Initiative Reform: Been There, Didn’t Do That

Joel Fox
Editor of Fox & Hounds and President of the Small Business Action Committee

I served on three state commissions that dealt either in whole or in part with initiative reform, so when Senate President Pro Tem Darrell Steinberg said after the election – with supermajorities in hand in both legislative houses – that he would pursue initiative reform, he certainly attracted my interest. Two reforms that he suggested pursuing – allowing the legislature to amend statutory initiatives and creating a process for the legislature to be involved before initiatives reach the ballot were considered by the commissions I served on.

In fact all three commissions on which I participated, the 1994 Citizen’s Commission on Ballot Initiatives, the 1996 California Constitution Revision Commission and the 2002 Speaker’s Commission on the California Initiative Process, all recommended that the legislature have a roll in reviewing and offering amendments to initiatives.

The 1994 commission recommended that the legislature be given the opportunity to propose and enact a similar measure eliminating the need for the initiative, or alternatively, allowing for amendments to the initiative that furthered its purposes and intent, such fidelity to the purpose of the initiative to be confirmed by the Attorney General.

Similarly, the Constitution Revision Commission recommended that if the legislature enacted a measure “substantially the same and furthers the purposes” of an initiative as determined by the Attorney General and the Secretary of State, an initiative could be eliminated from the ballot.

The Speaker’s Commission endorsed an indirect initiative that would provide for an alternative initiative process that would “provide for legislative review, amendment and possible enactment prior to consideration by the voters.”

None of these commissions saw their proposals enacted. Some did not even get a hearing before the legislature.

Sen. Steinberg’s suggestion that the legislature be allowed to amend statutory initiatives that voters passed was also endorsed by the Constitution Revision Commission and the Citizen’s Commission. The Constitution Revision Commission said it was okay to make amendments after four years; the Citizen’s Commission said amendments could come after three years.

I didn’t agree with all the recommendations that came out of the various commissions.

There is a real-world problem associated with the recommendation dealing with legislative changes a few years after an initiative passes. If an effort is made to go around the legislature with an initiative, proponents may not be pleased that their work can be undone in a short time period by the legislature that they were trying to avoid. Such a proposal may see more proponents opt for constitutional amendments that could only be altered by a vote of the people, thus increasing the length of our already over-long constitution.

The indirect initiative proposal may be easier to enact. California had an indirect initiative process for 55 years before voters removed it in 1966 at the recommendation of the 1960s Constitution Revision Commission. The indirect initiative was used only four times in the state’s history with only one measure actually adopted by the legislature.

If an incentive of fewer signatures to qualify an indirect initiative is incorporated into the reform, there could be support for such a change.

What initiative supporters will watch for is any proposal that might substantially weaken the people’s use of the process or give too much power to the legislature in quashing the people’s initiative power.

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