Nonbinding nonsense

By Derek Monson

By Derek Monson, Sutherland Institute Director of Public Policy
By Derek Monson, Sutherland Institute Director of Public Policy

Groups that have had their political and ideological agendas frustrated by Utah’s constitutional order and the conservative instincts of state policymakers have recently begun pursuing a new tactic in their crusade to moderate and “sophisticate” the state’s prudent management of taxpayer resources. They have proposed statewide “nonbinding votes” of the people.

The idea of the “nonbinding vote” is to put an opinion question on the ballot for the public to vote on, without requiring any policy changes based on the outcomes of the vote. For instance, the groups Prosperity 2020 and Education First want to raise Utah’s income tax rate by 17.5 percent – from the current rate of 5 percent to a rate of 5.875 percent. They have proposed putting this idea on the ballot as a nonbinding vote of the people. Additionally, a liberal lawmaker has similarly suggested putting the question of whether Utah ought to expand Medicaid under Obamacare on the ballot as a nonbinding vote.

Now, an important policy question immediately arises about the idea of the “nonbinding vote.” What is the point, or alternatively, what common good does it serve? The only common good that nonbinding votes could serve would seem to be informing policymakers’ about the opinion of the governed. But do they really forward that good in any substantive way in today’s world?

At first glance, the nonbinding vote seems less like a policy of the 21st century, where it takes about two minutes to call or email your legislator, and more like a relic of 200 years ago, when the quickest way to get public opinion to a legislator was through a horse and rider carrying handwritten letters. Today, state legislators have access to both independent public opinion polls on many big issues of the day as well as their own voter opinion polls that they conduct prior to each year’s legislative session. And most importantly, legislators have regular elections in which any adult Utahn can participate to register their opinion of lawmakers’ decisions, which is a foundation of the American philosophy of governing by the consent of the governed.

In short, the idea of the “nonbinding vote” seems better fitted to days before electricity, let alone the digital age of today.

When you really think about it, the concept of the “nonbinding vote” doesn’t fit anywhere in our constitutional order. In Federalist No. 10, James Madison frowned on what he called a “pure democracy,” where the people vote to decide policy and political issues. Madison instead favored the kind of republic we have today, where elected representatives decide those issues. He wrote “democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property” and he criticized what he called “theoretic politicians, who have patronized this species of government, [who] have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.” A nonbinding vote of the people on policy issues like income tax increases and Medicaid expansion would seem to be a tactic to push the state in the direction of the “pure democracy” that Madison criticized, and which he and the other Founders painstakingly avoided when drafting the Constitution.

So if there isn’t a genuine need to communicate public opinion to lawmakers through a nonbinding vote, and if the nonbinding vote doesn’t really fit within the American constitutional order, why propose it? What we’re left with is a simple a lack of progress on a desired political or ideological agenda.

The political activists pushing the nonbinding vote concept in this case have failed to move their agenda through the typical means. They’ve proven incapable of persuading policymakers or effectively organizing movements of voters to their cause. That failure, evidently, has led them to the point of pursuing ways to undermine or get around Utah’s constitutional order, rather than upholding it by working within it.

Of course, this isn’t to say that constitutional innovation is always a bad thing. It can be good if it’s done for the right reasons and in the right ways. But the right way is to take the candid, straightforward path of persuading policymakers and the public to hold binding votes on constitutional amendments, not pursuing unnecessary and passive aggressive nonbinding votes because you aren’t capable of winning policy victories through America’s governing institutions.

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