Oct 022008

I took over an hour this morning to figure out what to vote for this November. I already pretty much know whom to vote for, but my November ballot will be covered with state and local propositions, and they take a while to work through.

It is a quirk of the California constitution that there are so many separate ballot measures each election cycle. I’m not, however, sure it’s an altogether good quirk. On the one hand, direct democracy certainly sounds like a good idea, at least in theory. Let the people speak directly on the laws that govern them, rather than have to depend on some cadre of representatives make those decisions for them.

But in practice some of the same problems that infect the republican representative-based legislative process also infect the democratic public referendum process, and the latter introduces several new ones of its own. As I worked my way through the dozen state initiatives I am to vote on next month, I became acutely aware of them.

There are some initiatives only on the ballot because the California constitution requires them to be. These mostly seem connected to the state legislature’s ability to levy taxes. In past years it has been easy to spot which ones these were, but this year I’ve found the voter guides to be confusing on that point. I would surmise that the propositions placed on the ballot by the legislature would at least include Proposition 12, a bond act supporting veterans, Proposition 3, which provides for bonds to repair children’s hospitals, Proposition 1A, which funds a high-speed rail network, and Proposition 10, which allocates bonds to subsidize private purchase of greener vehicles. While I am concerned about California’s fiscal solvency and shackling future generations with too much debt, I do consider the first three initiatives worthwhile public expenditures. The fourth strikes me as unwise, and I suppose I’m glad I get to directly weigh-in on it, but I’m rarely swayed by the grumpiness expressed in the literature by anti-tax groups. For instance, the fact that the second one also may fund the repair of hospitals that treat adults is hardly an argument sufficient to convince me to reject it.

But indirectly this argument has a point: the proposition as it appears on the ballot makes it seem that it would only fund children’s hospitals. If that’s not the case, then that should be be expressed clearly on the face of the ballot. Not every voter can be counted on to fully research the full reach of every proposal. Nor can every voter even be expected to be fully equipped to do so.

Each election voters get in the mail a sample ballot, which shows the specific propositions and candidates each voter will get to vote for come Election Day, and a voter information guide that includes information about the state propositions. This election the book is 143 pages and for each proposition includes a state-produced legislative analysis, an argument for and against and a rebuttal to each of those, and the full-text of the law the proposition would implement if passed. I read or skimmed all of the legislative analyses and arguments, but even as a trained lawyer I have no interest in trying to parse each statute, and I certainly can’t expect my non-lawyer neighbors to.

But that’s a problem for something like Proposition 7, a renewable energy statute that would change the requirements for government-owned utilities to use more green energy sources. Encouraging renewable energy is a good policy, but does this proposition effectively do it? The problem is that the opponents of this measure claim it will have a negative effect on small green energy producers. But the clause they claim to hang their analysis on is absent from the legislative analysis. If their interpretation of the rule is correct, then I would agree the proposition should be rejected, but it’s hard to evaluate whether it is or not. I may vote against it anyway based on a jurisdictional concern the legislative analysis raised, but this kind of conundrum typifies one reason why I would prefer legislating to be done by state legislatures. A professional legislature is able to take the time to fully inform itself about impact of a law. It can hold hearings to fully understand the problem it’s trying to solve. It can amend and improve the actual language of the law in order to make sure it is carefully crafting an effective solution. Of course, it doesn’t always: amendments are often far from improvements, legislators may not be effectively briefed by neutral experts, and hearings don’t always happen. Still, with the propositions the text is not amendable once it’s been placed on the ballot (no matter how slight the modification might need to be to cure a counter-productive byproduct), voters are certainly not holding formal hearings to create a legislative record, and they have access to very limited amounts of unbiased information and expertise with which to evaluate the proposed laws.

Proposition 2 exemplifies this last shortcoming. This proposition would change the law to require humane standards for certain farm animals. On its face it sounds like good policy, but is it a good law? It’s hard to tell, although I find the fact that the counter-argument depends on SHRILL and OVERLY CAPITALIZED hyperbole to support the inference that it may well be…

Propositions also suffer from being badly drafted or over-inclusive. With regard to the former quality, there’s Proposition 11, a redistricting measure. While politicians are often known for making a mess of redistricting, there’s little to suggest that a commission of citizens will do any better, especially when the proposition establishing it looks so suspect on its face. (The specific seating of a certain number of Democrats, Republicans, and independents on the commission will fail to scale over time as people’s political preferences and the overall political terrain continue to evolve.)

Proposition 6 exemplifies the problem of a proposition trying to do too much. It appears on the ballot to be an initiative to fund police, but in reality it makes several fundamental changes to the California criminal justice system. Like by changing the hearsay rule. How many voters even know what the hearsay rule is, much less how changing it will raise conviction rates — including unjust ones? It is one thing to have voters weigh in on basic policies, like Proposition 5 and Proposition 9 do. (The former adds an element of mercy to the criminal justice system, while the latter adds in an element of vindictiveness.) Perhaps their respective laws could subsequently be overturned by elected representatives, who could face political consequences if they refused to do so, but there’s no such carrot-and-stick for voters to ever try to reverse it directly themselves.

Meanwhile it’s the propositions that threaten to change the entire California constitution (and not just make normal statutory law) that are even more troublesome. Proposition 4 amends the constitution to demand a waiting period before a minor can have an abortion, and Proposition 8 attempts to forbid same-sex marriage, which the constitution currently allows. Amending the constitution forces the laws to have even more permanence than normal political inertia would lend to statutory propositions, and presents yet another problem with the ballot initiative process: the influence of money.

For as much as people lament access to the legislature being limited to well-funded lobbyists, many of the propositions that reach California voters have similar moneyed interests at their roots. To qualify for the ballot a certain number of signatures must be collected, which is an expensive process. Therefore because only those laws that have wealthy backers can ever reach the ballot, the same problem of regulatory capture arises. Worse, while the wrath of voters may temper an elected representative’s zeal to yield to lobbying interests at the expense of popular opinion, opposing viewpoints are not similarly empowered when it comes to these propositions.

But even if all viewpoints were equally funded, or funded proportionally with actual political will, for propositions like these, which threaten to fundamentally alter individual liberties, it seems dangerous and antithetical to our larger sense of freedom to leave these individuals vulnerable to the tyranny of the moneyed majority in order to ensure that their rights, regardless how politically popular they may be, protected.

 Posted by at 8:31 am

  One Response to “California propositions 2008”

  1. I am not familiar with the California Proposition process. If a proposition passes, and it becomes part of the California constitution, what are the options for reversing the proposition?
    Is the only option to have another proposition?
    Or can the state legislature take some action?
    Just not sure how this works. Thanks!

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