Voice For Liberty

Tag: Constitution

  • Kansas Supreme Court: Selecting Judges

    Kansas Supreme Court: Selecting Judges

    While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function.

    A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

    At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

    But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

    Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

    Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

    Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

    The result: New Kansas law, made by people selected through an undemocratic process.2

    In conclusion, Ware writes:

    Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

    (In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Supreme Court. The governor then selects one of the three. This process gives members of the state’s bar tremendous power in selecting judges.)

    By the way: For those who criticize the support for judicial selection reform as partisan politics — since Kansas has a conservative governor — remember this: When Professor Ware first sounded the need for judicial selection reform, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have approved any nominee Sebelius might have sent for confirmation.

    Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
    By Stephen J. Ware

    Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

    The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

    This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

    The complete paper may be downloaded at no charge here.

    —
    Notes

    1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265. ↩
    2. Ware, Stephen J. Selection to the Kansas Supreme Court. Federalist Society for Law and Public Policy Studies. Available at www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court. ↩
  • The unprecedented campaign against free speech

    The unprecedented campaign against free speech

    The political left’s campaign to silence opponents and reorder society in accordance with their personal beliefs is in many ways the single greatest threat to America’s experiment in self-governance, writes Mark Holden.

    The unprecedented campaign against free speech

    By Mark Holden. Originally published in The Hill.

    The liberal Supreme Court Justice Oliver Wendell Holmes once warned of the biggest danger facing free speech: “If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.”

    Yet many lawmakers today are mistaking his wise warning as an invitation to restrict the First Amendment. At nearly every level of government, freedom of speech is under unprecedented attack. Many on the political left now seek to silence their opponents and reorder society in accordance with their personal beliefs. This is in many ways the single greatest threat to America’s experiment in self-governance.

    This coordinated campaign has been underway for years. Its creation can be traced to the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, when the court refused to accept the Obama administration’s argument that it could ban books, mailers, advertisements or anything else that contained a political message during an election campaign. This simple ruling ensured that Americans retained the fundamental right to use free speech to praise or criticize a candidate running for office.

    However, that is the very core of free speech itself. If Americans — individually or acting together through nonprofits, businesses or labor unions — cannot voice their views on public policy and elected officials, then the democratic process as we know it is dead. The result is a system that makes those already in power even more powerful; incumbents need not fear having those pesky voters learn about their statements, views and voting records.

    In fact, liberal politicians and activists swiftly made opposition to Citizens United a defining part of their platform from the moment the Supreme Court issued its decision. By 2014, no fewer than 54 U.S. Senators — all Democrats or Democratic allies such as current presidential candidate Sen. Bernie Sanders (Vt.) — supported a constitutional amendment essentially rewriting the First Amendment so that the federal government could regulate and criminalize free speech. Congressional Democrats are once again preparing to make a push to roll back the court’s decision and stifle free speech.

    Not to be outdone, leading Democratic presidential candidate Hillary Clinton has declared that she would only appoint judges who promise to overturn Citizens United and permit the censorship of political speech.

    At the same time, lawmakers and their allies have found other ways to stifle their opponents’ speech. Americans learned in 2013 that the IRS had systematically singled out conservative nonprofits in the build-up to the 2012 election. The agency harassed many applicants and kneecapped others by refusing to grant them tax-exempt status, restricting their members and supporters from exercising their rights to free speech and free association.

    Sadly, this abuse of power still occurs. The federal courts recently learned that multiple nonprofits still haven’t received IRS approval.

    Even more attacks on free speech are happening at the state level. For example, New York and California are both demanding that some nonprofits hand over lists of donors to the state. Although the government invariably promises to not release this legally confidential information, California has “accidentally” posted at least 1,400 supporter lists online.

    This fact, and ongoing harassment by California Attorney General Kamala Harris, led a federal judge to permanently stop her from obtaining the donor list of one organization, the Americans for Prosperity Foundation. (Full disclosure: I am a director of the related Americans for Prosperity.) However, the IRS has done something similar, conveniently disclosing confidential taxpayer information for several of the Obama administration’s political opponents.

    And then there are the demands that government investigate organizations that hold unpopular or controversial views. Over a dozen state attorneys general (all of them Democrats), recently announced that they will go after companies such as Exxon Mobil that disagree with their views on climate change. The prosecutors’ goal is to intimidate these groups to change their position or else face criminal prosecution.

    Federal lawmakers are in on the action, too. The Department of Justice has asked the FBI to begin similar investigations of major energy companies. Sen. Sheldon Whitehouse (D-R.I.) has even called for organizations that disagree with him to be prosecuted under the federal law banning racketeering — a law originally meant to target mobsters and drug kingpins.

    This coordinated campaign is antithetical to the First Amendment’s guarantee of free speech. In our system of self-government, when someone finds other people’s ideas and opinions disagreeable or even reprehensible, the solution is more speech, not less. Yet instead of persuading others to see their point of view, many in today’s society would rather use government’s power to bully their opponents into silence instead.

    Thankfully, Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker Paul Ryan (R-Wis.) have tried to combat this assault on free speech. They have championed a number of reforms to protect the First Amendment and prevent elected officials and the administrative state from stifling Americans’ right to free speech.

    Their leadership should be praised, but much more needs to be done. This fundamental right won’t truly be protected until Americans of all political persuasions heed Justice Holmes’s wise words.

    Holden is senior vice president and general counsel of Koch Industries, Inc. and a director of Americans for Prosperity. (The chairman of the Americans for Prosperity Foundation, David Koch, is also executive vice president and director of Koch Industries.)

  • AFP Foundation wins a battle for free speech for everyone

    AFP Foundation wins a battle for free speech for everyone

    Americans for Prosperity Foundation achieves a victory for free speech and free association.

    Must donors to non-profit organizations live in “fear of exercising their First Amendment right to support” any organization, which effect is to “diminish the amount of expressive and associational activity?” Should these people be denied the right to their speech? The constitution says, no.

    Non-profit organizations file a form known as IRS Form 990, Return of Organization Exempt From Income Tax. 1 The first part of this form is public information and may be obtained from the organization itself or from services like GuideStar. Also part of the filing is Schedule B, Schedule of Contributors. 2 This form holds the names and addresses of donors, along with the amount donated. This information is not public, and generally non-profits do not disclose it.

    But California Attorney General Kamala Harris wanted the names of AFP Foundation’s donors, and she demanded its Schedule B. AFP Foundation said no, and now a federal judge has ruled that “the Attorney General’s Schedule B disclosure requirement unconstitutional as-applied to AFP.”

    AFP Foundation Board Member Mark Holden said “Federal District Court Judge Manuel Real issued a permanent injunction to enjoin the Attorney General of California from demanding AFP Foundation’s donor list. After a full bench trial, the Court found the Attorney General’s disclosure requirement was an unconstitutional violation of the First Amendment as applied to AFP Foundation. The Court also found that the Attorney General’s demand chills the exercise of AFP Foundation donors’ First Amendment freedoms to speak anonymously and to engage in expressive association.”

    Holden added “From my perspective as an AFP Board member and a citizen is that it is a great day for First Amendment free speech and free association.”

    The case is Americans for Prosperity Foundation v. Kamala Harris, In Her Official Capacity as Attorney General of California. The final ruling is here.

    Anonymity

    Why might donors choose to be anonymous, and why is protecting that right important? In his decision, the judge wrote “During the course of trial, the Court heard ample evidence establishing that AFP, its employees, supporters and donors face public threats, harassment, intimidation, and retaliation once their support for and affiliation with the organization becomes publicly known.”

    Disclosure has been used as a political weapon, as the Wall Street Journal noted in its reporting: “The judge is an LBJ appointee who can recall when disclosure was used as a political weapon in the Jim Crow South.” (Judge Manuel L. Real was born in 1924 and appointed to the Court in 1966 by President Lyndon Johnson.) In his opinion, Judge Real wrote “[A]lthough the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from that era, this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

    Today, those who advocate for free markets, limited government, and economic freedom are often verbally assaulted and threatened, and sometimes threats are physical and real. But it is not only those who this ruling benefits. Today, there are people who may want to donate to controversial matters such as supporting gay rights, but may still be “in the closet.” Conservatives who support issues like abolition of the death penalty, criminal justice reform, and legalization of drugs are often branded by their fellows as closet liberals who are soft on crime. Should these people be denied the right to their speech? The constitution says, no.

    —
    Notes

    1. Form 990, Return of Organization Exempt From Income Tax. (2016). Irs.gov. Available at www.irs.gov/uac/About-Form-990. ↩
    2. Schedule B (Form 990, 990-EZ, or 990-PF), Schedule of Contributors. (2016). Irs.gov. Available at www.irs.gov/uac/About-Schedule-B-(Form-990,-990EZ,-or-990PF). ↩
  • Kansas Supreme Court judicial selection

    Kansas Supreme Court judicial selection

    Kansas progressives and Democrats oppose a judicial selection system that is used by U.S. Presidents, both Democrats and Republicans.

    What is the substantive difference between these two systems?

    A) A state’s chief executive appoints a person to be a judge on the state’s highest court. Then the state’s senate confirms or rejects.

    B) A nation’s chief executive appoints a person to be a judge on the nation’s highest court. Then the nation’s senate confirms or rejects.

    Perhaps there is a difference that I’m not smart enough to see. I’m open to persuasion. Until then, I agree with KU Law Professor Stephen Ware and his 2007 analysis of the way Kansas selects Supreme Court judges as compared to the other states.1 That analysis concludes that “Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices.”

    Ware has made other powerful arguments in favor of discarding the system Kansas uses: “In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country. While members of the Kansas bar make several arguments in defense of the extraordinary powers they exercise under this system, these arguments rest on a one-sided view of the role of a judge.”2

    Judges, Ware says, make law, and that is a political matter: “Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.”3

    Kansas exhibits a pattern of selecting governors from alternate political parties.
    Kansas exhibits a pattern of selecting governors from alternate political parties.
    For Kansas progressives and Democrats to oppose Kansas adopting the same system that has enabled Barack Obama to appoint two liberal justices to the U.S. Supreme Court, with perhaps more to come — don’t they realize that Kansas will (likely) have a Democratic governor someday? As Clay Barker noted, for the last 50 years, no Kansas governor has been followed by a successor of the same party (except for Mark Parkinson filling the remainder of a term after Kathleen Sebelius resigned). If that pattern holds — and there’s no guarantee that it will — the next Kansas governor will be a Democrat, just three years from now.

    Superficially, it doesn’t seem to make sense for Kansas Democrats to oppose the governor making judicial selections while supporting the President of the United States having the same power. It does make sense, however, when we realize that Kansas Democrats are comfortable with the state’s bar selecting the judicial nominees that the governor may consider. (Which gives truly useful and enjoyable bars a bad name.) Lawyers, especially lawyers that take an active role in politics, tend to be Democrats, and progressive Democrats at that. If the Kansas bar was dominated by constitutional conservatives, would Kansas Democrats feel the same?

    I’m not claiming that the motives of conservative Kansas Republicans are pure. Will they change their stance on the desirability of the governor appointing Supreme Court judges if there is a Democratic governor? I don’t know, but I have a suspicion.

    Defenders of the current Kansas system claim that the system is based on merit, not politics. To which we must note that this year the Kansas Supreme Court was reversed by the United States Supreme Court. It wasn’t even close, with justices voting eight to zero that the Kansas court was wrong in its application of the law. (The other Supreme Court justice said “I do not believe these cases should ever have been reviewed by the Supreme Court.)

    1. Ware, Stephen J., Selection to the Kansas Supreme Court. Fed-soc.org. Available at: http://www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court. ↩
    2. Ware, Stephen J., The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court (September 25, 2009). Kansas Journal of Law & Pubic Policy, Vol. 18, No. 3, p. 392, 2009. Available at SSRN: http://ssrn.com/abstract=1478660. ↩
    3. Ware, Stephen J., Originalism, Balanced Legal Realism and Judicial Selection: A Case Study (August 3, 2012). Available at SSRN: http://ssrn.com/abstract=2129265. ↩
  • David Bobb: Free speech and its importance

    David Bobb: Free speech and its importance

    David Bobb, President of The Bill of Rights Institute, explains freedom of speech and its importance. View below, or click here to view at YouTube. Wichita, Kansas, February 18, 2016.

    Notes

  • WichitaLiberty.TV: David Bobb, President of Bill of Rights Institute

    WichitaLiberty.TV: David Bobb, President of Bill of Rights Institute

    In this episode of WichitaLiberty.TV: David Bobb, President of The Bill of Rights Institute, talks about civic education and the importance of humility. View below, or click here to view at YouTube. Episode 110, broadcast February 21, 2016.

    Shownotes

  • The real free lunch: Markets and private property

    The real free lunch: Markets and private property

    As we approach another birthday of Milton Friedman, here’s his article where he clears up the authorship of a famous aphorism, and explains how to really get a free lunch. Based on remarks at the banquet celebrating the opening of the Cato Institute’s new building, Washington, May 1993.

    I am delighted to be here on the occasion of the opening of the Cato headquarters. It is a beautiful building and a real tribute to the intellectual influence of Ed Crane and his associates.

    I have sometimes been associated with the aphorism “There’s no such thing as a free lunch,” which I did not invent. I wish more attention were paid to one that I did invent, and that I think is particularly appropriate in this city, “Nobody spends somebody else’s money as carefully as he spends his own.” But all aphorisms are half-truths. One of our favorite family pursuits on long drives is to try to find the opposites of aphorisms. For example, “History never repeats itself,” but “There’s nothing new under the sun.” Or “Look before you leap,” but “He who hesitates is lost.” The opposite of “There’s no such thing as a free lunch” is clearly “The best things in life are free.”

    And in the real economic world, there is a free lunch, an extraordinary free lunch, and that free lunch is free markets and private property. Why is it that on one side of an arbitrary line there was East Germany and on the other side there was West Germany with such a different level of prosperity? It was because West Germany had a system of largely free, private markets — a free lunch. The same free lunch explains the difference between Hong Kong and mainland China, and the prosperity of the United States and Great Britain. These free lunches have been the product of a set of invisible institutions that, as F. A. Hayek emphasized, are a product of human action but not of human intention.

    (more…)

  • Rebuilding liberty without permission

    A forthcoming book by Charles Murray holds an intriguing idea as to how Americans can reassert liberty: Civil disobedience. Make the federal government an “insurable hazard.”

    I think it’s a great idea. For an easy introduction to this concept, listen to the Cato Institute’s seven-minute podcast of Murray speaking about these ideas.

    From the publisher:

    American freedom is being gutted. Whether we are trying to run a business, practice a vocation, raise our families, cooperate with our neighbors, or follow our religious beliefs, we run afoul of the government—not because we are doing anything wrong but because the government has decided it knows better. When we object, that government can and does tell us, “Try to fight this, and we’ll ruin you.”

    In this provocative book, acclaimed social scientist and bestselling author Charles Murray shows us why we can no longer hope to roll back the power of the federal government through the normal political process. The Constitution is broken in ways that cannot be fixed even by a sympathetic Supreme Court. Our legal system is increasingly lawless, unmoored from traditional ideas of “the rule of law.” The legislative process has become systemically corrupt no matter which party is in control.

    But there’s good news beyond the Beltway. Technology is siphoning power from sclerotic government agencies and putting it in the hands of individuals and communities. The rediversification of American culture is making local freedom attractive to liberals as well as conservatives. People across the political spectrum are increasingly alienated from a regulatory state that nakedly serves its own interests rather than those of ordinary Americans.

    The even better news is that federal government has a fatal weakness: It can get away with its thousands of laws and regulations only if the overwhelming majority of Americans voluntarily comply with them. Murray describes how civil disobedience backstopped by legal defense funds can make large portions of the 180,000-page Federal Code of Regulations unenforceable, through a targeted program that identifies regulations that arbitrarily and capriciously tell us what to do. Americans have it within their power to make the federal government an insurable hazard like hurricanes and floods, leaving us once again free to live our lives as we see fit.

    By the People’s hopeful message is that rebuilding our traditional freedoms does not require electing a right-thinking Congress or president, nor does it require five right-thinking justices on the Supreme Court. It can be done by we the people, using America’s unique civil society to put government back in its proper box.

  • Wichita has examples of initiative and referendum

    Wichita has examples of initiative and referendum

    Citizens in Wichita have been busy exercising their rights of initiative and referendum at the municipal level. The Kansas Legislature should grant the same rights to citizens at the state level.

    What recourse do citizens have when elected officials are not responsive? Initiative and referendum are two possibilities. Citizens in Wichita have exercised these rights, but Kansans are not able to do this at the state level.

    Initiative is when citizens propose a new law, and then gather signatures on petitions. If a successful petition is filed, the matter is (generally) placed on a ballot for the electorate to decide whether the proposed law will become actual law. Examples are the initiative to add fluoride to Wichita water (which voters rejected) and reduce the penalties for possession of small amounts of marijuana (which passed, but has not taken effect pending legal action by the Kansas Supreme Court.)

    Referendum is when citizens petition to overturn an act passed by a governing body. An example is the 2012 repeal of a charter ordinance passed by the Wichita city council.

    So at the municipal level in Kansas, citizens have the right of initiative, although in practice the right is limited. The right of referendum is more narrowly limited. But at the state level, there is no possibility for citizens to exercise initiative or referendum. The law simply does not allow for this.

    Policies, not politicians

    Initiative and referendum allow citizens to vote on specific laws or policies. This is contrasted with elections for office, where voters must choose candidate A or candidate B. Voters have to take the entire package of positions associated with a candidate. It isn’t possible to select some positions from candidate A, and others from candidate B. So when a candidate wins an election, can we say why? Which of the candidate’s positions did voters like, and which did voters not like? Results of regular elections rarely provide a clear answer.

    Initiative and referendum, however, let citizens vote on a specific law or proposal. There is little doubt as to the will of the voters.

    There’s a difference between voting for politicians and voting for policies. When given a chance, Wichitans have often voted different from what the council wanted. An example is the 2012 overturn of a charter ordinance the council passed. Another is the failure of the sales tax in November 2014. That was on the ballot not because of citizen initiative, but it is an example of voting directly for an issue rather than a candidate. Citizens rejected the sales tax by a wide margin, contrary to the wishes of the city council, city hall bureaucrats, and the rest of Wichita’s political class.

    It’s different voting for policies than politicians. For one thing, the laws passed by initiative don’t change, at least for some period of time. But politicians and their campaign promises have a short shelf life, and are easily discarded or modified to fit the current situation.

    Politicians don’t want it, which is its best argument

    Generally, politicians and bureaucrats don’t want citizens to be empowered with initiative and referendum. When the city council was forced to set an election due to the successful petition regarding the Ambassador Hotel issue, reactions by council members showed just how much politicians hate initiative and referendum. Council Member Pete Meitzner (district 2, east Wichita) wanted to move the election to an earlier date so as to “avoid community discourse and debate.”

    Council Member Janet Miller (district 6, north central Wichita) expressed concern over “dragging this out,” and said she wants to “get it over with as soon as we can so that we can move on.”

    In his remarks, Mayor Carl Brewer advocated having the election as soon as possible. He told the city “By doing that, it eliminates a lot of turmoil inside the community, unrest.”

    As you can see by these remarks, politicians don’t like citizens second-guessing their actions. Initiative and referendum gives citizens this power. John Fund said it best: “Without initiatives and referendums, elites would barely bother at all to take note of public opinion on issues they disdained — from supermajority requirements to raise taxes to term limits. They serve as a reminder that the experts sometimes have to pay attention to good old common sense.”

    Petitioning is not easy

    A criticism often leveled against initiative and referendum is that ballots will be crowded with questions submitted by citizens. But as anyone who has been involved in a petitioning effort knows, filing a successful petition is not a simple matter. The first petition effort to relax Wichita marijuana laws failed, with the election commissioner ruling that an insufficient number of valid signatures were submitted. (Generally, petition signers must meet certain requirements such as being a registered voter and living within a certain jurisdiction.) Now the Kansas Attorney General contends that the second petition by the same group is defective because it lacks the proper legal language. It is common for the validity of petitions to be contested, either by government or by special interest groups that believe they will be adversely affected.

    How to get it

    It will take an amendment to the constitution for the people of Kansas to have initiative and referendum rights at the state level. That requires passage in both chambers of the legislature by a two-thirds margin, and then passage by a majority of voters.

    Although the governor does not play a direct role in constitutional amendments — as they do not require the governor’s signature — a governor can still have a role. In 1991 Joan Finney supported initiative and referendum. An amendment passed the Kansas Senate, but did not advance through the House of Representatives.

    Today it seems unlikely that the present Kansas Legislature would support an amendment implementing initiative and referendum. Politicians just don’t want to give up the power. (The laws giving some initiative and referendum rights at the municipal level is a state law. State legislators were imposing a hardship on other elected officials, not themselves.)

    But initiative and referendum are popular with voters. In 2013 Gallup polled voters regarding petitioning at the national level. 68 percent favored this, while 23 percent opposed. One of the few issues that poll higher than this is term limits for office holders.

    By the way, do you know what citizens in states often do after gaining the right of initiative? Impose term limits on their legislatures. Lawmakers don’t want you to do that.

    Recent history in Wichita

    In 2011, Wichitans petitioned to overturn a charter ordinance passed by the city council. In February 2012 the ordinance was overturned by a vote of 16,454 to 10,268 (62 percent to 38 percent). This was a special election with only question on the ballot.

    In 2012 a group petitioned to add fluoride to Wichita water. The measure appeared on the November 2012 general election ballot, and voters said no by a vote of 76,906 to 52,293, or 60 percent to 40 percent.

    On the November 2014 general election ballot, Wichita voters were asked about a one cent per dollar sales tax. This was not the result of a petition, but it provides an example of a vote for a policy rather than a person. Voters said no to the sales tax, 64,487 to 38,803 (62 percent to 38 percent.)

    In 2015 a group petitioned to reduce the penalties for possession of small amount of marijuana. The measure appeared on the April 2015 city general election ballot, where Wichita voters approved the proposed law 20,327 to 17,183 (54 percent to 46 percent).