The Blue Tide
The Wreckage and the Lifeboats

by Bruce Ramsey

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On November 7, 2006, a blue tide swept Democrats back into power in the U.S. Senate and House of Representatives. It was no surprise; indeed, it had been a long time coming. In the 20th century there had always been a tide contrary to a government that entangled the nation in a serious war. In 1918, 1946, 1952, and 1966 it had been a Republican tide and in 1992 a Democratic tide. In 2006 it was a Democratic tide again.

There was no mistaking its meaning — and President Bush acknowledged it by sacking his secretary of defense, Donald Rumsfeld. More than anything else, the election was about the Iraq war — or, more accurately, the occupation of Iraq. It was not that the American people agreed with the Left that it was about contracts for Halliburton or “blood for oil,” or that it was a neocon venture in imperial globe-management. Some said those things, but for most Americans it was simply a business that had gone on too long and was getting nowhere and was costing too much. They were in a mind simply to say the hell with it.

The Democrats had not run under any ideological banner. The core Democrats do have an ideology, social democracy; their medium-term aims include state medical insurance for all children and a more generous state provision of old people’s pills. In the safe districts candidates talked about that, but the warriors who did battle in the swing districts kept that stuff in the box. They talked about Bush, Bush, Bush. Very often, it was a winning strategy.

The election of Nov. 7, 2006, put libertarians in an odd political position. Radical libertarians may vote for the Libertarian Party or not at all, but if “libertarian” is defined as the word is used in general discourse, meaning someone who favors markets and free trade, individual responsibility and social tolerance, most libertarians vote Republican most of the time. But not always — and this was one of the years in which it was difficult to do that.

In October, David Boaz and David Kirby argued in a Cato Institute paper, “The Libertarian Vote,” that by a mainstream definition — social liberalism and economic conservatism — 9% to 13% of American voters are libertarians. In 2000, 72% of these people voted for Bush; in 2004, 59% of them did. The reason for the decline, according to Boaz and Kirby, was “Republican overspending, social intolerance, civil liberties infringements and the floundering war in Iraq.”

The decline in libertarian support for Republicans continued. Colin McNickle, editorial page editor of the Pittsburgh Tribune-Review and a libertarian-leaning conservative, wrote on Oct. 22, “I, for one, refuse to yet again enter my polling place, [and] vote for the usual GOP suspects.”

During the campaign, the Cato Institute held a forum on whether libertarians should vote Democrat. Some libertarians said they would do that to restore divided government and put brakes on an imperial presidency. Reason magazine posted a blog entry on how its staff intended to vote; the answers included Democrats but no Republicans. The war and civil liberties were their main reasons.

In another part of the ideological landscape, Ayn Rand’s heir, Leonard Peikoff, found another reason: Christianity. The Christian religion, he declared, had become a greater threat to the body politic than socialism. He linked Christianity to the Republicans and socialism to the Democrats. “The most urgent political task now,” he wrote, “is to topple the Republicans from power.”

A Libertarian Ponies Up

There was, of course, the Party of Principle, the Libertarian Party, which has been on the national scene for a third of a century. The Libertarians were hopeful that a number of their standard-bearers might climb out of the single-digit well. On the congressional level their best hope was Bill Smither, who ran for the Texas seat recently vacated by Tom DeLay. The district was dependably conservative, the kind of bailiwick where DeLay’s Republican replacement had a good chance to win as a write-in candidate. But the Democrat won, the Republican write-in came in second (perhaps because of her difficult name), and Smither came in third, with only 6% of the vote.

Across the country lots of Libertarians ran, and almost all languished in the low single digits. A handful not identified on the ballot as Libertarians got elected, including one to the Hardeeville City Council, in South Carolina; one to the Rapides Island Water Board, in Louisiana; and another re-elected to the Juneau Assembly (a borough legislative body) in Alaska.

In my home state, Washington, the Libertarians ran Bruce Guthrie, a former professor of management at Western Washington University, for U.S. Senate. He challenged Maria Cantwell, a Clinton Democrat who had been elected in 2000. Guthrie did not attack the welfare state: on Social Security he said, “We can maintain full benefits if we get our priorities straight.” The centerpiece of his campaign was immediate withdrawal from Iraq, a position in contrast to Cantwell’s, which was “find a way not to lose.” Cantwell had long disappointed her party’s left, which Guthrie set out to woo — though he was no leftist.

Guthrie ran three TV ads, low-budget but cute, showing paper-bag puppets being interviewed about Sen. Cantwell. Each admitted disappointment in her, but each still intended to vote for her. In one ad the puppet intoned, “I vote for the Democratic Party always.” Then the message: “Don’t be a party puppet! Vote Bruce Guthrie for Senate!”

Cantwell’s Republican challenger was former Safeco Insurance CEO Mike McGavick, who years earlier had been a Republican operative. He was a skillful candidate, and Cantwell allowed him only one debate in western Washington. The sponsor, KING-TV, announced that it would allow into the debate any candidate who had raised $1.2 million in campaign funds. Dipping into his net worth, Guthrie slapped that much on the table. He had not committed to spend it all, but it got him in. The Green Party candidate, former Black Panther Aaron Dixon, was omitted. He tried to crash the debate and was dragged away by police. Guthrie did all right in the debate; he got his view out to thousands of TV viewers.

Toward the end of October, McGavick, who was lagging behind, ran an unusual TV ad. It began by showing campaign signs for his Green and Libertarian opponents, with a graphic saying: “Guthrie, Dixon: Pull out Now.” McGavick walked on screen and said, “On Iraq, Bruce Guthrie and Aaron Dixon have the guts to say what they think. They say, let’s get the troops out now.” Then a sign with Cantwell’s photo appeared, and a graphic saying, “FOR THE WAR.” (Cantwell had voted for the Iraq war resolution in 2002.) McGavick said: “But Maria Cantwell? It’s just politics. First she voted for the war and to stay the course for three years. And, now suddenly, she’s become vague.” (This was true. She had become vague.) McGavick went on to say that he supported victory — but the clear message of the ad was that if you didn’t support victory, if you would have America leave Iraq, you should vote for the Green or the Libertarian — not the Democrat.

Cantwell won easily, and Guthrie received just over 1% of the vote.

Inside the Elephant

In the Republican Party there is a libertarian faction, defined and supported by the Republican Liberty Caucus. The RLC is a small group trying to build influence by setting out a platform, says chairman Bill Westmiller, of “individual rights, limited government, and private enterprise rather than new cultural constraints, big spending, or corporate subsidies.” The caucus favors tolerance on social issues and genuine toughness on spending.

Writes Westmiller, “While RLC has not taken an official position on the Iraq War, we are not apologists for the President or failed policies. We favor a defensive military posture and oppose all nation-building.” Most of the candidates supported by the RLC were for the war, but tended not to talk about it.

The candidates with the highest RLC ratings were Rep. Butch Otter of Idaho, running for governor; senators Craig Thomas of Wyoming, John Ensign of Nevada, Jon Kyl of Arizona, James Talent of Missouri, and George Allen of Virginia; and representatives Ed Royce and Dana Rohrabacher of California, John Shadegg, J.D. Hayworth, and Jeff Flake of Arizona, Paul Ryan of Wisconsin, Steve Chabot of Ohio, and Ron Paul of Texas. In the Republican wipeout of 2006, Talent, Allen, and Hayworth lost their seats.

Westmiller noted that Talent and Allen had “run to the right” on social issues and that Hayworth, whose district is on the Mexican border, had run as a critic of immigration. “We favor the administration proposals for guest workers and an easy path to citizenship,” Westmiller said.

Libertarians’ favorite Republican is Ron Paul, 72, who ran for president as a Libertarian in 1988. Before that, he represented the Texas coast around Galveston. In 1998 he won the seat back. In 2003 it was redistricted and became somewhat more urban, which worried him.

Paul is not a standard Republican. Wrote Joe Stinebaker of the Houston Chronicle, “Despite Paul’s nine terms in Congress as a Republican, the national GOP has never fully embraced him. Paul gets little money from the GOP’s large traditional donors, but benefits from individual conservative and Libertarian donors outside Texas.”

On the National Taxpayers’ Union list of taxpayers’ friends, Paul is ranked second out of 435. (Jeff Flake is first). On CNET’s ranking of representatives, based on their support for technology, Paul is at the absolute top. He is famously for the gold standard and a strict interpretation of the Constitution, and was one of only six Republicans in the House who voted against the Iraq war resolution of 2002. (Another of the six, John Hostettler of Indiana, found that his stance did not help him against the Democrats. He lost his seat on Nov. 7, leaving only Paul, centrist Jim Leach of Iowa, and libertarian-leaning John Duncan of Tennessee.)

Paul had a Republican challenger who used the Iraq war vote against him. Paul beat him, then faced Democrat Shane Sklar, 30, an officer of the Independent Cattlemen’s Association of Texas. Sklar ran a TV ad that said, “Ron Paul is a libertarian. Against Medicare. Against funding port security. Ineffective. Ignored.” He attacked Paul for bringing home too little pork. “If these dollars aren’t coming back to the 14th congressional district, they’re going somewhere,” he said. “Just not here.”

Sklar also said he would have voted for the war. Paul countered with a TV commercial of a war veteran praising him for help in securing his benefits.

Paul won 60% of the vote.

Racial Neutrality

A case can be made that libertarians who enjoy politics should work for ballot measures rather than candidates. Not all states have such measures, but in 2006 some offered a feast of them, many with a libertarian flavor.

One of the most fascinating contests was the one involving Proposal 2, the Michigan Civil Rights Initiative (MCRI), which was written to ban racial and gender preferences in state employment, contracting, and education. It won 58% of the vote, and libertarians were heavily involved in campaigning for it.

Similar measures were passed in the 1990s in California (55% of the vote) and Washington (58%), with the help of Ward Connerly, a former regent of the University of California. Connerly also sponsored MCRI. He is the most famous American crusader for race neutrality. He has taken a lot of abuse for it, particularly because he is, by American reckoning, black, though when I met him in 1996 he noted that he was part African, part European, and part American Indian. He thinks that the whole practice of dividing a melting-pot nation into racial tribes is reactionary.

This time I emailed him and asked him to compare his opponents in Michigan in 2006 with those in the earlier efforts. He replied: “Our opponents in Michigan are less civil, meaner, less respectful of those with whom they disagree, more prone to lie (BIG LIES) and distort, and less willing to genuinely engage about the issue. The element of ‘white guilt’ is significantly more prevalent in Michigan than in California and Washington. It is for these reasons that Michigan will be one of the last states in our nation to come to terms with the issue of ‘race.’ Frankly, I believe there are many in Michigan (black and white) who, for institutional and financial reasons, don’t want to come to terms with the issue. They are very content with de facto segregation in Michigan and all of the other accouterments of race. Race-based ‘affirmative action’ is just one way for each of the major ‘races’ to get their respective shares of the pie.”

The other public spokesperson was Jennifer Gratz, who was denied entrance to the University of Michigan’s main campus in Ann Arbor for the 1995–96 term because she was white, and whose case in 2003 became Gratz v. Bollinger, at the U.S. Supreme Court. (Gratz won, but the other plaintiff, Barbara Grutter, lost when the Court sided with “diversity.”) Gratz had long since graduated from UM’s less prestigious Dearborn campus, and had been working in the computer industry.

As they had done in California and Washington, the opponents said that the initiative was misleading because it called itself a civil-rights initiative, and that people had signed the petition not knowing what it meant. This was not true: racial neutrality is a simple idea and most people quickly understand what it means. In any case the Michigan organizers had collected 508,000 signatures, 60% more than they needed.

Arrayed against them was a leftist group calling itself By Any Means Necessary. This group says on its website, “BAMN will employ whatever means are necessary to oppose and defeat these attacks on the democratic and egalitarian aspirations and struggles of our people.” One of their means was dumping over the tables of the state canvassing board, intimidating its members. Another was cursing and spitting at Jennifer Gratz. BAMN also sued to have the initiative kept off the ballot; it took the case to the Michigan Supreme Court and lost. However, Michigan’s secretary of state insisted on adding the term “affirmative action” to the ballot description, which hadn’t included it.

The Detroit News, which opposed Proposal 2, reported that the measure was opposed by “virtually every religious, political, civic, business and labor group in the state.” Into the umbrella opposition group, One United Michigan, poured money from businesses, including $100,000 each from General Motors, Ford, Daimler Chrysler, and Toyota. The measure was opposed both by Democratic Gov. Jennifer Granholm, as you might expect, and by her Republican challenger, Amway heir Richard DeVos (who lost his own election).

The campaign against the Michigan Civil Rights Initiative outspent Connerly and Gratz 10 to 1. It did not argue mainly that the measure would hurt blacks and Hispanics. Instead, it “tried to portray the measure as anti-woman,” wrote Detroit News columnist Thomas Bray. A TV ad said the initiative would cut out math and science programs for girls and medical screening for cervical and breast cancer. Another ad said the initiative had been “brought to Michigan by a secret group of Californians.”

The race-neutrality side ran a calm, low-key TV commercial with Connerly saying, “We all know that affirmative action has been corrupt and unfair” and that “equal treatment is your civil right.” It ran a radio ad by a woman supporting Granholm for governor, saying of the initiative, “I read it. I understand it. I signed it.” Another radio ad had Jennifer’s father, Brad Gratz, saying that Proposal 2 would have given his daughter “an equal chance to compete based on merit, not skin color or gender.”

The calm, low-key approach worked, and the Michigan Civil Rights Initiative won big. Look for more race-neutrality measures in 2008.

Limiting the Tax Man

Taxes were at the center of political battle in many states. Nationwide, the most dramatic figure in tax initiatives was Howard Rich, chairman of Americans for Limited Government. The Wall Street Journal reported that through that and other groups Rich donated more than $15 million for state ballot measures to limit taxes, curb abuse of eminent domain, and require payment for regulatory takings.

For all this he was demonized; as Mr. Rich, he had the perfect name for it.

The left-wing Ballot Initiative Strategy Center put up a web page, www.howierichexposed.com, with the headline, “How a real estate tycoon is secretly trying to influence your state government.” It identified Rich as a director of the Club for Growth and the Cato Institute, president of U.S. Term Limits, a Libertarian Party activist, and husband of Andrea Millen Rich, former proprietor of Laissez Faire Books. It called him a “multi-millionaire real estate developer from New York, with no stake in the real priorities of the states he has targeted.” Of course, if Rich had had a stake, they would have said he was doing it for the money.

In Montana, the public school teachers’ union sued, and on Sept. 13 convinced a state judge to throw three of Rich’s initiatives off the ballot. One set up a mechanism for recalling judges — probably the judge didn’t like that one — another limited state spending, and another required payment for regulatory takings. On Oct. 2 a poll by the Lee Newspapers found the regulatory takings measure with 51% in favor and 21% against, but it was off the ballot nevertheless.

In Missouri, Secretary of State Robin Carnahan, a Democrat, refused to count petition signatures for a Taxpayers’ Bill of Rights because the petition pages were not sequentially numbered by county, as was required.

In Nevada, a judge removed part of a Rich-backed property-rights measure but left the other part.

Some of Rich’s Taxpayers’ Bills of Rights did, however, make it to the ballot in three states. These measures would have modified state constitutions to impose a spending limit based on population plus inflation, leaving the legislature free to lift the lid with a two-thirds vote, confirmed by a vote of the electorate.

All the proposals failed. In Oregon, where the Portland paper called Measure 48 “far and away the worst, most potentially damaging initiative on the ballot,” it went down, 71% “no.” (All the vote percentages in this article are provisional, as reported shortly after the election.) In Nebraska, where the Omaha World-Herald called Measure 423 “the wrong way to try to do a much needed thing,” it went down, 70% “no.” In Maine, Question 1 was rejected with a vote of 54% “no.”

In Washington, voters rejected a locally sponsored measure to repeal the state estate tax, which has a top marginal rate of 19%. The campaign pitted two Washington business figures against each other: Frank Blethen, publisher of the family-controlled Seattle Times, and Bill Gates, Sr., father of the founder of Microsoft. Blethen, who wants to keep the paper in the family, favored repeal; Gates, whose son has put much of his assets into a foundation, favored the tax.

The repealers argued that the “death tax” was a killer of locally owned family business. Their opponents argued that the tax was good because only the wealthy paid it, and because the money went to public schools. Repeal failed, 61% voting “no.”

Kelo, and Pay or Waive

Howard Rich bankrolled two sets of measures protective of private property. The first forbade the seizure of private property for resale to private parties. These were meant to nullify the Supreme Court’s Kelo decision, which allows state and local governments to seize and pay for private property for purposes of “economic development.” The second set of measures mostly included anti-Kelo provisions plus a requirement that governments pay for regulatory takings.

State	“Yes” vote
Nevada	63%
Oregon	67%
North Dakota	67%
Florida	69%
Michigan	80%
Georgia	82%
New Hampshire	86%
South Carolina	86%

(In the September primary, Louisiana also passed such a measure, by 55% “yes.”) Except in Oregon and Arizona, these were constitutional amendments.

Dana Berliner, attorney at the Institute for Justice, said the results “highlight the nation’s complete rejection of eminent domain for private development.” Some 35 states have restricted eminent domain since the Kelo ruling.

The second type of measure passed only in Arizona, where the vote was 65% “yes.” It failed in California, with 52% voting “no,” in Washington with 58% voting “no,” and in Idaho with a stunning 75% voting “no.” Typically these regulatory takings measures allowed government a free hand to regulate for human health or safety, or to abate a nuisance. But if the regulation was for the benefit of wildlife, aesthetics, or some planners’ project, and it resulted in the value of the property going down, the government would have to pay for the lost value.

The move to offer such proposals began in Oregon. That state had been an early and zealous adopter of statewide land-use planning. Under Oregon’s rules, to build a house on farmland you had to have at least $40,000 or $80,000 of agricultural income from that farm, depending on the fertility of the soil. Oregon won nationwide praise for this stuff, but voters thought otherwise and in 2000 passed an initiative demanding payment for regulatory takings. The Oregon Supreme Court struck the initiative down, but the sponsors wrote a tighter bill, Measure 37, and in 2004, 61% of voters supported it. Says Liberty contributing editor Randal O’Toole, “Oregon voters have a habit of passing measures that they previously supported, usually by larger margins than originally.”

Measure 37, which has been upheld by the Oregon Supreme Court, is a “pay or waive” law. The government can enforce a land-use rule and pay the owner for the loss in value, or it can issue a waiver that leaves the owner free to ignore the rule.

In nearby states, supporters of regulation raised an alarm about Oregon. Landowners’ claims were in the billions! That was true, though not one cent had been paid. Until October 2006, all the approved claims had been granted waivers. When government has to pay for what it takes, it doesn’t take so much.

About a week before the November election, Prineville in central Oregon offered to pay a Measure 37 claim. The town is ringed by rim rock, a piece of which had been owned by Grover Pailin, 80, and his wife Edith, 78, since 1963. For years they had wanted to build a house up there, but in 1978 the zoning tightened, and in the ‘90s it tightened again, and the new rule forbade a house within 200 feet of the rim. The sole purpose of the rule was not to spoil the view from the town center.

Measure 37 has a retroactive provision that is, in fact, quite radical. A landowner can petition to develop land under the rules in effect when the land came into his or his family’s possession. The Pailins came forward with plans for their dream house that satisfied the zoning code of 1963. “We don’t have many years left,” said Edith Pailin to the Portland Oregonian. “We want to get up there and enjoy it.”

The city offered the Pailins $47,500 in compensation. This sum was based on the city appraiser’s calculation that the lot was worth $60,000. The Pailins hired a private appraiser, who set the value at $200,000. The city appraiser then admitted to the Prineville Central Oregonian that he “may have been on the wrong property when he made his assessment.” At press time the matter was not settled.

Meanwhile, the fight had spread north and east and south of Oregon. In Washington the fight was over Initiative 933, a measure that covered all regulatory takings since Jan. 1, 1996, making it the most radical of the four measures on the ballot. Initiative 933 was a project of the Washington State Farm Bureau and was written by a Bellevue, Wash., law firm known for defending property rights. A member of that firm, John Groen, had run against the chief justice of the Washington Supreme Court and lost in the primary election of Sept. 19.

Unfortunately, Groen’s campaign had soaked up a lot of the property-rights money, particularly from builders. The realtors remained neutral. So did the state chamber of commerce. Several organizations told the Farm Bureau they didn’t want to get the government mad at them, and stayed out. The Bureau had few allies — partly because its measure was fairly radical. Oregon’s Measure 37 had won in 2004 with a TV ad about a 91-year old woman named Dorothy English, who had been prevented from subdividing her land. In Washington there was Edwina Johnston, 71, retired but with no pension. In the 1970s she had bought forested land in the foothills of the Cascades as her retirement investment. King County (Seattle) had imposed “buffers” around two trickles of water, making it impossible to develop part of her land, and thereby devaluing it. An outside group did make an ad with Johnston, but they included two other property owners, and each just had a few seconds of explanation, no personal details and not much emotion. But it was too late in the campaign, and the ad didn’t have the same punch.

By Nov. 1, the Farm Bureau had spent only $220,000 on media, and could afford only cable TV. Opponents, bankrolled by Microsoft CEO Bill Gates, his old partner Paul Allen, the Nature Conservancy and others, spent 10 times as much and had lots of ads on broadcast TV. Its ads variously claimed that I-933 would pave over the farmlands and cost taxpayers $8 billion — the cost, presumably, of not paving over the farmlands. Before the anti-933 ads hit, 933 was polling at 55%. Just before election day, support had dropped to 39%. In the election, it went down.

In Idaho, a state more conservative than Washington, voters were offered Proposition 2, a compensation-for-regulatory-takings measure with no retroactivity. This more moderate measure failed even more miserably.

Prop. 2 was not sponsored by a group with an image as benign as the Farm Bureau, but by Laird Maxwell, the feisty chairman of Idahoans for Tax Reform. Maxwell is not popular in the Idaho establishment, and he had the further stigma of accepting money from Mr. Rich of New York. Citing this support from Rich, the president of the Idaho Realtors called Prop. 2 “a New York solution in search of an Idaho problem.”

Idaho’s Republican governor, Jim Risch, did a TV commercial opposing Prop. 2. The Nature Conservancy and other green groups supplied the cash for TV ads, one of which claimed hyperbolically that requiring government to pay for regulatory takings “could turn any Idaho property, including farmland, into junkyards, power plants, and high rises.”

Milton Williams, a Boise citizen, wrote in a letter to the editor: “We’ve been swamped by TV and press ads claiming that a wealthy New Yorker is funding Proposition 2 for greedy purposes . . . I have yet to see any TV or press commercials supporting Proposition 2.” Maxwell’s group unveiled its first ad Oct. 31, a week before the election. It was too little and way too late.

In California, where an anti-Kelo plus regulatory takings proposal had no retroactivity, it carried the “red” interior but lost in the “blue” coastal cities. Opponents outspent it on advertising 11 to 1. Spokesman for Prop. 90 Kevin Spillane said that “a number of potential financial supporters who were skeptical of Prop. 90’s chances decided not to become involved.” He promised another try in 2008.

In Arizona the story was different. As in Idaho and California, the measure, Proposition 207, was prospective only, with no retroactivity. Arizona also had a longer list of exemptions, including traffic control, pollution, morals, and all measures not directly regulating land. Arizona has a more favorable political climate than the other three states. Arizona’s main business organizations endorsed 207 — and it passed easily.

Assuming it passes muster in the courts, Prop. 207 brings to two the number of states that require compensation for regulatory takings: Oregon and Arizona.

Stem Cells, Abortion, Marriage

Stem cells have been a high-profit investment for liberals, because the issue paints social conservatives as anti-science. In Missouri, voters were offered Amendment 2, which would embed in the state constitution a right to harvest stem cells from embryos a few days old. Amendment 2 was bankrolled with more than $29 million from Jim and Virginia Stowers, cancer survivors who founded the Stowers Institute for Medical Research in Kansas City. Said the St. Louis Post Dispatch, which endorsed Amendment 2, “If we are to remain on the cutting edge, scientists must be free to pursue the most promising avenues of inquiry.”

Actor Michael J. Fox made national news when he spoke goggle-eyed in a TV ad, swaying uncontrollably from the effects of Parkinson’s disease. “What you do in Missouri,” he said, “matters to millions of Americans — Americans like me.” His ad was for the Democratic candidate for Senate, Claire McCaskill, but it also spoke for the stem-cell measure.

Against the measure were the Catholics and Baptists, who don’t generally work together. Social conservative Alan Keyes said against the measure that it represented “the culture of death” and would pass “at the cost of our souls.” Opponents included Sen. Jim Talent, the Republican rated as a libertarian by the RLC. The Libertarian candidate, Frank Gilmour, supported Amendment 2 — which won with 51% of the vote. The result of the Senate race was McCaskill, 49.5%, Talent 47.4%, and Gilmour 2.2%.

In South Dakota, Referred Law 6 would have banned abortion except to save the life of the mother. The legislature had passed the ban early in 2006 to set up a case to test Roe v. Wade in the new Roberts and Alito Supreme Court. Opponents used a petition to put the ban on the ballot, and voters rejected it, voting 56% “no.”

In Oregon (54%) and California (54%), voters voted down a law that would have required parental notification for a minor to receive an abortion — a restriction already in place in most states. The most liberal states regarding abortion for minors are now Hawaii, Washington, Oregon, Vermont, and Connecticut.

A measure to allow same-sex civil unions failed in Colorado with 47% of the vote. Constitutional amendments to ban same-sex marriage passed in seven states:

State	“Yes” vote
South Dakota	52%
Wisconsin	55%
Colorado	56%
Virginia	58%
Idaho	65%
South Carolina	78%
Tennessee	83%

Twenty-three states now have such bans. For the first time, however, a same-sex marriage ban failed, winning only 49% of the vote in supposedly conservative Arizona. (It was Barry Goldwater’s state, after all.)

Still, this may be misleading: since same-sex marriage as such was banned in Arizona in 1996, many saw the new bill as an attack on public employees’ domestic-partner benefits. When opponents of the bill ran ads picturing those who would lose their benefits as a result of passage, the pictures included young heterosexuals, retirees, and children — but not a single gay couple.

Marijuana Depenalization

Medical marijuana was already permitted in eight states: Alaska, Washington, Oregon, California, Nevada, Montana, Colorado, and Maine — though users in those states may still be brought up on federal charges. This year, activists attempted to inhale a little deeper. They failed, but they made a mark.

In Colorado, which penalizes marijuana possession with a $100 fine, Amendment 44 would have legalized adult possession of up to one ounce. It followed a similar measure passed in 2005 in Denver with 54% of the vote. That measure was ignored by police because marijuana possession was still illegal under state law — hence Amendment 44, which was essentially the same measure at the state level.

The campaign was run by what Cannabis News called “a pudgy, clean-shaven 24 year old” named Mason Tvert. He called his organization Safer Alternatives For Enjoyable Recreation (SAFER). His argument was that marijuana ought to be permitted because it is safer than alcohol. He called his proposal the Colorado Alcohol-Marijuana Equalization Initiative.

That’s marketing.

Tvert had some out-of-state money, which cut both ways. Federal drug czar John Walters, director of the Office of National Drug Control Policy, went to Colorado three times to campaign against the measure, which he said was “a social experiment” being conducted on Coloradans by out-of-state billionaires. Of course, he was representing an out-of-state trillionaire: the federal government.

In Nevada, which already allows marijuana for medical reasons but punishes nonmedical possession with a $600 fine, voters were offered a bill legalizing it for use in the home. This was Question 7, which was put on the ballot with 86,000 signatures. It would have licensed people to cultivate, package, and sell marijuana in special stores that required patrons to be 21 to enter. Patrick Killen, spokesman for Yes on 7, said it would allow the use of marijuana in the home, but not in public or in casinos or any places that sold alcoholic drinks. Also, the state would tax it.

The Bush administration sent its drug czar to Nevada to campaign against the initiative. Police, prosecutors, and business opponents organized as The Committee to Keep Nevada Respectable, and argued that the measure was backed by out-of-state interests — which it was. It had money from the Marijuana Policy Project, an organization backed by Peter Lewis, a retired auto-insurance entrepreneur from Cleveland.

The pro-legalization side, calling itself the Committee to Regulate and Control Marijuana, ran a tough, professional campaign. It sued public officials in Clark County (Las Vegas) for illegally using public money to oppose a ballot initiative. It ran seven different TV ads, including one showing the drug czar and saying, “Washington, D.C., bureaucrats need to stop dumping their bad ideas on Nevada.” The anti-marijuana side ran no TV ads.

Yes on 7 won the support of a group of church leaders, one of whom told the Associated Press, “Our current marijuana laws appear to be moral, but it is a cosmetic morality.” Yes on 7 also personalized its campaign by running a commercial featuring Cynthia Walling, who announced calmly that she had terminal breast cancer. “If Question 7 passed, I would be able to get medicinal marijuana,” she said. “High school kids can find it at the high schools, but sick people like me can’t find it anywhere.”

The Las Vegas Review-Journal, the largest paper in the state, endorsed Question 7, and wrote, “Arguing that in order to protect kids we must limit the rights of adults to make their own personal choices is to advocate the creation of an infantocracy and a return to alcohol Prohibition. In fact, many of this nation’s drug policies have long been expensive failures. Let’s try something new . . . “

The voters weren’t quite ready. On Nov. 7 only 44% voted “yes.”

In South Dakota, 52% voted “no” on Initiated Measure 4, which would have permitted possession of six plants and one ounce of marijuana for people certified by their physicians as needing it.

In several university and beach towns, voters were offered the choice taken by Seattle in 2003: to make enforcement of the marijuana laws the lowest police priority. All these measures passed: in Santa Barbara, Calif., by 65%; Santa Cruz and Santa Monica, Calif., by 63%; Missoula, Mont., by 53%; and Eureka Springs, Ark., by 64%.

Though the main marijuana battles were lost, there is much sentiment, especially in the West, to ease up on marijuana prohibition. It is not so with the current drug of official worry, methamphetamine. Arizonans, who voted to allow medical marijuana a few years ago, voted Nov. 7 (58% “yes”) to deny probation for meth violators.

Windmills and Biodiesel

One of the most dangerous proposals on the ballot was California’s Proposition 87. Hollywood producer Stephen L. Bing, who inherited $600 million and invested in the children’s fantasy “The Polar Express,” was reported to have poured $50 million into Prop. 87. Other support came from venture capitalist Vinod Khosla. Khosla’s firm, according to the San Franciso Chronicle, “includes a half-dozen startups that all deal with ethanol.”

The oil companies and other opponents contributed $90 million to kill the proposition, though not even Chevron put in as much money as Bing. The detractors had effective ads, and on Nov. 7, 55% of Californians voted “no.”

Prop. 87 would have established a special-purpose agency called the California Energy Alternatives Program Authority, given it an unelected board, juiced it up with a flow of several hundred million dollars in tax money not controlled by the legislature, and set it free to bring about “energy independence” in California.

These days, “energy independence” is a fetching idea. “If Brazil can do it, so can California,” said Bill Clinton in one of the campaign’s TV ads. In another ad, Al Gore said, “The sooner we do it, the safer we’ll be.” A third TV ad began with the image of a helicopter gunship in Iraq. “With one vote we can send George Bush a message,” it said. “Vote for energy independence.”

And how was independence from foreign oil to be achieved? By setting up a tax on California oil. That made no sense at all, and many said so.

The proponents talked much about “making the oil companies pay.” They showed not a snifter of skepticism toward the Authority they were going to set up. The pro-87 statement in the official voter’s guide shamelessly promised, in all capital letters, “NO NEW BUREAUCRACY.” It was a lie. You just had to read the boring words in the guide. Section 5 gave the Authority the sole power to determine how many employees to hire. Section 4 gave the Authority control of the money from the oil tax. Section 3 allowed the Authority to provide “grants, loans, loan guarantees, buydowns, and credits to universities, community colleges, research institutions, individuals, companies, associations, partnerships, and corporations.” (That’s why the venture capitalists liked it.) Section 11 gave the Authority the power to sell bonds backed by revenues from the tax, and Section 15 said that as long as the bonds were outstanding, “neither the Legislature nor the people may reduce or eliminate” the tax.

The proponents said that the new agency would be “accountable.” How? By being audited and by issuing reports. It would, however, have been independent of voter control, or the legislature’s control, until it had disbursed $4 billion and paid off its debts, which might have taken as long as 25 years.

Prop. 87 passed only in Los Angeles, the Lake Tahoe area, and the counties along the northern California coast, and that wasn’t enough. Thank God.

Mexicans, Minimums, Taxes, Tobacco, and Talk

Four measures in Arizona concerned illegal aliens. The first, approved by 78% of voters, amended the state constitution to prohibit bail for illegals accused of a felony. The argument was that it was too easy for a Mexican released on bail to return to Mexico — which is where the proponents want him to be, generally. The second, passing with 74% of the vote, amended the state constitution to prohibit illegals from being awarded punitive damages.

The third measure, passing with 72%, prohibited illegals from using the state education system. The fourth, with 74%, made English the official language.

Libertarians have differing views on immigration, and many voted for these propositions. It was all too much for Liberty’s regular contributor in Arizona, Ross Levatter, who wrote:

“Clearly, many Arizonans feel burdened by immigration, even while hiring immigrants to clean their homes, watch their children, cook their meals, build their houses, manage their landscapes, and generally perform other tasks, often menial, for less money than it would take to have Americans do the same thing. Politicians have been very good for several years at whipping up nativist sentiments, and this is the result.”

There were other things on the ballot, too.

Tax increases

In California, voters rejected Proposition 88, which would have levied a tax of $50 on every parcel of land to fund public schools (77% against); and Proposition 89, which would have increased the corporate income tax by two-tenths of a percentage point to fund a new campaign-finance system (74% against).

In California, Proposition 86 would have raised the tax on cigarettes from 87 cents a pack to $3.47 — the highest in the country — and dedicated the money to hospitals and an anti-smoking campaign. Gov. Arnold Schwarzenegger opposed it, more than $55 million was raised to fight it, and it went down, with 52% against.

Arizona voted 53% “yes” on a measure to raise the tax on cigarettes from $1.18 a pack to $1.98 and dedicate the money to preschools. South Dakota voted 61% “yes” to increase the tax from 53 cents a pack to $1.53. But in Missouri a proposal to increase the tax from 17 cents to 97 cents received only 49% of the vote, and failed.

Smoking bans

In Nevada, antismoking forces put on the ballot a ban on smoking in all restaurants, bars, hotels, and motels. The casinos and hotels countered with a ban on smoking in these places except where children were not allowed. The stricter ban passed with 54%. The casinos’ measure received 48%.

Two smoking bans were also on the ballot in Arizona. The most restrictive measure, which bans it in restaurants and bars, received 54% of the vote, and won. The restaurant-only ban received 43%. The same pattern held in Ohio, where the more restrictive ban won 58% of the vote, and the less restrictive measure only 36%.

Minimum wage

Already 20 states had minimums above the federal minimum of $5.15 per hour, led by Washington ($7.63 in 2006), Oregon ($7.50), California ($7.40), and Vermont ($7.25). Before November, only in Washington, Oregon, Vermont, and Florida were the minimums indexed to inflation.

New minimum wage laws were on the ballot in six states and passed in all of them: Arizona ($6.75), Colorado ($6.85), Missouri ($6.50), Montana ($6.15), Nevada ($6.15 if no health benefits), and Ohio ($6.85). All indexed their minimums to inflation, with Nevada also indexing to the federal minimum.

Political speech

In a refutation of the thesis that the public is rational, voters in Oregon voted 53% in favor of Measure 47, to ban corporate and union contributions to political races, and to limit donations by individuals and spending by independent groups. A similar law had been thrown out by the Oregon Supreme Court in 1997 as a violation of free speech, but the ballot had a fix for that: Measure 46, which would have changed the constitution. On that, they voted 60% “no.” The Portland lawyer who had shot down the earlier law announced that he intended to bag this one as well, and Oregon’s director of elections said he did not know what to do.

Voters are, of course, sometimes brilliant. Consider Oklahoma’s Question 733. This was an amendment to the state constitution that would allow package stores to sell liquor on election day. On Nov. 7, 2006, voters of Oklahoma had an uncontrollable spasm of sobriety and passed it.

All in All

It wasn’t such a bad election for liberty. The Republicans, who had more complete control over the federal government than at any other time in the last 50 years, used their power to start an unnecessary war, violate civil liberties, and ramp up federal spending. Their power has been checked. The people did this out of weariness and unease, which are mere feelings, but the feelings are healthy ones.

The Democrats offered no program. There is grumbling about rising medical costs and some other things, but there is no strong sentiment in the country for a major expansion of the welfare state, or for any further gifts of authority to the federal government. The Democrats won not by being leftists but by being not-Republicans.

Nor did they win large majorities. In the Senate, where it takes 60 votes to do anything significant, Democrats have 51 votes. Their power is further limited by Bush’s veto, if he cares to use it, though he has used it only once in six years.

The crucial thing for liberty is how the major parties define themselves: how socialistic the Democrats want to be and how nationalistic the Republicans want to be. If the Republicans can purge the neocons and go back to a realist foreign policy, it would be a relief; if they can keep the evangelicals in their tent without turning the party into a revival meeting, it would be a blessing. If the Democrats can offer Clintonism (but not Goreism), they will do well.

As for the initiatives: racial neutrality has been rejuvenated. It will be a big fight, and libertarians will help themselves and liberty by being in it. The revival of property rights has been checked but not stopped, and if advocates learn, they will win. Marijuana is playing offense and tobacco, defense. Same-sex marriage looks almost dead, but I don’t think it is.

Nor is liberty. Here and there it gives ground, but here and there it also gains. There is no trend against it, and there may even be a trend in its favor.

© Copyright 2010, Liberty Foundation

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