Weaponizing the Initiative Process

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

Three ballot initiatives with enough signatures to qualify for the November election were pulled by the proponents when legislative deals were worked out satisfying the initiative sponsors. The initiatives were used as blunt instruments in forcing legislative compromise and in these three instances it worked. Expect to see more of that in the future.

An initiative to make it tougher to pass taxes was put aside when a bill signed by the governor prohibited soda taxes for a dozen years, satisfying the main financial sponsors of the initiative, the soda industry. A bill toughening privacy laws with data collected from Internet users prevented a tougher privacy measure from going forward. And the promise to scuttle three bills aimed at paint manufacturers persuaded those manufacturers to stop their initiative effort to place a bond on the ballot to clean up lead paint in homes.

Many point to initiative reform legislation from 2014 that set the stage for the action that took place last week. While the 2014 reform allowed for the proponents to pull initiatives the last minute thus encouraging the initiative as threat strategy, this is by no means the first time this type of strategy has been used. In fact, I was involved in an initiative effort to persuade the legislature to act on a workers compensation compromise bill in 2004. I was co-proponent of an initiative to reform a workers comp system that was crushing businesses while not adequately caring for workers.

Our initiative had enough signatures to qualify. Meanwhile, Governor Arnold Schwarzenegger and his staff worked feverishly to reach a legislative compromise before the signatures were filed and the measure qualified for the ballot. Unlike the situation created with the 2014 reform in which proponents can pull an initiative that had qualified, a decade earlier we could not submit the signatures because if we did the measure would then be out of our control. We did not have the power to pull an initiative that already qualified for the ballot.

The workers comp initiative had the effect of bringing the legislative leaders to the table to work on a compromise bill. Sitting in the assembly gallery listening to the debate the last day before we had to turn over our signatures, I heard many a legislator declare that if it were not for the (fill in the blank with a pejorative) initiative, they would not vote yes on the compromise bill.

As Joe Mathews described the debate before the vote in his book, The People’s Machine, Arnold Schwarzenegger and the Rise of Blockbuster Democracy, “Every Democrat who spoke in favor of the legislation cited the initiative as a factor in his or her vote. State Senator Sheila Kuehl, a Los Angeles Democrat, explained her support in terms that Governor Hiram Johnson would have understood well: “We are voting on this with a gun to our head.”

Similar sentiments were expressed last week in the most recent legislative debate on the soda tax ban legislation.

Mathews reference to Hiram Johnson, the father of California’s initiative process, reminds us that the initiative was meant as a tool to allow voters to enact legislation when the legislature would not act; or in a more modern usage of the tool, force legislators to act on legislation to satisfy citizen concerns.

Of course, the initiative is now used not only by citizens but also by special interests.

The fact that a number of interests were successful in forcing legislative action with the threat of an initiative is bound to encourage copycat behavior. Expect more initiatives as a bargaining tool to move legislative action.

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