Fixing the Fixers

Critics of California's initiative process complain that it's so corrupted by deep-pocketed special interests, the resulting ballot measures often undermine rather than advance the democratic process. It's a complicated game, they say; one that favors professionals - read lawyers - over grassroots groups and confuses voters with difficult-to-follow arguments both pro and con. Furthermore, they note, the process itself takes lawmaking out of the hands of the very people who are best qualified to do it: elected state legislators.

This is nothing new: People have been making many of the same arguments against the initiative process since California voters approved it in 1911, when there was at least the hope that it would reduce the influence of special interests at the statehouse. (See Cal. Const., art. II, § 8; Cal. Elec. Code §§ 9000?9035.)

"The initiative process in California has always been run by professionals," says David McCuan, an associate professor at Sonoma State University who has studied the state's electoral politics extensively. "Even back in the early 20th century, there were paid signature-gatherers for ballot measures. In fact, one of the first for which a popular petition was circulated was an off-track betting measure. Special interests don't get any more narrow than that."

Still, ballot measures didn't become a big business until 1978, when Proposition 13 capped tax rates and assessed valuation for real estate - effectively reducing the overall burden on larger commercial properties. (See Cal. Const., art. XIIIA.) After Prop. 13 passed, business groups, reformers, and all sorts of special interests woke up to the fact that they could use California's initiative process to enact sweeping, even revolutionary, changes that would never make it through the Legislature.

That sea change also prompted more proposals for reform. One set, from the nonprofit Center for Governmental Studies, calls for greater transparency in the funding behind these measures and allowing the Legislature to amend statutory initiatives by a two-thirds majority vote, either to correct an error or to address unforeseen consequences.

However, no reforms will come to pass without the ballot initiative lawyers having their say.

"[They] have an incentive to get involved with reform," says McCuan. "From a business standpoint, lawyers would prefer to manage the regulatory environment and be part of the conversation, as opposed to having conditions foisted upon them. That doesn't mean they're going to change the status quo willingly or at the pace we might like."

Then again, if reforms increase the complexity of the process, the lawyers could end up with even more work.

"The initiative lawyers are in a volume business," notes Joe Mathews, a senior fellow for Sacramento's nonpartisan New America Foundation and coauthor of 2010's California Crackup: How Reform Broke the Golden State and How We Can Fix It. "I think most lawyers who work with initiatives are fine with fixing the process, as long as there's not less work." -TM

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