It turns out that a legislative hearing can be simultaneously enlightening and pointless. Take, for example, Monday’s hearing in Sacramento on Proposition 46, the measure on the Nov. 4 ballot to increase the cap on medical malpractice damages, and Thursday’s on Proposition 47, the initiative to change criminal sentencing.
The numerous committees conducting the joint hearings can’t add to or change anything in the measures or even reach all that many voters with their questions, comments and concerns. With the election little more than a month away, the hearings are, to some degree, a meaningless exercise. But the law still requires them, so the hearings are going forward.
What if those hearings were instead held months earlier in the process, before the ballot wording was finalized and while there was still time for some useful input? Wouldn’t that make more sense?
We’ll find out the next time a measure goes out for signatures. Gov. Jerry Brown on Saturday signed SB 1253, a bill by departing Senate President Pro Tem Darrell Steinberg (D-Sacramento), sponsored by the reform-oriented Think Long Committee for California, to make some well-placed tweaks to the initiative process. One such adjustment is to allow written public comments when measures first qualify for the ballot, letting proponents amend their language if they hear something worthwhile; and another would require the Legislature to schedule its legislative hearings as soon as 25% of the required signatures have been collected.
At that point, after supporters, opponents and others have testified, proponents could decide to change their measure to account for drafting flaws pointed out in the hearings. Or they could change things to win backing from skeptics. Or they could stop the process if they become convinced the Legislature can and will do the same thing with a bill.
They could. But the key here is that they wouldn’t have to. The new law does not compromise the power of Californians to legislate by initiative. The Legislature gets to weigh in with comments and alternatives, but it will continue to be powerless to yank a citizen measure off the ballot or stop the petitioning process. No one could pay off initiative proponents to change anything — unless they wanted to risk a three-year prison sentence.
Dialogues between lawmakers and initiative proponents of the kind taking place this week could very well cease to be pointless exercises and become paths to more enlightened and transparent lawmaking.
Broader changes to direct democracy in California will be challenging because there are interests that have built businesses or political platforms based on the status quo and making it work for them. The goal should be to make the process work for Californians. But that invites the question: Which Californians? Those of a liberal bent might argue that Proposition 13, term limits and the Proposition 8 same-sex marriage ban are clear examples of how the initiative system has run amok; conservatives might argue that they are both demonstrations of the need for an initiative system and examples that it works.
Effective and even-handed initiative reforms include those that detect and correct, to the extent possible, drafting flaws and unintended consequences and allow for more carefully crafted law; those that better inform voters of what measures actually say and who is funding them and stands to gain if they pass; and those that — again, to the extent possible, consistent with the right to initiate and adopt state law intact — keep the burden and confusion of ballot measures manageable.
It may not be possible to eliminate those direct democracy facts of life that are crucial to some and irritants to others — such as people with clipboards standing in front of grocery stores, asking whether you are a registered voter and whether you want to sign a petition to end crime. It may not be possible to require such petitions to name their sponsors; a federal court this year struck down laws that prevented sponsors from remaining anonymous on their petitions. Voters will always have to do some homework. But SB 1253 requires easier voter access to online information about ballot measures and the money behind them.
It may not be possible to curb the power of the initiative industry that has the process down to a science, from lobbying for favorable ballot measure titles and summaries to funding signature-gathering to raising money for campaign commercials; but laws can be updated to allow ordinary citizens to take advantage of technology and social media. The initiative process is not static. It must be continuously reexamined to ensure that it keeps up with changing technology and ongoing efforts by one interest group or another to capture it.
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