I've thought of this important distinction quite a lot lately as Maryland's legislature has been considering a bill that would legalize same sex marriage. Similar bills had been introduced in the past, but they never survived Maryland's Senate - considered by many to be the more conservative half of the Maryland Assembly. When the legislation was introduced this year, political observers in the state again viewed the Senate as the challenge and the House of Delegates as more friendly territory. Then the conventional wisdom was upended. The state Senate passed the marriage equality legislation by a vote of 25-21 after little more than 2 weeks of wrangling. Shortly after passing in the Senate, it became clear that the House of Delegates was not nearly so friendly.
What was most surprising was that the bill was being derailed in the House not by vocal opponents of the measure, but rather by delegates who had openly supported, even co-sponsored the measure. Dels. Tiffany Alston and Jill Carter prevented a vote on the bill in the Judiciary committee because they were having second thoughts about a bill each co-sponsored. In the end, the bill was approved by the committee - Carter voted for it, but Alston voted against it complaining "This has not been the deliberative process that we normally engage in in this committee." Perhaps the committee could have deliberated more had she not staged a walk-out when the bill was up for consideration.
Another bill sponsor, Del. Sam Arora, suddenly announced that he was opposed to the bill he sponsored and would vote against it on the floor. Two days later he announced that he once again supported the bill that he had co-sponsored.
All of this intrigue is likely the result of a simple gamble taken by many delegates. They assumed that same sex marriage would die in the Senate, as always, and they would never be called upon to cast a vote. Then the unimaginable happened, the moment so many representatives dread - they had to cast a contentious vote. They sponsored the bill believing that it would win them favor among some constituent groups while never really worrying about a backlash from opponents for a vote that would never come.
When it became clear that a vote would come, all of those opponents started reaching out to their delegates and voicing their concern. Many supporters and even co-sponsors simply were not ready for the pressure and they wavered, buckled, flip-flopped and altogether embarrassed themselves.
Especially frustrating has been the comments and justifications offered by many of these delegates. Del. Arora, after changing his mind about changing his mind stated that he would support the bill in committee and "On the floor, I will vote to send the bill to the governor so that Marylanders can ultimately decide this issue at the polls... I think that is appropriate." Arora was speaking to the expected petition for a referendum - Maryland, voters may challenge recently enacted legislation via a ballot initiative.
Maryland Governor Martin O'Malley, who once supported having the legislature resolve this issue and indicated that he would sign whatever compromise legislation the legislature delivered to his desk, has been largely silent on this issue. O'Malley, as chairman of the Democratic Governors Association, has been happy to engage in high profile battles with Republican governors like Chris Christie or Scott Walker over issues of union rights, public pensions, and health reform but has chosen to stand on the sidelines as his own state debates the preeminent civil rights issue of the day. When O'Malley did enter the fray his contribution was that he wished the House of Delegates would come together and compromise on a bill, that he would sign legislation legalizing gay marriage, but "We should let the people decide." Again referring to the expected ballot initiative.
After voting against the bill that she co-sponsored, Del. Alston said "I think people make the best decisions they can with the options that are available to them... I don't think anyone should hold any of our decisions against us, because this is a very difficult decision."
Arora, O'Malley, and Alston need to better understand that important distinction between direct democracy and representative republic. In Federalist 10 James Madison spoke of direct democracies as "spectacles of turbulence and contention." In a representative republic "the delegation of the government... to a small number of citizens elected by the rest..." These representatives, will "refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."
Madison is telling us that in a representative republic we entrust our elected leaders to use their judgment when making decisions. It is not for them to place their fingers in the wind and vacillate with the ebb and flow of public opinion. It is for them to act based on their conception of what is best for community and country (or state).
None of this should be misconstrued as indicating that the voters have no say, of course they do. Madison wrote of this in Federalist 57, "Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it."
Here, Madison is telling us that those elected to lead are to exercise their judgment, to do what they think best, but to know that they will ultimately be held to account for their decisions via elections - that is when the people speak. Madison may have been writing about the US Congress specifically, but he was also writing of the concept of representation generally.
When O'Malley and Arora speak of letting the people decide, one wonders, what did the people of Maryland do on November 2, 2010 if not decide? The voters elected every member of the state Senate, every member of the House of Delegates, and Governor O'Malley. The obligation now falls on the elected to make the tough decisions and to exercise good judgment - not to rely on phone calls, public pressure, opinion polls or any other manner of non-binding expression of public sentiment. On November 4, 2014, Dels. Alston, Arora, Carter and every other member of the Assembly will face the voters' binding judgment - but before that day they have an obligation to act, to decide, to lead.
In Maryland, the right to referendum exists and the voters of the state are entitled to render their judgment on any particular piece of legislation, but before that can happen it falls upon our elected leaders to make a decision - no matter how hard and no matter the potential impact on their political career.
Too many of the problems in our states and in our nation can be linked to elected leaders making decisions based on the best interests of their reelection campaigns instead of the best interests of the community. We're certainly seeing that in Maryland as our state considers legalizing same sex marriage.
