A Bag Too Far – Can California Reform its Initiative Process?

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The American Progressive Bag Alliance (APBA), the plastic bag industry lobbying group, has just qualified a referendum on the historic California state wide ban on plastic bags that was passed by the legislature and signed into law by Governor Jerry Brown just last year. As a result, implementation of the ban has been delayed from July 2015 until after the November 2016 election, when voters will decide for themselves whether they want to go through with it. Current polling shows that 60% of Californians do.

Should California Uphold the Ban on Single Use Plastic Bags?

The larger issue at stake is the California initiative process itself. Many see this as the latest example of the initiative, a direct-democracy tool intended to give citizens more power over corporations and corrupt politicians, instead being wielded by corporate interests themselves. Numerous groups, including Nicolas Berggruen’s Think Long Committee for California and CA FWD have been vocal advocates for updating the laws behind the more than 100 year old process. The Economist ran an article in April 23, 2011 about the pitfalls of CA’s current initiative system. Even university textbook “Governing California In the Twenty-First Century” highlights initiative reform as a core issue. In it, Cal State Los Angeles Professor Theodore Anagnoson gives a couple of examples:

“Proposition 15 on the June 2010 Ballot, ostensibly allowing taxpayers to have more control over their government but in fact designed to keep local public utilities from competing with PG&E… Proposition 33 on the November 2012 ballot, ostensibly allowing insurance companies to give longevity discounts to drivers who had continuous insurance coverage from another insurance company but in fact designed to give one insurance company the ability to raise rates on drivers who had lapses in insurance coverage. In general, the initiative has ceased to be a measure promoting direct-democracy for at least the last two decades. It is instead just one more method by which special interests convince voters who are paying little attention to government and politics that they should enact some rule, law or constitutional amendment that will benefit the particular interest and hurt the public as a whole.”

So how can we fix this problem?

One diagnosis is that the signature gathering period for initiatives is too short, the number of signatures needed too low, and the size of California too big. These three factors lend themselves to corporate funded initiatives that can be implemented quickly using professional signature gatherers and are hurtful to grassroots efforts by citizens themselves.

Consider the economics in the example of the plastic bag referendum: the APBA spent $3 million to gather roughly 800,000 signatures and the investment bought the industry a minimum of 18 months of additional sales, totaling at least $150 million. What some consider abuse of California’s Direct Democracy is just a simple investment decision for big business – explaining why it happens all the time.

What’s more, California is a huge state with two exceptionally expensive media markets (Southern California and the Bay Area). The APBA will likely spend $30-50 million on a full fledged campaign in 2016 – proponents of the plastic bag ban such as the Sierra Club California, the Surfrider Foundation, Californians Against Waste and the California Grocers Assn. anticipate spending $10 million.

Proponents of initiative reform argue that by increasing the number of signatures needed to qualify an initiative it will become harder for professional signature gathering efforts to clear the hurdle. Moreover, by lengthening the amount of time required to collect the signatures from 160 days to 365 days, grassroots efforts will become more competitive.

Should the time needed to qualify an initiative in California be lengthened and the number of signatures required increased?

A second reform angle aims to make the legal implementation of initiatives more effective. Since initiatives are drafted quickly, they are frequently imperfect and sometimes even constitutionally contradictory. Yet because they were designed to curb the powers of the legislature, they are nearly impossible to edit once passed. Reform advocates suggest that allowing the legislature to review qualified initiatives and suggest changes that would make them better laws would be in everyone’s best interest. However, this proposal is historically unpopular among CA voters who tend to distrust their elected officials.

Allow the CA Legislature to review pending initiatives and propose fixes or alternatives contingent on approval of the initiative’s proponents.

Finally, there are two differing schools of thought on whether the initiative should be used more or less frequently. Currently initiatives can be included on any ballot, including primary elections. The political science professors behind “Governing California” suggest that initiatives that change the California Constitution should only be allowed in general elections (i.e. once every two years). To put this in perspective, less than 33% of eligible voters participated in CA’s 2014 November general election, but only 18% participated in the primary election held on June 3rd. Yet under current law, that 18% could pass a constitutional amendment.

Shall Ballot Measure that Ammend the State Constitution be Allowed in General Elections Only?

On the other hand, the Think Long Committee has proposed a Citizens Council for Government Accountability which would have the power to qualify initiatives directly – quite possibly leading to more of them. While the committee would be appointed by current leadership in the CA Congress and Executive Branch, they would crowdsource issues from the public through the internet, mail, etc. Think Long argues that this will give citizens a champion to address the issues that matter to them most. Opponents argue this would just be another politically appointed committee, prone to corruption and costing the state $2.5 M annually.

Should the CA Constitution be Ammended to Create a Citizens Council for Government Accountability?

 

For those of us who live in the Golden State, it is almost inconceivable that the initiative process doesn’t exist in every state. For all it’s shortcomings, initiatives have helped pass fundamental reforms to get CA back on track including the creation of an independent redistricting committee, enlargening of the state rainy day fund, and enabling a simple majority to pass the state budget, which ended years of gridlock. But if direct democracy is going to flourish beyond the 26 states where it is currently active, it must be fine-tuned to work as intended.

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