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Soapdish: No, Nein, Nyet and Non on 9


In the months, weeks and days leading up to November 3, Cincinistas have borne witness to a cacophonous and confusing clamor regarding the oft-debated charter amendment known as Issue 9 (technically, Article IX). 

Depending on who's doing the talking, the proposed amendment has also been referred to as the "Streetcar Initiative," the "Anti-Progress Initiative" and the "Anti-Rail Initiative."  Eschewing such slogan-ready options, I will simply refer to it as the "Initiative-Which-If-Passed-Will-Effectively-Doom-Cincinnati's-Immense-Potential-As-An-Up-And-Coming-Progressive-City-Of-The-21st-Century." 

Seriously.  At the risk of hyperbolic handwringing, Issue 9 is that bad.  It is bad policy and bad government.

Regardless of your position with regard to the proposed $185 million streetcar transit system which would ultimately connect the river with the zoo, link downtown with UC and the medical complex, and be ready to roll on Opening Day 2012, Issue 9 is a horribly drafted amendment to our city constitution.  Upon careful consideration, the amendment seems intentionally designed to confuse, obfuscate and, ultimately, roll back all of the progress that has been made in Cincinnati in the past decade.

Let's review the actual charter amendment:

"Shall the Charter of the City of Cincinnati be amended to prohibit the city, and its various boards and commissions, from spending any monies for right-of-way acquisition or construction of improvements for passenger rail transportation (e.g. a trolley or streetcar) within the city limits without first submitting the question of approval of such expenditure to a vote of the electorate of the city and receiving a majority affirmative vote for the same, by enacting new Article IX?"

The amendment was drafted by Anderson Township resident and arch-conservative attorney Christopher Finney.  This is notable only for the fact that Mr. Finney also drafted the much maligned Article XII amendment to the city charter in 1993.  You might recall that this was the special interest-fueled amendment which prohibited city officials from passing any laws that included sexual orientation as a protected class and, in turn, effectively placed Cincinnati in the dark ages for 10 years.  Article XII created a national embarrassment for the city and caused an estimated $45 million in lost convention business.   Thankfully, Cincinnati voters repealed Article XII in 2004.  Now, with charter-amending aplomb, Mr. Finney has stormed the Elsinore Gate once again, this time joined by tea bagging anti-tax/spend activists COAST, alongside attention-seeking accomplice and local NAACP chapter head Christopher Smitherman - an unholy alliance fueled by special interests and virtually nothing in the way of positive solutions.

Unlike Article XII, however, Issue 9 does not discriminate.  It is an equal opportunity amendment of destruction.  There is no denying that, from a visceral perspective, the passage of Issue 9 would immediately derail the streetcar proposal and effectively leave Cincinnati in the dust when it comes to the even more critical 3C rail initiative and other high speed rail projects coming online across the country.  As with Article XII, passage of Issue 9 would also leave Cincinnati alone in the country as the only city with an amendment of this nature to its city charter.

Aside and apart from the immediately tangible and destructive ramifications, however, the long term effects of allowing special interests to control and govern via a costly referendum process cannot be minimized.  Advocates of the referendum/direct democracy process will tell you that certain decisions are best taken out of the hands of elected government officials and determined directly by the people.  In short, "we demand a vote." 

Critics counter that voters in a referendum are more likely driven by fleeting transient whims rather than more careful deliberate thought.  James Madison referred to it as the "tyranny of the majority."  Moreover, there remains a real concern that voters are not sufficiently informed to make micro-level decisions on complicated or technical issues (um - it's why we elect our representatives). Voters are also susceptible to being swayed by strong personalities or the adverse influence of misleading propaganda or expensive advertising campaigns (see, e.g., the "Yes on 9/Stop the Streetcar" signs which incorrectly depicts a picture of a rubber tired trolley truck as representative of the streetcar; as well as confusing voters by soft-pedaling the effects the amendment would have on all rail-related projects). 

Suffice to say, our founding fathers listened to the insightful and wise counsel of Mr. Madison, with the result being a representative democracy as opposed to a direct democracy.  Moreover, the reasons for that are just as painfully obvious now as they were in those Madisonian times of yore.  The confusing and expansive ballot language of Issue 9, with its befuddling incorporation of the non-limiting parenthetical "(e.g. a trolley or streetcar)" is an abuse of referendum style government of the highest order.  Its language is misleading, its repercussions far-ranging.  By directing the presumably Latin-savvy voter to a meaningless parenthetical clause, "e.g. a trolley or streetcar," the language effectively cloaks the fact that it would prohibit the spending of ANY monies for ANY rail-related project without first conducting a costly and burdensome election - and yes, this would encompass, absurdly enough, the safari train at the zoo.   And keep in mind, as Mr. Finney brazenly hectored Council this spring, that "any monies means any monies," be it Federal, State or even private donations.

Issue 9 apologists simply counter with a healthy dose of "we demand a vote"-style sophistry.  "What's wrong with voting," they coyly posit?

Such a simplistic query ignores both the actual costs of conducting endless elections - at least a half million dollars per election - as well as the very real risk of losing a highly competitive race for federal and state stimulus dollars that would be key to any such rail project.  Federal funding is the lynchpin for rail projects in Cincinnati, be it 3C or streetcar, and that funding is not going to wait for endless special elections to be held.  The money will simply go to Indianapolis, or Cleveland, or Chicago and beyond.  As far as rail in Cincinnati is concerned, Issue 9 is a poison pill wrapped up in a Hobsons Choice.

The risk to our form of city government and its effectiveness, however, is just as real.  Only a few weeks ago, Ronald M. George, the Chief Justice of the California Supreme Court issued a rare public rebuke of his state's reliance on the referendum process, observing that it has "rendered our state government dysfunctional."  Justice George emphasized that perhaps the "most consequential" result of the referendum process is that it limits "how elected officials may raise and spend revenues…[and that the lawmakers and state] have been placed in a fiscal straitjacket."

Most damning, and particularly relevant to Issue 9, are Justice George's comments that much of California's constitutional and statutory structure has been brought about not by legislative fact-gathering and deliberation, but rather by the approval of voter initiative measures, often funded by special interests.  "These interests are allowed under the law to pay a bounty to signature gatherers for each signer.  Frequent amendments - coupled with the implicit threat of more in the future - have rendered our state government dysfunctional, at least in times of severe economic decline," George said.

Cincinnati voters would do well to take heed of the lessons and warnings articulated by Justice George.  During challenging times such as this, replicating the dysfunction of California is not the path to prosperity.  Special interests pulling the strings from Anderson Township and elsewhere have no business dictating dysfunctional charter amendments to our city's constitution, particularly ones as far-reaching and damaging as Issue 9. 

Spread the word.  No on Nine.

Photography by Scott Beseler

Read more articles by Casey Coston.

Soapbox columnist Casey Coston, a former corporate bankruptcy and restructuring attorney, is now involved in real estate development and construction in and around Over-the-Rhine and Pendleton as Vice President at Urban Expansion. He's also a civic activist and founder of a number of local groups, including the Urban Basin Bicycle Club, the Cincinnati Stolen Bike Network, the World Famous OTR Ping Pong League and LosantiTours: An Urban Exploration Company.
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