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Falsely Blaming the Legislature for November Ballot Initiatives

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

The Sacramento Bee recently printed a fairy tale posing as news. “Many California ballot measures spurred by legislative inaction,” read the headline, and the story went on to describe this November’s slate of initiatives as a response to the legislature’s failure to act.

This claim is mostly nonsense, as a matter of facts. And in a broader sense, it gives readers a misleading impression of what’s really wrong in California. The Bee’s narrative is that the legislature is failing to act and the voters have to step in. The opposite is true; the voters have stepped in so often that the legislature is unable to act.

The Bee story is worth reading, not only to understand how wrong it is – but also because the piece is packed with unintended ironies.

The Bee piece leads with Prop 35, a measure to boost penalties for human trafficking, as an example of the legislature balking at reasonable legislation. To the contrary, Prop 35 is a something-for-nothing measure all too typical of initiatives; it imposes penalties and costs without paying for them (sentencing people and demanding more law enforcement monitoring cost money).

The initiative is on the ballot because of Chris Kelly, formerly the chief privacy officer at Facebook, a job akin to have been chief safety officer on the Titanic. He’s politically ambitious – he ran unsuccessfully for statewide office two years ago. And in a familiar pattern for office seekers, he’s now sponsoring a ballot initiative that will raise his profile. He tells the Bee that he’s merely putting forward this initiative because the legislature failed to act on something that seems so obvious.

But the real story is that similar legislation didn’t make it through the legislature in part because there is no money to pay for it – and that lack of money is the result of a budget system largely constructed by voters. Indeed, an Assembly appropriations committee analysis of the bill in question, SB 57, found it imposed new costs and duties on law enforcement, particularly around the monitoring of email addresses. The analysis also challenged its practicality. Here’s one passage:

There is nothing that prevents a registered sex offender from simply changing an e-mail address. Nor is there any reason to assume that a potential offender, intent on using an Internet site for conversing or meeting potential victims, would register the e-mail address used for this purpose. Assuming a registrant changes e-mail addresses occasionally, or uses different e-mail addresses for different purposes, all of the e-mail addresses, and all of the changes, must be reported to the registering law enforcement agency. Do local governments have the personnel and capacity to obtain, process, and potentially transmit all of this data? Given the ease with which a person may change an e-mail address, given that many registrants have been crime-free for years, given that the crimes of many sex offenders had nothing to do with children, given California’s rare lifetime sex offender registration, and considering the oft-stated estimate that 90% of child  abuse victims know the perpetrator, is this bill an efficient use of limited law enforcement resources?

The author of that analysis?

IRONY ALERT! It’s Geoff Long, the husband of the executive editor of… the Sacramento Bee!

The ironies don’t stop with Prop 35. The Bee also cites two criminal justice measures as examples of things that the legislature could have done but had to go to the people. In truth, those two measures, Propositions 34 (death penalty repeal) and Proposition 36 (three strikes) probably would have been passed by the legislature – if the legislature could pass them. But lawmakers couldn’t enact changes in those policies, because the death penalty and three strikes laws were enacted by ballot initiatives. So only the people can change them. It’s illogical, then, to blame the existence of these measures on legislation inaction.

Two tax measures – Propositions 30 and 39 – are also mentioned by the Bee, because the legislature considered bills that would have done many of the same things that these initiatives seek to do. So what happened? Well, a majority of lawmakers wanted to adopt the heart of both initiatives. But that’s not good enough in California. Because these measures raise revenues, they must pass by a supermajority. That supermajority requirement was put in place by… that’s right… voters.

Provisions of Prop 31, also cited by the Bee, were passed by the legislature; Gov. Brown vetoed them. Can’t blame the legislature for that one.

There’s really only one thing on the ballot that fits the frame of this Bee piece – that people have to act because the majority controlling the legislature failed to act. That thing? A piece of Prop 31 that requires “pay-as-you-go” for new spending. The legislature has resisted pay-go.

Which brings to: IRONY ALERT 2!

Those Prop 31 pay-go provisions were designed to stop the kind of unfunded new program that Prop 35 sponsors couldn’t get the legislature to pass.

And that brings us to IRONY ALERT 3!

Those same pay-go provisions, if they were to pass, would guarantee that the kinds of things they forbid – unfunded programs and tax cuts – would bypass the legislature and head directly to the ballot instead!

The Bee misses these ironies. The paper, by reflexively bashing the legislature, doesn’t tell us the real story of what’s wrong in California.

That story has many facets: an inflexible initiative process that forces questions to the ballot that the legislature could settle itself; a supermajority-mad system which frustrates action by the legislative majority; the use of the initiative process as a political enterprise by those who are wealthy and politically ambitious (true of Prop 35, and to some extent Propositions 38, sponsored by Molly Munger, and 39, from Tom Steyer), and the appeal of the initiative process as a forum for something-for-nothing proposals that don’t pay for themselves.

Now that’s a story.

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