When you don’t have an idea what you’re talking about, keep your mouth shut. Goodwin Liu, unfortunately, couldn’t hold to this advice, and so the associate justice of the California Supreme Court revealed himself to be thoroughly, and embarrassingly, uninformed on California’s constitution and its system of direct democracy.
This is often a space for light rhetoric and half-formed thoughts, but in this case, I do not make this statement about Liu the least bit lightly. And I don’t have an axe to grind on the case in question, the court’s decision to remove Prop 49, the advisory measure on whether to pursue a constitutional amendment, off the ballot. I don’t know Liu but have friends in common and have only heard good things about him as a brilliant young scholar who was treated badly as a nominee for the federal bench.
Also, I would not have voted for Prop 49 if it appeared on the ballot, and don’t see money-in-politics as the awful force that the backers of Prop 49 do. I disagree with the five justices who voted to remove the measure from the ballot, but I can see the view that since the state constitution doesn’t permit such measures, they shouldn’t be on ballots.
But Liu, acting alone, issued his own separate concurring statement that goes way beyond this basic argument. And the illogic and errors of that statement are so profound that it left me with fresh and deep doubts about whether he belongs on the California Supreme Court. (Here is a link to Liu’s concurring statement so you can read it yourself).
Liu’s argument – and I use the word “argument” charitably – is that an advisory, non-binding question can’t be put on the ballot by the legislature not merely because there is no express provision for such measures in the constitution. He goes further – into an area I would call Fantasyland if not for Disney’s trademark – by saying that there is an unstated prohibition on such measures as a result of the state constitution’s text and structure.
He then goes on to invent such an unstated prohibition with illogic and outright misinformation.
It is hard to explain his thinking since it’s so convoluted, but here is my best attempt. He takes Section 1 of Article IV of the state constitution – “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum” – and then adds, out of a thin air, an “only.” The people can “only” do initiative and referendum when it comes to lawmaking, and that’s it, according to the Liu’s reading. And the legislature must do everything else. Presumably citizens shouldn’t mess around with legislation and the legislature shouldn’t mess around with initiatives.
This is, at best, an exaggeration of reality – and at worst, hopelessly uninformed in its particulars. Yes, as I’ve argued here many times, the legislature has very limited power when it comes to initiatives, but they are not totally separate in the way Liu imagines. Indeed, we want the people to be involved in the legislative process, and the legislature does have a role in reviewing initiatives before they go on the ballot, via hearings, and sometimes in implementing initiatives. And legislators and public officials often sponsor initiatives. But Liu ignores all this and describes a never-shall-the-twain-touch reality that isn’t real.
He’s also wrong when he says the initiative and referendum are only lawmaking powers and that when the people vote on ballot measures, they must be making laws. That is of course not true. Many initiative measures don’t make laws – they alter the constitution itself. And referenda are reversals of laws. And he never mentions the most crucial point about initiative statutes in California – they aren’t like other laws – they are laws that can’t be changed, except by votes of the people. No other polity on earth has initiative statutes like this – a point Liu does not mention, even though it is central.
Then Liu gets bizarre. Liu defends this divided legislative function – with the legislature making laws (except that it can’t touch what the people do) and the people making unamendable laws and constitutional amendments – as a system to promote – “accountability.” Yes, rub your eyes, he thinks this is accountability.
I can’t explain Liu’s logic here because there is none, but I will quote it.
“Structurally, this arrangement maintains clear lines of accountability: If the Legislature enacts a statute the voters don’t like, the voters can hold their representatives accountable through the ordinary electoral process. If the citizenry adopts an initiative, it is entirely the handiwork of the citizenry for better or for worse; the Legislature is not involved. But if the Legislature were to propose a statute for the voters to approve, who would be accountable?”
So according to Liu, a citizenry that can make permanent laws is somehow accountable, even though no one can fix or alter that law (unless they have millions to put the law back on the ballot). But if the legislature asks the voters their opinion on the statute, that represents some lack of accountability. Huh? This is Alice in Wonderland territory. (Also, Justice Liu, did you know that a referendum is the voters giving their opinion on a statute, so by your logic, do you think the California referendum process is constitutional?)
A brief civics lesson for Justice Liu. There are three branches of government in this system, and both voters and the legislature are in the legislative branch. The core constitutional problem here is that legislative branch is divided against itself. And so what you describe as accountability is the opposite of accountability. The voters can make laws without anyone being able to challenge or fix them. The lawmakers have to make laws and budgets while negotiating laws and budget decisions that voters have made. The resulting system is so contradictory that lawmakers often have to ignore or work around laws and constitutional provisions. They often face a choice between doing their jobs – like balancing a budget – and living by the law. Where is the accountability in that?
But Liu, unbelievably, doesn’t stop there. He is so out-to-lunch he invokes the American tradition of representative democracy to defend this bifurcated legislative system where no one is accountable. I can’t begin to dignify his reasoning here, other than to say it amounts to a tautology based on his bizarre views that the California direct democracy system is the soul of accountability and that having conversations between legislature and the voters represents a lack of accountability.
Finally, Liu concludes with an arrogant and condescending section about how he think it’s perfectly fine for the legislature to consult the opinion polls. “If the Legislature wants to commission Gallup to do a poll on Citizens United v. Federal Election Commission, I see no problem with that,” he writes, to the relief of political consultants and pollsters. So the justice apparently believes that private polling is privileged, but God forbid you ask the public for their opinion on election day. Asking the public its opinion on election day, in Liu’s bizarre view, “disturbs the careful way that our Constitution has structured the legislative power” and “would alter this delicate balance between legislative and citizen lawmaking.”
At those words, my head exploded.
Liu knows no history of the city, San Francisco, where his court sits. There was no careful structuring of legislative power and there never has been any delicate balance. The voters of California slammed through – at the suggestion of the legislature, by the way – this misbegotten system in 1911, at the behest of a fiery novice governor acting with the support of rich people and vigilante-minded activists who had just fought graft trials. The historical record is very clear that these folks never considered how they were structuring a legislative system. If Liu could travel back in time and call Hiram Johnson delicate, the governor likely would have punched him in the face.
So where does this leave us?
Liu would be wise to withdraw this concurring statement, and avoid writing opinions in this area until he has brought himself up to speed on California’s constitutional history and realities. Also: Liu’s opinion suggests there should be far greater scrutiny given to Gov. Brown’s current nominee for a justice spot, Tino Cuellar, who like Liu is a brilliant young legal scholar whose record demonstrates little understanding of California’s peculiar system.
If Liu doesn’t do this, well, let me put it this way. I’m no fan of California’s misbegotten constitution, but I’m beginning to see the wisdom of its provisions on retention elections for California Supreme Court justices.