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Peter Schrag: Tinkering with the initiative process is not a fix

Put this high on the man-bites-dog list: Gray Davis, longtime Democrat and the only California governor ever to be recalled by voters, likes direct democracy. Voter initiatives, he said, are pulling the state out of the morass of its dysfunctional government.

He said it at a Sacramento conference last month on ways of fixing the initiative process – or if former Assembly Speaker and San Francisco Mayor Willie Brown had his way, of getting rid of it altogether. But on that, Brown acknowledged, “I’m in a distinct minority.” All polls have shown that Californians trust the initiative more than they trust their elected officials.

Yet even the proposed fixes, all longtime favorites among the wonks, were underwhelming. Most are discussed in a new publication from the Public Policy Institute of California, which sponsored the conference. Its new report, one jaded observer said, reported on a poll on what initiative reforms Californians favored, then recommended them.

Among PPIC’s proposed fixes: tell voters more about who provides the big dollars for the campaigns for and against ballot measures; create an impartial review panel to provide voters simple and comprehensive information on the measures; bring the Legislature into closer collaboration with initiative sponsors to avoid errors and unintended consequences; and allow sponsors of initiatives more time to qualify initiatives if they use unpaid volunteers to collect signatures. It’s all familiar stuff.

Joining Davis and Brown at the PPIC palaver was retired California Chief Justice Ron George, who’s been sharply critical of the initiative process in compounding California’s governmental dysfunction. At times, George says, initiatives drive the Supreme Court to distraction trying to figure out what the voters really intended when they passed a measure. But when George was asked why the court hadn’t been a tougher in reviewing ballot measures for compliance with state constitutional provisions, especially the single-subject rule, as courts in some other states have been, he wasn’t much help.

At an event in Berkeley this week marking the publication of his book, “Chief: The Quest for Justice in California,” he acknowledged that if the court had struck down Proposition 13 in 1979, there might have been fewer initiatives in the years since. But that was before he was on the court.

As for Proposition 8, the initiative banning gay marriage, which the court upheld, that was an amendment to the state constitution, he said, leaving his court no constitutional ground on which to reject it.

But he also approved of the decision of federal Judge Vaughn Walker, who struck it down as a violation of the due process and equal-protection guarantees of the U.S. Constitution. The opponents of Proposition 8 were fearful of raising federal constitutional issues in the state court because the case would then almost certainly have gone to the U.S. Supreme Court, which would probably have upheld the gay marriage ban. As it turned out, the Supreme Court ducked, letting Walker’s decision stand, not on substantive grounds, but because the sponsors of Prop. 8 lacked standing to appeal it.

PPIC was proud of the all-star cast it had assembled for its initiative reform conference. But in the end, it broke little new ground. And, contra Davis, in requiring two-thirds votes to raise taxes, in imposing legislative term limits, in imposing judge-proof criminal sentencing formulas, the initiative has confounded effective government far more than it’s fostered it.

Among the PPIC panel’s suggestions: Require any initiative that requires a supermajority of votes (say for tax increases) to be passed by a similar supermajority; provide more context in the ballot pamphlet on each measure; subject ballot measures to a second vote of the electorate within a specified period; and give the Legislature the power to amend an initiative if the amendment is not inconsistent with the measure’s intent.

There seemed to be agreement – hardly a surprise – that a system enacted in 1911 as a way to check the influence of corporations was now dominated by moneyed groups. But other than requiring more transparency of funders, no one had a remedy.

The PPIC report says – correctly – that voters complain about the complexity of the measures and the number they have to vote on. But it also recommends a process to “re-engage” citizens by giving sponsors of initiatives who use only volunteers to collect signatures more time to qualify them, which could put still more on the ballot.

What’s almost certain is that no reform is likely to reduce the impediments that initiatives impose on effective government. That, after all, is the nature of the process: to prohibit government from doing something, or to force it to do something. Both reduce governmental discretion and accountability, and thus feed the public distrust that direct democracy is supposed to address.

On this one, Willie Brown has it right. Tinkering may make it better, but no tinkering is a real fix.

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