Initiative Reform is Another Way to Frame More Taxing Power

Loren Kaye
President of the California Foundation for Commerce and Education

Senate Leader Darryl Steinberg sent initiative reformers’ hearts aflutter when he announced he was jumping on the reform bandwagon.

Speaking to reporters, Sen. Steinberg ticked off three changes that he said would “both strengthen … direct democracy and empower the people elected by their communities…” He supports:

  • Allowing the Legislature to place statutory initiatives, including tax increases, on the ballot by a majority vote. Presently, the Legislature has no authority to place statutes on the ballot, except bond measures and, under certain circumstances, statutes amending existing initiative statutes.
  • Create an indirect initiative process, where the Legislature and Governor, with the concurrence of the initiative proponent, may amend or replace an initiative prior to the measure being submitted to the people for a vote.
  • Allowing the Legislature to amend or repeal a statutory initiative after it has been in effect for ten years.

My reaction is, respectively, no, yes and meh.

Sen. Steinberg is refreshingly transparent as to why he wants the Legislature to place statutes on the ballot with a majority vote. He wants the Legislature to place tax increase measures before the voters that they are unable to pass themselves. There’s no reason otherwise to crave such a power, since the Legislature can pass most other statutes with a majority vote, including the budget and other spending bills, and even substantive legislation connected to the budget.

There are two reasons the Legislature should not have this new power, one high-minded, the other practical.

First, the constitutional distribution of legislative power isn’t arbitrary. The Legislature is supposed to do the legislating, and if the People don’t like what the Legislature has or has not legislated, they can take that power upon themselves with the initiative or referendum. Amending the Constitution, in principle a “higher” set of laws, requires either a partnership – the Legislature proposing and the People disposing – or, again, the People taking the responsibility themselves.

As usual, there’s an exception – a sensible one: in the case of approving long term general debt, the Constitution requires a public vote. Otherwise, the Legislature doesn’t – and shouldn’t – ask the People’s permission to do their regular job.

The practical argument against giving the Legislature the ability to place tax increases on the ballot with a majority vote is that they would inevitably place discriminatory, targeted tax increases on the ballot that poll better and divide the electorate. Taxing tobacco, oil and the rich would become regular features of ballots, and any sensible notion of tax reform would never have a fighting chance.

An indirect initiative may be beneficial to correct mistakes or motivate the Legislature, as long as the proponent is still free to submit the signatures in the absence of an acceptable response. Of course, nothing today prevents the Legislature from passing bills or proposing ballot measures in response to circulating initiatives, so a cooling-off period may wind up being a rarely-used tool.

Regarding legislative amendment of statutory initiatives, my advice is to be careful for what you wish. First, the logical consequence of such a requirement is to motivate initiative proponents to draft their measures as constitutional amendments, rather than as statutes. The increased cost to qualify may be an acceptable price to prevent Legislative tinkering with or repealing the measure. And for those who are concerned with constitutional clutter, this trend would create in California the Hoarders of state charters.

But statutory initiatives are probably less of a threat to the Legislature than Sen. Steinberg imagines. Since 1990 – that’s 27 elections – nearly two thirds of all statutory initiatives on the ballot failed. Of the 23 that passed (and survived court challenges), most were sponsored by left of center organizations: environmental advocates wanting more money for habitat or more protection for mountain lions and farm animals; health organizations supporting children’s hospitals or drug treatment, labor organizations wanting a higher minimum wage, and medical marijuana advocates. Even Senator Steinberg himself qualified and gained approval for the only statutory tax increase by initiative in decades.

As for measures up for vote in June and making their way to this November’s ballot, most of the statutory initiative proposals are again from the left: tobacco tax, Molly Munger’s tax increase for education, tax increase for energy efficient buildings, repeal or modification of the death penalty and three-strikes sentencing, labeling of genetically-engineered foods, regulation of hospital rates and health insurance.

If the statutory initiative process is being abused, Senator Steinberg need look no further than his friends.

Follow Loren on Twitter: @KayeLoren

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