The good news: reform of the initiative process is finally
on the table in California. The bad news: the left and the right are getting
reform wrong.
There’s a
whiff of hypocrisy on both sides.
The left, which rails against the rich in most contexts,
loves the rich when it comes to the initiative process. It’s pushing bills that
add regulations and restrictions on signature gatherers that will make a
process that’s the province of very rich people and institutions the even more
exclusive province of super-rich people and institutions.
The right,
which claims to be worried about budget deficits and runaway spending, thinks
busting the budget is fine if it’s done by initiative. In particular, conservatives
are attacking common-sense changes that would force initiatives to live within
the budget, by requiring spending cuts when a measure mandates spending.
Let’s look
at the left’s favored legislation, which appears to stem from the belief that
what’s wrong with the process are petition circulators. One bill under
consideration would force circulators to wear signs that indicate whether they
are a paid signature gatherer or volunteers. This is unnecessary – it’s no
secret that almost anyone you encounter with a petition is being paid, since
every significant statewide campaign for the last 30 years has relied on paid
circulators. And, to the extent such signs make collecting signatures harder,
the signs may be good for circulators, who are able to demand a higher price
for signatures when the work is more difficult. (That said, I’d be tempted to
support the bill if it were amended to require its legislative supporters to
wear signs that said, "I Believe Direct Democracy Is Only for The Rich").
Another piece
of legislation backed by Democrats seeks to bar paying circulators per
signature. This has been sold as an attempt to limit fraud in the process. But
there are two problems. First, moving to hourly pay would make the process even
more expensive, and thus further limit the ability of anyone but the very rich
to play the initiative game. Second, it’s far from clear that a change in
payment method would limit fraud. The incentive to conjure phony signatures
would remain in place even if circulators were paid an hourly or daily wage. If
circulators making such wages don’t produce a large amount of signatures
efficiently, they are likely to lose their jobs. The incentive for fraud also
would be present unpaid volunteers, since they too face pressure in California
to produce many signatures in a short period of time.
The
incentive for fraud is created not by payment – but by time. California
requires hundreds of thousands of signatures – and gives initiative sponsors
very limited time – only 150 days – to do so. It stands to reason that if you
didn’t have to get so many signatures so quickly, you’d be less likely to
cheat.
That’s why legislation that makes
the process more difficult and more costly may tend to create more fraud. The
good news is: there’s a smarter way. Reduce the number of signatures required –
and give people much more time than the current 150 days to circulate for
signatures. The new European initiative process provides a year to circulate.
Switzerland provides 18 months. California should be in that ballpark.
Adding more time also would create
more opportunities for deliberation in the initiative process -and more space
for compromise with the legislature. That would be healthy because California’s
initiative process needs to be integrated with its representative government –
and in particular its budget process. For decades, initiatives have been a way
to circumvent checks and balances – and impose new spending or limit taxes in
ways that help bust the budget.
But the right has portrayed legislative
proposals that seek to make initiatives to pay for themselves as attacks on the
initiative process itself. This is nonsense. Yes, one may argue with the
particulars of specific legislative proposals; the conservative commentator
Steven Greenhut raises a good question about whether the department of finance,
which reports to the governor, should be one of the entities able to decide
whether an initiative is self-financing – a feature of a proposed
constitutional amendment in this area that is now before the legislature. But
the goal of forcing initiatives to live by the rules of budgets and legislation
is a valid one. Even more important are legislative attempts to make
initiatives subject to legislative amendment. California is the only place on earth
where a statute passed by initiative may not be changed without another vote of
the people.
The wrong-headedness of left and
right on this subject helps illustrate the two principles that should guide
improvements to the initiative process.
The first principle is access. True
initiative reform would open the process up, give citizens more time to gather
signatures, reduce high hurdles and costs in petition circulation, and
permitting the use of the Internet for gathering. This opening up of the process
is actually a check on the process. The more people who can participate in
circulation, the more time there is to consider a measure, the less chance of
abuse.
The second principle is
accountability. The initiative process is an unaccountable fourth branch of
government that permits those with resources to circumvent the legislative and
other branches entirely. If there are to be restrictions in the process, those
restrictions need to force initiatives to be treated like normal laws – in that
they should fit the budget and be subject to fixes and amendments like any
other statute.
Unfortunately, because of the views
of the right and the left, initiative "reform" operates on the reverse
principle: limiting access to the process, and frustrating any attempt to bring
accountability to initiative law. The left and right seek to give us the worst
of both worlds. We should do the opposite of what they advise.
Limit the ability of initiatives to
run roughshod over our government. But don’t limit access to the process.