Initiative process is creating an untenable Constitution

From California's first constitutional convention in 1849, the idea that power ultimately lies in the people has been a cherished one. This is best reflected in the initiative power, which has allowed Californians to directly propose statutes and amendments to the state constitution since 1911.

Today, however, the initiative power has spiraled out of control. Substantial changes made to the state Constitution through initiatives have gridlocked our government. Initiatives often worsen the problems they aim to fix, and the proliferation of the initiatives has upset the balance between having a direct democracy and the system of checks and balances inherent in a republican government. And the process has only accelerated: Currently, 48 ballot measures have been certified for the 2016 ballot.

California's initiative system was designed to protect the people from the machinations of controlling political interests like the Southern Pacific Railroad, the dominant corporate power in early 20th century California. Initiatives opened up another avenue from which legislation could pass, uninhibited from influential and often corrupt corporate interference. But the unhindered growth of the initiative process has turned this noble goal on its head.

Initiatives today are often funded by the same well-heeled powers that early 20th century progressives would have blanched at, and are commonly used to push for changes more favorable to corporate entities than the everyday voter. Even the Southern Pacific Railroad itself has contributed to initiatives in search of funds to upgrade its tracks with public money.

At the center of this Gordian knot is the California Supreme Court, whose self-proclaimed role has always been to "jealously [guard] the sovereign people's initiative power." Brosnahan v. Brown, 32 Cal. 3d 236, 241 (1982). The court has shaped the parameters of the initiative power since its creation. But far from clarifying the extent and limits of the people's legislative power, the court's decisions have instead resulted in a century of uncertainty.

Three vital constitutional limitations on the initiative power strive to maintain the balance between direct democracy and republicanism: the distinction between a constitutional revision and an amendment, the "single-subject" rule, and the Legislature's ability to amend an initiative statute. The Supreme Court's failure to apply these limitations properly and consistently has led to a tidal wave of initiatives, fostering the reckless expansion and inefficiency of the state government.

Consider Proposition 98, a successful measure on the November 1988 ballot that required a certain minimum percentage of the state budget be spent on public education, essentially mandating an increase in education in the California budget that has had a crippling ripple effect. Because Prop. 98 tied school funding to year-to-year changes in state revenue, extraneous funds totaling $1 billion have been allocated to the state's public schools instead of other programs where necessary revenues are fast shrinking. Whether or not increased school funding and other such budgetary changes are a good idea, codifying the budget increases prevents the Legislature from adjusting for future changes. As one would expect, issues like these, caused by initiatives and not appropriately monitored by the judiciary, have put California in a straitjacket.

This problem highlights another major difference between the lawmaking power of the Legislature and the electorate: The popular vote does not go through the same mechanisms of hearings, committee studies, amendments and compromises that ensure a diverse, deliberate Legislature (as distasteful as some people may find such sausage making). This is particularly relevant in an area like the budget, where legislators often must anticipate how one part of a budget may affect another part of the budget, or another statutory provision, and rework it in the context of the entire system. By contrast, voters see ballot measures in a vacuum. The Legislature's inability to do much of anything in regards to amending an initiative, and the judiciary's failure to apply a more rigorous pre-election review, only aggravate these problems.

Even worse, the popularity of initiatives has signaled the possibility of a pure majoritarian government vulnerable to factions and passing fads, one that potentially undermines core values of both republican government and the California Constitution. This fundamental problem was best exemplified by the convoluted politics and circuitous judicial struggle over the same-sex marriage debate in Strauss v. Horton, 46 Cal. 4th 364 (2009), and Proposition 8, one which met an appropriately ignominious end when the U.S. Supreme Court declared the initiative's supporters had no standing to appeal the unconstitutional proposal in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).

As seen with Prop. 8, California's system of direct democracy allows a bare majority to erode the essence of the universal rights embodied in our state Constitution. Given that one of republicanism's core tenets is to protect against a tyranny of the majority, this is an untenable position. Instead of enabling an initiative system where a well-funded group can campaign for the bare majority needed to take minority rights away, or hamstring an entire state's financial resources, the court should strive for a system where careful thought and a thorough vetting process are required before any hastily assembled proposition is made into law.

To further this goal, the California Supreme Court should cast aside its preference for isolated technical rules and instead look at each initiative on a case-by-case basis to determine whether it meets or violates the three important principles that govern initiatives. The court should consider a stricter pre-election review, a more stringent revision/amendment distinction, and recommend a more deliberative, thoughtful initiative process. For example, allowing proposal alternatives, or instituting a double-majority voting system or subject-matter restrictions, may return the initiative process to the state its creators intended.

If both direct democracy and republicanism have a place in California government, then the distinctions and relationship between the two should be clearly defined and easily discernible. The power of one should not be allowed to overlap the other. Until the California Supreme Court provides for an initiative process that enhances rather than subverts rational, contemplative thought and reasoned discussion, there will be no way to rein in California's initiative process and maintain the necessary balance between the direct voice of the people and the republic system this state was founded on.