Despite the 2014 adoption of the most significant reforms to the initiative process in recent California history, two former state Supreme Court justices have gone public with criticism over the dominant role of money in direct democracy, suggesting that the process should be made harder and citing concerns about voter overreach.

The biggest 2014 change approved by the Legislature at the behest of the Think Long for California government reform group requires the Legislature to be notified when a ballot measure gets at least one-quarter of necessary signatures. At that point, lawmakers can confer with measure sponsors about qualms they have with their proposals. They can also head off ballot fights by passing legislation addressing the issues cited in ballot measures.

This is what happened in 2016 with a proposed measure raising the state minimum wage was circulated. The Legislature instead produced its own version of the plan, which Gov. Jerry Brown signed.

The second most important change requires the Legislature to hold public hearings on initiatives which qualified for the ballot via signature-gathering. The hearings must be at least 131 days before the election, promoting closer scrutiny of such legislation.

Special interests, money play dominant roles

But in an interview with the San Francisco Chronicle, former state Chief Justice Ron George said much more needed to be done to improve the initiative process. George said the very groups that direct democracy was supposed to help keep in check – powerful special interests – “have managed to seize control of the initiative process and, in a way, perverted the whole function of it.”

“If you are willing to pay [signature gatherers enough] … I think you can qualify anything for the ballot,” he said. Those signature gathers in many cases “have no idea what the measure involves.”

George, who was chief justice from 1996 to 2011, also said the initiative process made it “far too easy” for the public to change laws – and the ballot measures they enact can only be changed, in most circumstances, by another ballot measure. Voters have approved more than 500 state measures since direct democracy began in 1911. To make the ballot, a citizen initiative must have signatures that total at least 5 percent of the votes cast for governor the previous gubernatorial election. For 2020, the threshold is just more than 623,000 votes. Twelve measures qualified for the November 2018 ballot. Six passed.

Majority uses votes to ‘impose will’ on a minority

In a recent speech in Berkeley, former state Supreme Court Justice Kathryn Mickle Werdegar, who served on the court from 1994 to 2017, raised additional concerns. She depicted voters as being eager to make sweeping changes in state laws in ever-broader areas and said initiatives are “empowering a majority to impose its will on a minority.” She also said voters didn’t appreciate that justices were expected to tweak ballot measures to ensure they stayed within constitutional boundaries and expressed frustration with the criticism she got in 1996 for a decision in which she concluded part of the state’s “three strikes” crime bill went too far in reducing judicial review.

One of the examples of a ballot measure that may go too far that was cited by the Chronicle was a proposed initiative to put a maximum of five years on alimony. In a telephone interview, Steve Clark – the Huntington Beach software engineer who is behind the proposal – said he was “unpleasantly shocked” at the idea his measure dealt with an issue that should be left to the Legislature. But he said that this view of alimony law reflected the “entitlement state” attitudes of many Californians.

The following first appeared in City Journal California.

FEB. 2, 2012

By STEVEN GREENHUT

California’s ongoing budgetary and political dysfunction has spawned a host of reformers backed by wealthy donors. The latest scheme, released with much fanfare in late November, is a report produced by the Think Long Committee for California and funded by billionaire Nicolas Berggruen. It’s called “A Blueprint to Renew California,” and it leaves much to be desired.

Most of Think Long’s proposals—the creation of a “citizens’ accountability committee,” additional spending on infrastructure and education, streamlining the environmental-permitting process—are window dressing for the main one: a $10 billion tax increase, imposed through a ballot initiative that would go before voters in 2012. And then, after it gets voters to sign off on the tax hike, the committee (like many in California’s majority party) wants to rein in the voter-initiative process. Berggruen and Think Long believe that the key to renewing California is to raise taxes on almost all Californians. Their plan would make the state’s tax code less progressive by trimming the corporate tax rate and imposing a new sales tax on services. The goal: to provide still more revenue to a state government that’s already bloated and wasteful.

Conventional Thinking

Think Long released its utterly conventional recommendations with a burst of self-congratulation: “At a time when political leaders in both Sacramento and Washington seem hopelessly mired in gridlock, the committee has shown that difficult bipartisan compromise can be reached if politics is set aside and the public interest is put first.” These words might be more persuasive if Think Long weren’t composed of so many politicians who wielded power during the period when California’s budgetary problems became unmanageable. The committee’s members include former governor Gray Davis, bounced from office in the 2003 recall election; former assembly speakers Bob Hertzberg of Los Angeles and Willie Brown of San Francisco; and former state supreme court chief justice Ron George. Other advisors include former governor Arnold Schwarzenegger, current lieutenant governor Gavin Newsom, and Los Angeles mayor Antonio Villaraigosa. Most of these are poster children for what’s wrong with California; they are an unlikely group of saviors.

The report ignores the Golden State’s real problems: excessive government spending and dominance by public-sector unions and other special interests. The closest that Think Long comes to acknowledging them is three perfunctory paragraphs at the report’s end, which cite the pension crisis crushing municipal governments and offer this solution: “We recommend that the governor, legislature and local government officials make it the highest priority to work with public employee unions to find ways to address the long-term costs of pensions and the unfunded liabilities that have already been built up.” That’s as far as it goes.

Prison Costs

Nothing in the report comes close to articulating major reforms that would help the state stretch its dollars. For instance, the nonpartisan Legislative Analyst’s Office recently reported that the cost of incarcerating inmates in California has more than doubled over the past decade, the result not only of court decisions regarding inmates’ health care but also of escalating compensation costs for correctional officers. A braver committee would have considered prison privatization or constraining the influence of the noxious California Correctional Peace Officers’ Association, which resists even modest reforms and holds outsize influence over both parties.

Even soft-pedaling, Think Long provoked the ire of the California Teachers Association. The CTA resents the committee’s proposal to junk Proposition 98—which directs 40 percent of the state’s budget to education from kindergarten through community college—even though the report goes on to propose an extra $5 billion for the schools from other sources.

Every would-be reformer knows that something is wrong with California’s budget and political process. But most have tended to be left of center and have offered ceremonial, symbolic reforms that don’t get to the heart of the state’s problems. Think Long is the latest example, and its “blueprint,” like the work of its many predecessors, is likely to be soon forgotten.