When my kids first got video games, we devised a family contract. We spelled out how long they could play, the priority of homework and the acceptance of absolute parental discretion.
But no sooner was the ink dry than we realized we needed a few changes. The original deal had a half-hour per day limit, but what if friends came over on weekends? Fortunately for us, a change was simple; we just put a note in the margin.
Not so for California’s initiative process. An initiative that creates a state statute or amends the state Constitution cannot be changed, even in minor ways, without a new initiative. The only exceptions are initiatives that specifically state that the Legislature can make changes, but most don’t have that provision.
The result is stagnation and unaccountability. Few groups sponsor new initiatives to fix problems in ones they pushed through. Voters then blame the Legislature for being unresponsive, but these same voters have deprived the Legislature of the power it needs to respond.
We can’t vote ourselves out of office. So what can we do?
In the long term, we need real initiative reform. We should make it harder to pass constitutional amendments and allow the Legislature, at least after a few years, to easily change statutes enacted by initiative.
Even in the short term, we can make real change by remembering the laws about amendments when we decide how to vote on the ballot measures on Nov. 8.
Three measures illustrate my point. Proposition 64, which would legalize marijuana in California, is 62 pages and covers a broad array of topics, including criminal penalties, safety, licensing, manufacturing, testing, advertising, record-keeping, taxes, drug education and industrial hemp. Thankfully, provisions relating to safety may be amended by a majority of legislators.
But these amendments must “further the purposes and intent” of the initiative, which limits the Legislature’s flexibility and leaves many issues to the courts. More troubling, many other provisions – including those relating to criminal penalties – may be amended only by a two-thirds vote of the Legislature. Any real change in marijuana policy – even if serious and unforeseen problems develop – would require a whole new initiative.
Making policy changes, however, is why we have a full-time Legislature. The Legislature has resources, staff and the ability to consider evidence, deliberate and compromise. Legislators are accountable at election time and subject to term limits. The initiative process offers us none of this.
Two other initiatives are on the November ballot because they are necessary to rescind previous initiatives. Proposition 62 would repeal the death penalty, approved by voters after the 1972 California Supreme Court ruling that capital punishment was unconstitutional. Proposition 58 would make bilingual education more flexible, after voters restricted it nearly 20 years ago.
The initiative process was created as an avenue for lawmaking when the Legislature was unresponsive. But the reformers were too successful for their own good – and for ours.
Laura W. Brill is an appellate and constitutional lawyer in Los Angeles. She can be contacted at firstname.lastname@example.org.