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Ending a love-hate relationship

By Tracy Westen and
Robert M. Stern

Tracy Westen
Westen
Robert M. Stern
Stern

California has dueling systems of governance: representative government through the legislature and governor, and direct democracy through the ballot initiative. Unfortunately, these two systems typically do not interact with or even speak to each other. 

Once an initiative is captioned and begins circulation, the proponent cannot amend it — even if significant flaws are detected. Once it qualifies for the ballot, the proponent cannot withdraw it. Once an initiative is enacted, the legislature cannot amend it. Errors, omissions and oversights must be fixed with more ballot measures — a clumsy and inefficient way to govern the sixth largest economy in the world.

This problem is worsening, as a growing number of initiatives reach the ballot. Initiatives doubled from the 1960s to the 1970s (nine to 22), tripled by the 1990s (22 to 61), and are maintaining this level in the 2000s. November’s special election will offer eight initiatives. 

Ballot initiatives are increasing for at least two reasons. First, years of split governance — Democratic legislatures and Republican governors — have stymied legislation, forcing advocates to pursue initiatives. Second, the legislature must approve spending measures and constitutional amendments by a two-thirds vote, while initiatives can pass by a simple majority. California’s Constitution thus encourages initiatives over legislation. 

In recent years, however, there are growing signs that California’s initiative system is being integrated into the state’s legislative processes. Initiative proponents, particularly Gov. Schwarzenegger, have used the threat of initiatives to prod the legislature into enacting laws. In exchange, the proponent has not submitted the gathered initiative signatures, and the measure did not appear on the ballot. 

This is a healthy trend and should be made mandatory for all initiatives. Proponents should be empowered to negotiate solutions with the legislature, thereby avoiding unwieldy and complicated initiatives that are hard to understand and harder to amend.

In 2004, the legislature and the governor compromised on workers’ compensation legislation that solved many of the problems created by the crisis. Had they not agreed on a bill, the governor was ready to submit hundreds of thousands of signatures for a far more draconian initiative. In 2005, a used car lemon law was negotiated in similar fashion.

Sometimes proponents have submitted signatures to qualify a measure for the ballot, but the proponent and legislature then agree to place an alternative, improved measure on the ballot. In 2004, municipal governments qualified an initiative to protect their revenues against state encroachment and then worked with the legislature and the governor to place a better plan on the ballot. All the groups supported the substitute plan (which was adopted) and opposed the first initiative (which was defeated).

Another legislative tactic is to put a measure on the ballot after an initiative has qualified to give the voters an alternative or even to confuse them. In 2004, after an open primary initiative qualified for the ballot, the legislature quickly adopted an alternative to preserve the status quo. The legislative ballot measure passed, while the initiative was soundly defeated.

In its 1992 book, Democracy by Initiative: Shaping California’s Fourth Branch of Government, the Center for Governmental Studies (CGS) recommends that California formally integrate its legislative and initiative processes. Once an initiative qualifies for the ballot, the legislature would have 30 days to negotiate a compromise with the proponents. If they agree and compromise legislation is enacted, the proponent can withdraw the initiative from the ballot and voters don’t need to consider it. If the proponents and legislature don’t agree, the proponent can make minor amendments (consistent with the initiative’s “purposes and intent,” as confirmed by the Attorney General) and place it on the ballot. 

In this way, mistakes can be corrected, compromises can be negotiated, the legislature can be reinvolved in the process, and the public can be spared a vote on complicated legislative issues.

CGS would also allow the legislature to amend an initiative after its enactment, if the amendments further the “purposes and intent” of the measure, are approved by at least a 60 percent vote and are in print for at least 10 days before legislative approval. California is the only state in the country that does not allow the legislature to amend initiatives after enactment. Many initiatives voluntarily permit legislative amendment; we would make this mandatory.

Californians have a love-hate relationship with initiatives. They complain about too many complicated measures on the ballot, but they don’t want to give up their right to vote on them. California needs to preserve but integrate its important ballot initiative process into its legislative system of representative government.

Tracy Westen is chief executive officer of the Center for Governmental Studies and former executive director of the California Commission on Campaign Financing. Robert M. Stern is president of the Center for Governmental Studies and was the principal co-author of the Political Reform Initiative of 1974.

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