Still a ‘Precious Right’

The right of initiative has been properly characterized as a “precious right” by the California Supreme Court. Yet criticisms of direct democracy mostly from the left have grown in recent years. These include criticisms from the usual media detractors but more dangerous to direct democracy have also been expressed by members of California’s highest court.

Direct democracy rights which include initiative referendum and recall came about in California in the early 1900’s as the only way to break the grip that the railroads had on the abjectly corrupt legislature. Today given the continued inability of the Legislature to do its job in addition to its record low approval rating by voters (only 16%) one would think that any discussion of weakening the power of initiative referendum wouldn’t even be on the table. Indeed the entire purpose of direct democracy is to provide to ordinary citizens a “legislative battering ram” to bypass a corrupt or indolent Legislature.

One recent complaint is that the initiative power has become a tool that can only be used by wealthy interests. No one disputes that qualifying an initiative — especially a constitutional amendment — is difficult. It was intended to be. But a measure which truly has grassroots support and an extensive volunteer network reduces the reliance on paid signature gatherers. The best example of this of course is Proposition 13 itself which relied exclusively on volunteers. Only $28500 was spent in qualifying Proposition 13 which covered the cost of printing and mailing the petitions. Jarvis was then quoted as saying: “The people qualified this initiative . . . That’s why this time it will succeed.”

Proposition 13 represents direct democracy in its purest form the way the initiative power was intended when adopted by the people in 1911. It certainly shouldn’t be lumped together with special interest initiatives that have qualified thanks to financial support from wealthy interests. Recent “reform” efforts like those dealing with a proposed constitutional convention and the California Forward proposals have failed because the level of grassroots support was simply not there like it was with Proposition 13.

Another complaint by the left is that it is too easy to amend the state constitution using the initiative power. It is true that there have been more than 500 amendments to the California Constitution of 1879. However our analysis reveals that more than 90% of those amendments originated from the Legislature and not the people exercising the initiative power. Ironically many of those who complain about the ease of amending the constitution also support eroding the two-thirds vote requirement to pass the state budget or to raise state taxes. Yet the process of amending the constitution also requires a two-thirds vote of the Legislature.

Columnist Peter Schrag who actually wrote a book blaming Proposition 13 for all of California’s ills recently advocated for more judicial activism to rein in direct democracy. He seems to think that the purpose of the judiciary is to invalidate initiative constitutional amendments passed by the voters that liberals don’t like. Examples include Proposition 13 the term limits initiative and Proposition 8. The mechanism for accomplishing this would be by declaring these “bad” constitutional amendments impermissible constitutional revisions. These tax-and-spend liberals say they believe in majority rule particularly when it comes to eroding the two-thirds vote requirements that protect taxpayers but by arguing that such initiatives are impermissible revisions they are seeking to overturn the will of the majority that adopted them. If any of the foregoing “bad” constitutional amendments were invalidated as revisions then they could not be adopted via the initiative power even if they were supported by 100% of the voters.

The reality is that most of the significant initiative constitutional amendments that have passed starting in 1978 with the passage of Prop. 13 have involved measures generally representing a more conservative philosophy. The reality is that there aren’t many sweeping initiative constitutional amendments representing a liberal philosophy that have passed. The most notable one being Proposition 98 in 1988 (which should also be invalidated it one were to adopt Shag’s argument of what constitutes an impermissible constitutional revision). Hence these attacks on the initiative process are really attacks on the conservative philosophy. If the initiative power were significantly curtailed it would result in the courts and the Legislature becoming more powerful while giving ordinary citizens little practical recourse when the tax-and-spend elitists make their pronouncements as to what is best for us little people.

Jon Coupal is president of the Howard Jarvis Taxpayers Association — California’s largest grass-roots taxpayer organization dedicated to the protection of Proposition 13 and the advancement of taxpayers’ rights.