Tevlin: Letting voters decide on state Constitution carries its risks

  • Article by: JON TEVLIN , Star Tribune
  • Updated: January 31, 2012 - 9:33 PM
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On a 38-27 vote in May 2011, the state Senate approved a statewide vote on a proposal to ban gay marriage by amending the Minnesota Constitution. The question will be put before voters this year.

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Cue the Beach Boys music and wax the surfboard, Minnesota is taking on a bit of California color, and it's not just because of the February thaw.

The Frozen State is following the Golden State in its increased interest in what some call "direct democracy," or what critics call "mobocracy."

Instead of passing laws and waiting to see if Gov. Mark Dayton vetoes them, Republicans are looking at opportunities to end-run the legislative process by instead changing the Minnesota Constitution. You already know about the marriage amendment, which will be put to voters in November. Among amendments also likely to be considered are ones to limit the Legislature's ability to tax and spend, a voter ID mandate at the polls and amendments on unions and gun rights.

But there has been discussion about a dozen more potential amendments, including a ban on state shutdowns, freedom of choice in health care and changing the way judges are elected.

It's not brand new; there have been 211 such attempts since the beginning of the state's history. But there seems to be an impetus now because Republicans control both houses for the first time in 38 years and would like to cement their programs in place in case that doesn't last.

David Schultz, who teaches state constitutional law at Hamline, said that interest in amendments has surged during times of turmoil. During the progressive push, there were 11 on the ballot in 1914. They rose again during the Great Depression and again in the late 1970s.

"There seems to be something special about the times," said Schultz. "In Minnesota, it seem to happen when one party takes control and wants to push their agenda."

Few think we are becoming California, which has attempted to bypass legislative procedure 344 times in 100 years. But there is good reason to fight the temptation to succumb to "people power" over representative government.

First, as Wisconsin discovered, "the people" sometimes make boneheaded and costly decisions. While Minnesota rejected an amendment to allow the recall of politicians, Wisconsin embraced it. Now they are in a perpetual campaign to oust many of the people they just voted in, to the tune of $9 million.

Second, "the people" can be mean. Left to their own devices, the general public will often run roughshod over the minority. In 2009, the Swiss, who love direct democracy for people just like them, overwhelmingly voted to ban the construction of minarets, or prayer towers for mosques, a clear attempt to discriminate against Muslims.

Thirdly, "the people" are often "the corporations." In California, special interests have spent over $1.3 billion on proposition battles between 2000 and 2006. Two oil companies from Texas funded Proposition 23, which would have temporarily suspended California's air pollution and clean energy standards. Another proposition that mandated harsher penalties on petty crimes has led to packed, underfunded jails.

Therein lies the problem: given the opportunity people will continually vote for more services while simultaneously voting for lower taxes.

"One of the biggest problems [with amendments] is the budgetary perspective," said Schultz. "It's an inherent problem because revenues and expenditures are not linked. How do you lay competing values and principles next to each other and choose what's more important? You don't have the same capacity to deliberate."

This kind of policymaking "is trying to freeze something in time," said Schultz. "Public policy needs to change. Maybe we let the next generation decide how much value to place on schools and parks."

The process has become so odious that there is now an attempt to rein in initiatives in California and elsewhere, where election ballots can resemble a bar exam, filled with Orwellian language and double-negative brain teasers. Vote "yes" for a "no" outcome. A proposition to Save American Schools is just as likely to be one designed to gut funding from them.

So far this year, California has five statewide ballot initiatives in the works. In Minnesota, Senate Majority Leader David Senjem predicted they would try to hold the number to three or four.

"It does place an additional responsibility on us to be cautious, to be careful, to understand what the Constitution is for, to enter into these decisions with due consideration," Senjem has said.

It's sound thinking. Let's hold him to it.

jtevlin@startribune.com • 612-673-1702

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