By Visiting Associate Clinical Professor Jessica Levinson
This op-ed was originally published by the Los Angeles Daily Journal.
This week marks the 100th anniversary of the enactment of the political reforms that brought the Golden State the initiative, the referendum, and the recall. A century later, one thing is clear; our system of direct democracy is deeply flawed.
In 1911, Gov. Hiram Johnson enacted a series of reforms - including the initiative, the referendum, and the recall - to increase the power of citizens across the state. At the time a special interest, Southern Pacific Railroad, had a stranglehold over lawmakers, and Johnson instituted a system of direct democracy in part to change that. The sad irony is that 100 years later, while their names are different - Amazon, Mercury Insurance, and PG&E - our systems of direct democracy are now controlled by the same interests they were meant to guard against.
Moneyed interests now control the processes meant to give power to all of the citizens. What does one need to qualify a measure for the ballot? Money. Money won't guarantee a measure's success, but it will mean that members of the electoral must invest time and resources on a ballot measure, regardless of the propriety of the idea behind the measure.
Why is money the driving force behind direct democracy? Because in 1988 in [Meyers v. Grant,] the U.S. Supreme Court invalidated a ban on paid signature gatherers. Simply put, if money spent in politics is speech, then prohibitions on the use of paid signature gatherers amount to restrictions on speech.
The processes of direct democracy are wrought with problems, but it is here to stay. The least we should do is limit their reach. Here are a few suggestions.
Prohibit constitutional amendments by initiative or make it harder to enact constitutional amendments by initiative: Constitutions should be fundamental governing documents. California's constitution is not. It is one of the longer constitutions currently in force. It has been amended more than 500 times. It is a bloated document stuffed to the gills (in fact a ban on the use of gill nets is in our Constitution) with amendments. It is frighteningly easy to amend California's constitution by initiative. Voters can amend it by a simple majority vote. Our elected lawmakers, on the other hand, can only amend the Constitution by a two-thirds vote that is later put to a ratifying vote of the people.
If the state will not prohibit constitutional amendments by initiative altogether, then it should at least make such amendments much more difficult. For instance, perhaps constitutional amendments could only pass by a two-thirds vote of the people. Another option is to require constitutional initiatives to pass in two consecutive general elections. In addition, constitutional initiatives should sunset after a certain period of time unless they are reenacted by a supermajority vote of the people. (In fact, it is wise to implement sunset provisions for all initiatives, whether statutory or constitutional).
Allow the Legislature to amend statutory initiatives: Currently California is the only state with a initiative process that does not allow the Legislature to modify statutory initiatives. It should not be more difficult to amend initiatives than legislatively enacted statutes. Initiatives should not be etched in stone. The Legislature must be able to revise or repeal statutory initiatives without going to a vote of the people. Circumstances change, laws must be changeable as well.
Prohibit initiatives on budgetary matters or institute pay-go: Fewer than half of states that have the initiative process permit budgeting by initiative. Initiatives can affect taxes and public expenditures. The initiative process allows members of the electorate to make decisions about the budget in isolation without a comprehensive view of the budget or the consequences of enacting certain ballot measures. It is worth considering joining the majority of states with a initiative process that prohibit initiatives on budgetary issues.
If California will not prohibit initiatives on budgetary matters, then it should at least impose a system of pay-go. Ballot measures present voters with a binary choice; they can vote "yes" or "no." Voters are often asked, "Do you want this program or service?" or "Do you want lower fees or taxes?" The rational voter will say "yes" to both questions. However, voters are only given half of the information. They are not asked, "Do you want this program if it means we need to raise taxes or less money can be used for X?" or "Do you want lower taxes if it means less money will be available for Y?" California should require initiatives that will cost the state money to designate a funding source, and initiatives that will cut programs or services to identify those programs or services.
Implement pre-election review: The vast majority of successful initiatives are later challenged in court. At least half of those initiatives are invalidated in whole, or in part. This represents a waste of time and resources, both on an election for a ballot measure, which may not be constitutionally sound, and on a court case surrounding issues, which could have been resolved earlier with a pre-election legal review of initiatives. A legal review could include an examination of procedural requirements like qualification rules, subject matter requirements like the single-subject rule, and state and federal constitutional requirements. A word of caution, this pre-election legal review should be implemented in way that does not provide more tax on judicial resources than the current system.