By Joe Mathews
The good news: reform of the initiative process is finally on the table in California. The bad news: the left and the right are getting reform wrong.
There’s a whiff of hypocrisy on both sides.
The left, which rails against the rich in most contexts, loves the rich when it comes to the initiative process. It’s pushing bills that add regulations and restrictions on signature gatherers that will make a process that’s the province of very rich people and institutions the even more exclusive province of super-rich people and institutions.
The right, which claims to be worried about budget deficits and runaway spending, thinks busting the budget is fine if it’s done by initiative. In particular, conservatives are attacking common-sense changes that would force initiatives to live within the budget, by requiring spending cuts when a measure mandates spending.
Let’s look at the left’s favored legislation, which appears to stem from the belief that what’s wrong with the process are petition circulators. One bill under consideration would force circulators to wear signs that indicate whether they are a paid signature gatherer or volunteers. This is unnecessary – it’s no secret that almost anyone you encounter with a petition is being paid, since every significant statewide campaign for the last 30 years has relied on paid circulators. And, to the extent such signs make collecting signatures harder, the signs may be good for circulators, who are able to demand a higher price for signatures when the work is more difficult. (That said, I’d be tempted to support the bill if it were amended to require its legislative supporters to wear signs that said, "I Believe Direct Democracy Is Only for The Rich").
Another piece of legislation backed by Democrats seeks to bar paying circulators per signature. This has been sold as an attempt to limit fraud in the process. But there are two problems. First, moving to hourly pay would make the process even more expensive, and thus further limit the ability of anyone but the very rich to play the initiative game. Second, it’s far from clear that a change in payment method would limit fraud. The incentive to conjure phony signatures would remain in place even if circulators were paid an hourly or daily wage. If circulators making such wages don’t produce a large amount of signatures efficiently, they are likely to lose their jobs. The incentive for fraud also would be present unpaid volunteers, since they too face pressure in California to produce many signatures in a short period of time.
The incentive for fraud is created not by payment – but by time. California requires hundreds of thousands of signatures – and gives initiative sponsors very limited time – only 150 days – to do so. It stands to reason that if you didn’t have to get so many signatures so quickly, you’d be less likely to cheat.
That’s why legislation that makes the process more difficult and more costly may tend to create more fraud. The good news is: there’s a smarter way. Reduce the number of signatures required – and give people much more time than the current 150 days to circulate for signatures. The new European initiative process provides a year to circulate. Switzerland provides 18 months. California should be in that ballpark.
Adding more time also would create more opportunities for deliberation in the initiative process -and more space for compromise with the legislature. That would be healthy because California’s initiative process needs to be integrated with its representative government – and in particular its budget process. For decades, initiatives have been a way to circumvent checks and balances – and impose new spending or limit taxes in ways that help bust the budget.
But the right has portrayed legislative proposals that seek to make initiatives to pay for themselves as attacks on the initiative process itself. This is nonsense. Yes, one may argue with the particulars of specific legislative proposals; the conservative commentator Steven Greenhut raises a good question about whether the department of finance, which reports to the governor, should be one of the entities able to decide whether an initiative is self-financing – a feature of a proposed constitutional amendment in this area that is now before the legislature. But the goal of forcing initiatives to live by the rules of budgets and legislation is a valid one. Even more important are legislative attempts to make initiatives subject to legislative amendment. California is the only place on earth where a statute passed by initiative may not be changed without another vote of the people.
The wrong-headedness of left and right on this subject helps illustrate the two principles that should guide improvements to the initiative process.
The first principle is access. True initiative reform would open the process up, give citizens more time to gather signatures, reduce high hurdles and costs in petition circulation, and permitting the use of the Internet for gathering. This opening up of the process is actually a check on the process. The more people who can participate in circulation, the more time there is to consider a measure, the less chance of abuse.
The second principle is accountability. The initiative process is an unaccountable fourth branch of government that permits those with resources to circumvent the legislative and other branches entirely. If there are to be restrictions in the process, those restrictions need to force initiatives to be treated like normal laws – in that they should fit the budget and be subject to fixes and amendments like any other statute.
Unfortunately, because of the views of the right and the left, initiative "reform" operates on the reverse principle: limiting access to the process, and frustrating any attempt to bring accountability to initiative law. The left and right seek to give us the worst of both worlds. We should do the opposite of what they advise.
Limit the ability of initiatives to run roughshod over our government. But don’t limit access to the process.