Taking All Too Much Initiative : Government by the people? Or by judges?

A federal court’s decision to strike down Proposition 73’s two-year-old limit on campaign contributions and prohibition on the transfer of funds between candidates is another telling example of how the ballot initiative, which seems to promise government by the people, too often ends up delivering government by judges.

To make this observation is not to imply an excessive judicial activism. It is, after all, the American habit to presume that all of society’s conflicts, ambiguities or just plain loose ends someday will be resolved or, at least, tied up by a man or woman in a black robe. And there are very few things that produce quite so many frayed ends as the runaway California initiative.

When it was added to the state Constitution in 1911, the initiative’s Progressive sponsors conceived it as a tool of direct democracy to pry state government from the ruthless grip of rapacious special interest. Today, however, the reformers’ instrument of the popular will is more often something very different.

First among its defects is the sheer frequency of its use: In November, for example, voters will be handed 13 initiatives, another 10 bond measures and five constitutional amendments. The ballot pamphlet is expected to run at least 250 pages.

Where there is that much smoke, the fire of free enterprise is bound to burn brightly. In 1988, initiatives generated $130 million in revenue for the political consultants and advertising agencies that ran such campaigns.

Many of the measures they promote are intricate, highly technical proposals whose full implications are hellishly obscure. Proposition 128, the “Big Green” initiative on November’s ballot, is more than 16,000 words long and touches on issues from global warming to pesticides. Any proposal of such complexity is bound to result in litigation. For instance, Proposition 103, the insurance reform measure passed in the same year as Proposition 73, is still tied up in court, as is Proposition 115, the sweeping alteration of the criminal-justice system approved last June.

Proposition 73 also is representative of another problematic form of proposition, the counter-initiative. It was put on the ballot to frustrate the intentions of a legitimate reform measure, Proposition 68, which also passed but did not take effect because 73--so obviously unconstitutionally restrictive of free speech--received more votes.

Similar countermeasures have been placed on the upcoming ballot by the liquor and timber interests.

Proposition 115--like Big Green and Propositions 129 and 131 on the ballot--represents still a third variation, measures proposed as adjuncts to candidates’ campaigns, in this case the gubernatorial efforts of Pete Wilson and John K. Van de Kamp, respectively.

Coming as it does a little more than a month before an election, the judicial decision to invalidate Proposition 73 is bound to create confusion and uncertainty. But the fault is neither in our stars nor on our bench, but in our delusion that California can be governed by “direct” initiative rather than “messy” electoral politics.