In a recent speech to the Academy of Arts and Sciences, California Chief Justice Ronald M. George became the latest sharp critic of the state's system of direct democracy. "Frequent amendments -- coupled with the implicit threat of more in the future -- have rendered our state government dysfunctional," he said.
The chief justice isn't the first state leader to take aim at the way ballot measures are enacted in California, and he won't be the last.
California's system is deeply flawed. With ballot initiatives, voters can set in cement laws and constitutional amendments that will govern the state long after they are dead or have moved away, even if a new majority of Californians would like something different. Civil rights may be taken away or free enterprise limited by the slimmest of majorities, while undoing those restrictions usually requires legislative supermajorities.
Such a direct democracy isn't worthy of the name. It isn't very direct, and it isn't particularly democratic. But fashioning reform will require reckoning with a hard political fact: Although surveys show widespread public dissatisfaction with aspects of the process, they also show that more than three out of four California voters support retaining the process. Abolition is not an option -- nor should it be.
Successful reform in this area should not restrict voters or lawmakers. It should seek to free them, and give them more power and discretion -- but it should do so in ways that allow better checks and balances. This could be accomplished with four changes to the current system: Make initiatives subject to the same rules as legislation.
This would mean that, like bills in the Legislature, initiatives would be submitted to the legislative counsel's office for vetting. The drafter of any initiative that added to state or local budgets would have to convince that office that the measure proposed enough revenue to cover those costs.
More important, initiatives would no longer be immune from legislative amendment. Any initiative that passed could be amended or eliminated by the Legislature after being in place for two years -- the length of a legislative session.
As a corollary, any initiative that seeks to impose supermajority requirements would itself have to pass by a supermajority. This would be an important check on supermajorities. Proposition 13, which included the two-thirds requirement for tax increases, was approved by a large majority, but with slightly less than two-thirds of the vote. Extend the same flexibility to constitutional revisions as constitutional amendments.
Currently, an amendment may be added with a simple majority vote of the people. But the constitution cannot be revised except by a two-thirds vote of the Legislature and a vote of the people. This dynamic -- making it easier to add than to edit -- is one reason California's Constitution has grown so long. Voters should be able to revise or eliminate amendments by a majority vote. And legislators should be able to place a revision on the ballot by the same majority vote. Permit the Legislature more involvement with the initiative process.
Under the current system, the Legislature holds hearings on each initiative, but there is no formal mechanism for negotiations between initiative sponsors and lawmakers. There should be. An initiative that gains enough signatures should first be put to an up-or-down vote by the Legislature. In addition, lawmakers should be able to offer amendments that an initiative sponsor may accept or reject.
Under such a system, if the Legislature votes the measure down, the initiative sponsor could decide to take the measure to the ballot anyway. But the Legislature would have the right to place a counterproposal on the ballot next to the initiative. In cases in which ballots contain both an initiative and a counterproposal, voters would also be asked to indicate which measure they would prefer if both were to pass. Make it easier for voters to overturn the Legislature through a more referendum-based direct democracy.
Reform to the initiative process must also address an oft-neglected tool of California's direct democracy, the referendum -- a measure that permits voters to undo an act of the Legislature. Referendum power is currently too limited, restricted to measures passed in the normal course of business. The referendum cannot be used on "urgency" statutes or on laws providing for taxes or appropriations. Because the power of referendums is limited (and they are as costly to qualify as initiatives), they have been rarely used -- fewer than 70 have been filed in California since 1911. In the same period, more than 1,500 initiatives have been filed, and more than 300 have made the ballot.
To balance the enhanced power of lawmakers to amend initiatives, voters need more power to block lawmakers via referendum. The signature-gathering standard for a referendum should be lowered substantially, perhaps to 1% of the number of votes cast in the most recent gubernatorial election. With such a standard, enough signatures to qualify a referendum could be gathered in a few short weeks. Urgency measures and some bills that involve taxes and spending should be made subject to voter reversals as well.
These four reforms would offer more power and choice to voters as well as provide more power and autonomy for elected representatives in legislation. They would make California's system of initiative and referendum worthy, finally, of the name "direct democracy."
Joe Mathews, a contributing writer to Opinion, is an Irvine senior fellow at the New America Foundation.Copyright © 2014, Los Angeles Times