Ballot Initiatives Gone Wild

By Associate Clinical Professor Jessica Levinson

This op-ed originally appeared on Politix and was re-posted by The Huffington Post.

Here a ballot initiative, there a ballot initiative, everywhere in California a ballot initiative.

How did we get here? About a hundred years ago the processes of direct democracy spread across the country. States gave their citizens the ability to directly enact laws (via the ballot initiative), to directly repeal laws (via the referendum), and to oust elected officials (via the recall). The purpose of direct democracy is to empower average citizens and decrease the power than moneyed interests may have over elected officials. Sounds quaint, doesn't it?

Welcome to 2014, when the very special interests direct democracy was meant to guard against now direct and control those processes. And specifically, welcome to California, where we have not only ousted a governor (Gray Davis) via the recall, but where we frequently use the ballot initiative process. Want to change how many lawmakers it takes to pass the state's budget? Pass a ballot initiative. Want to change the definition of marriage? Pass a ballot initiative. Want to cut or increase taxes? Pass a ballot initiative. Want to change the penalties for criminal offenses? Once again, pass a ballot initiative.

Read the complete piece.

Proposition 32: The Battle Heats Up

By Associate Clinical Professor Jessica Levinson

On November 6, California voters will be faced with 11 ballot measures. Ten are initiatives, one is a referendum (what's the difference?), and none of these were legislatively initiated. One of these initiatives is Proposition 32, which is deceptively being peddled as a good government reform. It is not.

Prop 32 would prohibit unions from using funds deducted from payroll for political purposes. The prohibition also applies to corporations and government contractors. Among other things, it would also prohibit unions and corporations from giving campaign contributions directly to candidates or the committees that candidates control.

While it may seem even-handed, it will have a much, much greater impact on unions, dramatically reducing their power, than corporations. Corporations have many other avenues to raise political funds. Money is, after all, power, particularly in political campaigns in California.

So who would support Prop 32, a proposal to similar, rejected ones in 1998 and 2005? Recently an organization connected to the conservative Koch brothers (who have spent enormous sums to support conservative causes and candidates throughout the nation) gave $4 million to a new committing supporting the passage of Prop 32. It is important to note that the non-profit organization that came forward with these funds does not have to report its donors.

Supporters of Prop 32 had previous raised approximately $3 million; opponents have raised more than $36 million. For a breakdown of who is donating (at least of who is legally reportable), check KCET's campaign finance database here.

If you want unions to have much less political power in California but are comfortable with corporations maintaining their current level of control, and you don't mind voting "yes" on ballot initiatives, then you might want to take a look at Prop 32. If you are either opposed to initiatives, or believe in a more even-handed approach to reducing the influence of money in politics, then Prop 32 is not for you.

Proposition 32: Another Money Pit?

By Associate Clinical Professor Jessica Levinson

[This post originally appeared on KCET's SoCal Focus Blog.]

One of my least favorite things about the ballot initiatives process is the huge sums that those in favor and against these measures typically shell out during the election cycle. This is particularly true for the initiatives which, like bad pennies, just keep coming back every few election cycles. Proposition 32, the so-called "Paycheck Protection" initiative is no exception.

The measure, if approved, would prohibit union and corporate contributions to state and local officials (which may be only a minor problem for these groups because they can just make independent expenditures), prohibit contributions from government contractors to politicians who have a say over their contracts, and prohibit corporations and unions from using automatic payroll deductions for political purposes without their members' permission. That last prohibition will likely cut the legs out from under unions when it comes to their ability to raise and spend political funds. Under our current campaign finance system such a decrease in fundraising and spending ability correlates to a marked drop in political power.

If Prop 32 sounds familiar, it should. We've seen it before in 2005 and in 1998. In less than 15 years we've seen the same idea on the ballot three times. And yet, here we are again -- fundraising, spending, and fighting.

Those against Prop 32 have raised more than $18 million. Opponents of the initiative are likely to outspend proponents. (See who's funding both sides of the issue here.)

It is somewhat difficult to predict how Prop 32 will fare. Spending against proposed measures is typically more effective than spending for those measures. That would indicate that this proposal is headed for its third defeat. However, voters are likely harboring greater anti-union sentiments than they were in the past few years.

One has to wonder whether those whose paychecks are funding the anti-Prop 32 war, the paychecks that measure would purportedly protect, would have preferred not to wage this battle at all.

Ballot Initiative Season Has Begun, and it's Not Exactly a Good Thing

By Associate Clinical Professor Jessica Levinson

[This post originally appeared on KCET's SoCal Focus Blog.]

Ready, set, go. Ballot initiative season is officially upon us. The 11 (yes, 11) ballot initiatives that we will be voting on in November now have numbers, which means the fundraising race will kick into high gear. Expect many advertisements via your television, radio, mailbox and likely your computer screen as well.

We will be voting on tax increases (courtesy of Governor Jerry Brown, attorney Molly Munger and billionaire Tom Steyer), changes to the budget process, how labor unions and corporations can spend money in elections, auto insurance rates, the death penalty, human trafficking, the three-strikes law and the labeling of genetically modified food.

We are simply weighing in on too many decisions via a flawed process.

I've said it before, and I'll say it again: The ballot initiative process is riddled with problems. As it currently stands it does not provide citizens with a good process to make vitally important decisions about the laws that govern us.

The ballot initiative process asks voters to make crucially important decisions in isolation. Our government is too big and too complex to make decisions on a piecemeal basis.

In addition, it is entirely rational for each voter to vote in favor of more services and against revenue increases. The ballot initiative process does not require that voters weigh the consequence of their decisions. Further, voters are accountable only to themselves, not a group of constituents, so quite reasonably may make decisions for their benefit.

The idea behind the ballot initiative process -- to empower citizens to enact legislation when the legislature couldn't or wouldn't act because of the power of special interests -- was a good one. However, moneyed interests, not grassroots organizations, now control the initiative process. This is bad for the voters and bad for the state.

California's Addiction to Direct Democracy Continues

By Associate Clinical Professor Jessica Levinson

Suit up. It is almost time for another election in California. We all know what that means: more ballot initiatives. (Insert sighs, grumbles and other sounds of disappointment here).

In June we will be asked to vote on a proposed cigarette tax. Opponents of the measure -- big tobacco companies, including Philip Morris and R.J. Reynolds Tobacco -- have raised almost $15 million to defeat the measure. But if you're looking for ads from them, it will be much easier for you to look for the committee they have funded, Californians Against Out-of-Control Taxes and Spending. (Note to California legislators, time to improve disclosure and transparency for ballot measure spending).

Proponents of the measure have raised almost $3.2 million. The committee receiving those funds is called Californians for a Cure.

These costly electoral campaigns hardly capture the public's imagination. If anything, they perpetuate the feeling that our government doesn't function well and instead every election we must endure endless battles over the fate of ballot initiatives. For the many who may not differentiate between legislatively-initiated ballot measures and citizen-initiated ballot measures, it just feels like another expensive political campaign.

Here is an idea that will never happen. Let's treat these ballot initiative campaigns like lawsuits. Instead of duking it out and either failing to pass an initiative only to bring it back in the next election, or passing an initiative which will end up being litigated well past the next election, let's try settling. In the case of the cigarette tax, both sides would donate the amount they are prepared to spend supporting or opposing the initiative to the end goal of the initiative. Of course this won't always work (or let's be honest, mostly it won't even be feasible). But in this particular case, this would mean $18 million for cancer research 3 months before the election. There is no doubt that number will rise.

The real solution is a simpler one, but also unlikely to succeed: We should severely limit the initiative process. It is difficult to say that with the importance of cancer research, but in a representative democracy this law should be passed through the legislative process (Why? A third of ballot props are so badly written that they end up in litigation, some initiatives fund particular groups instead of a wide array of industry interests and initiatives further retrain our legislators from easily balancing the budget.) If our representatives are not up to the task, we should toss them out, not try to do their jobs for them, and in the process make their jobs increasingly difficult.

Jessica A. Levinson is a visiting associate clinical professor at Loyola Law School. She studies governance issues, including campaign finance, ethics, ballot initiatives, redistricting, term limits, and state budgets.
[This post also appeared on kcet.org.]