A bill now sitting on the governor’s desk could, if signed into law, be a game-changer for the initiative business.
Polls show that, 102 years after the invention of the California initiative process, voters are increasingly wary of the expansion of direct democracy. They find ballot measures too long, too complex and too confusing, and they support revisions to the initiative process that would help avoid the legal issues and drafting errors that frequently result.
I can tell you, based on my experiences reviewing ballot measures for the Legislative Analyst’s Office, that the initiative process as it exists today lacks sufficient checks and balances to prevent easily avoided drafting problems, as well as post-adoption legal confusion.
Sometimes the proponents of direct democracy become the victims of their own mistakes. In 2005, for example, then-Gov. Arnold Schwarzenegger was forced to drop a pension reform measure at the last minute after public employee groups claimed it would “take away death and disability benefits from the families of police and firefighters.”
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A 1996 ethics and campaign reform initiative, Proposition 212, was sunk at the polls after word surfaced that it unintentionally repealed a ban on gifts and speaking fees for legislators and other public officials.
Once a measure has qualified for the ballot, its proponents are not allowed to pull it back from going before voters, even if they no longer support it. After reaching agreement with state officials in 2004 on a compromise measure to protect local government funding, that measure’s backers agreed to campaign against their own initiative, no doubt to the endless confusion of voters.
The Legislature makes bill-writing mistakes all the time, such as accidentally legalizing the sale and manufacture of “angel dust” in 1985. But their mistakes are usually easily and quickly rectified.
Correcting an error in an initiative, however, usually requires going back to the voters with a fix. It rarely happens, leaving judges to clean up the mess.
Now there is carefully balanced legislation from departing Senate leader Darrell Steinberg – the Ballot Initiative Transparency Act – that would help prevent initiative errors and reduce the chaos for long-suffering voters.
Specifically, Senate Bill 1253 creates a 30-day public review period at the beginning of the initiative qualification process. During this time window, the public would be invited to submit comments (all of which go on record) on a proposed initiative. Initiative proponents would have five days afterward to amend their measure or could scrap their original measure and start over.
Proponents who move on would be obligated to notify the state once they had collected 25 percent of the signatures needed to put them on the ballot. The relevant Assembly and Senate committees would then be required to hold early joint public hearings on them, and could spotlight drafting flaws and other problems.
Initiative proponents could “engage in good faith bargaining between competing interests” and withdraw their measure if they reached a compromise over changes in law with other parties. But they could not do so in exchange for money. That would be a crime punishable by a fine up to $5,000 and up to three years in prison.
Finally, the legislation extends California’s relatively short initiative qualification period from the current 150 days to 180 days.
SB 1253 walks a careful line, in my view. It will add needed scrutiny of proposed citizen-driven changes to state law that could spot errors and bad public policy ideas. On the other hand, nothing in the measure prevents any initiative proponent from putting a measure on the ballot in exactly the form they originally preferred – errors and all – and for voters to judge. The First Amendment rights of California citizens to petition their government are protected and enhanced by extending the initiative qualification period.
This is a good government idea that will help preserve the credibility of a tarnished initiative process. The governor should sign SB 1253 into law.