November 1, 2012
Proposition 35, the human trafficking measure on the Nov. 6 ballot, is a near-perfect example of how far the initiative process has strayed from its original role as the people's essential check on the Legislature and how it is now helping to run the state off the rails. On the same ballot, though, Proposition 39, designed to undo a sweetheart deal that lawmakers gave to out-of-state corporations, does just what ballot measures are supposed to do and demonstrates that with all its flaws, California's initiative system can still serve the people — if only they remember to vote with their heads as well as their hearts and their hands.
The human trafficking measure presents Californians with a package of supposed reforms to address a very real problem: forced sex and labor. It punches most of the usual emotional buttons, appealing to voters' sympathy for victims and disgust with perpetrators who are the closest thing the United States has to modern-day slavers. And in calling for longer sentences, it follows the same assumptions as other tough-on-crime initiatives born in fear or anger rather than thought: Punish people more severely and they will offend less. Merely by being on the ballot, the measure implies that the Legislature would not or could not deal with the issue.
That's false. Lawmakers became convinced in 2005 that state and federal laws dealing with kidnapping, extortion and other crimes were not keeping up with human trafficking, and they adopted a law that was painstakingly crafted with input from law enforcement, victims, advocates and others. That law has been fine-tuned more than a dozen times over the last seven years as experience was gained, people were prosecuted and legal holes were discovered and plugged. Proposition 35 would subvert that work and substitute a web of poorly drafted laws that expand the sex offender registry, divert resources from victims and, most important, could not be adjusted to keep up with changing circumstances without yet another ballot measure.
Voters need the initiative process when the Legislature refuses to do its work. Consider, for example, the three-strikes law adopted at the ballot box in 1994. Three strikes as currently drafted has its problems — it too emerged as much out of emotion as careful deliberative lawmaking —, and 18 years later, voters are being asked to clean it up with Proposition 36. But flawed though it was, three strikes offered angry voters the real and necessary opportunity to circumvent a Legislature that was dragging its collective feet in dealing with recidivists.
Lawmakers got the message and passed their own version before voting day, but by then it was too late. Proposition 13 followed a similar pattern: Action was needed from the Legislature, it failed to act, and voters took over. Whether or not you agree with what those ballot measures did, at least they were an appropriate use of the people's power to step in when the Legislature dawdled.
Proposition 39 falls to voters because at the end of the 2009 budget session, the Legislature foolishly signed on to a deal that allows corporations to select their own method of calculating their tax liability, and in so doing penalized businesses that employ Californians. It would take two-thirds of lawmakers in each house to correct that mistake, but each time they've tried, they have fallen short because of the lobbying power of the out-of-state corporations that enjoy their loophole.
So the choice for voters is to accept the Legislature's failure and live with the loss of about $1 billion a year in corporate tax revenue from businesses that sell their wares here but don't otherwise invest or hire here, or to step in and fix the mess. This is one case in which voters should step in. Unlike Proposition 35, where the legislative process is working, here it has faltered and the initiative is needed.
True, Proposition 39 carries some of the same warning signs as other ballot-busters. It's got a deep-pocketed patron in the form of hedge fund manager Tom Steyer, and it was written to direct $500 million of the recouped money into energy efficiency programs rather than to the state's general fund. Voters should be wary of measures driven by wealthy people who may make California elections into their personal hobbies.
In this election, Charles Munger Jr. and his sister, Molly Munger, are spending tens of millions from their personal fortunes to support and oppose four different propositions. Mercury Insurance Chief Executive George Joseph is bankrolling the latest version of a measure to help his company's business model. And Proposition 35 is being funded and pushed by former Facebook executive — and former attorney general candidate — Chris Kelly.
But a wealthy backer does not automatically mean a proposition should be rejected, and Proposition 39 is, for the most part, good policy. It might be a better policy proposal if it didn't divert revenue into a special fund, but the ballot-box budgeting angle is, importantly, time-limited. And, to be frank, California could use the construction jobs the fund would promote.
One hundred and one years ago, Californians secured for themselves an important check on a Legislature widely believed to be controlled by the Southern Pacific railroad. Today, it's useful to judge each measure on whether it fixes a legislative flub or merely appeals to a rich patron's interests and voters' emotions. It's not the only criterion to use when deciding to vote yes or no, but it's an important one.
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