State

L.A. Times Op-Ed
Opinion
California's democratic dilemma
Does the initiative process give the people too much say in their government?

Tim Rutten

October 14, 2009

When three of the state's leading academic centers for governmental studies host a conference in Sacramento today on how to reform California's Constitution, one of the questions they will ask is: What's to be learned from the sweeping reform agenda enacted in 1911 by Gov. Hiram Johnson and his Progressive legislative majorities? Those changes included not only women's suffrage, the direct election of U.S. senators, the recall, and a minimum wage for women and children, but an aspect of our public life that many see at the root of our current problems: the initiative.

Just last Saturday, Ronald M. George, the chief justice of California, told the American Academy of Arts and Sciences in Cambridge, Mass., that California's government is dysfunctional, and he laid the blame squarely on overuse of the initiative process.

George told the academy that too many of California's laws and constitutional provisions "have been brought about not by legislative fact-gathering and deliberation but rather by the approval of voter initiative measures, often funded by special interests. ... These interests are allowed under the law to pay a bounty to signature gatherers for each signer. Frequent amendments -- coupled with the implicit threat of more in the future -- have rendered our state government dysfunctional, at least in times of severe economic decline."

Earlier this month, similar sentiments were expressed by William H. Gross, who runs Newport Beach-based Pimco, the world's largest mutual bond fund, which has more than $840 billion under management.

"The state's laws are almost tragically shaped by a form of direct democracy," he wrote. "Propositions from conservatives and liberals alike have locked up much of the budget, with Proposition 13 in 1978 reducing property taxes by 57% and Prop. 98 in 1988 requiring 40% of the general fund to be spent on schools. Recently, much of any excess has been gobbled not only by teachers, but unbelievably by a prison lobby that would be the envy of any on Washington's K Street."

Here you've got two guys with jobs that force them to take the long view coming to similarly apocalyptic conclusions. Serious political historians also agree that, as currently utilized, the California initiative process is a perversion of what the Progressives intended when they inserted these direct-democracy provisions into the state Constitution. The problem for those who want to restore sense to the system is that, although you can tinker with the process around the edges, most substantial reforms would probably be rejected by California courts as violations of the state's guarantee of free speech.

Moreover, Californians are not particularly unhappy with the initiative process. Both George and Gross decried the supermajorities required to pass budgets and statewide tax increases -- both of which were adopted as initiatives -- but if you asked voters to vote on them again, they almost surely would pass.

The fact is that rather than being a check on special interests, as intended, professional signature-gathering operations allow anyone with $1 million to qualify an initiative for the ballot. Consistently low turnouts usually guarantee that those measures rise or fall according to the preferences of a small sliver of the state's electorate, which means that the same narrow interest that qualified the measure can fashion a shrewdly targeted campaign to promote its passage. Pretty much the opposite of what the Progressives intended.

Still, as Robert Stern, a leading authority on campaign and electoral reform, points out, banning professional signature gathers would be unconstitutional. His Center for Governmental Studies instead would like to see the Legislature have a chance to consider each initiative for 30 days before it goes on the ballot. Lawmakers could pass the measure through the Assembly and Senate; if they decline to do so but see flaws in it, they could allow the backers an opportunity to amend the measure before it goes on the ballot. Stern also would like to see the state voter pamphlet include a full page on each ballot measure, listing all its supporters and opponents.

Stern believes the initiative process needs to be reformed but not dismantled. He observes that even today, only three out of 10 initiatives that reach the ballot pass. "I don't like some of them, like Proposition 13," he said. "But the voters and the Legislature are the problem -- not the process. The question is: Do we live in a democracy or not?"

His appraisal is not so different from the one that state Sen. Lee C. Gates and Assemblyman William C. Clark wrote in support of the measure proposing the initiative and referendum in 1911. They argued that "one of the strongest arguments" for the initiative was "the character of many of those who oppose it. Opposing it will be found without exception the servants of special interests, and those who profit through special legislation. Added to these are those who may be termed our 'Political Aristocrats,' who distrust and scoff at the people, who are accustomed to sneer at self-government as 'The rule of the Mob,' or 'The tyranny of Majorities.' ... Are the people capable of self-government? If they are, this amendment should be adopted. If they are not, the amendment should be defeated."

The chances of repealing the initiative are somewhere south of zero. Yet no one can deny that George and Gross are right: As currently utilized, it's an instrument of havoc. Thus California is skewered on the horns of the democratic dilemma: The fault is neither in our stars nor in our process but in us, the people.