The recently filed pension initiative includes language at the end (as noted by Joel Fox here) designed to make sure that the measure’s proponents can defend it in court if it passes. One way it does that is by including language that would treat proponents somewhat like elected officials, who would take the state constitution’s oath of office so that they could defend the measure in any proceeding.
As I’ve pointed out in this space before, this language is a response to a non-threat. The California Supreme Court has already made clear that initiative proponents in this state have standing to defend their measures, and so a California measure giving proponents that right is merely stating the obvious. The place where initiative proponents don’t have standing is in the federal courts, as the U.S. Supreme Court reminded us in the Prop 8 case; this lack of standing is a good thing. If a state initiative infringes on people’s federally protected constitutional rights, it’s not an initiative worth pursuing.
But the thinking behind the pension initiative language – and the phony fears about lack of standing – are not just meaningless. They’re pernicious because they spread a perspective on the California initiative process that is exactly backwards. The core problem of our initiative process is that we treat it as an extension of our election system, and particularly candidate elections. But initiatives shouldn’t be treated as elections; they are lawmaking. They should be treated as part of our legislative branch, and thought of as acts of governance. We would be wise to separate the initiative process – and indeed all ballot measure questions – from the candidate election cycle and from all the rules that govern candidate elections, and instead integrate the process with the legislative calendar, the legislative budget and other legislative norms.
The pension language thus takes us in the wrong direction. Instead of that separation, the initiative wants to (however unnecessary that desire may be) raise initiative proponents to the ranks of elected officials. It’s an even deeper integration with elections.
There could be political punishment for the pension initiative language. Its opponents could point out that, by raising proponents to the levels of elected officials, the measure will be creating more politicians. Or that the initiative’s proponents – mayors – are trying to make themselves statewide elected officials. Such accusations would be misleading. But they would not be unjust.