Referendum, RIP

Loren Kaye
President of the California Foundation for Commerce and Education

Joe
Mathews unearthed
a nugget Thursday
– turns out the 99-year-old referendum power in
California may have a more distant provenance than we thought, older than even
the state itself.

That
news could be bittersweet, though, because a measure on the November ballot  would effectively
prevent the referendum from celebrating its centenary.

On
its surface, Proposition 25 is fairly simple – it reduces the vote
requirement to pass a budget from two-thirds of the Legislature to a simple
majority.  However, Prop. 25’s language also eviscerates the
referendum, one of Governor Hiram Johnson’s great reforms enacted to
counteract the power of special interests, and a critical check that voters
have on the actions and power of the Legislature. 

The
Constitution grants the voters "the power to approve or reject statutes
or parts of statutes," with four exceptions: urgency (emergency)
measures, tax measures, appropriations of money, or statutes calling elections.
Importantly, each of the first three types of measures must today be approved
by a two-thirds vote of the Legislature to become law.

Therefore,
with the exception of measures calling elections, the only statutes that are
currently exempt from popular referendum are those bills passed by a
supermajority of the Legislature. This makes sense, since a two-thirds
legislative vote represents the kind of political consensus that would not need
ratification by the people.

Enter
Proposition 25. Through careful word-smithing, the drafters created a loophole
in the referendum power. They created a category of statutes, called
"other bills providing for appropriations related to the budget
bill," that would be approved by a majority vote, yet qualify for
the exemption under "urgency measures," because they go into effect
immediately.

This
is the black hole of loopholes, sucking in most conceivable substantive
legislation. The only tests for a measure to qualify for this loophole are that
it: (1) includes an appropriation, no matter how trivial, and (2) declares that
it is "related" to the budget. There is no limit on the subject
matter that can be inserted into these new bills.

Imagine
the potential consequences. Immune from referendum would be statutes, adopted
by a majority vote, that:

  • Enhanced
    pensions and health benefits for state and local employees, combined with an
    appropriation for the Public Employees Retirement System.
  • Created
    a single-payer state health insurance program, combined with an appropriation
    for the Department of Health Care Services;
  • Imposed
    a fee on snack foods or soft drinks, combined with an appropriation for
    children’s physical education programs;
  • Repealed
    the "use a gun – go to prison" law, combined with an
    appropriation for the Department of Justice.

The
types of statutory changes that could be exempted from the referendum process
is so extensive that the practical effect of Proposition 25 would be to abolish
the referendum power altogether.

That’s
nearly 100 years of power to the people forfeited for a Sacramento political
power grab.

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