A Proposition for Fixing the Proposition Process

Progressive reformers of the early 20th century thought that if they gave citizens the tools for more direct democracy, popular will would be better expressed and legislative abuses remedied. These tools consisted of the initiative, through which citizens could propose laws for the voters’ direct approval; the referendum, through which the Legislature could refer issues to the voters; and the recall, which would enable the people to vote elected officials out of office.

Now, a century later, we have reason to question whether more direct action by the electorate leads to better results than legislation by elected representatives. Not in their wildest imaginings could the progressive reformers have foreseen the confusing, contradictory, conflicting and costly results of their efforts as characterized by the measures presented to California voters this week.

Instead of supplementing the legislative process, the reforms have subverted it. Contrary to their purpose of enhancing the expression of the people’s will, the initiative and referendum, particularly, have had the effect of allowing legislators to evade their responsibility to represent the will of the people.

A major improvement that could be adopted without disturbing our historic commitment would be to make the initiative and referendum advisory only. In so doing, the representative Legislature is directed to enact statutes guided by the sentiment expressed in the advisory poll, not just to rubber-stamp ill-prepared legislative language of initiatives. The people would retain the right to recall legislators who frustrate the popular will by ignoring or opposing the results of the advisory vote.

One of the merits of an advisory vote is that confusing, vague and contradictory provisions would not be enacted into law by an electorate whose passions can be swayed by misleading advertising bought by interests with the greatest resources. Ordinary citizens, no matter how generally educated, should not be expected to sort out some of the legal arguments raised in recent initiatives that have challenged the legal profession, including our California Supreme Court.

Californians should also consider the advisory vote as a means to amend our state Constitution, already an overgrown cumbersome guide to ordering our affairs. Does it seem equitable that a poorly worded, perhaps misguided or even blatantly conflicted provision can become law by a 51% majority vote through the initiative process, but amended only by a two-thirds majority? Should we be able through the initiative and referendum to add to the Constitution, our basic governance document, items that are best dealt with through the deliberative legislative process? Before we consider calls for more direct popular voting through new media, let’s correct the course of this century’s reforms.