True reform in California must be based on the concept of the Legislature and the ballot as one branch of government.
Nearly 100 years ago, California Progressives, in their
search for a way to beat political machines, seized upon Switzerland's
system of direct democracy and added the initiative, the referendum and the
recall to the state constitution.
Today the Swiss, despite having three major national
languages and the highest percentage of foreign-born citizens in Europe, still see direct democracy as a pillar of their
consensus-based politics and remarkably stable government. But many
Californians have come to view direct democracy as a major culprit in turning
the most diverse state in the union into a dysfunctional, ungovernable mess.
Why does the same system produce such varied results? Yes,
there are cultural and demographic differences between Switzerland and California. But the two places also have
structured their systems of direct democracy in different ways. An examination
of that difference suggests a new path to reforming the state's politics.
California's
direct democracy is dominated by the initiative -- the tool that permits
citizens to propose and enact laws directly, without any review or consultation
by the Legislature. The initiative was attractive to Progressives such as Gov.
Hiram Johnson, who led the campaign to adopt direct democracy in 1911, because
they believed the Legislature was fundamentally corrupt. They saw direct
democracy not as a check on lawmakers but as a way to fight the existing
system. Johnson, who openly admired the Jacobins who terrorized France during
the Revolution, liked to say that the initiative was a "gun in a man's
hand."
Under initiative-based direct democracy, California politics has become a shooting
range that never closes. Dozens of initiatives are filed each year (the record
is 152 in 2005). Since Johnson's time, more than 105 initiatives have been
approved by voters. In contrast, the referendum -- a ballot measure that allows
citizens to reverse an act of the Legislature -- is rare. According to the
Secretary of State's Office, only 64 referenda have even been filed in California since 1911.
Why the disparity? The state constitution makes initiatives
easier to qualify for the ballot than referenda (the number of signatures
required is the same, but sponsors get more time to gather signatures for an
initiative) and just as easy to pass at the ballot. A simple majority is all
that's needed.
Swiss direct democracy works in the opposite way. It's based
not on the initiative but on the referendum. The Swiss constitution makes
initiatives twice as hard to qualify as a referendum. A referendum needs only a
simple majority of votes to pass, but an initiative must achieve a "double
majority" to succeed -- a majority of the national vote, and majorities in
a majority of the country's 26 cantons, or provinces. Initiatives are thus much
less common than referenda because they so often fail - the success rate of
Swiss initiatives is just 9 percent. (In California
this decade, a historically difficult time for passing initiatives, voters have
approved 30 percent of initiatives).
This referendum-based system promotes consensus. Major
legislation often goes to the people multiple times before the public approves.
(Women's suffrage, consumer protection legislation, value-added taxes and
excise taxes all came to pass this way). Lawmakers and the public are thus
partners, kicking ideas back and forth. The handful of initiatives that make
the ballot are usually offered simply to make a point. The referenda are the
real action, giving voters the chance to approve legislative compromise or ask
lawmakers to try again.
"A referendum is a conversation," a Swiss election
official explained when I observed the country's referendum elections in 2005.
"An initiative is a scream."
In his book "Direct Democracy in Switzerland,"
the conservative writer Gregory Fossedal argues that the Swiss system
"creates a spiritual bond, and a sense of responsibility by the people --
turning them all, in effect, into part-time legislators." In California,
where Fossedal lived for several years, direct democracy relies on the
initiative and becomes "more of an extension of politics as usual than a
reliable process for making the voice of the people felt." Or to put it
another way, California initiatives are too indirect -- they provide us not with
direct engagement with our state government but with a way to circumvent that
government.
Just look at California's system. For all the criticisms of
the initiative process -- its costs, its dominance by special interests, the
many drafting errors that result in unintended consequences -- the fundamental
problem is that the initiative process exists as an institution separate from
the Legislature and other checks and balances. As such it is fundamentally
wasteful and inefficient, with huge opportunity costs.
Take the 2005 special election. The eight initiatives on the
ballot swallowed up media attention, political energy and expertise, and more
than $300 million in campaign donations -- and when all eight lost, not a single
new law was passed. It was all conflict, but no resolution.
California's self-styled reformers have responded to these
political realities by offering old ideas to adjust, mildly, the makeup of the
Legislature (redistricting, open primary) or attempt to regulate direct
democracy (new campaign finance limits, new rules on signature gatherers). Such
ideas, while well-intentioned, consider the Legislature and direct democracy in
isolation. True reform in California must be based on the concept of the
Legislature and the ballot as one branch of government. We need more ideas for how
to make the Legislature and direct democracy mesh.
Switching the state to a referendum-based direct democracy
would be the essential first step. To do that, the constitution would have to
be changed to make it much easier to qualify a referendum for the ballot. The
signature requirement could be dropped from 5 percent of votes cast in the last
gubernatorial election to, say, 1 percent, and referendum sponsors could be
given an extra month -- 120 days instead of 90 days -- to gather signatures. The
barriers to referenda should be so low that grass-roots groups could qualify a
referendum with some effort.
At the same time, the initiative game should be made more
difficult. Raise the number of signatures to qualify for the ballot and
establish a double-majority requirement for passing an initiative -- approval by
a majority of voters and by a majority of California counties. The state also
should consider bringing the Legislature into the initiative process by
permitting lawmakers to place a counterproposal on the ballot next to each
initiative. Such counterproposals are common in other countries with the
initiative. Voters would then be asked to make three choices on their ballots:
whether to vote for or against the initiative, whether to vote for or against the
legislative counterproposal and, if both measures pass, whether they prefer
that the initiative or the counterproposal be enacted.
Legislators might object that this plan -- call it More
Referenda, Fewer Initiatives -- would simply make it easier for voters to
overturn their work. That's true, but a referenda-based system also would
enshrine the Legislature as the undisputed headquarters of lawmaking. Much of
the money, attention and scrutiny that initiatives attract would move to the
Legislature. Under the spotlight, lawmakers would have to raise their game. And
voters would have to pay more attention to the Legislature; they'd be voting
not on initiative abstractions but on legislative deals, with all their
trade-offs.
Voters might complain about the decline in their ability to
vote on initiatives. But they would still get to vote as often on big policy
questions as they do now, and voters would have more opportunities to stop
legislative acts they dislike. With incumbents made invulnerable by increasing partisanship
and gerrymandered districts, referenda would give voters a way to hold
lawmakers accountable for their work.
California wouldn't become Switzerland. (Nor would we want
to be. The Swiss, with their penchant for financial secrecy, don't require disclosure
of campaign contributions). Our political culture would remain slightly crazy
and wide open.
But a referendum-based system would give both voters and
legislators more real power than they have now. Each side of California's
legislative branch -- the voters and the lawmakers -- would have to engage more
directly with the other. Isn't that what direct democracy is supposed to be
about?
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