In the 2006 general election, El Paso County, Colorado voters, in addition to voting for governor and for congressional representatives, voted for positions such as members of the university board of regents, and county offices including clerk, assessor, and surveyor. Their ballots included decisions on 17 judicial positions and there were questions about school and fire protection taxes. Altogether there were 39 races on the ballot. So Colorado voters have to work really hard at being good citizens. Virginians have it much easier. They don't have to worry about choosing or retaining judges, or deciding who would do the best job as county clerk. In 2006, there were 7 ballot contests and during the most recent four-year election cycle, Fairfax County Virginia voters never faced a ballot with more than 12 races (2003). Do fat Colorado ballots promote democracy better than Virginia slim ballots?
The question is whether it is better for citizens to make detailed governmental decisions, including those on personnel, directly, or to elect a relatively small number of people who can be held responsible for making those decisions. I will argue that, in a representative democracy such as ours, the latter approach is more appropriate. (There are attractive proposals for alternative modes of democracy in which citizens exert more direct control of government, but these require a great deal more than simply inflating ballots.) Some fundamental issues of government are involved in specifying exactly what should be decided by citizens directly in a representative democracy.
How should judges be put into office? We certainly don't want to have judges simply appointed by and serving at the pleasure of other government officials, whether elected or not. This would greatly facilitate corruption and would destroy any semblance of an independent judiciary.
The procedure for installing federal judges is quite different. After nomination by the president, there are public hearings, followed by a senate vote, with a majority required for confirmation. This procedure makes both the executive branch and the legislative branch responsible, and the public hearing makes it harder to slip thru particularly bad choices. Citizens, often via various public interest groups, have an opportunity to raise objections. Those who appoint, or vote to confirm, really bad judges can be held accountable on election day.
Having citizens elect judges directly, as is the practice in most states, may sound as tho it really puts power in the hands of the citizenry. But does it really? To the extent that it does, is this a good thing?
Apart from litigation attorneys, very few people have occasion to learn anything about judges other than the few who become involved in newsworthy events. So, in almost all cases, voters have little basis for making intelligent choices on their ballots. Where judicial candidates are identified by party, votes are generally cast automatically on a purely partisan basis. Voters may also be influenced by whatever sort of campaign is waged by the candidate. This means that campaign contributions may become important. In practice, the principal contributors to election campaigns for judges are lawyers. On the face of it, this does not seem conducive to judicial impartiality.
If voters really did pay attention to what judges were doing (or were likely to do if appointed), that would seem to be just what is supposed to happen in a democracy. Judges would be strongly motivated to act in harmony with public opinion. But many believe, with good reason, that some moderation of the will of the people is necessary, to avoid intemperate governmental acts in response to public feeling that may be of a transient nature. This concept is embodied in the US Constitution, with its system of checks and balances. The Bill of Rights was intended by the founders, in part, to protect individuals from abuse by a possibly temporary majority. The judiciary plays an important role in this process, in which judges must occasionally make decisions that go against the current tide of public opinion. Finding a good balance between respect for the will of the majority and respect for the rights of individuals is a critical aspect of governmental design.
The tenure of judges is also important for the same reasons. Under the US constitution, federal judges "shall hold their offices during good behavior", which means that they can be removed from office only by impeachment for good cause. Most state judges serve for limited terms, after which they must run for re-election, or are subject to periodic approval votes by the electorate. Ballots in many states include lists of judges for which voters must vote yes or no for retention.
A plausible argument in favor of making many positions elective is that this would reduce opportunities for elected officials to use the appointment power to consolidate their positions by rewarding supporters with jobs. It would serve as a check on corruption by preventing the sale of government positions. The problem is that, in practice, citizens are not going to take the time to learn enough about the candidates to cast thoughtful votes. Most of us are going to vote on party lines or simply not vote at all on such positions. To the extent that the votes are on party lines, the purpose of making the positions elective is defeated, since party nominations put the real power back in the hands of party officials who control the nominations.
A solution to this universal problem of government originated two thousand years ago in China, with the concept of appointment to government office on the basis of merit rather than heredity or political patronage. The idea was implemented via a system of competitive examinations which, altho it had its ups and downs, became a permanent feature of Chinese governments. This concept of a civil service spread to British-ruled India, to European countries, and to the US during the latter part of the nineteenth century. As implemented in the federal government and in most state governments, high level officials who play a role in determining government policy are appointed by the head of the executive branch with the consent of the legislative branch, as described above with respect to judges. Subordinate officials and functionaries attain their positions by demonstrating their qualifications via competitive written examinations. Once appointed, they are, after a probationary period, granted tenure, meaning that they can be removed from office only after a fair hearing has demonstrated incompetence or malfeasance. This approach, while not without its problems, has been quite successful both in the US and in other democratic countries.
It makes a lot of sense to have citizens vote directly on significant changes in state constitutions or city charters. Sometimes this is necessary because the impact on legislators of a proposed change may be such as to make it unlikely that they would be able to consider it objectively. One example would be an amendment affecting redistricting. An even more obvious example would be a change in compensation for legislators. Clearly it would be best to have citizens vote directly on these. But is it really necessary to have citizens vote to approve a city charter amendment permitting the skipping of the August city commission meeting (North Port, Florida, 2006)?
In general, having people vote directly on various public issues, including changes in laws and constitutional provisions is, by itself, of questionable value. If voters do not have adequate access to multiple, independent sources of information on the ballot issues, and do not get to participate in discussions of these issues, the votes are more likely to reflect the volume and cleverness of campaign advertisements than the will of the people. The wording of ballot questions has a great effect on the responses of voters who have not been involved in, or at least been exposed to, serious discussions of the subjects.
Under our current system of government, I believe it is appropriate that voters elect the heads of the executive branches and legislators at federal, state, and local levels of government. These people should then enact legislation and make the day-to-day decisions of government, and be held responsible for what they do. High level government officials and judges should be appointed by the executive branch with the consent of the legislative branch. Lower level employees ought to be employed and promoted via a merit-based civil service system. Referendums should be restricted to important basic issues, and to matters that should not be left to representatives because of conflicts of interest.
There are interesting proposals for flexible legislative systems that get much closer to direct democracies thru such methods as delegable proxies, tho these usually do not say much about involving citizens in discussions of the issues in play.
Comments can be sent to me at unger(at)cs(dot)columbia(dot)edu
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