By Dan Carson
A bill now sitting on the Governor’s desk could, if signed into law, be a game-changer for the initiative business that so affects the state and local governmental entities we depend upon for public services.
Business is the right word for it. A cottage industry of political interests, consultants, and lawyers have ginned up more and more statewide initiative ballot measures. According to an Assembly staff analysis, 112 propositions have been put before voters since 2002 –some generated by actions of the Legislature, but many via the initiative process.
Polls, including one conducted by the respected Public Policy Institute of California, show that, 102 years after the invention of the California initiative process, voters are increasingly wary of the expansion of direct democracy, They find the ballot measures too long, too complex, and too confusing. And 77 percent of those polled said they supported revisions to the initiative process that would help avoid the legal issues and drafting errors that frequently result from these measures.
I worked for the Legislature for 17 years in a nonpartisan office (the Legislative Analyst’s Office) whose chief duties include the review of initiatives before they are circulated and the drafting of ballot pamphlet summaries of these measures that qualify to go to the voters for a decision. I can tell you based upon that experience that the initiative process as it exists today in California lacks sufficient checks and balances to prevent easily avoided drafting problems, as well as post-adoption litigation and governmental confusion, over poorly written laws. The complex litigation the City of Davis has recently faced over how Proposition 218 applies to the setting of water rates is just one of many examples.
Sometimes the proponents of direct democracy become the victims of their own mistakes. In 2005, for example, then-Gov. Arnold Schwarzenegger was forced to drop a pension reform measure at the last minute after public employee groups claimed it would “take away death and disability benefits from the families of police and firefighters.” The governor did not have time to redraft and qualify the initiative, and statewide pension reform was delayed for years. A 1996 ethics and campaign reform initiative, Proposition 212, was sunk at the polls after word surfaced that it unintentionally repealed a ban on gifts and speaking fees for legislators and other public officials.
Once a measure has qualified for the ballot, its proponents are not allowed to pull it back from going before voters, even if they no longer support it. The League of Cities sponsored a 2004 initiative to wall off their local money from the state. After reaching agreement with state officials on a compromise rival ballot measure, they agreed to campaign against their own proposal, no doubt to the endless confusion of the voters.
The Legislature makes bill-writing mistakes too, all the time. (In 1985, they briefly and accidentally legalized the sale and manufacture of “angel dust” or PCP!) The difference, though, is that those mistakes are usually easily and quickly rectified with clean–up bills, which sometimes come along even before the ink has dried on the original errant legislation. Correcting an error in an initiative usually requires going back to the voters with a fix. It rarely ever happens. Often judges are left to clean up the mess, then criticized by the original proponents of the measures if the rulings over their poorly worded measures don’t go their way.
Along comes carefully balanced legislation from departing Senate leader Darrell Steinberg that would help prevent initiative errors and reduce the chaos for long-suffering voters. Dubbed, the Ballot Initiative Transparency Act, SB 1253 (here’s a link to a legislative analysis of the bill) contains a long list of provisions – too many to detail here. The heart of the bill, in my opinion, are provisions that (1) allow measures to be rewritten in the early stages to fix errors, (2) allow for early legislative hearings on proposals before they have qualified for the ballot, and (3) allow withdrawal from the ballot of measures when legislative compromises have been reached.
Specifically, SB 1253 creates a 30-day public review period at the beginning of the initiative qualification process. During this time window, the public would be invited to submit comments (all of which go on the public record) on a proposed initiative. An initiative proponent would have up to five days afterward to amend their measure in response to those comments. Any changes must be “germane” or related to the original purpose of the initiative. Proponents could also scrap their original measure and start over.
Proponents who move on to try to qualify their measures would be obligated to notify the state (under penalty of perjury) once they had collected 25 percent of the signatures needed to put them on the ballot. The relevant Assembly and Senate committees would be required to hold early joint public hearings on each such measure. Obviously, in such a setting, any obvious initiative flaws would get additional public attention and debate.
Initiative proponents would be given clear legal authority to “engage in good faith bargaining between competing interests” and to withdraw their measure if, say, they reached a compromise over changes in law with other parties. But they could not do so in exchange for money. That would be a crime punishable by a fine up to $5,000 and up to three years in prison. (Interestingly, this provision would also apply to proponents of local ballot measures.)
Finally, the measure extends California’s relatively short initiative qualification period from the current 150 days to 180 days.
SB 1253 walks a careful line, in my view. It contains mechanisms providing needed additional scrutiny of the content of proposed citizen-driven changes to state law that could spotlights errors and bad public policy ideas. On the other hand, nothing in the measure compels any initiative proponent from putting a measure on the ballot in exactly the form they originally preferred – errors and all–and for the voters to judge their merit. The First Amendment rights of California citizens to petition their government are protected, and arguably enhanced, by extending the initiative qualification period. This is a good government idea that will help preserve the credibility of a tarnished initiative process. The Governor should sign SB 1253 into law.
Dan Carson, former Capital bureau chief of the San Diego Union, retired as deputy legislative analyst of the Legislative Analyst’s Office in 2013.
