The Blockbuster Democracy Blog

By popular demand, California Supreme Court Justice Ronald M. George's speech this weekend on California's direct democracy:

It is an honor to speak as a representative of the new class of Academy members. I would like to share some thoughts with you on a matter that has been of recent and continued professional concern to me, but that I believe may be of general interest to members of the Academy, because it fundamentally implicates how we govern ourselves. This is the increasing use of the ballot Initiative process available in many states to effect constitutional and statutory changes in the law, especially in the structure and powers of government.

A not-too-subtle clue to my point of view is reflected in the caption I have chosen for these remarks - "The Perils of Direct Democracy: The California Experience." Although two dozen states in our nation permit government by voter Initiative, in no other state is the practice as extreme as in California.

By the terms of its Constitution, California permits a relatively small number of petition signers - equal to at least 8% of the voters in the last gubernatorial election - to place before the voters a proposal to amend any aspect of our Constitution. (The figure is only 5% for a proposed non-constitutional statutory enactment.) If approved by a simple majority of those voting at the next election, the Initiative measure goes into effect on the following day.

Over at Fox & Hounds Daily, John Wildemuth has a strong piece explaining Gov. Schwarzenegger's veto of a bill that would have banned paying petition circulators in California by the signature.

Ronald George, chief justice of the California Supreme Court, is scheduled to take on what he calls "the dangers of direct democracy" in a speech today in Massachusetts to the American Academy of Arts and Sciences, according to the Sacramento Bee, which appears to be have an advancy copy. (There's no copy posted on the court web site).

It's a daring speech, for no other reason than the fact that California justices face so-called "retention" elections every 12 years in which voters are asked whether they wish to retain judges. And George is up for retention next year.

Among the highlights:

-George comes out against the state's requirement of a two-thirds vote to raise taxes, a key provision of Prop 13. He's right, of course, for reasons that have nothing to do with taxes and everything to do with governing and accountability. (Two-thirds vote allow minorities to block budgeting choices and allow majorities to duck full responsibility for budget and taxation questions). But for a judge facing the voters, saying this is a huge political risk.

-George criticizes California voters for approving the Prop 8 ban on same-sex marriage (overturning the decision he wrote legalizing such marriages) at the same time they enhanced rights for chickens, through approval of Prop 2, the Humane Society initiative to regulate farm animal confinement.

Ballotpedia has a staff writer, Bailey Ludlam, in Maine who is filing a very informative travel journal on her interviews with people on both sides of some of the major initiatives and referenda on the November ballot there--including Question 1 (same-sex marriage), Question 2 (auto excise tax) and Question 4 (a cap on state spending--a former of the so-called TABOR, or Taxpayers Bill of Rights limits that have been a hot issue in other states, most notably Colorado, which adopted TABOR and then repealed most of it).

Joel Fox, former president of the Howard Jarvis Taxpayers Assn., predicts a big, bad multi-initiative war between unions and business interests in California next year.

Somebody named Lee Olson of Huntington Beach, Calif., filed four ballot initiatives with the state attorney general Tuesday. The most interesting one is entitled the "California Freedom From Slavery Act." What does Olson mean by slavery, given that slavery was formally abolished with the 13th Amendment? Why, taxation of course.

At least, taxation on the old. Olson's one paragraph constitutional amendment would exempt California residents from all forms of state income and property tax once they turn 55.  If that sounds familiar to elderly Californians, it should. In 1938, California voters narrowly rejected the so-called "ham and eggs' initiative -- a public pension proposal that would have guaranteed a $30 check, every Thursday, to each Californian 50 or older. The campaign for that initiative remains arguably the most expensive, when controlled for inflation, in the history of the state. Ham and Eggs was mocked, but it was fairer than Olson's idea, which would provide much more for the rich than for the poor. (Since Olson would appear to be a wing nut, someone might want to point out that this initiative -- unlike, say, federal health care legislation -- has no provisions that would prevent undocumented immigrations from benefiting from the tax break).

Olson's initiative also would add even more to the burdens of younger Californians, who already subsidize their elders because of Prop 13 protections that favor longtime homeowners. 

This post first appeared as my column today at Fox & Hounds Daily.

As part of a federal lawsuit challenging the Prop 8 ban on same-sex marriage, plaintiffs have demanded that the Yes on 8 side turn over internal campaign documents. Last week, a judge approved the disclosure request. Why? The plaintiffs are alleging that the ban is discriminatory, and want to see if the Yes on 8 campaign's records offer evidence of discriminatory attitudes.

This case -- and a recent case in Washington state, involving questions of whether signatures on an anti-domestic partnership referendum petition could be made public -- point to a weakness in the law on initiative and referendum campaigns: lack of disclosure. Initiative and referendum campaigns are conducted by private organizations and interest groups. But the act of sponsoring such a campaign is very much a public act -- it's the act of legislating. Legislative records should be public so voters and elected leaders are making choices based on the best available information.

The Lisbon Treaty, a de facto new European constitution that includes the world's first transnational ballot initiative, easily won approval of Irish voters Friday. Final tallies show a 67 percent yes vote.

The Irish were the only voters to be permitted to vote on the treaty, because of that country's mandatory referendum law. The treaty now awaits only the approval of the governments of Poland and the Czech Republic.

Voting is under way in Ireland on the referendum on the Lisbon Treaty, the new de facto European constitution that includes the world's first transnational initiative power. Early turnout appears to be higher than during last year's vote, which saw the treaty defeated. Polls have shown the "yes" side -- in favor of the treaty -- with a lead.

To follow the debate over same-sex marriage in California these days is to hear a lot about other states. Key players in the California fight are out of state, focusing mostly on Maine, where a referendum of that state's move to legalize same-sex marriage is on the ballot this fall. Julia Rosen, online director of the Courage Campaign, has been emailing from Maine to report that the latest polling on the referendum, known as Question 1, shows the "no" side (that is, the side in favor of preserving same-sex marriage and defeating the referendum) with a 50-41 lead. There's even a call center being set up in Los Angeles this weekend for volunteers who want to talk to Maine voters.

A handful of other Californians are headed to Washington state to fight Referendum 71, a bid to overturn a law that gives same-sex partners all the rights of married couples (without using the term marriage).

This is a smart strategic shift. Conducting politics is so much more expensive in California (and our initiative process is such a mess) that, for about the same money, same-sex marriage advocates can win multiple victories, and thus build national momentum, by focusing their resources on other states.