Sometimes a State Can Take Too Many Initiatives : California’s initiative process empowers citizens but is too problem-filled

November’s ballot contains only 10 propositions, far fewer than the 28 that burdened the 1990 ballot. But three of the 1994 propositions address problems that have stumped think tanks and legislatures alike: violent crime (Proposition 184), the health care crisis (Proposition 186) and illegal immigration (Proposition 187). Can the average voter do any better?

That, of course, was the original promise. California’s initiative law was passed in a historic special reform election in 1911. The Progressives who pushed for those reforms wanted to break the grip of monied interests, primarily railroads, on the Legislature.

Those same Progressives would surely be stunned to learn that by the 1990s the amount of private money poured into highly professionalized ballot initiative campaigns had outgrown the amount spent on all lobbying of Sacramento legislators.

It would be a mistake to suppose that money once again rules unchecked. The success of big money in buying voters for the ballot initiatives it favors has been less than its success in buying legislators for the bills it favors. Roughly $100 million of insurance industry money was not enough to stop Proposition 103, the auto and liability insurance reform initiative of 1988. But do the citizens really have more power now?

A LAW DEGREE HELPS: Among the many merits of “Democracy by Initiative,” a penetrating 1992 report on initiative reform from the California Commission on Campaign Financing, was its recognition that time and the will of the citizenry have changed the original initiative law.

Proposition 13, the 1978 property tax initiative, revised more than taxation: It also changed citizens’ understanding of their power to advance a legislative agenda. The report’s astute subtitle was “Shaping California’s Fourth Branch of Government.”

The question is: Now that the citizens have made themselves not just voters but legislators, are they up to the task?

The California voter has, by law, just 10 minutes in the booth. For guidance, he or she is provided with a ballot pamphlet written at an 18th-grade reading level. That’s college plus two-thirds of a law degree just to read the pamphlet, let alone to evaluate the underlying issues. Studies show that fewer than 10% of voters with an eighth-grade education and only half of those with an advanced degree manage even to read the pamphlet.

Problems do not begin (or end) in the voting booth. Those whose signatures put a given initiative on the ballot in the first place are not required to have read what their signature sponsors. If a drafting error, no matter how blatant, is spotted after an initiative has qualified for the ballot, even the proponents may not correct it. Has language in a California ballot initiative ever struck you as contradictory? It may be because the sponsors have spent more money qualifying their initiative than buying legal talent to write it carefully.

If and when their contradiction--the one that left you scratching your head--becomes law, resolving it typically falls to the third branch of government, the judiciary. Unfortunately, initiative law is more nearly set in stone than legislative law. When badly written legislative law ends up in court, if it is not thrown out as unconstitutional, the court may gently suggest that a little corrective drafting is called for. But badly written initiative law is beyond such easy correction. The Legislature is forbidden to touch it. Correction can only be made by a new initiative. And at the going rate of $1 million per qualified initiative, no one is going to launch a campaign just to make a correction. So those who are hurt by badly drafted initiatives--like the younger homeowners who pay higher real estate taxes because of flaws in Proposition 13--have, effectively, no recourse.

MANY UPTURNED PALMS: Using Proposition 13 as an example, one might think that, over time, younger homeowners could surely muster enough signatures to lower their own real estate taxes by a ballot initiative. Unfortunately for them, the law requires that the signatures of an intimidating 5% of all registered voters--8% if the initiative is to revise the state Constitution--be gathered within a period of just five months. Gathering so many signatures so fast costs money--for computer mail specialists and paid signature-gatherers (the going rate is about 75 cents per signature). And once an initiative has qualified, other palms must be crossed with silver: pollsters, electronic media advisers, billboard specialists and sundry pricey consultants. Increasingly, the paid professionals of the multimillion-dollar ballot initiative business define the fourth branch of government more than citizens do.

Is there any way to reclaim the ballot initiative, the fourth branch of California government, for the California voters while providing it with the capacity to correct its own mistakes? Yes, and we’ll outline some useful suggestions in our next editorial on this subject.