A Major Reason to Protect the Initiative Process

VotingAt the Valley Industry and Commerce Association (VICA) annual conference last Friday a member of the audience, after listening to a discussion of the initiatives on the ballot and the initiative process in general, asked the panel why we even have the initiative process. As a member of that panel I offered an answer different from my fellow panelists— because California is becoming a one-party state.

The audience member’s question is a fair one. When one hears about measures sponsored by special interests, the millions of dollars it takes to qualifying and promote a proposition or the money raised to oppose some measures (a record setting $100-million plus to oppose the dialysis measure, Proposition 8), the concerns of ballot-box budgeting and laws created that don’t mesh with other laws on the books, while initiatives can only be changed by another vote of the people, you can understand why a question asking the need for  the initiative process is asked.

Panelists responded to the question in various ways about energizing the electorate; having voters participating in political decisions.

I raised the issue that reflects modern day political California that demands protection of the initiative process: California is a one-party state.

The majority party, which soon could once again control the legislature with a supermajority two-thirds makeup and perhaps hold that margin for some time, is under the influence of an aggressive, progressive wing and special interests that benefit from legislative decisions. While the voters who elect this legislature may choose Democrats over a tarnished Republican Party, they don’t necessarily concur with the hard line agenda that is put forth. That’s why the initiative is a must as a possible check if the legislature goes too far or doesn’t address areas of voters’ concerns.

The controlling powers would prefer not to have competition from the initiative process. You can see that in legislation advanced to attempt to change rules associated with the initiative to give the majority more control over the process or even to make it harder to pass initiatives.

A couple of years ago, legislation passed to assure that all initiatives would appear on the November ballot. The political reason was because larger voter turnouts favored the majority party.

The last couple of years, bills reached Governor Brown’s desk to change the way professional signature gatherers are paid. Instead of paying them per signature, the bill demanded that paid signature gatherers receive a flat fee. The politics behind it was to take some of the incentive away from signature gatherers and to make it tougher to qualify measures.

Governor Brown vetoed both bills saying changing the rules would make it tougher to qualify a measure and in turn would allow only well-healed interests from qualifying initiatives.

What would the next governor do if and when that bill comes back?

(There has even been a desire to prohibit payment for initiative signature gathering but courts have stopped that move.)

The initiative process was created as a check on the legislature, which was controlled by outside interest at the beginning by the twentieth century. To a large degree matters have not changed. The initiative process must be protected as a check on the legislators and the interests that influence them.

ditor and co-publisher of Fox and Hounds Daily.

This article was originally published by Fox and Hounds Daily.

Initiative and Referendum Processes in California

vote-buttonsJust over a century ago in California, the initiative process was proposed by Progressives, the labor movement, and others as a means of addressing a Legislature which was perceived to be under the control of the Southern Pacific railroad and other special interests. In 1911, the California voters followed the recommendation of Progressive Governor Hiram Johnson and California became the 10th state to enact the initiative, referendum and recall.

The initiative and referendum are intended to be available to the people when their elected representatives (i.e., the governor and Legislature) are unwilling or unable to adopt legislation. The initiative is a method of lawmaking that requires a vote of the people instead of a vote of the Legislature in order for a measure to become law. To qualify for a statewide ballot, statutory initiatives must receive signatures of voters equal to 5 percent of the votes cast for all candidates for governor at the last gubernatorial election. Constitutional amendment initiatives must receive signatures equal to 8 percent of the same number of votes. In both cases, proponents have 180 days to collect the required number of signatures.

With the referendum, the people also have the power to approve or reject statutes or parts of statutes with the exception of urgency statutes, statutes calling elections, statutes providing for tax levies, or statutes making appropriations for the usual and current expenses of the state. The petitions must be signed by registered voters in an amount equal to 5 percent of the votes cast for all candidates for governor at the last gubernatorial election, and proponents have only 90 days from the date of enactment of the legislation (the time the governor signs the bill) to collect the required signatures.

Ironically, California’s initiative and referendum processes have not always been used as former Gov. Hiram Johnson envisioned. Especially within recent years, initiatives have been used primarily by interest groups and wealthy individuals who fund multi-million dollar campaigns to change the law, often in a self-serving manner with little regard as to whether the ballot measure promotes good public policy.

The referendum process has also been a successful tool in recent years for special interest groups. For example, competing Indian tribes placed Prop. 48 on the November 2014 general election ballot and spent millions of dollars to overturn two gaming compacts that had been negotiated by the governor and then ratified by the Legislature. In addition, there is an effort underway to overturn the statewide plastic bag ban by referendum. With these examples, the referendum process appears limited in its use to very select instances where a financially powerful interest group can pay for qualifying a referendum and getting it before the statewide electorate.

The continued growth in the use of the initiative can be attributed to several factors. First, public opinion polls show a continuing decline in confidence in elected leaders and political institutions by those responding to these polls.  According to numerous surveys conducted by the Public Policy Institute of California, the public believes it does a better job via the initiative process than the Legislature and governor do via the legislative process.

Second, when it comes to controversial and complex issues, the Legislature and governor have often been unable or unwilling to act. Sometimes there has been no other alternative but to go the initiative route.

Third, during recent decades there has been a significant increase in special interest groups, both in number and size. Special interest groups have sponsored many of the initiatives that have been brought to the people on the statewide ballot.

Fourth, the professional petition industry has itself prompted many interest groups and individuals to use the initiative process. Large organizations depend on continuing initiative activity for their very existence and such organizations are now part of what has been dubbed as the “initiative industry complex.”

Finally, we have seen an increase in the use of the initiative because of the growing use of counter-initiatives. To combat a threatening or unwanted initiative, groups have resorted to drafting and qualifying their preferred alternative.  In addition, groups have pursued initiatives as a means of pressuring the Legislature and Governor to deal with issues legislatively.

As the number of initiatives being considered and brought to the people has increased dramatically, so have the costs of pursuing ballot measures. The two main areas where costs have increased are in signature gathering and advertising. The Center for Governmental Studies found that the median cost to qualify an initiative in California (i.e., gather signatures) reached $2.8 million in 2006, up from $45,000 in 1976. Current rates are $1 to $3 per signature, with costs of qualifying often $2 million or more.

The cost of advertising an initiative has also skyrocketed. Interest groups for and against ballot measures have waged huge campaigns to influence the voters. For example, an initiative to temporarily increase the income tax and sales tax (Prop. 30) was taken to the voters in November 2012. A total of more than $120 million was spent — $67.1 million for the “yes” campaign, and $53.4 for the “no” campaign. Also on the November 2012 ballot was an initiative to restrict political contributions by unions and corporations (Prop. 32). A total of more than $133 million was spent — $60.5 million for the “yes” campaign, and $73.3 million for the “no” campaign.

It is an unfortunate reality that most of these statewide ballot measures usually require tens of millions of dollars to be spent for and against the proposals, thus tending to preclude ordinary citizens from this method of changing the law. And, more often than not, exorbitant spending neither predicts the success or failure of a measure. Sometimes the issue gets punted back to the Legislature to try to resolve the public policy dispute, despite the fact that the “people have spoken.” As a result, many legislators feel their hands are tied and are hesitant to act, leaving the public policy issue unresolved and the status quo winning the day.

It is probably a fool’s errand to attempt to debate and decide whether the initiative process is either a needed check on elected officials or a tool of special interests. There are arguments that can be made for either side of the question. The fact of the matter is that the California public has consistently supported the initiative process and feels it has done a good job with the responsibility. At the same time, the public as well as elected officials have been critical about various aspects of the process, and have been calling for reforms in recent years.

In 2014, legislation was passed (SB1253, Steinberg, Chapter 697, Statutes of 2014) that made several important modifications to the initiative process. First, a proposed initiative will be subject to a 30-day public review period at the start of the process. Based on this input, proponents would then have an opportunity to amend the proposal.  The new law also requires that when proponents have collected 25% of the signatures necessary to qualify an initiative for the ballot, state legislative committees will hold public hearings on the measure. Proponents would then be given an opportunity to withdraw their proposal if they are content with the legislative solution. To accommodate these extra steps, the new law also extends the signature gathering period from 150 to 180 days. Finally, the law requires the state to post the top 10 donors in support and opposition of an initiative.

Even though there may be an appropriate role for ballot measures, direct democracy has its limitations and it makes good public policy sense for some additional review by the public and even elected representatives in order to address potential drafting problems or even to give the Legislature “one last shot” at addressing the public policy issue before the voters have to make a decision. The Legislature’s actions in 2014 represent a step forward in improving the initiative process.

A major challenge that remains with respect to both the initiative and the referendum is the huge expense entailed in accessing this method of changing the law. The costs of qualification and advertising are simply too much for ordinary citizens or small organizations to bear. As to the referendum, a recent law change in 2011 (SB202, Hancock, Chapter 558, Statutes of 2011) creates potential problems. This measure essentially requires initiative and referendum proposals only to be voted on at statewide general elections in even-numbered years. Thus, if a proponent can collect 500,000 plus signatures on a referendum proposal, a new law is suspended from going into effect at least until the outcome of a statewide general election that could be almost two years in the future.

Finally, there’s a bit of reality that may help assuage some of the problems that continue to remain. Simply put, the track record for proponents is not very high. The Secretary of State has done an analysis of the success rate for initiatives in California. During the past 101 years (1912 to July 2013):

  • 1,767 initiatives were titled and summarized for circulation
  • Of these, 1,311 (74.1 percent) failed to qualify, and another 92 were withdrawn from circulation
  • 360 initiatives (20 percent) qualified for the ballot
  • Of the 360 that qualified, only 122 were approved by the people.

Historically, therefore, only one in five proposed initiatives has qualified for the ballot, and only one in three of those that qualified have been approved. Even if initiatives are the tool of special interests, the odds of success are very slim.

Spending on state propositions breaks record

As reported by the San Jose Mercury News:

SACRAMENTO — Political donors have spent a record $450 million on 17 statewide November ballot initiatives in California, beating the state’s own record for the most spent on propositions appearing on state ballots in a single year, campaign reports filed Thursday show.

The fundraising has soared at least $12 million past California’s previous record, when $438 million was spent on the campaigns for and against 21 measures on 2008 ballots. With inflation, fundraising in 2008 would be worth at least $490 million today.

No other state has come close to those amounts.

California is one of the few states that empower voters to enact laws affecting state revenue and spending. The proposals going before the state’s 18 million registered voters put billions of dollars at stake in this election. …

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