Conversations on Politics, Policy in the Golden State

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By Joel Fox

California�s Initiative Process Serves
as Check on Legislative Power

Differences between Alexander Hamilton and Thomas Jefferson, so recently re-invigorated from dusty history books by the Broadway smash "Hamilton," is actually a good place to begin consideration of California�s initiative process. The divergent attitude of these founding fathers serves as a map to the appropriate role of the people�s involvement with making laws.

Hamilton fretted that if the people became involved in policy choices they would make decisions on what pleased them rather than what benefited them. Jefferson�s rejoinder was that the people are the safest, if, perhaps, not the wisest depository of public interest.

The initiative process serves as a check on legislative power. How valued is the people�s role in legislating? In the California constitution, Article I declares the people�s right to instruct their representatives and petition government for redress of grievances. Article II contains the initiative, referendum and recall powers. You have to skip down to Article IV before legislative power is framed.

History informs us that the initiative came about because the legislature at the turn of the last century was in the pocket of powerful railroad interests. Interestingly, on the 1911 special election ballot, in which voters affirmed the initiative process, there were 23 constitutional amendments. The only one that failed would have permitted elected officials to get discounted or free rides on public transportation. In other words, the legislators were taking care of themselves.

The legislature doesn�t reform itself; it consolidates power. It doesn�t always look after the best interests of the people. The initiative process has often been used to establish reforms to the legislative process. A recent example moved redistricting from the legislature to an independent commission, ending gamesmanship designed to keep incumbents in power.

The initiative process is not perfect. Voters may be frustrated with facing 17 ballot measures this year. (Although, that too can be laid at the feet of legislative manipulation by eliminating initiatives on the June primary ballot.) There are issues about clarity of measures and money in the process, although studies prove that while money can get you on the ballot it cannot guarantee a win at the polls.

However, the reason the initiative process remains so popular with voters is because it serves as the ultimate safety valve for voters against government missteps. To quote Jefferson, "The good sense of the people will always be found to be the best army. They may be led astray for a moment, but will soon correct themselves."

Joel Fox is the founder of Fox&Hounds Daily, a website designed to discuss and explain the confluence of politics and business in California, and operates Joel Fox Consulting. The opinions in this article are presented in the spirit of spurring discussion and reflect those of the author and not necessarily the Treasurer, his office or the State of California.

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By Joe Mathews

California's Initiative ‘Brutality’

California�s initiative process is, in a word, "brutal." That was the official judgment six years ago when hundreds of experts in direct democracy from all over the world came to San Francisco for a five-day conference. (Full disclosure: I was one of the conveners of the event). The visitors� goal was to develop best practices for the use of initiatives and referendums, tools that have become more popular in localities and states around the world. By the end, a governing rule had developed: Do the opposite of what California does, and you should be all right.

What is the nature of our initiative "brutality"? No place on earth operates direct democracy at the expense and media scale of California. Our rules require interests or individuals sponsoring initiatives to have millions of dollars of money to qualify measures, and millions more to prosecute campaigns. We demand that voters cast ballots on some of the longest lists of measures in the world, all in one sitting (San Franciscans faced 42 state and local measures combined this month). We permit almost any idea on the ballot, including measures that would take away civil rights. And no place on earth is so inflexible when it comes to initiatives; only in California are statutes established by initiative automatically exempt from legislative amendment.

As a result, Californians have come to use initiatives to do violence to the future. We cement laws and constitutional amendments that will govern the state long after they are dead or have moved away, even if a new majority of Californians would like something different.

Describing this system as �direct democracy� is actually inaccurate. It�s not very direct � initiatives are used to circumvent the legislature or other interests, rather than bring people together. And it�s not very democratic, since access is limited to the rich and voters are bludgeoned by so many measures, on top of ballots full of candidates.

The good news is that other states and countries have real direct democracies that we could look to for reforming our system. The bad news is that reform efforts on initiatives have all but ignored global data. (Despite the fact that such data is now available via Google Search. I recommend the Democracy Navigator.)

In approaching reform, too often we talk about the initiative process in isolation. But initiatives are really part of a three-headed, and wildly dysfunctional, California governing system that includes all the rules that apply to our legislature, and the election of that legislature. The focus of reform should be to tie the initiative process together with our budget systems, our legislative systems, and our election system so they all work together.

I�ve written before about four principles to guide this. First, make initiatives subject to the same rules as legislation�which makes sense, because they are legislation. This would include making all initiatives subject to legislative amendment once they�ve passed.

Second, integrate our initiative calendar with our legislative one. Instead of having ballot measures on the same ballots as candidates, separate them. Institute separate dates for votes on ballot measures that work with the legislative calendar. Switzerland, the birthplace of modern direct democracy, does this.

Third, create a new path to ballot qualification that doesn�t depend on money and signatures. Instead, establish a citizens� committee that can hear proposal for ballot initiatives from any California citizens. The committee could evaluate the idea, and then put a measure on the ballot if the committee judges the idea to be a good one. That may sound simple-put good, properly evaluated ideas on the ballot based on the quality of ideas. But that�s a radical notion in California.

Fourth, make it harder for voters to circumvent the legislature by initiative � but make it easier for voters to overturn the legislature through a more referendum-based direct democracy. California makes it far too easy to qualify initiatives, and harder to qualify referenda. Those incentives should be reversed. A referendum is a direct judgment on a legislative action-and a direct communication with the government. The referendum should be more common than the initiative. But in California, fewer than 100 referenda have ever been filed. There have more than 1,500 ballot initiatives filed, and more than 300 have made the ballot.

This month, I�m heading off to the Basque Country in Spain, where many of the same democracy experts will be gathering again. I wish I were carrying reports of progress in California direct democracy. Alas, I�ll have to tell them that the Golden State is as brutal as ever.

Joe Mathews is California and Innovation Editor for ZocaloPublicSquare.org and author of "California Crackup: How Reform Broke the Golden State and How We Can Fix It." The opinions in this article are presented in the spirit of spurring discussion and reflect those of the author and not necessarily the Treasurer, his office or the state of California.