Markkula Center of Applied Ethics

Ethical Implications of California's Recall Election

Transcript of Ethics at Noon with remarks by Judy Nadler, Professor Janet Flammang, and Professor Peter Minowitz.

David DeCosse: Welcome to the opening Ethics at Noon of the year, "Ethical Implications of California's Recall Election". I'm David DeCosse; Director of campus ethics programs at the Markkula Center for Applied Ethics. Today our panelists are Judy Nadler, Senior Fellow of Government Ethics at the Ethics Center, Professor Janet Flammang of the Political Science Department here at Santa Clara, and Professor Peter Minowitz, also of the Political Science Department here at Santa Clara. Please note that the format of this Ethics at Noon is a little different. It is a town meeting format so we invite you to think of questions or statements and come to the mic up here in the middle and lay them out after the presentations are done. I'd like to also just please note some related Santa Clara events. There's going to be a forum on Thursday, October 2nd on Prop 54 in the Brass Rail and Erin Kimura has more information on that and then I guess this isn't an event so much as an exhibit at the Orradre Library on 100 years of the recall in California. So we invite you to look at that as well. Judy.

Judy Nadler: Thank you David and welcome today. We, as David mentioned, have a slightly different format which is the town meeting format because we think this is an issue that has such tremendous support around which there are so many opinions that we wanted to give you an opportunity to share those. And unlike perhaps some of the other discussion that has gone on about the recall, we are really focusing on ethical issues about the recall and wanted to frame up a few things for you to be thinking about in addition to all the other things that might come to mind. There is an item in the Mercury News today on the editorial page that we submitted to them partially to tell them and let the public know a little more about this forum, but also to frame a few questions that people might like to ask and I do invite you also to take advantage of the bookmarks that we have available. This is a very handy format, bookmark format and it's an outline of the various ways of looking at issues from an ethics perspective and some of the questions you might ask yourself and the back actually includes a cross section of internet resources around the state of California and the state of politics and the state of campaigns and elections, if you're interested in more information. But by way of just introducing the subject area of the ethics of recall one of the questions that we pose and will be addressed today revolves around three of the approaches that one might take — three of the ethics approaches — one is the utilitarian approach, which asks us to choose the action that produces the greatest good for the greatest number of people and some people are looking at the recall around that saying that, well, the good that can come from this is actually worth all the angst of the process and they would look at it from that perspective saying that that good would be a greater benefit than any harm. From a fairness approach there are many questions around fairness and around whether it's fair to throw someone out of office who was elected by a large plurality of Californians and replace that individual with someone who actually would get many fewer votes and is it fair that a politician can be recalled for any reason whatsoever, which actually the state of California law allows, so if we decided we don't like that person then we can throw them out. And a third area for fairness would really be around the idea of who sets the agenda and what is the agenda for not only this process but for the initiative process and for what else happens in politics in California. And then the third, one third way to look at this would be from the virtue approach and that would be looking really at the ideals of honesty and integrity and there are all sorts of issues around that — some around campaigns, at what points do your campaign promises become more than just promises — and actually maybe, maybe lies or how much deceit was there, is there, could there be in people who are in office telling us one story and then we find out later that it might actually be something else. So rather than coming up with a yea or nay, should you or shouldn't you, we are going to have several outstanding folks who are going to help us bring this up and I will just give you briefly, as David mentioned, the ground rules. We do want as much engagement from the audience as possible. We are asking that you speak from the microphone so that we can hear you and that we can capture what you are saying, and also it would be very helpful if you would just introduce yourself to the faculty and keep your comments, as we say, on the subject. So today we have two outstanding members of the political science department who are going to be our conversation starters. The first is Janet Flammang, who is a professor of Political Science and she teaches American Politics and Women in Politics and we're thrilled to have her back in the Political Science department; she has actually been Associate Dean in the College of Arts and Sciences for the last nine years and she had served as the department chair for six. She is the author of the book Women's Political Voice: How Women are Transforming the Practice and Study of Politics, which is quite a well known text drawn on case studies of women primarily in Santa Clara County. And she's' currently working on a book about women and the politics of food. So Janet we welcome you. And our other presenter is Peter Minowitz. And Peter has been at Santa Clara University since 1985. His specialty is political philosophy and he is currently writing a book on diversity, affirmative action, and Catholic higher education. So we'll invite our conversation starters to begin and then we'll open to you our audience.

Janet Flammang: I would like to say a few words about the politics of upheavals in the state of California to give us a little bit of context about what is going on here. When you think about ethics and popular upheavals you think, "okay, the ethical stance on politics is 'I need to think carefully about the good that comes from a certain action, the good that comes not only to me but to other people, and that outweighs harm.'" So many citizens are wondering about this question — Can I justify spending 60 million dollars of state money and distracting all these elected officials from doing the jobs they are supposed to be doing to justify this recall. Upheaval politics seems like reckless politics if you listen to the comments of many voters you hear statements like, "I know I might be unleashing things I can't foresee but I am so frustrated that I do not care." Things are so unacceptable that it's worth just shaking everything up. I am upset and I want to send a message. And that's what's going on. So we've got enough people here. So what I would like to do briefly is compare this upheaval to two earlier upheavals in the state of California and to draw similarities between them. Because I think in all three of these upheavals the causes are basically economic and citizens are frustrated with what they see as lack of political leadership in all these three cases. The first political upheaval I would like to start with is 1911 when we had the progressives in government that initiated the progressive reform of the recall. If we go back to 1911, if we think that we have it bad now, the state politics at that time we're basically in the hands of the Southern Pacific Railroad. So it's really easy to find out what the problem was. The railroad basically bankrolled everyone's election campaign in the legislature so the Southern Pacific Railroad really controlled California's economy; they owned about ten percent of all land in the state. So it was really obvious to see what was going on. The progressives came in under Governor Johnson and they initiated the recall along with the other two direct democracy measures that I am sure you are aware of — initiative and referendum. And as Judy pointed out the intention of the progressives was just that the recall was a way to get rid of someone who is not doing their job. Not for cause. And all the constitution says is how you do it. He in fact referred to it as a firing an employee. If they are not doing their job right the voter should have the right to get rid of them. By contrast, we do have impeachment in the state of California. That is in the constitution and impeachment is for cause, it is for misconduct in office. The recall has not really been overused at the state level; in fact no governor has ever been recalled. In fact only one governor in the country has ever been recalled. He goes on to win a seat in the Senate so he lives happily ever after. It is important to know that ever since Pat Brown in the sixties, governors in the state of California have been threatened with recall elections. So it's just the combination of a lot of threat's for funding seen now. The voters of California have recalled four state legislators, two back at the turn of the century, two as recently as 1995. Both republicans in Southern California. The recall is mostly used in the state at the local level especially in school board races. Most famously in 1980 the recall against then mayor of the city of San Francisco Dianne Feinstein which many of you know about. So basically if you look back at how we got this recall not doing your job was enough reason for the Progressives to recall an elective official and it was forged in the context of widespread political corruption. The second upheaval that most of you know about was the tax revolt in 1978 in Proposition 13 — very similar kind of dynamics. Those of you who aren't from California, Proposition 13 drastically reduced property taxes and what happened again right around that time was that there was a sharp increase in property taxes due to a high rate of inflation in the state at the time. So people's property taxes were increasing very quickly and the state under then Governor Jerry Brown was sitting on big fat surplus. So property owners understandably asked: what kind of governing is this? You got more money than you need and I'm not going to sell my house because I can't afford the property tax. But then again we had a major upheaval which has had drastic consequences for the state of California. So turning to our upheaval today, I think there are economic origins to it. The two precipitating events as you all know were the governor's response to the energy crisis about which voter frustration has abated as we learn more and more about the nature of the crisis. Nonetheless I think people still have a sense that he should have handled it better, more effectively, more quickly. Probably the bigger issue is the budget deficit as a precipitating event for this recall. Going from a huge surplus to a budget deficit the governor is accused of mismanaging fiscal policy and maybe concealing this 30 billion budget deficit from us last time we elected him. I think the ramifications of this budget deficit are being felt by everybody. From school services to vehicle license fees, so it's very widespread. To take an ethical stance in light of what we might learn from these three situations about what is good and what is harmful in this election. I think we need to insist, of all the ethical stances, on honesty about the state's economical fiscal policies. Both elective folks and we citizens have to insist on this kind of honesty. What caused these problems? Or who caused these problems? What are realistic solutions to these problems? I think it's very easy when we are in a state of emotional upheaval to pass the buck and scapegoat. So just to briefly look at what you're hearing right now about the budget. So questions we would think about the deficit, which of course is on everyone's mind. As you know, since Prop. 13 we have been relying on what are called volatile sources of revenue. Personal income tax and sales tax so, when the economy is moving, Sacramento has all this money. But when either the income tax or sales tax goes down we have revenue loss and that's exactly what has happened to this administration. And I would argue that Davis knew when he was sitting on his surplus. The ethical thing to do was to tell the California voters that, "you know I am sitting on a temporary surplus because of the dot com boom and all the capital gain tax and personal income taxes." He was sitting around 1999-2000 on about a 12 billion surplus and he said at the time I am not going to commit this to spending or tax cuts. He was doing what I think is the ethical thing to do: saying "guess what, our economy goes up and down, so we should sort of plan." However, in short order he committed all the money to permanent spending and to tax cuts and here we are. On the campaign trail he's now saying, "I should have held on to that. I should have done the responsible thing," but he's blaming the deficit on President Bush's sluggish economy. Bustamante contends the deficit stems from the energy crisis and is blaming power sellers with draining the general fund and leaving no money for education. But the state's long term power buys are being financed by bond issues paid for by utility customers. Schwarzenegger says we can solve the deficit without either raising taxes or cutting core programs and we can still cut the vehicle license fee. In addition we may hear tonight more details about solutions on the debate, but finally in addition to the deficit we're hearing other economic arguments out there that we really have to sort through and insist upon honest answers. One is the tax burden on Californians. So depending on what measure you use, we're either 8th or 18th in the country in terms of our tax burden. If you use the measure of taxes per capita, we're 8th. If you use taxes as a percentage of personal income, we're 18th. The point is we have to be careful what numbers we are using. Finally the business climate argument is out there, very prominent in this campaign. So what is the evidence? Is this a bad climate for business? We're a very expensive state to do business in, but we're also a very productive state to do business in. So every claim that's made about our economy we have to be intelligent about and our politicians have to be intelligent about. So I would just conclude that economic concerns have gotten us into this upheaval politics of the recall election and a careful understanding of economics on everyone's part is crucial to this process resulting in more good than harm and finally that the unprecedented public attention to economic and fiscal issues is a welcome counterweight to the more superficial aspects of this recall election. Thank you.

Peter Minowitz: Thank you. I've got the mayor on my left and the recall expert on my right so I'm going to focus on the ethical issues. I think I'll mainly just offer a few comments in response to the questions that Ms. Nadler earlier raised and were sketched in today's Mercury News. I actually have some answers to propose to a few of them, which is a little out of character for me. If there were an action blockbuster sequence built around me it would be The Equivocator, not the terminator so I'm looking for a chance to move in a more Arnold like direction. So one question: Is it fair to replace Governor Davis with someone who may get as little as 25% of the vote. I don't think that's much of a problem. First of all the focus should be on what's fair to the voters. I don't think any elected official can claim it's unfair if they're not re-elected or something like that. Our last election, when Davis came to office, he received only 44% of the vote which is a plurality rather than a majority. People of those 44% and anyone else who relishes his performance should vote no on the recall. I don't see any ethical problem with that aspect of it.

Second question. Is it appropriate, is it fair that the California constitution allows recalling for any reason. It doesn't specify if it's for performance or high crimes and misdemeanors or anything along those lines. I think it's actually not such a difficult question when we look at it more as political scientists because the electoral process is one where the voters get to choose. They are not required to vote in any election for the smartest candidate or the most righteous candidate or anything. If any of the California constitutional language limited recall, you would be inviting some of the problems we see in other venues where the courts may be summoned to interpret. Was this a valid recall? Was their mal-performance? Whatever the particular phrase is. So elections reflect sovereignty as exercised by voters. You go into the booth. You can make your decision for the most trivial and immoral reasons. The fact that it's a secret ballot emphasizes autonomy in that respect. So again I don't see that being a problem. I don't think it would be feasible to try to limit the people you have recalling. Whether you should is a separate question. And of course there's no guarantee that the governor of California or the President of the United States for that matter has received a majority of the popular votes anyway in the previous election. Could be a multi-party contest as it was for Davis, which is why he was able to win with 40%.

So those are two specific answers to some of the questions. As we think about this in a larger level, we were reflecting about direct democracy where voters in California pass initiatives that become part of the constitution, no longer being mediated by the elected representatives. In this case, having the option to undo an election that they themselves produced in the previous election. In terms of fairness, I could say a lot on behalf of recall. The voters put you in and the voters should be able to take you out. When we think about consequences and utilitarianism, it is obviously a more doubtful proposition. Would we want to have all of our politicians constantly representing employees at the Supermarket where you could be fired on the spot? There are some obvious disadvantages and that ties in with what Professor Flammang was saying about pandering and politicians not willing to honestly speak to us and so on. Specifically, with Governor Davis as far as him feeling aggrieved, in a way there's sort of justice to the outcome. I'm still troubled by what happened in his election when he spent so much money intervening in the Republican primary so that the more extreme Republican and the less experienced politically, Bill Simon, ended up being the candidate. So that kind of compromising is going on all over the place and that's all that I have to say.

Judy Nadler: Thank you. That was great. So now it's open mic here. We're welcoming you to come forward and share your thoughts on this and if you could just introduce yourself that would be helpful.

Hi. I'm June Carbone from the law school. I wondered going forward about two parts of the ethics of all of this, both of which have to do with money. If there is a major reason for anger at Gray Davis, it's not just the substance of his policies, but the perception that he's basically available for the highest bidder, and that he has conducted the governor's office in a way that makes money a condition of access, whether or not he does what those who gain access seek. So you have that perception and it seems to me that the recall is the perfect response to that perception combined with the substance of the policies. On the other hand, what really makes the recall disturbing to me is when you combine it with what we've seen happened with referendum. So that you can now hire a group that will go out and collect signatures for you. If you've got enough money you can probably get almost anything on the ballot, though you may or may not win the election. So again, what is disturbing about recall as an antidote or a counter to the influence of big money is that it's big money too, and whether or not you don't have it is somewhat cynical, the prospect going forward especially if this succeeds is of various groups using the recall to advance a set of political ends without broad based support. With enough of a financial base they can use it quite cynically, in a way that winds up being at the expense of doing business in the state. So my final thought is whether perhaps the antidote to both might be to think about the issue of succession. If Bustamante were the person to succeed Davis then you could have the recall only by people who were really angry at Davis but not necessarily because they wanted their hand picked candidate for their successor. But I don't know enough about California politics to think about whether or not that makes sense.

Janet Flammang: I'm glad you raised big money. To put Davis' dilemma in context: when he was running for governor it was in the context of two, 30 million-dollar men. Huffington shoved out 30 million of his money and he lost and Al Checchi in the primary shoved out 30 million of his own money. Davis, to his defense, and Bustamante who makes $100,000 a year compared to Arnold's $27 million, these guys are saying, "What are we supposed to do?" So the bigger question is, why do we have to spend this much money doing our politics, which to me is the more radical question that would be fun to really think about. Because it does cost this much money to run for office in California, we're huge, and we're expensive. It costs a couple of a million every time you run an ad. So I think it's very important for the voters to look squarely into what are the alternatives. And you're right. He spent his whole first administration raising 70 million dollars and the pay for play is really true. However, I think the actual results of people who got him to do what he wanted are very mixed because the Chamber of Commerce is coming out in favor of Schwartzenegger. So the payers don't always get what they want. That's a very mixed bag. But I think you're absolutely right. I think underneath the sort of elephant in the living room is "why all this money?" You know it just seems criminal. So a couple of solutions. We're watching campaigns go through the Internet, which is cheaper. With our compressed time frame that we're talking about we have this little mini-experiment. One, campaign finance reforms. You have to shorten the campaign period so you don't have to raise as much money. Well now we're getting a little experiment. Are we going quicker to the point, cheaper? I mean we still are doing millions here but maybe if we do have shorter, do it differently, do it quicker, cheaper, faster, we'll find out. Do we feel informed at the end of this whole process and maybe we should shorten everything so we don't have to spend quite as much as we do. The signature gathering absolutely. The progressives imagined citizens out gathering these things. Now, you're right, anyone can pay anyone to go put anything on the ballot. We citizens have to really think before we sign all those things now. This is government by direct democracy, I think that's on us too. Instead of signing everything that's put in front of us, exactly what is going on here? And succession, sure, we could change the California constitution so that, in the recall, the lieutenant governor automatically becomes governor.

Peter Minowitz: Just one more word about the money angle, to bring in the relevance of virtue. There's a paradox about this because you don't actually buy your votes for a candidate with money. You can buy cars and you can buy ads. Why do you want to buy ads? So you can put out sound bites and engaging messages to induce people to vote for you. To the extent that the populace is energetic about staying informed and following issues, advertising might be next to worthless. So there are greater things you can do, additional points, to get money out of the process, which create other additional problems. If you publicly fund a major party that disadvantages a 3rd party and so on. So that's a real dilemma but it does have one answer which is starting an Internet campaign to get people to ignore the ads and read up on more detail in papers and news discussions.

Janet Flammang: I would just second. In following all this recall in the shortened time frame, which I've been doing, the newspapers are fabulous. You can go on all their websites and you can find every single article that's written all across the state and read everything in real time. So there are cheaper ways of doing this, if people read newspapers.

September 24, 2003

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