Roundtable on Initiative Reform
Making California work: How state government can be more effective and responsive
05/08/2005
San Diego Union-Tribune
Moderator John Diaz: The goal of this Voices of Reform project is to use the collective clout and resources of the state's major newspapers to bring together experts and ideas on these topics, and then let each newspaper decide what it wants to propose as solutions to those big issues. The first meeting in this series, on redistricting reform, was hosted by the San Jose Mercury News March 17.
The roundtable discussion today (April 20 at the Commonwealth Club in San Francisco) will be on the initiative process. the initiative, referendum and recall were written into the state constitution in 1911 as part of the wave of progressive reform that arrived with the election of Hiram Johnson as governor. At the time, the establishment of the so-called direct democracy was seen as an antidote to the grip of special interests, particularly one special interest – the Southern Pacific Railroad.
A major turning point in the initiative process was the passage of Proposition 13 in 1978, which rolled back property taxes and fundamentally changed the structure of government finance at the state and local level.
The experts
Edward J. "Ted" Costa
Chief executive officer of People's Advocate. For over 20 years he has been at the forefront of qualifying and passing statewide ballot initiatives, including Proposition 13. His most recent was the 2003 recall of Gov. Gray Davis.
Elizabeth Garrett
Professor of law at the University of Southern California. She is a leading legal scholar of direct democracy and the director of the USC/Caltech Center for the Study of Law and Politics. Before entering academics, Garrett clerked for Justice Thurgood Marshall on the U.S. Supreme Court.
Robert Hertzberg
Former speaker of the California Assembly. He is a partner in an international law firm. He created both the Speaker's Commission on the Initiative Process and the Speaker's Commission on Regionalism. Hertzberg finished third in the recent Los Angeles mayoral primary.
Mathew McCubbins
P rofessor and chair of the Department of Political Science at University of California, San Diego and professor of law at University of San Diego. He is the author of "Stealing the Initiative: How State Government Responds to Direct Democracy."
Harvey Rosenfield
Founder and former president of The Foundation for Taxpayer and Consumer Rights. He also was the author of Proposition 103 to restructure insurance regulation in California. Rosenfield is the author of "Silent Violence, Silent Death: The Hidden Epidemic of Medical Malpractice."
Jean Ross
Director of The California Budget Project, a nonprofit, nonpartisan organization established to promote a better understanding of state fiscal and economic policy issues and their impact on low and middle income Californians. She formerly was a legislative consult on revenue and taxation issues.
Fred Silva
Senior adviser in government relations at the Public Policy Institute of California. Silva has been involved for over 30 years in the development of public policy related to state and local government. He spent the first part of his career in local and regional planning issues in the San Francisco Bay Area.
We are here today because some Californians believe that direct democracy has gotten out of control in the state, and it has turned the original intent of these Progressive Era reforms on its head. The initiative, for example, is now a favorite tool of special interests. Voter-approved initiatives have greatly diminished the discretion of elected officials on everything from spending and tax decisions to prison policy to gambling to the hunting of mountain lions. Gov. Arnold Schwarzenegger, himself a product of the direct democracy, is now threatening to hold a special election this November to let voters pass a series of reforms he says he cannot get from a legislature controlled by special interests. His opponents are countering with a series of initiatives of their own aimed at what they say are the special interests that have the governor's ear.
Our panel of journalists, from the editorial sections of the participating newspapers, are Lois Kazakoff, Ken Garcia, Louis Freedberg and Marshall Kiduff of the San Francisco Chronicle, Jim Boren of the Fresno Bee, Juan Esparza of La Vida en el Valle, Phil Yost of the San Jose Mercury News, Henrik Rehbinder of La Opinion and Beth Barber of The San Diego Union-Tribune.
Question: Today, the initiative process essentially constitutes the state's fourth branch of government. What are the pros and cons of this level of power and influence?
Costa: I disagree. I do not believe it is the fourth branch of government. It is a power that should be reserved for the people. At least, it says that in Article II of our Constitution. Whether it comes from there or whether it comes from the First Amendment is debatable. But it is a tool the people have reserved for themselves. They have the right to do so and they've done that under the Constitution.
Garrett: When I think of the role of initiatives, referendums and recalls, I don't think of it as a fourth branch of government. Rather, I try to think that the system we have is a hybrid democracy, that is, a democratic system that has both representative elements and direct elements. And you can't understand one or the other without understanding the hybrid nature of our democratic institutions, not just in California. But 70 percent of Americans live either in a state or a city with what I call a hybrid democracy, that is, access to some kind of direct democracy. I think there are benefits and weaknesses in the system. And I'm sure we'll talk about many of them today.
Let me just point out one benefit, I think, of having an initiative process as part of a hybrid democracy: When initiatives were adopted in California and other places, they were seen as a way around strong special interests with lots of money and inordinate influence in the Legislature. There's a group now that has inordinate influence in the Legislature; and that would be legislators. There are certain reforms of government that are very unlikely to be passed by legislators because they're not in their self-interest. You can think of any number of these: public financing for legislative elections, redistricting reform, term limits. You may or may not agree with them, but they're very unlikely to get a full hearing in the Legislature. Hybrid democracy allows them a full hearing and the possibility of enactment.
Do you feel there is a fourth branch of government out there?
Hertzberg: I don't know. I do believe – I like Professor Garrett's theory on the hybrid nature. And let me just build, if I can, on what you said. What has, in fact, happened is that it has been, for a very little amount of money, an ability for special interests – the very special interests that they were designed to protect against – to actually manipulate the process.
So what I'm deeply concerned about is the fact that it's so inexpensive – for a million or two million dollars, depending upon the time in which you gather the signatures and paid signatures – that you can, in fact, manipulate the electorate. There's not really truth in advertising in terms of who's behind these initiatives...We've seen 1,300 initiatives being filed since the inception of the process.
McCubbins: I won't quibble with characterizing the initiative as a fourth branch of government... Most states operate initiatives much differently than we do. And we can certainly amend our initiative process to be more like that of other states or other countries. Our initiative process is one where the initiative is pretty much unchecked. And in many other places you either have sunset provisions where there's a check on the people so that in five years the initiative sunsets; and the people then have to re-enact it, if they want it, if they liked it. Or there's a check by the legislature in some places – for example, Massachusetts and so on – where the legislature, after two years, can amend the initiative that was passed and so on. In California, no. We have absolute power exercised by the people. And, except for some small chance of judicial check, it's largely unchecked. Every other type of power in America has multiple layers of checks and balances. In California, the initiative doesn't.
Rosenfield: Well, the initiatives that I've been involved in have all been initiatives in the classic sense that Hiram Johnson envisioned the process working. We took on the insurance companies, the HMOs and the utility industry. And I think, for the public, it's a very powerful tool to address one of the biggest problems we have in the state right now, which is that special interests control the state Legislature. But, like all other tools or institutions of democracy, this particular tool – the initiative process – is subject to abuse. But having said all that, I think it is a very powerful, deeply American and patriotic institution.
Ross: I think if we're going to break down into camps, I'll probably fall into the absolute power that corrupts absolutely camp in this debate. I think the problems with the initiative process are many – and I've often said that the only petition I'll sign is one that abolishes the initiative process. And I think first and foremost is the lack of checks and balances in the initiative process and I think, particularly, with respect to campaign finance laws. I think the initiative process has gained disproportionate power because it isn't subject to the same rules that elections for the other two branches of power are. It isn't subject to internal checks and balances. There is no public debate or review of the initiative process.
Silva: It is indeed part of our governance system. We all get perplexed about it. But I'd make two points about being perplexed. One of them is: Keep in mind that, when you look at a ballot, most of the measures you find on the ballot have been placed there by the Legislature. They are not there because of the initiative process. Most of our constitutional amendments arise out of the Legislature. And, of those that the Legislature places on the ballot, over two-thirds of them are approved. Yet constitutional amendments placed there by the initiative process, only about a third of them are approved. So Californians are quite skeptical about this.
When we talk about direct democracy, do you think the average California voter knows what they're actually voting on when there's a dozen or two dozen measures on the ballot?
Silva: I think the voters get a variety of cues from their own perceptions. They tend to listen to the debate more than we think they do. The amount of information that's out there that is both objective and partisan – small "p" – is enormous. The Web gives us all sorts of information, whether it's the Legislative Analyst's Office or the League of Women Voters or Jean's group or anybody who writes about this stuff. So if you want to search out the information, it's all there. The real question is: What gets the voter thinking about the choices that they're going to make?
Ross: A question near and dear to my heart. I think the answer is no. I brought props, this is the ballot pamphlet from November, which you've probably tried to forget by now, most of which – if my type-size recognition is correct – most of which is probably 8-or 9-point type, most of which is incredibly complex.
Hertzberg: No, to both questions. Democracy is not perfect. It was never intended to be perfect. It was intended to avoid the tyranny of dictatorship or royalty. So it's hard. It's hard to get the policy right, whether you are sitting in a legislative body, or whether you're putting an argument before the voters. The question seems to me is about where the power should lie, and how do you create a system that works the best it possibly can in this imperfect world.
Garrett: The primary question, it seems to me, is whether voters can vote competently. That is, can they vote consistently with their preferences? And when we ask that question in the context of initiatives, we ask, 'Do they have enough cues, enough information?' They don't have to be experts on the policy. But do they have enough snippets of information that they can vote competently? Voters need to know who is spending the money and how much money they're spending. That means you need aggressive disclosure statutes that pierce through veils of organizations that work to hide the true source of funds.
Ross: I think it certainly is, and if you talk to people in the Legislative Analyst's Office – they have to write the information that becomes part of the title and summary that's at the top of every petition – they'll tell you they're about to die right now. They just finished doing 70 of these in a period, I think, of about three weeks. I think it's too easy – if you look at what it is, it's the sixth or seventh version of the same initiatives submitted over and over and over again, so people can shop to see what gets the favorable responses in a poll or what you can get the most campaign contributions for.
Rosenfield: I want to lower the bar. It is not easy to put an initiative on the ballot. It is easy if you are a big corporation or you are able or willing to appeal to a special interest to back you. Then it's pretty easy, because it's only two bucks a signature. That's about $1.2 million. And you have your thing on the ballot.
Hertzberg: What do you do to fix the system? And what I would do in the near term to fix the system is, one, I'd limit the number of initiatives that were on the ballot because it's just – at some point the door closes. Two, I would put a provision in that allows, if there is more than one ballot initiative on the same subject, I would organize them in sections so that it's easier for the voters to digest, right? Three, transparency about who the sponsors are and where the sources of money are, which just aren't clear enough today.
Why not have judicial review before the initiative is put before the voters?
Costa: I think the Supreme Court has made it real clear that they don't want to be involved in that prior (review). They want to be there as the final arbiter at the end. And if they get it at the beginning of the process, then where do you take your grievance at the end, when the court has already passed upon it? So a real problem there.
Garrett: What I do think has to be changed is the rule in California – we're the only state with this rule – where statutory initiatives cannot be amended by the Legislature after they're enacted, unless the drafters of the initiative themselves allow for that involvement.
Would you define the term 'indirect initiatives'?
Garrett: When I use that term, what I mean is that the people can propose something that then goes to the Legislature for them to enact or reject. So what the people can do is sort of initiate the legislative process, but then the legislative process goes forward. How that actually works would depend on the rules.
McCubbins: I think these are all reasonable recommendations. But it doesn't get at the core problem that what the people are doing with the initiative is trying to let the fox guard the chicken coop. And that is they're passing new policy around the Legislature and the governor, around the bureaucracy, around the state government, and then turning it over to the Legislature and the state government to implement, without any ability to oversee that implementation whatsoever.
Silva: Just two short comments. First, on the indirect initiative process, actually, if you look back at its more recent history, many initiatives that find their way on the ballot have had a testing period in the Legislature. A number of the tax-limitation measures were actually introduced in the Legislature – this is post-Prop. 13. The Legislature debated and killed them. And then the proponents, of course, went to the ballot. So we have some experience with it. But the problem is we don't have a constitutional structure for the Legislature to focus on petition signatures that have been gathered to produce pressure for action. That's what both the Speaker's Commission (on the California Initiative Process), the Constitutional Revision Commission back in the '90s had suggested, that there be some process for the review of measures.
The other point I would make – the final point I would make in the form of a question – is what initiative measure has been amended the most? Anybody know that? It's Prop 13. In almost every election cycle, there's been an amendment to Section 2 of Prop. 13 dealing with the way property has been assessed. The reason for that is the Legislature thought it was a nifty way to provide release valves to pressure building up under Prop. 13.
So, after initiatives are approved, often the Legislature does go back and place measures back before the voters – the Legislature can't amend them by itself. Both the Speaker's Commission and the Constitution Revision Commission thought that it might be good from time to time to have a Legislature go back and do that without going to a vote of the public.
We have heard a lot of ideas of reform and change. And some of them I think are in the ideal world. Given the political environment that we have here in California, is there any reform that is feasible in a normal period of time, and, if there is, which one?
Silva: I was about to give you the short answer of 'no.' But most of the reforms that have been proposed, run straight into what I referred to earlier in the pejorative as 'the initiative-industrial complex,' both the indirect initiative – and Bob ought to talk about this in terms of whether the Legislature would put that on the ballot; probably not – but disclosure requirements – tough to get. So each time we talk about any of these proposals, it's very difficult to get them through the legislative process. And what's left is the initiative process. And that complex, I think, tends not to be very interested in it.
Hertzberg: I think the fact that today exists and that we're all here spending this time on this issue and have chosen, as part of this review of California to look at this, I think demonstrates, at some level, there's interest, at least among us, on this. But I do think, just generally, if crafted appropriately, there clearly is political interest in fixing the process. There's clearly a high level of frustration among the electorate to deal with this – on one hand, they love this process – appropriately. On the other hand, they're frustrated with some of the shortcomings for a wide variety of reasons. If we can find somebody who will be willing to back that financially and got on the ballot appropriately, I think we've got a shot. And I think we should take it.
Garrett: If you're not thinking in that sort of meta-reform way, there are smaller changes that can be done statutorily. The recall showed us that we need to make some statutory changes. For example, in limiting how people can get on the ballot in that second part of a recall ballot. We shouldn't have 135 candidates on the ballot. That just takes a legislative change. But the legislators got bored with it, they moved on to other things.
The other things that could be changed have to do with the campaign finance system. Disclosure statutes could all be done at the legislative level. The FPPC's (Fair Political Practices Commission) rule that limited campaign contributions to candidate-controlled issue committees has been preliminarily enjoined by a court. The court has constitutional doubts in part and also questions whether the FPPC has the authority to promulgate those regulations. The Legislature could (give it that authority).
I must be too new to California. My only experience with the initiative process was in Florida, where the voters managed to add to the constitution provisions for the housing of pregnant pigs. But what I'm hearing, it sounds as though every one of you is critical of the initiative system as it is for some specific reason. It's sort of like you're saying, 'If we can only make the voters know what we know, they'd vote the way we want them to.' Would each of you explain what specific instance brought you to these points of view at this point in time? And what do you feel ought to be fixed?
Costa: Since Paul Gann founded People's Advocate, we have placed 13 initiatives on the ballot; 10 of them have been passed into law by the voters, which is a pretty good record. Except when you look at it, you would say, 'Well, the courts threw most of them out.' But I come to the realization that they really were not drafted that well....I'd like to be able to go in and talk to the legislative analyst. I'd like to be able to go talk to the legal departments at the universities and get analysis of major reforms that are of great importance. And, yeah, that's the one thing that I would change real quick.
Rosenfield: I think it's like every other democratic institution. It is susceptible to abuse. But I like it because it represents the opportunity for people to get involved in our democracy. It's a very messy process. I think that's democracy.
Silva: Well, at the beginning the question was raised about whether or not the initiative process was the fourth branch of government. I want to go back to that. My comments, I think, suggested that it's a piece of our governance system, so I think most of us look at it as a piece of governance that could operate better. As each of us have talked about whether it's some form of indirect process, whether, as Ted Costa suggested, there ought to be a better method for drafting, we are all looking at the edges of this to see how it can be approved. I don't think I heard anybody who simply says we should get rid of it.
But what would be an improvement? Different results?
Silva: I think, again, we're back to some of these technical questions about how it's drafted, it's clarity, the amount of information that's available to the voters.
