Web Salon: Is “direct democracy” killing California?

Dear Mr. Arno, Mr. Stern and Mr. Hertzberg,

While you may agree or disagree with each other on the premise of this discussion — Is “direct democracy” killing California? — it is hard to dispute some recent findings:

In a 2001 report by the Public Policy Institute of California, over half of Californians surveyed stated they “thought the initiative process was controlled ‘a lot’ by special interests.”

Over the last 20 years, the number of initiatives passed by California voters exceeds the number of initiatives passed during the fist 60 years since this process was introduced. Some critics have said this trend has led to confusion among voters.

At least a half-dozen successful initiatives have been struck down in court _after_ being approved by California voters. In many, if not most, of these cases, millions of dollars were spent (or wasted) to qualify and promote these ultimately “invalid” measures.

What do you believe to be the greatest problem with our state’s approach to “direct democracy,” if any, and is it so bad as to be killing California politics?

The legislature itself is controlled by special interests, and the initiative process is the last resort for proponents, whether special interests or not, when a bill is stalled or ignored.

Special interests that use the initiative process must frequently use the process because opposing special interests have more clout in the legislative process. When a bill is stalled or killed at the committee level, the initiative is frequently the only alternative. This serves as a reminder that the citizens are still in charge. The three strikes law was killed several times in committee before going the initiative route.

re: Confusion among voters

Critics of the initiative process would like us to believe that voters cannot understand or are confused by perhaps a dozen or so initiatives every two years. Legislators contemplate and vote on approximately 3,000 new laws every year. Were these same voters confused when they elected their representatives? Give voters more credit for their intelligence.

Of the measures placed before voters in the last 20 years, approximately half of them were put on the ballot by the legislature after the lengthy deliberative process. Of the remaining half that were qualified by the signature gathering process, a large percentage of them were sponsored by current or former legislators or elected executives. If the initiative process is a valid tool for legislators and executives, why should it not be valid for ordinary citizens?

re: Legal invalidation of initiatives

California should use the model of review used by the State of Florida. In Florida, proponents who file 10% of the required number of signatures in at least 3 Congressional districts are entitled to a constitutional review by the State Supreme Court. While this process would not eliminate all legal challenges, it would eliminate many of them prior to a public vote. The legal process is another valuable tool of checks and balances, just like the initiative and referendum process itself. The mere fact that an idea is popular does not make it legal.

There are many problems with the State’s approach to the process of direct democracy. The ones I believe that should be addressed with the greatest speed are:

The process has become so difficult and expensive that it has all but eliminated the volunteer element. While professionals may never be eliminated from the mix, something should be done to expand the average citizen’s access to the process. Lengthening the time to collect signatures, lowering the threshold to qualify to the ballot, the use of electronic signatures via the internet are all good possibilities.

Access to the public is a growing problem. The town square of yesterday is now the parking lots of big box retailers, malls and grocery stores, who oppose the presence of petition circulators. These retailers have been litigating the issues of free speech on their private properties for years, and in the past few years have made headway. Big box retailers like Costco and Wal-Mart have been able to totally eliminate speech activities on their properties via the courts.

Without the ability to speak to hundreds of voters at a busy location with good foot traffic, the initiative process may die. The cost of knocking on the doors of millions of voter’s homes is prohibitive, and only the very few wealthiest proponents could afford it. Perhaps the collection of signatures via the internet is the answer. Voters should decide if the initiative process is worth the minor intrusion in their personal lives, and they should determine which right is greater. Property rights or the rights of freedom of speech.

Give the Governor the right to place measures on the ballot without the approval of the legislature, or having to collect signatures. Many governors have had to use the initiative process to get meaningful legislation passed when the legislature had stalled. When the legislature is so dominated by one party or the other, consensus and compromise is hard to achieve. This ability would strengthen the ability of the Governor to be able to force legislative action with the threat of public vote.

Remove reapportionment responsibility from the legislature. While this may not seem directly linked to the issue of direct democracy, the safe districts drawn by elected officials today helps to develop legislative gridlock. It is this gridlock that forces the type of frustration that inspires initiative campaigns.

Form a body of professionals and scholars to make substantive changes in the initiative process. Bob Stern and I served with many others on just such a commission, when Robert Hertzberg was speaker of the Assembly. While there was much disagreement within the group, we were able to reach a consensus on many issues. Very few of our recommendations were enacted. I believe the flaws were that we didn’t serve long enough, and we did not have enough clout behind us to enact our ideas. Such a commission could work for years to enact the type of real change that is needed, and should work closely with the Secretary of State’s office.

I don’t believe that direct democracy is killing California politics, and in fact if anything, has made it more responsive to the needs of voters. This does not mean that it doesn’t need reform. As Californians, we should proceed with caution with that reform and make sure that the reform does not make the process so difficult that it further falls into the hands of professionals. The process is there for the protection of California voter’s interests.

When I was Speaker of the Assembly, I established a bipartisan commission (a commission on which both Mr. Arno and Mr. Stern generously volunteered their time, expertise, and wisdom) to study the initiative process and make recommendations for new reforms. We examined a wide variety of proposed reforms, the effects of recent direct democracy measures, and existing studies of the system.

It became clear to us that “direct democracy” is here to stay, and certainly brings value to our system of government. On the other hand, abuses of the system have been rampant.

The process has become the frequent tool of narrow special interests who fund ballot measures as an “end run” around the Legislature or as a means to manipulate legislative outcomes.

Other initiatives suffer from legal and technical problems that can lead them into litigation and invalidation.Reforming the system to recapture the original ideals of the “direct democracy” process — giving the people an avenue to directly express their wishes — requires a multi-part solution. A few of the reforms that could be pursued are:

The “Indirect Initiative”: Proponents could submit an initiative, possibly with a fewer number of signatures required, that would be put before the Legislature. The proposed initiative would be reviewed by legislative committees and staff, and could receive amendments consistent with its purpose. The system of review would allow technical and drafting problems to be corrected and let initiative proponents benefit from the advice of experts. If the initiative passed through the Legislature and signed by the Governor was acceptable to its proponents, they would have the option of withdrawing their petition. Proponents would also retain the options of rejecting the Legislature’s amendments and placing the initiative on the ballot in its original or an amended form.

A Ban on Paid Signature Gathering: The current system of paid signature gathering allows special interests to place almost any initiative on the ballot if they can afford to hire enough gatherers. Furthermore, the commonly-used “bounty system,” in which gatherers are paid per-signature, gives signature collectors obvious incentives to misrepresent their petitions and commit fraud. Simply banning paid signature gathering and requiring signatures to be gathered by volunteers would keep the system open to ordinary citizens while restricting the undue influence of special interests.

Legal Review: Even after it was clear that Prop. 187 would be struck down, it’s supporters kept campaigning, declaring that they wanted to “send a message.” When initiatives are circulated, qualified, and approved by voters — only to be blocked by the courts — it undermines voters’ confidence in government and fuels citizens’ frustration and confusion. On the other hand, requiring pre-emptive legal review of initiatives may not pass constitutional muster. This is a reform that needs to be approached carefully but certainly has merit.

The abuses of the current system are serious and cry out for reform. The original intent of “direct democracy” has been hijacked and needs to be overhauled in order to put power back in the hands of the people.

Dear Mr. Arno, Mr. Hertzberg,

While you apparently disagree as to the extent or the scope of “the problem with initiatives,” you do both suggest that there is room for reform.

For example, both of you have broached the possibility of “testing” the constitutionality of an initiative before it is placed on the ballot.

Question for Mr. Arno:

Given your criticisms of the legislature (having spiked the “three strikes” law thrice in committee, unduly influenced by “special interests”), do you reject, outright, the use of an “indirect initiative” or any such reform that would allow legislators to bring to bear the experience of the state’s various agencies in shaping the initiative that is placed on the ballot? Would any involvement by elected officials in the process that allows private citizens to propose an initiative taint the latter — or could it benefit from “open hearings” and the like?

Question for Mr. Hertzberg:

Given you work as the Chair of the Speaker’s Commission on the California Initiative Process, do you, personally, believe that there is any chance that the initiative process will be reformed in the coming 10 years — to the satisfaction of voters, lobbyists, legislators, and the professionals who currently work as consultants to and signature-gatherers for initiatives?

I do not reject the idea of an indirect initiative, and in fact, endorse it. I do not endorse the indirect initiative as a replacement for the current process, but rather as an addition to it. I believe that direct democracy should be expanded and refined, rather than make it more difficult and exclusionary.

I wanted to clarify that I did not say that the legislature was “unduly” influenced by special interests, but that they were influenced. I can’t think of a political arena that is not influenced to some degree by special interests.

I want to add that Mr. Hertzberg’s comments regarding a ban on paid signature gathering are nothing new. It has already been tested in court and has been ruled unconstitutional. Mr. Hertzberg’s own group commissioned an independent study on the feasibility of such a ban and had the constitutionality, or lack thereof confirmed.

I fail to understand why this issue is so important to critics of the process, unless they just want to ban the process itself. Without the use of paid signature gatherers, initiatives and referenda would not qualify to the ballot, period. If it is reform of the process they are after, I would lead the charge. Our company has been actively involved in the enforcement of laws related to signature gathering since the formation of the Secretary of State’s fraud investigation unit was formed by then Secretary of State Tony Miller.

The problem isn’t that payment per signature incites fraud. It is the lack of enforcement of existing laws that is the problem. Current investigations take the fraud unit more than a year in some cases, and frequently end in charges being dropped. This is true for many forms of law enforcement, despite the hard work of dedicated officers and investigators, whom I do not fault. But is the solution to ban the system? Should stockbrokers work for free because their commissions encourage them to commit securities fraud or insider trading?

The work of a petition circulator is very difficult, and circulators deserve to be paid. The circulator is at the bottom of the political food chain, and many of them struggle to find work in any capacity. Mr. Hertzberg should rethink his position regarding these people, many of whom face the fight for survival. I would like to challenge any member of the legislative or executive branch of California government to work with me or people in my industry to solve these problems. Our industry would like to clean up this problem more than anyone.

I just received all of these messages today, so I apologize for joining the discussion late.

I was surprised by the tone of the questions posed by Jose Marquez. They seemed to be very biased against the initiative process. Much to Bob Hertzberg’s chagrin (and to mine as well), the PPIC polls consistently find that the public has more confidence in the initiative process than the legislative process. In fact, a recent poll says that the people believe the the ballot measure process is a better way to solve our budget problems than the legislative process. In one sense, we need to be focusing on how to improve the image of the legislature, rather than improving the initiative process.

I find it striking how perceptive California voters are when voting on initiatives. I can only think of a few times when California voters were actually fooled into voting for an initiative, where they regretted what they voted for or where they repealed something that they had approved.

Mike is right that there are certain things the legislature won’t pass: term limits, drug policies, the lottery, to name a few passed by the voters after being turned down in the legislature.

Bob is right that we need the indirect initiative as a way to improve both the legislative and initiative processes. But the U.S. Supreme Court has clearly said we can’t ban paid circulators.

re: baiting

Mr. Stern has correctly described my initial question as presuming there is a problem with the process — I hope that by playing the “devil’s advocate” I did not curtail this discussion.

re: transparency

David McCuan of Sonoma State University asks:

Many studies suggest that campaign finance reporting laws, as currently devised, are flawed — for example, it is relatively easy to move money around if you have a ballot measure committee (esp. if that committee is a proponent committee).

How do you propose to improve this process so that citizens, the media, and scholars can really assess what is happening “behind the scenes” in direct democracy?

David McCuan asks an excellent question. Fortunately, with our disclosure laws, the state’s electronic filing campaign finance filing system and inquisitive reporters, the public is generally aware of who is supporting and opposing our statewide ballot measures. TV and radio ads are supposed to list the top three contributors in the ad, but some campaigns try to avoid listing their top contributors by funneling the campaign money through other committees first.

Regarding the indirect initiative — I agree entirely with Mr. Arno that the indirect initiative should be an added option in the initiative system, not a replacement for the existing process.

Regarding the constitutionality of a ban on paid signature gathering — Mr. Arno is of course correct that the Supreme Court invalidated a full ban on paid signature gathering in Meyer v. Grant. A more narrow restriction, currently used in North Dakota and Maine, specifically prohibiting only the per-signature “commissions” system of payments, has been upheld by the 8th Circuit Court of Appeals and a federal district court in Maine.

In the 8th Circuit case (Initiative & Referendum Institute v. Jaeger, 241 F.3d 614 (8th Cir. 2001), the court found that because it was designed to protect the integrity of signature gathering, a 1987 ND statute prohibiting payment “on a basis related to the number of signatures obtained,” was permissible and compatible with the Supreme Court’s findings in Buckley v. American Constitutional Law Foundation and Meyer v. Grant.

Regarding Mr. Arno’s wider point, questioning the need for a ban (and presumably even a narrowly tailored one such as North Dakota’s) — two issues are at hand.

First: fraud does occur in the signature gathering process — the Secretary of State’s Election Fraud Investigations Unit reports numerous cases of alleged signature forgery, falsified petitions, and other incidents of initiative fraud. The head of the Fraud Investigations Unit recently reported that 47% of the unit’s caseload involves signature gatherers paid on commission. While this doesn’t necessarily mean that per-signature payment is at the root of the problem, it should raise some concerns about the process. Mr. Arno’s example of stockbrokers is well taken — while we don’t prohibit stockbrokers from collecting commissions, we do regulate them in order to limit abuses of a system critical to our economy. Similarly, some reforms of initiative process and signature gathering process seem to be called for.

Second: even if there is no connection whatsoever between fraud and the commissions system, the status quo undoubtedly fosters the idea that for a variable amount of money, any interest group can buy the signatures to place a question on the ballot, and that the initiative process is unduly susceptible to the influence of special interest groups. This corrosive perception eats away at the public’s faith in direct democracy — to the point that, as Mr. Marquez noted, over half of Californians believe the initiative system is controlled “a lot” by special interest. In the same poll, six in ten Californians favored a proposal to ban paid signature gathering-a clear indication that commissions are perceived to be the source of at least part of the problem with initiatives.

I do believe that the initiative process can be reformed within the decade — to add the option of the indirect initiative, to reexamine the system of payments, to pursue cases of fraud more aggressively, to establish some system of prior constitutional review. The increased public attention to the mechanics of the initiative process, given relevance by the large numbers of initiatives targeted for recent ballots, has laid the groundwork for legislators or the people to work towards a reform of the system to ensure that “direct democracy” realizes its role as a tool in the hands of the people. The very fact that we’re having discussions like these is a sign that reform is a very real possibility in the near term.