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Issue: Autumn 2004 ...And Referenda for All An Okie transplant via the Windy City, Elizabeth Garrett seems an unlikely expert on California politics. But when it comes to the Golden State’s wacky experiments in direct democracy, this USC law professor is soothsayer-in-chief. By Carl Marziali Beth Garrett may not be the best choice for a shopping buddy. An efficient and unsentimental consumer, she’s apt to read a courtroom thriller in the checkout line, ignoring the impulse buys temptingly arranged around registers. But suppose you go shopping this fall in one of the two dozen states that allow ballot initiatives. Between you and the store is a gaggle of petition circulators all trying to get their initiatives on the November ballot. And suppose you find yourself confused and flustered: To sign or not to sign? How to tell good petitions from bad? Who’s behind these initiatives, and what’s their agenda? Why are lawmakers asking us to do their work for them? Then you may wish for someone like Garrett at your side. Actually, there is no one quite like Beth Garrett. A few legal scholars are well versed in so-called “direct democracy”: the world of initiatives, referenda and other forms of grass-roots lawmaking. But the combination of Garrett’s energy, her youthfulness and her high stature in the field make her one of a kind. Since joining the USC Law School’s faculty last fall, she has raised the university’s profile as a national center for the study of law and politics, taken in the broadest sense: the making of laws outside the court system. “If you’re talking about a subject in legislation or direct democracy, you’re going to end up reading something that Beth wrote,” says former University of Chicago colleague Adrian Vermeule. Garrett specializes in explaining the impact on everyday life of initiatives and related political tools. Major newsrooms have her name on well-thumbed Rolodex cards. When the likes of the Boston Globe, CBS News or National Public Radio run stories about direct democracy, they often include a Garrett quote. Who knew, she chuckles, that she would become an authority on Arnold Schwarzenegger? If money mattered more to Garrett, she might have become an authority on the finer points of banking law. After earning the top score on the Texas bar exam, she was set to become one of the highest-paid starting lawyers in the country. Instead, she spurned her rich suitor, a big banking law firm, and found the love of her life. On a Wednesday afternoon in April, Garrett leads a dozen USC students on a sweeping overview of the world of initiatives. It’s the kind of guided tour every citizen needs before running the petition gauntlet at the local Costco. Her class covers basic principles of direct democracy, seasoned with some revealing facts: for example, if initiatives have hijacked American lawmaking, then how come in a recent two-year period only 36 initiatives were passed in the United States, compared to well over 10,000 laws enacted by states with the legislative process? If initiatives reflect the popular will, why do so many embody the priorities of their wealthy sponsors? And if successful initiatives become the law of the land, how have some legislatures managed to subvert them, for example by withholding funds for public financing of electoral campaigns? PowerPoint was not invented for the likes of Garrett. A former national extemporaneous debating champion, she teaches without notes or visual aids, pacing along one side of the classroom, punctuating her arguments with brief question-and-answer sessions. Today she draws her students into a spirited debate on the topic of paid circulators. The recall of California governor Gray Davis recall was the first time many voters became aware that circulators may not be motivated solely by democratic zeal. “In California, the rate for petition gatherers is approximately $3 per signature,” Garrett tells her class. “I looked at all the things that qualified for November [2004]: I’ll guarantee you that almost all of them used paid gatherers.” What if a state wants to stop the practice of paying circulators, Garrett asks, because it violates the grass-roots spirit of initiatives? Can’t do that, a student responds. It would violate the petition organizers’ right to free speech. “Exactly right,” Garrett says, citing a 1988 Supreme Court decision that struck down a Colorado statute banning paid circulators. “But have you ever been accosted by [a petition circulator]? Is there a lot of free speech going on?” Garrett asks with a twinkle in her eye. The circulator’s goal, she explains, is to get you to sign the petition without reading it at all. “Except for law students, pretty much people sign anything put in front of them,” she says. “And the circulators can get signatures really fast,” she adds, snapping her fingers for effect. Of course not all signature collectors are hired guns. Garrett recalls the time she was asked to sign a petition in support of strip clubs. “I think the guy circulating that [petition] felt very strongly. I got the impression that it was [really about] free speech for him,” she says, drawing laughter. Still, Garrett reasons, if petitioners are commissioned salespeople and voters sign without reading, then the initiative process does not reflect true grass-roots politics. So how do you fix the system? “What about really big signs that say: ‘PAID?’” she ventures. The class debates whether mandatory disclosure would unfairly stigmatize some petition drives merely because they have money. “In fairness, a lot of grass-roots groups are also using paid circulators,” Garrett says. She tosses out some other ideas: establish different signature quotas for volunteer versus paid petition drives; require citizens to go somewhere else to sign petitions, as a measure of their commitment to a particular cause; or allow signatures to be collected cheaply online. Garrett closes with a philosophical problem to ponder for the next seminar meeting: “It is my view that … if you’ve got enough money, you are guaranteed ballot access. What do we think about a world where money is a sufficient condition for getting your question asked?” Clearly Garrett thinks such a world is at least worth talking about. In that spirit, she is organizing a major one-day conference at the USC Law School. Scheduled for Oct. 8, the gathering will focus on the major themes and issues raised by the November election. A panel of political thinkers and scholars will discuss the effects of the new campaign finance law, as well as the effects of an increasingly polarized party system on elections and governance. There will be panels on initiatives and referenda, on the Internet and new communications technology. Sen. Bob Graham of Florida will deliver the keynote address. The conference is sponsored by the USC-Caltech Center for the Study of Law and Politics, of which Garrett became director when she joined USC. Thanks to her, the CSLP now includes the Initiative and Referendum Institute, the nation’s leading education and research center focused on direct democracy. IRI was previously based in the Washington, D.C., area. Garrett persuaded the group to relocate to USC. Garrett’s interest in initiatives and referenda began serendipitously: She had been put in charge of rounding up presenters for a direct democracy conference in 1997. A friend agreed to present a paper, but only if Garrett would write one too. Up to that point, “I was pretty dubious about direct democracy,” Garrett says, though she also noticed that the most strenuous opponents happened to be lobbyists and legislators. That made her wonder if initiatives might be a useful addition to our political system of checks and balances. Eventually, Garrett accepted two facts: Direct democracy is here to stay. Rather than complain about it, legal experts should focus on trying to make it better; and Legislation is too important to be left entirely up to the legislators. Some form of direct democracy is useful to keep politicians honest, or at least less crooked. (Think term limits, campaign-finance reform, redistricting, salary caps and recalls.) “We’re in a system where the regulated are the regulators,” she says.
Garrett is more authoritative for having been on the inside. She worked
twice on Capitol Hill for former Sen. David Boren of Oklahoma, whom she
deeply admires. (As an undergraduate at the University of Oklahoma, she
had won a prestigious competition to become a congressional intern.) Later she earned her J.D. from the University of Virginia and landed a Supreme Court clerkship with the legendary Justice Thurgood Marshall. She was less excited about the next logical step: going into private practice. To make matters worse, Garrett’s first-place score on the Texas bar exam made her next career move a matter of some public interest. Boren remembers picking up a magazine one Sunday in 1988. Inside, an article on lavish law-firm recruiting tactics reviewed the year’s hottest new hires. And there was his former intern, Elizabeth Garrett. The senator wasn’t really surprised. “If I were to count on the fingers of one hand the people I’ve known with the most remarkable intellect, she would be on that list,” he says. When Boren called to congratulate her, he found she was having second thoughts. “She said, ‘What I really want to do is come work on committees in Congress and learn the legislative process.’” Could the senator recommend anyone, she had asked. “Well, Beth, what’s wrong with working with me?” he had replied. An offer was made and accepted on the phone. Garrett spent three more years in Washington as Boren’s tax advisor, legal counsel and legislative director. There she learned a lesson that would shape the rest of her career. While law schools and legal scholars focused their attention on landmark court decisions, Garrett realized most law was written outside the courts: in the offices of politicians, lobbyists and regulators. “Beth pioneered the idea … that we ought to focus first of all on Congress,” says former University of Chicago colleague Vermeule. “It sounds dry and technical, but from the lawyer’s point of view what goes on in Congress pervades the rest of the legal system.” Garrett wrote a series of seminal articles about the workings of democratic institutions. “At a very young age she became one of the recognized experts, nationally known, even internationally known, in that particular field,” says Dan Fischel, another former Chicago colleague. “At a very young age” is one of those defining phrases about Garrett. Her mother, Jane, says she began to read very early and thereafter was never seen without a book in her hand. At age 3, according to mom, young Beth announced she would be a lawyer (Garrett, more modestly, claims she was 5). Her father, Robert, had earned a law degree, though he worked as president of a savings and loan. An uncle and grandfather were also lawyers. Garrett grew up in a family of doers, not mere talkers. Jane’s great-grandfather was the first to open a school in the Choctaw Reservation town of Lehigh, Okla. Her parents taught Beth and sister Laura that when they finished a task, they should start on something else. The lesson stuck. David Levy, Garrett’s favorite history professor at the University of Oklahoma, remembers watching her during weekly tests: “She would finish the quiz ahead of the other students and, in the same motion, turn over the paper and reach for next week’s reading,” he says. “I never had a student, I think, who made better use of time than she did.” During down times, Garrett would practice her favorite hobby: cross-stitching, a form of needlepoint where the finished product is a decorative tableau. Mike Bresson, a college friend, remembers traveling through Italy with Garrett and a group of others. “She was cross-stitching when everyone else was sleeping. She just never wastes a moment,” he says. Garrett says she picked up needlepoint in the eighth grade to pass time between rounds at debating competitions. Visitors to her USC office will find the walls covered in cross-stitched landscapes of Jerusalem and Chicago. “I don’t think you should ever just sit,” she says emphatically. “I don’t think that’s what one should ever do, no matter what.” This carpe-diem ethic approaches the fervor of religious conviction. The compulsion to act hasn’t always been a boon, though. One night, she and a college friend were driving through Chandler, Okla., when they came to a checkpoint set up by the local men in blue. It was the kind of routine stop where drivers are asked for their license, but aren’t necessarily suspected of wrongdoing. Garrett decided the practice violated her Fourth Amendment rights against unreasonable search and seizure. When the cop came to her window, she greeted him with a battery of questions: Did he have probable cause for this stop? Were they stopping cars at random? Was there a specific purpose to this exercise? And was he aware of the Fourth Amendment prohibition against.... “At which point I found myself getting hauled out of my car by a big highway patrolman,” Garrett recalls. She was pushed against the hood of her car and handcuffed. Her friend, who had promised to back her up, was by this point showing his driver’s license to anyone who cared to look. Garrett spent a couple of hours in jail before her dad bailed her out. Years later, when she was clerking for Thurgood Marshall, a similar case came up before the Supreme Court. Garrett was summoned to Marshall’s chambers. “You know, Elizabeth,” the venerable judge said with a smile, “I think maybe you have a conflict of interest in this case.” The Supreme Court decided that police checkpoints do not necessarily violate the Fourth Amendment, forcing Garrett to admit that she may have been mistaken. Garrett is no less passionate about the First Amendment than the Fourth. “It’s a little dangerous,” her mother confides, “to ask Beth to come speak somewhere because she’ll say what she thinks.” Invited by the Texas bar to give the keynote address at her own swearing-in ceremony in 1989, Garrett proceeded to lay out her ideas for improving the exam – right in front of the judges who had written it. “She got a lot of applause from the initiates, but the judges were sitting on their hands pretty much,” her mother Jane remembers. Efton Park, now a mathematics professor at Texas Christian University, recalls butting heads with Garrett back in college. She had chaired a committee in student government, and Park had chaired another committee. There was an unwritten rule in Oklahoma student government that when two committee members disagreed, they would go for a beer at Mr. Bill’s, a campus hangout near the dorms. Park realized early on that “it was much better to be on the same side of an issue with Beth Garrett.” Even if it meant passing up a beer. Garrett has used her time well since leaving the Hill. She has been a visiting professor at Virginia, Harvard and a handful of other top law schools. She joined the University of Chicago’s law school in 1995, eventually becoming deputy dean. It was in this capacity that she tried to entice Matthew Spitzer, now dean of the USC Law School, to jump ship and come to Chicago. For his part, Spitzer was trying to lure Garrett to USC. He had been watching her career since inviting her to her first academic conference. Then Garrett started dating a legal philosopher named Andrei Marmor, also at Chicago. When they compared histories, they discovered a shocking thing: Spitzer was wooing them both. At the same time he had been trying to attract Garrett, the USC law dean had also been courting Marmor for a joint appointment in philosophy and law. “We were there first,” Spitzer says territorially. “We had been interested in Andrei before she met him.” Soon after they decided to get married, Garrett and Marmor, who is Israeli, both accepted USC’s offer. What a change from the typical recruiting scenario, Spitzer says. Usually a school is interested in only half of a couple, and then has to make accommodations for the other half. In this case, neither spouse had a reason to feel unwelcome. “They both knew that we wanted them for themselves, and not because either one was attached to the other,” he says. Like his wife, Marmor has found in USC an excellent fit. “I’ve always known that this is one of the most intellectual law schools in the country and an institution which is very conducive to the kind of work I’m interested in,” he says. “I have joined the philosophy school as well, half time, and this combination of law and philosophy, at which USC is now becoming one of the best in the country, is very exciting and intellectually rewarding.” Now that Garrett has come out West, she encourages others to join her, or at least to overcome their eastern myopia. “There is a real East Coast bias,” she says. “In Washington, people generally don’t think about what’s going on here. The USC Law School, I think, is one of the very best. It’s one of the most energetic, vibrant, collegial, exciting places in the country, with an excellent student body, one of the most productive faculties.” And more than just productive – it’s eclectic. Garrett has been pleasantly surprised to see the amount of interdisciplinary work on democracy already underway throughout USC. She mentions the digital governance project at the USC Viterbi School of Engineering’s Information Sciences Institute, and the flurry of work on disclosure and the media initiated by Geoffrey Cowan, dean of the USC Annenberg School for Communication. John Matsusaka, of the USC Marshall School of Business, heads the Initiative and Referendum Institute and has published important work on initiatives and the budget process. Some faculty are observing voting patterns at the grass-roots level, while others study democracy at its most abstract levels. “I think [USC] may well be one of the leading schools in terms of the variety of activities, scholarship, workshops and organizations studying [democracy]. It’s been really a wonderful discovery for me … to find this community here,” Garrett says. “Since I’ve sort of discovered it – and I’m embarrassed it took me so long to discover it – I want to make sure it doesn’t take everybody else such a long time.” She may just start a petition drive to get the word out.
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