Perhaps the worst of the many bad things about the California method of direct democracy is that inflexibility is the default. We’re the only place in the known universe where a law passed by the voters can’t be altered or fixed without another vote of the people.
The good news is that some initiative sponsors don’t accept this default. They insert provisions into their measures allowing them to be amended. That’s healthy—ballot initiatives are long and complicated documents, and none of them are perfect. So leaving room for fixes is necessary.
Unfortunately, many initiative sponsors don’t do this. And even worse, very few of the media and civic summaries of ballot initiatives tell voters whether a measure can be amended or not. That’s irresponsible—understanding this distinction, between initiatives that can be fixed without another expensive vote of the people and those who can’t – ought to be the first thing listed. (Yes, I’m looking at you, CALMatters).
The list of initiatives that cannot be fixed starts with Prop 55. You might ask: well, it’s a temporary extension of the Prop 30 income tax rates on high earners, so why is a lack of amendment a problem? Because Prop 55 is much more than that. It’s a constitutional amendment as well, and makes all kinds of technical budgeting changes in the name of protecting education. Lawmakers can change none of those, which adds to the already near-impossible task of budgeting in this state.
Other inflexible initiatives include Proposition 62 (the death penalty repeal) and Prop 65, a measure put on by the plastics industry to confuse voters (and mess with grocers who decided to support the ban on single-use plastic bags). Prop 54 prohibits amendments except for one small provision involving time. Prop 51 is a bond statute that doesn’t permit amendment.
Prop 52 and 53 are constitutional amendments; by definition, the constitution can’t be changed without a vote of the people. Prop 52 is actually part statute, part constitutional amendment, and it not only doesn’t permit amendment, it goes further. It adds a new voter approval requirement for any changes to the hospital fee requirement so that the money goes to Medi-Cal or children’s health. That’s another way to further frustrate flexible policy-making and budgeting in a state where too much is already locked in.
So which initiatives are the flexible good guys? There are several, but there’s a downside to many of these measures. They don’t just permit amendment by the legislature in the normal course of business. They often establish new supermajority requirements for amendments, or for policy changes in an area, in a state that is already drunk on supermajorities.
Take Prop 60, which requires condoms and other health protections for adult film actors; it permits amendment, but only by supermajority, imposing a new 2/3 requirement on pornographic film. Prop 61, on drug prices, also permits amendment but only by a 2/3 supermajority. Prop 66, to speed up the death penalty, is even worse; it permits amendment but only by a ¾ vote of the legislature.
Prop 56 is particularly bad on amendability. It’s not just a tobacco tax, it’s a constitutional amendment in part, and so those provisions can’t be amended. It’s also a statute. And while it permits amendability to a couple parts of the state law it covers, it establishes two new supermajority requirements for such changes – one would require 2/3, the other a 4/5 vote.
There are only three measures about which anything nice could be said on amendability. And, no surprise, they are the measures backed by the current governor and one of his possible successors.
Prop 57, Gov. Brown’s sentencing reform measure is in part a constitutional amendment, which of course frustrates amendment. But it is also a statute, and that piece of the measure can be permitted to further its purposes — that’s what every initiative should do.
And Lt. Gov. Gavin Newsom’s two measures—Prop 63 on gun control and Prop 64 on legalization of marijuana for recreational use – are the two best-drafted measures on the ballot. They are both super-long (a problem for initiatives), but they are careful and detailed. Reading them, you can see that, while both initiatives have clear political goals (including advancing Newsom’s campaign for governor), the drafters chose policy responsibility over politics.
Newsom is to be commended for making these statutes, not constitutional amendments. And both measures permit amendment—albeit not cleanly. Prop 63 permits amendment by 55 percent vote – a supermajority yes, but a small one. Prop 64 permits amendment with a 2/3 vote; that’s harder to swallow, given that the complexity of creating a new marijuana regime will require more flexibility. Look for that 2/3 provision to create problems, and opportunities for lawmakers who want to slow or even sabotage the new regime.
Did I forget Propositions 58 and 59? Not really. These are the two measures on which questions of amendability don’t apply. Prop 58 is actually an amendment to a previous ballot measure, on bilingual education; it’s legislation that had to go to the ballot because of our direct democracy’s inflexibility. And Prop 59 is an advisory question, so it doesn’t need amendability provisions because it doesn’t change the law.