Don't Recall the Recall

(New to blogging, I've taken another look at my first post made about a month ago, shuddered and deleted the original, and have updated it below. I hope it reads better.)

I’m an idealist about elections. I like to imagine that each political party clearly states its positions, then selects the candidate that is best able to present its case. The voters listen, reflect, and decide. The newly elected execute the policies that voters presumably agreed with. Because it is often true that the wisdom of some actions can only be ascertained with the passage of time, officials need to be given time for their policies to bear fruit. The recall of Governor Gray Davis on October 7th, less than a year after he was re-elected, is seemingly inconsistent with this vision of democratic elections and democratic governance.

Reality always falls short of the ideal, so electoral imperfections, however defined, by themselves do not justify a recall. But, last November, was Governor Davis’ election so at variance from the ideal that the system produced a “wrong” result? In this context agreement with Governor Davis’ policies--or his opponents-- is not the determinant of “right” or “wrong”, it is whether each political interest had adequate opportunity to make its case to the voters, who after reflection, were able to cast their ballot and have it recorded accurately.

An Example of Another Corrective Mechanism
In the same year—1776--that the American democracy was born Adam Smith authored his Wealth of Nations, which laid out the philosophical underpinnings of free-market capitalism. Today we still believe that an “invisible hand” guides an economy to produce goods and services that maximize society’s wealth, but over the two centuries since Adam Smith wrote his book we have come to recognize instances where the free market can fail [monopolies], or have its operations impeded [burdensome regulations and taxes], or generate harmful externalities [pollution].

One of the functions of government is to promulgate laws that cure defects in the market system, and there are regulatory actions and other legal procedures that have been devised to remedy situations where the market fails. Adam Smith’s basic machinery survives, but there is no question that it has had to be adjusted to accommodate defects that surfaced as the model was put into practice.

Give Sweet Reason A Chance
Behind the theory of “classical” economics is the conception of man as a rational creature who acts in his own self-interest. This ideal of rational man—and it is of course only an ideal because individuals do not always behave rationally--underlies not only market capitalism but also our democratic institutions.

Our judicial system, through its elaborate rules of evidence and argument, has been constructed with a view toward maximizing the opportunities for sweet reason to prevail, for our system assumes that through reason the best decisions will be made. What conditions foster rational decision-making? They include full disclosure of pertinent facts to all parties, presentation of opposing arguments within carefully prescribed boundaries, and adequate time for judge or jury to reach their conclusions.

Over the years election procedures that society has developed parallel those employed in the courtroom. When elections are working well,

1) a nominating process allows each interest to select the best advocate to argue its positions;
2) comprehensive information about the candidates and their policies are disseminated and discussed;
3) candidates fully debate the merits of their positions.

There are obvious distinctions between elections and judicial decision-making:

1) Elections have no official gatekeeper, such as a judge, who screens information for its relevance.

2) Judicial examination and cross-examination to test the veracity of information have poor substitutes in campaign ads and media reports to which application of journalistic standards are inconsistently applied.

3) When new information is introduced, the judge may postpone the decision to allow both sides to address it in their arguments and the jury to incorporate it in its deliberations; the immutability of election dates makes the process vulnerable to late-breaking information and misinformation.

4) Debates occur less frequently because the candidate who is leading in the polls does not want to afford his opponents an opportunity to present their arguments. In the previous gubernatorial election there was only one debate—on October 7, 2002—between pre-election favorite Governor Davis and Republican challenger William Simon. Mr. Schwarzenegger, the eventual Governor-elect, was the wire-to-wire front-runner to replace Governor Davis; he agreed to only one debate with the other candidates and declined an invitation to debate with Governor Davis.

5) The information and arguments presented are unbalanced because one side often has significantly greater financial resources and can present its case far more often and through many avenues. The rise of “new media” (talk radio, the Internet) can partially offset an overwhelming financial advantage, but these audiences currently are dwarfed by those who receive information by traditional means.

With the relevance and accuracy of “facts” uncertain, and the chances for reasoned, balanced discourse minimized, what remains is the hope that the nominating process has produced the best candidate to represent each political viewpoint. However, even this last building-block of the election system was undermined by Governor Davis’ ad campaign against former Los Angeles mayor Richard Riordan during the Republican primary. Mr. Riordan, a social moderate, had been widely believed to be the Republican Party’s best hope to unseat Governor Davis in the 2002 general election. Governor Davis spent, by some reports, up to $10 million on ads that stressed to Republican voters how Mr. Riordan was not to be trusted and helped tilt the nomination to Mr. Simon, an inexperienced politician. Mr. Simon might have won anyway, but, given the ultimate result, Governor Davis’ move was a brilliant tactic.

Fixing the Failure of 2002
At every turn in the California governor’s race of 2002, the factors that encourage an optimal result were stymied. If similar interference had occurred in a commercial transaction, civil or criminal penalties would have been imposed, or some other form of recompense would have been granted. In our political system we currently have only a few tools to address the political counterpart of “market failure”: the blunt instruments of impeachment and recall, and court challenges, which must be acted upon within a limited time after an election.

Opponents of the recall provision have pointed to the language of impeachment, “high crimes and misdemeanors”, as the only justification for removing an individual from office. But it is not hard to imagine scenarios where the results of an election are generally acknowledged to be invalid because of information that belatedly comes to light, yet no criminal action is attributed to the office-holder:

1) Charges of illegal or immoral actions committed by the eventual loser, charges that are later shown to be false or wildly exaggerated;

2) The converse of the above, i.e., grossly immoral behavior that the winning candidate has kept hidden from view (presumably, the impeachment provision would cover illegal acts).

3) Widespread fraud, which is now a distinct possibility because of the introduction of electronic voting systems that do not leave a paper audit trail, or because the system cannot prevent non-citizens from voting.

Rather than eliminate the recall, perhaps our system needs to devise more remedies, not fewer, to correct the variety of flaws to which our election process is subject, but that is a discussion for another day. In the meantime let us reflect on the fact that Governor-elect Schwarzenegger is the candidate whose policy positions are closest to those of the Republican candidate, Richard Riordan, whom Governor Davis feared most. On October 7, 2003, the California gubernatorial election of 2002 was finally concluded.
© 2003 by Stephen Yuen