After 100 years, does California’s Marijuana & Other initiatives processes need a tune-up?

Paul Jacob, president of Virginia-based Citizens in Charge Foundation, may be the fiercest defender of direct democracy in America. He’s helped organize more than 150 petition drives in 47 states, and feels so strongly about the righteousness of the initiative process that he risked going to prison by defying an Oklahoma law prohibiting the use of paid signature-gatherers in that state.

When Jacob comes to California, he feels right at home. He gives the state’s initiative process an A grade.

“The essential thing is that there be a chance for people to represent themselves,” Jacob said. “Most states get a D or an F. California has a very robust process.”

Bruno Kaufmann, president of the Initiative and Referendum Institute Europe, has studied direct democracy around the world, especially in Switzerland, where direct democracy dates to the 14th century and was the inspiration for California’s system. When he looks at California, he shakes his head.

“It may be the only place in the world where I would recommend less, not more, direct democracy,” he said. “The California process is not about solving conflict. It’s an inflexible way of dealing with constitutional affairs. What you have is the hammer and not the screwdriver.”

Those are the two sides to California’s initiative process. It’s robust, it’s blunt and, for better or worse, it’s about to enter its second century.

On Oct. 10, it will be 100 years since California launched its love affair with direct democracy as part of a bevy of reforms backed by Progressive Party Gov. Hiram Johnson.

Promoted as a means to counter the political power of Southern Pacific Railroad, the passage of Constitutional Amendment 22 was an event, a Los Angeles journalist wrote at the time, “that thrust from power the Captains of Greed.”

The amendment was placed on the ballot by a Legislature that included a legion of Progressives who had been swept in with Johnson’s election in 1910, but support for the idea was hardly universal.

In the ballot argument against the proposed amendment, Sen. Leroy Wright warned the proposal was “so radical as to be almost revolutionary in its character. Its tendency is to change the republican form of our government and head it towards democracy, and history teaches that democracies have universally ended in turbulence and disaster.”

is it working?

So after a century of turbulence, how’s direct democracy worked out in California?

The consensus among voters is that they still very much like the idea, but many believe it’s been turned on its head so that the initiative process has become a tool largely used by wealthy special interests, rather than a check against their influence with elected officials.

A poll conducted by the nonpartisan Public Policy Institute of California late last year found a majority of Californians (52 percent) believe major changes are needed and another 30 percent support at least minor changes.

The Los Angeles-based Center for Governmental Studies, in an exhaustive analysis of the initiative process, reported the process has become so “dependent on financial resources that it is difficult to defend as a true test of popular support.”

It found the median cost of qualifying an initiative in recent elections has been about $3 million. “Money, rather than breadth or intensity of popular support, has become the primary threshold for determining ballot qualification,” the analysis says.

Through citizens’ initiatives, supporters have succeeded in placing 339 proposals before voters, nearly half of them since 1990. Californians have done such things as abolish poll taxes, establish the death penalty, allow the medical use of marijuana, create the state lottery and prohibit the sale of horse meat for human consumption.

But voters have proved to be a hard sell. They rejected the prohibition of alcohol four times and twice shot down the legalization of marijuana for recreational use. They sided with the medical profession over public hysteria by voting down a plan to eliminate compulsory vaccinations and, 65 years later, to quarantine people with AIDS. They also said no to assisted suicide.

“Only one out of three initiatives has passed,” noted Kim Alexander, founder and president of the nonprofit California Voter Foundation. “Voters really have pretty high standards.”

Jacob, Kaufmann and Alexander were among the panelists at a forum — titled “How do we put people back in the initiative process?” — sponsored by the civic engagement group Zócalo Public Square last week in San Francisco.

Most initiatives don’t deal with such emotional topics as those cited above. Rather, most address issues at the intersection of people and their government: taxes, spending priorities and the rules that govern elections and the legislative process.

Over the last 35 years, Californians through ballot initiatives have restricted property taxes, required a two-thirds vote of the Legislature for tax increases, established legislative term limits, set a floor for spending on K-12 education, approved the borrowing of money to pay for parks and stem cell research, and set aside untouchable pots of funds to pay for early childhood development, after-school programs and services for the mentally ill.

Critics say all these stand-alone measures have had the cumulative effect of tying the hands of legislators in dealing with the state budget and contributed to the dysfunction of state government.

Jacob’s response to such critics: Deal with it.

Liberals may not like Proposition 13’s inflexible limits on property taxes and conservatives may not care for Proposition 98’s school-funding guarantee, he said, but it is the job of legislators to work within the framework of the voters’ desires. “The truth is,” he said, “the people of the state would pass both those measures again.”

Improving the process

Bob Stern, president of the Center for Governmental Studies, believes there is a logical middle ground to deal with a range of problems associated with the initiative process, from the dominance of wealthy special interest groups to the cumulative knot-tying effect on government functionality.

“The process is important, but it needs to be improved,” he said. “The public agrees with us.”

The center produced its exhaustive analysis of the initiative process in 1992 and updated it three years ago. It put forth a laundry list of reform ideas, including a requirement that legislative hearings be held after an initiative qualifies for the ballot that could identify flaws and propose compromises that sponsors could accept or reject; extending the circulation period from 150 to 365 days to give sponsors who are not wealthy a chance to qualify initiatives using volunteers; allowing for online signatures; capping contributions to initiative campaigns at $100,000; and providing for more extensive financial disclosure.

Polls consistently show voters are of two minds about initiatives. They are fiercely protective of their right to directly have their say, but feel the system is largely controlled by special interests and badly in need of reform.

In a statewide survey conducted earlier this month, the Public Policy Institute of California found overwhelming majorities of likely voters back the idea of requiring initiatives to identify how they would be paid for (72 percent) and of requiring a system of review and revision to fix drafting errors (68 percent).

Reform ideas have been tossed around for decades, but very few changes have been made. What will it take to break the inertia?

“Another initiative,” says Stern. “The Legislature is never going to do it. It’s not just the California Legislature, it’s legislatures everywhere. It’s just the nature of power. When you give power to the people, you take power from a legislature.”

Reforming the process

Some reform proposals did make it through the California Legislature this year.

Gov. Jerry Brown this summer vetoed one bill that would have required paid signature-gatherers to wear badges identifying themselves as such (a measure Jacob characterized as “ridiculously draconian”) and another that would have required sponsors to pay signature-gatherers by the hour instead of offering a bounty for each signature they collect.

Two more reform proposals are now on Brown’s desk — a bill to limit initiatives to general election ballots in November when voter turnout is highest and one to require disclosure in the official Voter Information Pamphlet of the top contributors to initiatives. He has until Oct. 9, the day before the centennial of the creation of the initiative process, to decide their fate.

Alexander believes that voters would be well served by tougher financial disclosure at all stages of the process. She proposes that the name of the top financial sponsor be printed at the top of initiative petitions, that the top five donors on each side be published in the voter information pamphlet and that an updated list be sent out with vote-by-mail ballots and posted at each polling place on Election Day.

Providing a list of top donors, she said, “is one of the best shortcuts you can provide voters” to help them assess initiatives. “We want that information to be not just accessible, but readily available.”

Jacob, best known for leading campaigns to impose term limits, has aggressively fought proposals in several states to restrict paid signature-gathering. But he sees nothing wrong with requiring greater financial transparency. He also believes requiring legislative hearings before placing an initiative on the ballot could be useful.

“Why not have hearings for the public to weigh in? If proponents don’t want to accept a change, they don’t have to,” he said.

Kaufmann said the lack of a review process is responsible for what he called the “brutality” of California’s process. Most European governments provide for such reviews, and the Swiss require that if a negotiated compromise can’t be reached that legislators place an alternative proposal on the same ballot and allow voters to choose between the two.

“There needs to be a multifunctional system of dealing with conflict,” he said.

Stern believes the Legislature will never on its own be able to provide the two-thirds majority vote that would be needed to put such a proposal on the ballot.

“The left is happy with the initiative process, and the right is happy with the initiative process,” he said. “It’s the middle that wants to change it.”

The Center for Governmental Studies’ analysis found that the median cost to qualify an initiative in California reached $2.8 million in 2006, up from $45,000 in 1976.

As the initiative process heads into its second century in need of the kinds of reforms that polls show most voters want, Stern believes there is one thing needed to fix a process that 100 years ago “thrust power from the Captains of Greed.”

“All it will take,” he said, “is just one person with the money to do it.”

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