The Legislature Nose-to-Nose with Ballot Initiatives

Loren Kaye
President of the California Foundation for Commerce and Education

The talk of the Capitol last week was of “the Hertzberg bill,” which changed the calendar for certain activities related to ballot measures, with the intent to ease legislative fixes to proposed ballot measures – if proponents were amenable.

Though the bill was enacted in 2014, the new process hasn’t been employed until this year, when three ballot proposals came under legislative scrutiny.

Here’s how it works.

The Constitution provides that all ballot measures qualified at least 131 days before a statewide election must appear on that ballot. Prior to 2015, proponents could pull the plug on their proposed initiatives only prior to submitting signatures to county election officials to count signatures. But once submitted to counties, the process was out of the proponent’s hands.

The new legislation gives the proponent until the 131-day qualification deadline to decide to withdraw a proposed initiative, adding 30 to 60 days to any decision to pull the plug. Since by a prior act of the Legislature all initiatives now appear on the November ballot, this dropped the do-or-die date into the last week of June, prime time for Legislative negotiations.

Which is exactly what happened last week.

The 131-day cliff was Thursday, June 28, motivating frantic negotiations on three proposed measures:

  • The Taxpayer Protection Act, which would have increased the vote threshold for all local taxes to 2/3 voter approval, was shelved after the Legislature agreed to a ten-year moratorium on new local excise taxes aimed at groceries and beverages.
  • The Consumer Right to Privacy Act, which would have enacted a consumer opt-out from sharing information, accompanied by a draconian private right of action, was withdrawn by the proponent after a very similar measure was passed by the Legislature, but which won’t take effect until 2020 and enables the Legislature in the meantime to modify and ameliorate the worst problems.
  • The Healthy Homes and Schools Act, which would have overturned an appellate court decision that found the existence of lead paint in homes to be a nuisance, subject to enormous mitigation fines and penalties, and created a state fund to mitigate the dangerous lead paint in homes. Proponents withdrew the measure when the Legislature agreed to drop legislation that would have applied the court decision statewide.

Legislators, especially those in the majority party, often grumble that proposed initiatives usurp their role as problem solvers. This is often true – but initiative proponents just as frequently point to the Legislature as foot-draggers. The updated review calendar simply gives the Legislature a little more time to assess if the measures are serious efforts with real money behind them.

Nonetheless, the new process hasn’t improved the Legislature’s mood, since even though they have a better opportunity to act on potential ballot measures, the last-minute negotiations unnerved many lawmakers.

An unspoken fear is that this new process may be encourage the filing of ever-more initiative proposals to leverage the Legislature, although for the leverage to be serious, the prospects of passage must be very credible. It seems unlikely that a change in timing for initiative withdrawal would reinvent overall initiative strategy.

But back to the “Hertzberg bill.” Sen. Bob Hertzberg was a staunch supporter of this new process, and actively led negotiations over at least two of the measures that were dropped from the ballot.

Fun fact: Senator Hertzberg wasn’t even in the Legislature when his eponymous bill was enacted. The author was Senate Leader Darrell Steinberg. Sen. Hertzberg, as a private citizen, was a central participant in the Commission that developed the idea (full disclosure: as was I) and led the charge for just this reform, as the next best thing to a formal legislative role as a gatekeeper for ballot initiatives.

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