Like many Californians, Sen. Loni Hancock’s kids get frustrated with having to decipher ballots crammed with numerous propositions.
“I can remember...my adult children looking at me in anger and saying ‘Why don’t you people (in the Legislature) do your job?’” Hancock said.
Yet the Berkeley Democrat helped precipitate a bounty of direct democracy that put 17 different measures the November ballot. She sponsored 2011 legislation that nixed measures on June primary ballots, pushing them all to the general election or to special elections. Looming in the background was a union-opposed measure seen as more likely to pass in the primary.
While the bulging November ballot signifies to many Californians that their initiative system is broken, Hancock said she acted because she also was unhappy with the process.
“It became clear that many special interests would plan their initiatives carefully, would game the system, to have certain measures only on the primary ballot because it would be a much lower turnout,” Hancock said, acknowledging that “we are challenging voters with the number of initiatives we have on the (November 2016) ballot.”
To say the November ballot challenges voters may be an understatement. Casting fully informed votes requires cutting through the campaign spin and comprehending far-reaching policy proposals covering everything from legal marijuana to the death penalty and parole policies to the complexities of drug pricing.
Some ask voters to resolve policy struggles the Legislature could not or would not tackle. A few are conceived or bankrolled almost entirely by individuals or self-interested industries.
The ballot surge partially reflects a lower bar to qualify. The number of signatures required to get on the ballot is a percentage of votes cast for governor in the 2014 election, which produced record-low turnout rates and thus slashed the requisite number of signatures.
“Since initiatives are such big business, and they’re expensive, and you have to have the money to put them on the ballot, it’s pretty attractive if there’s a 15 percent discount,” said Michael Salerno, an expert on the initiative process at the UC Hastings College of the Law.
This year is not a unique chapter in California’s long struggle to perfect direct democracy. This year’s ballot doesn’t even crack the top three biggest ballots. Number one on that list would be a November 1914 ballot, with 48 measures. More recently, the 1988 November ballot contained 29.
Interest groups “viewing (the initiative process) as a good vehicle for getting things done or threatening to use the initiative process when they’re not getting things done in the Legislature – that’s not a new phenomenon,” said Mary-Beth Moylan, a professor at McGeorge School of Law. “But I think when you couple that with this idea we’re only going to have initiatives on one general election ballot every two years, you see something like we’re seeing this cycle, which is way too many things to vote on.”
Where Hancock sees a bulwark against interest groups gaming the system, critics see the opposite. Tony Quinn, editor of the elections-focused California Target Book, decried focusing on the November ballot as a “terrible idea” intended to benefit Democratic allies and causes.
“They thought the turnout in the primary was too conservative so they wanted to get all these high-spending measures, the tax increases, to pass, so they put them on the ballot when you have more Democrats voting,” Quinn said. “The Legislature really ought to reconsider that, not play turnout games.”
Regardless of which month voters decide on ballot initiatives, the rationale for proponents using ballots rather than bills remains the same. Particularly on politically risky issues or longstanding policy fights, going directly to voters can be easier than navigating the political imperatives of 120 different state lawmakers.
Several of the measures on the ballot follow years of wrangling in Sacramento. Proposition 56’s $2-a-pack tax on cigarettes, designed to help reimburse doctors who see poor patients, will go before voters after interest groups like the California Medical Association failed to push a similar measure through the Legislature. Measures to mandate condoms in pornography and require bills to be in print for 72 hours before a vote follow thwarted attempts to enact those ideas via legislation. Proposition 52 would sustain a hospital fee that has undergone repeated negotiations at the Capitol, shielding it from legislative meddling.
“The hospitals’ view is there’s just inherent risk in a political system with something that sunsets every year and you have to go back and renegotiate, so they wanted to remove that political uncertainty,” said Proposition 52 spokesman Kevin Riggs, noting that legislators have sought to divert its revenue to the General Fund.
Still, legislators managed to pass bills extending the hospital funding system. Other initiatives arise when lawmakers are unable or unwilling to push through legislation.
The California Teachers Association wields as much power in Sacramento as any interest group. But it chose to go to the ballot to secure an extension of the higher taxes on top earners first enacted via Proposition 30.
“Seeing how long it’s going to take the Legislature to do what it needs to do to fix the tax system, we can’t afford to wait,” said CTA president Eric Heins,. “Democracy is a messy process and it takes time,” he added, but “we have first graders and kindergarteners learning to read.”
Enacting new taxes also demands a two-thirds vote from legislators, a high hurdle to clear.
“Simple mathematics,” said California Medical Association CEO Dustin Corcoran, predicting that if tobacco tax legislation needed “a majority vote I think it’s likely to pass, but those are not the rules in California.”
Similarly, legalizing pot presents immense political difficulties. The interest groups promoting Proposition 64 believe voters will be more amenable.
“Politicians are naturally afraid of controversial issues, so they would rather not take them on,” said Lynne Lyman, California director for Drug Policy Action. “Often we move on the ballot when legislature is intractable but we think public opinion is with us.”
After voters authorized medical marijuana in 1996, it took lawmakers nearly 20 years to regulate the state’s sprawling medical marijuana industry. Given that difficulty, grounded largely in the skepticism of law enforcement groups that lawmakers are reluctant to defy, a bill to legalize marijuana would face a steep climb.
“It wouldn’t pass because of opposition from law enforcement,” said Assemblyman Bill Quirk, D-Hayward, who supports full legalization. “They want the endorsement of the sheriff, they want the endorsement of the DA, and when their local police chief calls they’ll listen.”
So interest groups circumvent the Legislature. Also diverting authority from the Legislature is the fact that, once an initiative has passed, significantly amending it requires another vote from the people. That’s why Proposition 58, which would overturn limits on bilingual education voters approved back in 1998, needs to go through voters again.
“People look at the ballot and they’re angry about the number of initiatives, they’re angry at the Legislature for not taking the bull by the horns...and they want to say a pox on both your houses, I’m voting no on everything,” said Laura Brill, a Los Angeles attorney and a vocal critic of the initiative process. “But they should look carefully and see which measures need to be there because the Legislature doesn’t have the power to fix it on its own.”
Critics of ballot initiatives invoke a familiar argument: any group or individual with enough money can push a pet project. The 2016 ballot has plenty of evidence to support that point.
A referendum to overturn a 2014 law banning single-use plastic bags, for example, has drawn millions in funding from out-of-state plastic companies with a financial stake.
Two initiatives on the ballot reflect the agendas of their affluent backers. Conservative benefactor Charles Munger, Jr. has spent $10.6 million on Proposition 54, a legislative transparency measure. Stockton farmer Dean Cortopassi and his wife Joan have used their personal wealth to advance Proposition 53, which by submitting revenue bonds to a public vote could undercut the Delta water tunnel project Cortopassi has opposed.
“It is harder to get a whole legislative body to focus in on your issue if you are a single wealthy person with an idea than it is to get a ballot title and summary, pay for signatures to be gathered and to put it before the people,” Moylan said.
But if the initiative system offers an outlet for special interests, Moylan said, it also works the opposite way. A bill that would affect a powerful industry will invariably attract a blitz from well-paid lobbyists seeking to derail or kill the measure. Tobacco companies that invest heavily in sophisticated lobbyists, for example, don’t have that ability for initiatives.
“That is what the initiative process has been used for since the very beginning – things like a tobacco tax...that are difficult for the Legislature to enact because there is so much special interest lobbying,” Moylan said.
The man behind two of the 17 initiatives makes a similar point. AIDS Healthcare Foundation President Michael Weinstein’s organization has backed multiple bills that would have required porn performers to wear condoms. Those measures failed. He watched this year as a bill prompting drug companies to disclose more information about drug prices succumbed to concerted industry opposition.
“The Legislature is not a profile in courage, and they punt on a lot of issues,” Weinstein said.
So he is going to the ballot. His organization sponsored Proposition 60, which compels adult performers to wear condoms, and has poured over $14 million into Proposition 61, which seeks to rein in drug prices. Pharmaceutical interests have spent well over $100 million against the latter, but Weinstein argued there are benefits to such a high-profile fight.
“You can’t compete in the Legislature and the Congress with the influence and the money the pharmaceutical industry has, and we may not be able to compete with the money they’re pouring into the initiative,” Weinstein said, “but at a minimum it’s a scandal and it’s being exposed to everyone.”