Celebrating The Initiative???6 min read

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Most of the participants at last week’s “100th Anniversary Celebration of California’s Initiative & Referendum,” among them some of the biggest players in the game, probably had reason to celebrate. Whether California had as much cause to celebrate is another question, and that question got only passing attention.

The Sacramento “celebration”, which fell on the centennial of the day in 1911 when Californians voted the initiative and referendum into the state’s constitution, was co-sponsored by Citizens in Charge, which is dedicated to the defense and advancement of the process and is headed by the inveterate libertarian Paul Jacob. Jacob, who ran the national term limits movement in the 1990s, is militant in his demands for transparency in government. But he won’t disclose who funds his organization.

The two other major co-sponsors were the anti-tax Howard Jarvis Taxpayers Association, and, oddly enough, California Forward, the professedly non-partisan goo-goo group that you think would be a bit embarrassed to be found in such company.

The organizers of the conference made certain that they had a broad political spectrum, from vaguely liberal to certainly conservative. Among the speakers: representatives of the Humane Society of the United States; Arno Political Consultants, an initiative signature collection firm; Harvey Rosenfield’s Consumer Watchdog, Common Cause and Verafirma, which creates and markets electronic signature systems. All have been deeply involved in what the advocates call direct democracy. But they also were reminders of former Chief Justice Ron George’s famous remark that in November 2008, “Chickens gained valuable rights in California on the same day that gay men and lesbians lost them,”

In the interest of full disclosure, there were two of us in a debate to argue that the initiative was more of a problem than a solution in California government. My partner was Michael Salerno, a professor at Hastings Law School. We were the invited skunks at the picnic.

But the thin crowd and the majority of speakers seemed to tilt heavily to the other side. They ranged from good government reformers certain that nothing progressive could ever come from legislatures in thrall to insurance companies, oil conglomerates and other deep pockets, to Jacob, Jonathan Coupal of the Jarvis Taxpayer group and Jon Fleischman of the conservative flagship FlashReport on the right.

And as might be expected in any group of political players, even the professedly anti-political activists at a gathering like this, there was duplicity in ample supply.

The “people”, as the mantra of “direct democracy” goes, must have free and full access to the democratic process. But ask many of them where they stand on the new wave of Republican-backed state laws requiring photo IDs of all voters that may deny an estimated 5 million people the franchise next year, and you get mush and cant about vague threats like voter fraud.

Ask Jacob how he justifies his failure to disclose his funders even as he demands full disclosure from public agencies, and he says he’s defending private rights even though the groups he’s run or been associated with — Citizens in Charge (CIC), U.S. Term Limits (USTL), Americans for Limited Government (ALG) — are very much engaged in the public arena and serve as fronts for the rich conservatives and libertarian “private” contributors that fund them.

Probably the biggest of those funders is the billionaire New York developer Howie Rich. In the past decade, Rich, the founder and a prime funder of U.S. Term Limits, used a collection of fronts – ALG, the Fund for Democracy, Montanans in Action, Missourians in Charge, America At Its Best — to run a flurry of initiatives, among them California’s unsuccessful Proposition 90 in 2006, that would effectively have blocked most health, planning, zoning and environmental regulations as “takings” requiring compensation or damages for the affected property owners.

Rich’s organizations also sponsored campaigns allowing for the recall of state judges and a flurry of TABOR (Taxpayers Bill of Rights) spending limits initiatives, most of which failed.

Doesn’t their political activism justify some limit on those privacy rights? “Politicians continue to stonewall, keeping public information from the public,” Jacob wrote somewhere. But shouldn’t the identity of the players in the political arena also be “public information”? Among the most important cues voters have in evaluating ballot propositions are the identity of their chief sponsors and opponents.

Just the other day, the Field Poll again confirmed the fact that voters trust the initiative process much more than they trust their elected legislators. But their confidence has waned even in direct democracy.

The poll found, among other things, that “more than twice as many voters believe that the results of most statewide ballot proposition elections come out the way a few organized special interests want (60%) rather than the way most people want (27%).” In effect, they seemed to be saying that their fellow voters, if not they themselves, were being manipulated.

And despite loud complaints about the stealth with which the legislature passed it, the overwhelming majority of voters approve of the law (SB202), signed by Gov. Jerry Brown this month, that will again restrict voting on initiatives to the biennial general election, as it had been until 1970.

Perhaps the two least discussed questions at last week’s “celebration” were (1) the fact that by its nature, the initiative is a majoritarian system not accessible to minorities or those without a lot of money and (2) the bizarre inconsistency between the consensus about California’s dysfunctional government and the presumably blessed effects of thirty-plus years of reforms by initiative.

For the first there is no possible answer. The initiative can only be used by majorities – and often is used directly against minorities: on affirmative action, gay marriage, immigrant rights. The reverse is impossible. On the second question you again get mush. – from Proposition 13 and the state spending limits, to legislative term limits, to the three-strikes sentencing law.

The backers of the 1990 initiative imposing legislative term limits in California promised “a citizen legislature”, but can anyone seriously claim that the today’s legislature, with the lowest poll numbers in history, is better than it was in 1990?  When confronted with the question last week, one defender of the initiative countered that Congress also had low ratings – and that without an initiative – but that hardly addresses the question.

Can anyone claim that California is better governed now than it was in the decades after World War II? Are Californians better governed than the people of Connecticut, Indiana, Minnesota, North Carolina, Vermont or the twenty-some other states that don’t have the initiative? Ask that question and you get more mush. In Texas, when some people proposed writing the initiative into the constitution, the most common response was: You want to be like California?

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Peter Schrag, whose exclusive weekly column appears every Monday in the California Progress Report, is the former editorial page editor and columnist of the Sacramento Bee. He is the author of Paradise Lost: California’s Experience, America’s Future and California: America’s High Stakes Experiment. His new book, Not Fit for Our Society: Nativism, Eugenics, Immigration is now on sale.

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