, the Democrat won 107,777 votes as a Democrat. The Republican won 112,340 votes as a Republican. The Democrat also won 10,334 votes from minor parties; the Republican, 5,534. The Democrat holds a razor-thin lead of 118,111 to 117,874, with thousands of absentee ballots yet to be counted. A Conservative Party candidate won 9,552 votes. Clearly, had the local Conservative Party leaders felt comfortable in nominating the Republican, the GOP candidate would have won pretty handily. They didn’t. He didn’t.
John Lindsay won reelection as New York City mayor in 1969. He had been elected mayor in 1965 as the nominee of the Republican and Liberal parties. In 1969, he lost the GOP primary for mayor, but managed to win reelection as a Liberal. A year later, James Buckley ran for the U.S. Senate in New York State under the Conservative Party banner. He beat the liberal Republican incumbent and a liberal Democrat challenger. For three years, neither the mayor of New York City nor one of the state’s U.S. senators held office as a Republican or Democrat.

Although a correction is in order as the Republican won in Nassau County.

I can support this. I like the ideas of minor and major parties supporting the same tickets when it is called for.
However, I don’t think the NY style will affect things much. Every senate race since Buckley was an R or D. Every house race there I’ve followed has been the same way. I’m less sure about state house and state senate.

The only possible thing I can really see is the occasional split leading to a minor upset like there was in NY-23 when the GOP leadership blundered in a big way by choosing a candidate in DeDe Scozzafava that did not fit that district (and neither did Doug Hoffman for that matter on the Conservative party ballot). NY-23 was an aberration however because there was no primary.

Under the NY system here, you’d probably have the conservative party/R fusions in Zeeland, the Right to Life/R fusions in Livingston County, and Gun Rights/party fusions in those areas, but it would be the same people winning.

If people want moderate candidates, moderates need to vote in the primaries. I don’t see things changing otherwise. So while I support the fusion system, I don’t see it changing the ideological factor much in elections.

All in all, Dome Magazine has some good reads on different political news and commentary in Lansing. The series of con-con and proposal discussion is one of them. It doesn't change my mind, but the issues themselves were worth looking over.


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