With little fanfare, California leaders are on the verge of breaking new ground for statewide ballot measures. This is not a good thing.
Passed by the Legislature and awaiting a decision from the Governor is a bill that would put to voters this November an advisory question as to whether Congress should propose an amendment to the US Constitution to overturn the Supreme Court’s Citizens United decision on campaign contribution limits.
I’ll leave the substantive debate on political fundraising to others. What disturbs me is the Legislature conjuring an extraordinary and likely unlawful new scheme to grind a political axe – without making an ounce of difference in the lives of Californians.
Nowhere by the Constitution or laws of the state is the Legislature granted the authority to place an advisory measure on the statewide ballot. The Constitution specifies only three mechanisms by which the Legislature can place matters on the ballot: a proposed constitutional amendment, a proposed general obligation bond, and a proposed amendment to a previously-approved ballot initiative. That’s it. The first two mechanisms require two-thirds legislative approval; the third requires simple majority support. The advisory measure being considered by the Legislature requires only a simple majority (and the Governor’s signature) to reach the ballot – at least by the Legislature’s rules.
This would not be the first time the Legislature placed an advisory measure on the ballot – but it’s been awhile. According to ahelpful analysis by Senate staff, Propositions 9 and 10 were submitted to the voters at a special election in June, 1933.
By a three-to-one margin voters rejected this Depression-era proposal to divert gasoline tax revenues to pay off state general obligation bonds for highway construction. (Why the Legislature punted this apparently bad idea to the voters is lost to history. But the lesson was internalized by a later Legislature during a later budget crisis: don’t ask the voters – just approve the gimmick yourself!)
Advisory measures were resurrected by ballot initiative in the 1980s. Anti-nuclear groups sponsored and passed Proposition 12 in 1982, which called for a nuclear weapons freeze. But when fiscal conservatives attempted to place on the ballot a measure demanding Congress propose a balanced budget amendment to the US Constitution, liberal interest groups had had enough.
They successfully petitioned the state Supreme Court to toss the measure from the ballot because the measure “exceeds the scope of the initiative power under the … California constitution. The initiative power is the power to adopt “statutes” – to enact laws – but the crucial provisions of the balanced budget initiative do not adopt a statue or enact a law. They adopt, and mandate the Legislature to adopt, a resolution which does not change California law and constitutes only one step in a process which might eventually amend the federal constitution.”
Since the initiative is the People stepping into the shoes of the Legislature, and since the Legislature is given no authority to propose to the voters any measure the voters cannot propose to themselves, it seems this argument is equally apt to a Legislature’s proposed advisory measure.
But rewriting the Constitution isn’t the worst feature of this bill. Tossing questions to the voters for nonbinding answers is a terrible practice by elected leaders, and pernicious if taken to its likely conclusion.
Senate Leader Darrell Steinberg has bemoaned the abuse of the initiative process by special interests, and proposed restoring the “indirect initiative,” which would formally involve the Legislature in addressing a proposed ballot measure before voters have a chance to consider the proposal.
The advisory ballot measure takes off in the opposite direction: the Legislature taking the temperature of the voters before diving into the issue themselves.
It’s true that the subject of this legislation is a federal matter over which the Legislature has no jurisdiction in the first place. But given a taste of what amounts to opinion polling on steroids – with no accountability for the results – any Legislature would find the mechanism irresistible.
First, the Legislature could put popular notions to the public in generic and abstract terms, obtain voter support, and use the resulting “mandate” to roll over legitimate opposition to a legislative measure that necessarily must be more detailed.
For example, an advisory measure purporting to strengthen public schools could be used as cover to weaken the penetration of charter schools. Or an advisory measure calling for a balanced energy policy could be used to justify undermining advanced technologies for oil and gas production.
A second and more likely abuse of this power would be to place advisory measures on the ballot with a majority vote to help goose turnout of the majority party’s base to support their candidate ticket. This would be the most cynical use of this tool, since it has nothing to do with the policy being debated.
It’s a short step from the measure on the Governor’s desk to more consequential legislative shenanigans. He should reject this power grab.