Rebuttal to Alva Goldbook (July 2007)

http://www.youtube.com/watch?v=Cwenv5YZZx4 [WITHDRAWN]

1. One strategy to enact NI4D is by direct vote (similar to Article 7). However, NI4D is not a ratification under Article 7. It is not the case that the people from only 9 states (which was a 2/3 majority of states in the 1780s) need approve NI4D. The criteria for the enactment of NI4D is approval by approximately half of the registered voters (see Act, section 7-B for details). NI4D's ratification process is merely similar to Article 7 in the sense that the NI4D ratification is a direct legislative act.
2. alvagoldbook compared the Electoral Trust to Congress. By this apparent similarity, he claimed that the Electoral Trust will come to inherit all the deficiencies of Congress. However, a more accurate comparison would be between the Electoral Trust and Secretary of the Senate and the Sergeant of Arms and the Fishbait Miller, who is the doorkeeper of the House. The Electoral Trust does not decided on law; it is just a fiduciary of the People. See below for more about the trustworthiness of the Electoral Trust.
3. Under section 3-A, only registered voters may sponsor initiatives. alvagoldbook suggested that citizens (whether registered to vote or not) be permitted to sponsor initiatives. Considering that section 4-F-2 charges the Electoral Trust with lifetime voter registration, it is not clear why alvagoldbook felt the language of 3-A a deficiency. Only citizens who are allowed to vote on initiatives are allowed to sponsor initiatives; and it is very easy to become a registered voter.
4. alvagoldbook described section 3-B as "nitpicky." Is it bad to be nitpicky?
5. alvagoldbook appears to misinterpret section 3-C as telling people what laws they are allowed to write. Actually the word "relevant" in the first sentence pertains only to jurisdiction. If the law has city-level scope then it should be submitted as pertaining to the city. If the law has national scope then it should be submitted as pertaining to the nation. alvagoldbook also questioned why the Electoral Trust has final approval on the Title and Summary. This question has been discussed extensively in the commentary on section 3-C.
6. alvagoldbook suggested that a limit of 5000 words is too low. The point of this limit is to defer complex legislation until the People are ready to relax section 3-E of the Democracy Act. Naturally, this restriction could be relaxed by citizen initiative. alvagoldbook also claimed that NI4D is more than 5000 words. However, he must have failed to exclude the Title, Preamble, Summary, References, Definitions, and language that quotes existing law. By our count, the Amendment is 562 words and the Act is 3132 words.
7. Section 3-F-1 specifies that petitions must be submitted within two years. alvagoldbook questioned the need for such a limit. Certainly some time limit is needed. Does it seem reasonable to permit petitions to circulate for 50 years? Two years seems like a reasonable limit, especially considering that most initiative will probably qualify by polling. Congress has a much stricter timelime. If a bill isn't enacted within one year then it must be re-introduced in the next Congress.
8. Section 3-F-2 permits qualification by polling. alvagoldbook questioned the accuracy of polls. It is true that polls can be accurate or inaccurate depending on the design of the poll. Since the Electoral Trust is charged with approving the polling plan, the responsibility for rejecting poor polling plans rests with the Electoral Trust. Many crucial aspects of NI4D rest with the Electoral Trust. That's the point of the Electoral Trust. The Electoral Trust is charged with making the initiative process work.
9. alvagoldbook pointed out that the Public Hearing (section 3-H) is under control of a Hearing Officer appointed by the Electoral Trust. Again, the whole point of having an Electoral Trust is to facilitate the initiative process. Contrary to a claim by alvagoldbook, nothing precludes the People from calling their own townhall meeting to debate an initiative.
10. alvagoldbook found fault in the power of the Deliberative Committee to rewrite an initiative. However, it is not clear why alvagoldbook feels this way. One of the main criticisms of existing state-level initiative lawmaking is that poorly drafted initiatives can become law. By two-thirds vote, the Deliberative Committee may rewrite an initiative provided that the changes are consistent with the stated purpose of the initiative (section 3-I). The expectation is that this provision will vastly improve the drafting quality of initiative law.
11. alvagoldbook questioned the purpose of section 3-J. In brief, knowledge of the views of the individual legislators that comprise the legislative body may be useful as cues to many citizens as they reach their own conclusions about the initiative; and knowledge of how their individual representatives voted on the initiative may be useful to citizens as cues as they cast their votes for or against those legislators when they come up for re-election. More detailed discussion is available in the commentary.
12. alvagoldbook claimed that section 3-K gives the Electoral Trust the power to indefinitely defer votes on arbitrary initiatives. However, this interpretation is contrary to section 3 which states that "[the Electoral Trust] shall conduct the entire initiative process chronologically."
13. alvagoldbook reviewed the criteria for amending the constitution as specified in section 3-L. alvagoldbook argued for a supermajority instead of two elections. alvagoldbook cited gay marriage, presumably as an example of a minority vulnerable to oppression by a majority. See our FAQ on oppression of minorities. In brief, it is not clear why a supermajority is superior to the double election standard specified by NI4D.
14. alvagoldbook interpreted section 3-N as removing the ability of the courts to enjoin law created by initiative. This is an incorrect interpretation. Section 3-N merely provides the same protection as is enjoyed by Congress with respect to proposed law.
15. alvagoldbook correctly suggested that the public record of financial contributions (section 3-Q) could be utilized by a corporation to squealch contributions to a given initiative campaign. For example, Big Oil Company could distribute a memo to employees promising to fire any employee who contributes to an initiative campaign proposing to fund solar power development with a tax on petroleum products. However, who can afford to contribute to initiative campaigns? The more money an individual is able to contribute, the more financially independent---less dependent on an employer---is that individual. Permitting anonymous communication is actually more dangerous than prohibiting anonymous communication. In California, "tobacco companies nearly succeeded in passing Proposition 188 by presenting it as a pro-health measure that would prevent children from obtaining cigarettes and provide protection against secondhand smoke. Public health groups defeated it by highlighting tobacco industry backing" (Macdonald, Aguinaga, & Glantz, 1997).

http://www.youtube.com/watch?v=urGzQi0KVjk [WITHDRAWN]

16. alvagoldbook exhibited a one-sided distrust of representative government when he characterized the class system in the Senate as preventing "the People from throwing out all the bums out at once." The other way to construe the intent of dividing the Board of Trustees into two classes is as a way of insuring that the Board is never green and unexperienced.

    alvagoldbook further suggests that there are too few members on the Board of Trustees (about half as many as populate the Senate). The reason the Board of Trustees is relatively small is that the responsibilities of the Board are relatively constrained. Comparisons to Congress are inappropriate because, unlike Congress, the Board of Trustees does not write law.

17. alvagoldbook criticized the procedure set forth in section 4-B-4 as an undemocratic way to fill vacancies on the Board of Trustees. Section 4-B-4 is certainly a compromise. To fill a vacancy by majority vote of the full membership of the Board of Trustees is less expensive than holding a statewide election, and acknowledges the trust vested in the Board of Trustees. If the Board of Trustees error, the People may recall any of the Trustees under section 4-B-3.
18. Under section 4-C, the Interim Board is constituted from the highest elected official (e.g., Lieutenant Governor, Secretary of State) responsible for the conduct of elections. alvagoldbook appears to think that this implies that all elections (initiative and otherwise) will be run by the Electoral Trust. However, section 4-C states: "The responsibility and authority of this initial Board shall be confined to establishing policy and oversight for the registration of each citizen of the United States eligible to vote on an initiative, and establishing policy and oversight for the election of the members of the Board of Trustees." In brief, the members of the Interim Board would likely return to their usual responsibilities of administering elections after facilitating the elections to fill the Board of Trustees. Thereafter, the Electoral Trust would only be concerned with initiative elections and elections to select Electoral Trust personnel.
19. alvagoldbook objected to the section 4-D terminology, "Chief Executive Officer." However, alvagoldbook does not offer an alternate title nor does he describe how the mere title will materially contribute to poor outcomes.
20. alvagoldbook's analysis of section 4-D-1 is generally accurate. However, he got a few of the details wrong. alvagoldbook asserted that the Director oversees all of the elections in the United States. Actually the Director only oversees elections held under the Democracy Act. alvagoldbook asserted that the Director serves a longer term than the President. This is true, except that the Director cannot serve more than one term (6 years) whereas the President can serve two terms (8 years). alvagoldbook asserted that the means of election of the Director (by the Board of Trustees) implies that the Director is not accountable to the People. However, the Director can be recalled by the People in a national recall election (section 4-D-2).
21. alvagoldbook's criticisms of section 4-D-3 appear to be a continuation of his criticisms of section 4-D-1.
22. alvagoldbook interpreted section 4-F-1 as asserting that the Democracy Act supercedes constitutional law. This is false. The Democracy Act is statute law and is superceded by constitutional law. alvagoldbook also seemed to interpret section 4-F-1 as applying to laws passed by initiative---somehow superceding section 3-N (judicial review). This interpretation is incorrect. Section 4-F-1 only applies to the Democracy Act itself. For example, if there was a federal law which specified that initiatives must undergo review by the courts before being voted on by the electorate then section 3-N would supercede pre-existing federal law ("No court shall have the power to enjoin any initiative election except on grounds of fraud"). To take alvagoldbook's example, if a statute initiative was passed banning the possession of guns then that initiative, once passed, could be reviewed by the courts and held unconstitutional due to the 2nd amendment.
23. I am confused by alvagoldbook interpretation of section 4-F-4 (communication). This section is best understood by listening to Becker's Introduction to deliberative polling (12m 29s).
24. Section 4-F-5 charges the Electoral Trust with holding a Hearing on each initiative. alvagoldbook seemed to construe this as prohibiting alternate hearings. However, the possibility of independent hearings are not excluded by this provision.
25. alvagoldbook correctly understood that section 4-F-6 charges the Electoral Trust with devising policies and procedures for the election of Trustees. However, this is not a conflict of interest precisely because a Director or Trustee cannot serve more than a single term.
26. Indeed, section 5 authorizes the Electoral Trust to spend taxpayer money. This is necessary to make the Electoral Trust an independent governing body. alvagoldbook correctly remarked that neither the Senate or the President has such direct access to the United States Treasury.
27. alvagoldbook misinterpreted section 6 as being an attempt by the drafters to avoid judicial review of the Democracy Act. This is false. The intent of section 6 is to prevent the Democracy Act from being wholely struck down if only one provision of the Act is held invalid by a court. This is standard language in contract law.

In general, Mr. Alva Goldbook appears skeptical that the Electoral Trust will perform its duties with veracity and without guile. In brief, Mr. Goldbook appears to distrust the Electoral Trust. Perhaps this attitude is appropriate considering the quality of governance in the United States during the past century. However, the Electoral Trust ought not be compared to any government entity in the United States. The Electoral Trust is inspired by the Swiss government:

When asked an open-ended question about their reasons for being proud to be Swiss, most named some element of the political system, such as direct democracy. This answer, provided by nearly 60 percent of Swiss, was larger than any other two answers, and almost as large as the next three most frequent answers combined. It is evidence...that the Swiss have a deeply shared ethos---and an optimism about "politics" perhaps unmatched in the world (Fossedal, 2002, p. 246).

http://articleeight.blogspot.com/

• This amendment appears to operate only at the federal level. The national initiative adds initiative lawmaking to all levels of government. To add citizen initiative only at the federal level seems like a missed opportunity.
• Why do we need this amendment? Don't the People already have these powers? What does the amendment add to the already pre-existing powers of the People? The Democracy Amendment merely safeguards the most important parts of the Democracy Act. It is the statutory Democracy Act which is the main contribution of the NI4D proposal because it specifies the initiative procedure and associated responsibilities of the Electoral Trust to facilitate a fair and orderly process for citizen initiative.
• Clause 5 specifies that a two thirds majority shall have the power to enact constitutional amendments. This means that a minority (the 1/3) controls constitutional law. The double election for constitutional law specified in NI4D (section 3-L) does not suffer from this defect.