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California's initiative process turns 100 today -- we look at the pros and cons.

October 10, 2011 1:14 p.m.


Glenn Smith, Professor of Law, California Western School of Law

Thad Kousser, Political Science Associate Professor, UC San Diego

Related Story: Is California's Initiative Process Working?


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: Our top story on Midday Edition, the initiative process in California was born 100 years ago. The idea of letting voters initiate, and vote on major state issues equipped out of a desire for direct democracy. Voters have cast votes on hundreds of issues as our state marks the centennial of the initiative process, we'll review the success, and the problems with the initiatvies, with my guest, glen Smith. Hello.
SMITH: Hi there.
CAVANAUGH: And Thad cower, associate professor of political science at UC San Diego.
KOUSSER: Afternoon.
THE COURT: What did that proposition give the voters the right to do?
SMITH: It gave them the right to bypass the representative legislative process, to adopt important laws and to make constitutional amendment, all by considering, and favoring a ballot proposition.
CAVANAUGH: Why was this proposed? What problem did it fix?
SMITH: I think it was part of the over-all progressive movement that was sweeping the the country. California was the tenth state to adopt direct democracy. The perception was that big economic interests, railroads and others, had troll of the elected officials, and people needed an alternative to adopt needed changes
CAVANAUGH: And as Glen says, this was part of a larger reform movement, what other reforms came in with that movement?
KOUSSER: Well, the progressives in 1908 gave California the direct primary. Instead of fights and briberies, and nominating, focuses running -- their nominees for office, you have people voting correctly on it. You have nonpart sap city elections. It was an attack on office holders and parties and the attempt to give direct power to the people.
CAVANAUGH: Give me an idea of some of the most influential initiate inches that have been approved by voters in California?
KOUSSER: The biggest one etch talks about is proposition 13. It stopped your house or business from having its value increasedef year. And the legislature had to get a 2/3 vote to raise taxes. It showed what the initiative process could do, that it could harness voter anger and massively change policy in the present and the future. And that led to a boom in initiatives. So we saw a lot more in the 1980s and 90s, things like proposition 187, that dinned social services to illegal immigrants, proposition 98, proposition 209, that got rid of affirmative action, and proposition, I think, 184, that opposed three strikes
CAVANAUGH: Which would your top importantives, glen?
SMITH: I'm shocked he didn't mention prop 140. I think the term limits put on the legislature revolutionized in my view, in many negative ways, the dynamics of the California legislature. I think I would add to that, the legislative redistricting it proposition recently enacted that is responsible for the much publicized redistricting process that we're going through right now.
THE COURT: And one initiative that has been in the news quite recently was when we affirmed the use of medical marijuana here in California. That was way back in 1994, that was prop 215, and that is on the fence right now. How successful has the process been?
SMITH: It depends on how you define successful. If you mean have politicians and interest groups and individual reformers had a chance to get things on the agenda that might have been blocked in Sacramento and get them to the people, it's been effective. What I focus on in my concern, and I worked with a group of students over the last couple years to develop a proposal on this, but I think the process just needs to be more informative and deliberate. We need to give voters better information on which they and the people look for cues to decide how to vote. And there needs to be a give and take discussion process. So voters when their legislators have the same resources as professional legislators to do to make these decisions.
CAVANAUGH: How do you think the initiative process is do something should there be reform?
KOUSSER: Well, most Californians both agree that we like the initiative process, we don't want to give up that power, but that we need to change it. So this 100th birthday is sort of like your 40th birthday, no one's just celebrating unrepentantly. But the tempting thing is to read true the list of initiatives and think I like these ones or I don't like these ones and make up your mind on the initiate of process. And can I think it would be interesting to see what California history would be like for the last hundred years without democracy. When everyone was mad in Sacramento in the late 1970s, Californians were able to pass prop 13 which changed tax laws, but they didn't have to throw out tax laws that -- and also have social policies that might have moved the state far away from what voters want indeed that direction. Where everyone was mad about the economy in 2010, we department have the option of just changing economic policy through awe proposition. We had to change who was in Congress, we elected robbery, and for a lot of America, that was where we wanted to be on economic policy but not on social policy. And so the efficientive process sort of has that nice feature of letting if you divide up policy areas and directly express your preference on each one without having to change who goes to represent you.
CAVANAUGH: Some people would counter and say if you adopt people who are gonna bring taxes down and keep government small, if that's what you're voting for in terms of initiatives, then you create sort of a toothless tiger in Sacramento because you -- we keep voting to have fewer and fewer Republicans up there. So in other words is there a disconnect between what the voters are approving in the initiative process, and the way they are voting for representative it is?
KOUSSER: Representatives are elected in a completely different system than our initiative process. Representatives are elected and districts are portioned by how many residents there are in those areas that. Gives a lot of weight to many areas in California that don't have many voters. Possibly because they have new citizens or non citizens or illegal immigrants. And the initiative process gives weight just to voters. Legislators often complain about the process because we have two really different visions of how to govern California. And that really puts us at odds.
CAVANAUGH: Glen, you are proposing a reform to the initiate of process that's modeled on administrative reforms. Can you explain that?
SMITH: At first it might seem mixing apples and oranges. For decades, administrative rule makers -- rules are basically legally binding laws. Have used an informal process where the proponent in a document says what their intention is and what they plan to do and not do. And then there's an informal and brief comment period that helps to refine the issues. Then the decision can be made in a more informative and deliberate basis. I've been working with a group of students, a couple at UCSD, and some law student, and we've got a major publication coming out soon. --ut and come up with a process that really would not slow the initiative process down significantly. But give voters and others a real great knowledge base for making those important decisions
CAVANAUGH: The way it is right now, I know in recent election, a lot of people have said the initiative process was hijacked by people who came in, had a lot of money were not perhaps as forthright as one could be in the naming of the initiative, and sort of of -- tried to bamboozel voters to get them to side with their particular way of thinking.
SMITH: I think those major problems can be worked out just by short charges and counter charges in the ballot pamphlet or in the ads. What I'm more concerned about, I think, is the series of nuanced issues and how far does this go, and what effect will it have on current law and current court decisions, those decides of things that end up in court too much after initiatives are passed, the rather emotional ads can't begin to address that. We need a process to do that
KOUSSER: Some other proposals out there to make the initiative process more deliberative, it gets at this ambit lance that California apps feel about the initiative process. A lot of people worry the initiative process has been taken over by moneyed interests, by large corporations or big groups that have money, money to put whatever they want on the ballot there's amending it, there's no deliberation about it, take it or heave it off, and the content advertising about initiatives in these 30-second TV spots doesn't give us the chance to know enough to make the decision on how to vote on these things. Glen's proposal and other ideas that would force whoever's proposing the initiative to have their day in court maybe thinking about taking some amendments to do what voters want or make it very clear what they stand for, what this initiative would do, that would give voters the information and the ability to not just have this ruled by whoever's got the two million bucks to get on the ballot in California today
CAVANAUGH: I think an interesting twist that's happening to the initiative process, and one you've been involved in, Thad, is that some California constitutional reformers are using the initiative process to make major changes in the constitution on the legislature.
KOUSSER: We've let our -- amended our California constitution 500 times in the last hundred years. And part of this is because there's an essential conflict of interest when the legislature is the only one who has a route to changing the constitution. It wouldn't happen in the state without the initiative process. How do you get the legislaturors to give up control of the redistricting process? Not going to happen without the initiative process. Most of the reforms that have occurred have occurred through the ballot box. We haven't had a constitutional convention since 1879 in California. Yet we've rewritten our constitution over and over again through the ballot box.
CAVANAUGH: Glen, we talk a lot about how the initiative process, how the voters seem sort of to like it, and yet to be overwhelmed at times by the number of initiatives on the ballot. What do lawmaker negligence California think about the initiative process!
>> Autovery interesting I think in general, they resist it, and they don't want like the interference with their prerogatives. But asked that said very correctly, too many people have their view about the initiative process based on did they win recently with it or lose with it, or do they see it as a a tempting way to do a momentarily end run? I think over all, they're suspicious, but they both see it as advantageous as times, and Thad pointed out, they learn to work about it.
CAVANAUGH: What do you think about the future for the initiative process? Do you think that we will have reforms lake this, Glen?
SMITH: Well, I hope so because I think far telephone we spend time -- they're interesting in discussion, but should we have the process? Shouldn't we? It's been here for a hundred years, it's going to be here to stay. So the practical part of me says let's try and fix it. A lot of the reform efforts which don't really focus on deliberation but signature gathering and procedure, are too easily paintable as anti-initiative. There might be ray real possibility in adopting either our notice and comment idea or as Thad points out, some of the other hearing ideas. The process is here, let's make it work better.
CAVANAUGH: And Thad, I want to put in a quick question before we close, Governor Brown cleared his desk of 140 bills he needed to sign or veto by last night. What do you think was the most significant he signed that he made into law? Would it be the Dream Act?
KOUSSER: I think that's the one that Californians on both sides of the issue are gonna pay the most attention to. I think he set a clear symbol that each though he's been a governor who so far in membership ways has moved California in the right by signing buildings that really just cut to shreds much of California government including the higher education budget. In is something where he took a stand to talk radio hosts in LA who were flooding his office with calls, and took in favor of people have -- get access to higher education. That's a signature liberal landmark for him so far
CAVANAUGH: We are out of time. I want to thank you both very much.