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Councilman Gloria Wants To Make It Harder To Pass Referendums In San Diego

Councilman Gloria Wants To Make It Harder To Pass Referendums In San Diego
Councilman Gloria Wants To Make It Harder To Pass Referendums In San Diego
Councilman Gloria Wants To Make It Harder To Pass Referendums In San Diego GUESTS Brian Adams, Professor of Political Science SDSU Thad Khousser, Professor of Political Science UC San Diego

Maureen Cavanaugh: This is KPBS Midday Edition. I am Maureen Cavanaugh. In a little over a year, three San Diego City Council-approved ordinances have been stopped in their tracks because of the city referendum process. That’s the process where backers pay signature gatherers to convince people to sign petitions outside supermarkets and other public places. If the backers can present enough signatures from qualified voters, the City Council-approved law doesn’t go into effect. The council can then place the issue before voters or rescind the new law entirely. San Diego City Councilman Todd Gloria now says there’s something wrong with this referendum process and he wants to see a change on both the city and state level. Joining me to talk about the effort to reform the referendum process are my guests Brian Adams, Professor of Political Science at San Diego State University. Brian Adams, welcome back to the show. Brian Adams: Good to be here. Maureen Cavanaugh: Thad Kousser is Professor of Political Science UC San Diego. Thad welcome back. Thad Kousser: Thanks for having me Maureen. Maureen Cavanaugh: Let me go to you first Thad, Todd Gloria is not the first person to want to reform the referendum process in California. Can you remind us why California has the referendum and initiative process in the first place? Thad Kousser: Well, we have both of these processes for just about over a century and for the entire history, people have been trying to reform them. In 1911, California voters backed the initiative of the referendum and we call as a way to try to get around the power of the grip that big businesses had and our state government especially the Southern Pacific Railroad by returning power to the people but since its inception, there has been this complaint that direct democracy has been hijacked by those same interests and that’s at the heart of council member Gloria’s proposal here. Maureen Cavanaugh: Now Brian, in the City of San Diego what is currently required for referendum to qualify for a populate vote? Brian Adams: Well, supportive referendum have to collect a certain number of signatures as you mentioned from a qualified voters within the city, they have a certain time period to do it. Once they collect the signatures they send it to the County Registrar and they count the signatures and if they have enough then it goes before the City Council and the City Council can either rescind the ordinance to avoid an election or they can have to go to the ballot. Maureen Cavanaugh: Now what are the changes Councilman Gloria, Brian, is proposing for the city referendum process? Brian Adams: Well, he has a number of changes. A lot of them have to do with disclosure making sure that the voters know who the proponents of the referendum are to… Maureen Cavanaugh: Don’t people know that now? Brian Adams: Well, they do but a lot of that comes out later especially in terms of the campaign finance so often an organization who spent a lot of money on a referendum and you don’t know the full extent of their financial commitment until after the election. So he wants to make that a disclosure more timely. He wants to allow both supporters and opponents of a referendum to be at the County Registrar when they count the votes. There, he floated the idea of increasing the number of signatures required to gather referendum on the ballot and a few others reforms along those lines. Maureen Cavanaugh: So let me go through that one by one for a minute. So the idea would be if people knew who was backing these referendums financially right upfront let’s say that disclosure was part and partial of the petition process, what is the idea that people might be swayed to sign or not sign depending on who is sponsoring the referendum. Brian Adams: Right that’s the ideas that he wants voters to have more information when they are given form to sign in front of the supermarket and so forth and the ideas that if there was more, if you knew exactly who is proposing it, it may influence the likelihood of actually signing. Maureen Cavanaugh: And Brian why would having a supporter and an opponent in the registrar’s office while those signatures were being counted, why would that make a difference? Brian Adams: That’s a good question. I’m actually not quite sure what the reasoning behind that I mean there hasn’t been ever at least to my knowledge an issue in San Diego with the County Registrar not accounting this correctly or other sorts of issues like that so yeah, actually I am not sure why that was included, doesn’t seem like there is a real problem with that at the moment. Maureen Cavanaugh: Thad, does it make any sense that just that particular reform makes a great deal of sense to you, Thad? Thad Kousser: Well, I think anytime you are worried about it’s like getting yourself up in the replay room and in and out of a game. Everyone wants to be involved and be watching when you make the final call on whether the signatures are valid because it’s so important as we saw you know with the writing campaign for few years ago and the San Diego Mayor raised exactly how these things that are written becomes an important issue. Maureen Cavanaugh: Now Thad, even with these changes the City of San Diego cannot fundamentally change the referendum process, can it? Thad Kousser: I think the fundamental problem that people focused on with the initiative process in the corporate takeover of it is the gathering signatures really requires not volunteer effort and passion and the will of the people, it requires money to pay the paid signature gatherers who do this as their business and in Supreme Court it said since 1988 you cannot stop anyone from paying these folks if that is part of core political speech it needs to be protected and so what we really have is a market for direct democracy where getting on the ballot requires enough money to pay two to three to five dollars per signature gather. If they have that money you can get just about anything on the ballot and if you don’t it’s very early to put anything on to a grassroots effort, nothing Councilman Gloria can propose is really going to change that fundamental reality. Maureen Cavanaugh: Even with that fundamental reality though some of the changes that he is proposing actually need state legislation, isn’t it right? Thad Kousser: Yes, yes because the state elections code governs how some of this city processes work and he may find some friends in the state legislature who could carry laws requiring disclosure of who is funding this but what the state cannot do and other states have done this and have been declared unconstitutional US Supreme Court is stop payment to signature gatherers. Maureen Cavanaugh: Let me go through some of the state changes that Todd Gloria is proposing to the referendum process. Brian, he wants to raise the percentage of signatures required. Do you think that would be a good idea? Brian Adams: Oh, it makes it harder to qualify a referendum and that would mean that you actually need money. Ultimately the result of that would be to simply increase the costs. Now, I’m not sure that would have much of an impact because if we look at the people now who are proposing this referenda, they are generally well-financed, they generally can afford to spend more money and I just don’t think it’s going to be that big of a turn, I’m actually was a little bit surprised to see Councilman Gloria actually include that in his reforms. So I just don’t think that is going to accomplish what he is trying to accomplish which is to prevent some of these very well-funded groups from proposing these referenda. Maureen Cavanaugh: You think that it might have a boomerang effect in that the idea of if we really had a citizen-backed initiative rather than business-backed initiative that it would be harder for a poor initiative process to actually get a higher percentage of signatures involved. Brian Adams: Yeah, I mean is Thad pointed, I mean generally to get anything qualified for the ballot you need to spend a lot of money collecting signatures, I mean it’s possible but very difficult to do it from a pure volunteer effort. But by raising the standard you are taking a lot of maybe less well-financed groups that may be able to get an initiative or referendum qualified for the ballot and you are going to put it out of reach, but you are not going to put it out of reach for the Chamber of Commerce or other business groups that generally have the funding to do that. Maureen Cavanaugh: And Thad, one of the proposals for reform from Councilman Gloria that he would like to see the state legislature take on is regulating what information is provided on the referendum petition. Do you think that that might be something that would truly reform the process? Thad Kousser: Sure. I think he has more room to move in this direction. Now, California Election Code already imposes criminal penalty, not just civil but criminal penalties on individual petition circulators who engaged in misconduct, misrepresenting a petition but the problem is that it’s so hard to police this and enforce it, but what you could do is have more information on that petition itself. Now, right now these petitions have the actual referendum, you know what laws are being fair now but making it more clear to voters that signing this means you are putting this law at risk. It’s very confusing for voters who are not political professionals and not being paid for signature to know exactly what they are signing and so having clear plain language representations of exactly what their signature would do in the political process could increase voter knowledge and make the process work better. Maureen Cavanaugh: I’m thinking of the Barrio Logan zoning issue that went towards that that ultimately was rescinded by, no I’m sorry that one went to a vote of the people and was denied by the vote of the people, but while the petition process was going on the opponents of the petition process took the supporters to court and said that you are misrepresenting to people to get them to sign this petition. The Judge found that indeed there was some misrepresentation going on but it wouldn’t have– that people should be smart enough to know that when they go to the ballot that basically what the facts are concerning this. Do that surprised you? Thad Kousser: Well, you can take this initiative to court afterwards but by then the damages are done; the petitions are already gathered right. So I think what you want do from a public policy perspective is try to provide voters with the clearest possible information upfront and that’s something that other cities had taken a look at so City of San Francisco has a plain language ballot summary commission that brings together people who worked in adult literacy and in communications and journalist to come up with clear summaries of whatever initiatives would do before it appears on the ballot, the local initiatives in San Francisco, San Diego might consider some approach like that. Maureen Cavanaugh: Now as Thad said Brian, that the idea to limit funding for signature gathering efforts that sounds like the most difficult one to get the state involved in because it sounds like the same kind of campaign financing form that’s been struck down by the US Supreme Court. Brian Adams: Right, the US Supreme Court has said anytime you spent money promoting an initiative or referendum whether it be the paid signature gatherers or advertising or whatever that’s all a form of free speech and that’s protected by the First Amendment. Other states have tried this; Colorado tried banning paid signature gatherers that got struck down by the US Supreme Court, there have been other court cases where the court generally has said that you can’t regulate this unless there is a very clear purpose for maintaining the integrity of the process. So I think a lot of the proposals that Councilman Gloria is proposing there is likely to be court cases over them and if some of them get enacted they could very well be struck down as being overreaching. Maureen Cavanaugh: Now the political reality of what’s been going on in the City of San Diego is that the measures stopped by referendum recently and they have been the Barrio Logan zoning plan, the affordable housing fee paid by construction companies and the city’s boost of the minimum wage, all those signature gathering campaigns were co-sponsored, co-backed by the San Diego Regional Chamber of Commerce. Councilman Todd Gloria obviously sees that as a problem, Brian do you? Brian Adams: Oh yes and clearly the intend of these reforms is to make it more difficult for the Chamber of Commerce and other business groups to qualify a referendum for the ballot. Now, you could make an argument that it should be more difficult that it shouldn’t be that an organization like the Chamber of Commerce shouldn’t be able to spend a lot of money and qualify something for the ballot. Yo, that’s all in the eye of the beholder of whether you know how difficult it should be to get one of these things on the ballot and so fundamental question that a lot of on the state level we wrestles with and a lot of others states have wrestled with about whether we want to make this very, very difficult in which case it require a lot of money to get something on the ballot or you want to make it very easy which would open it up to volunteer efforts but would also make it much easier for a lot of well-funded groups to quality initiatives and referenda as well. Maureen Cavanaugh: A well-funded groups supporting a referendum, Thad, is that circumventing the democratic process or is it part of the political process? Thad Kousser: I think the fundamental thing to keep in mind and it’s the fundamental heart of direct democracy is that voters get to decide and the final end – so just to having a paid signature gathering drive by itself to put one of these things up for referendum doesn’t fully do what the Chamber of Commerce wants to do, they need to get voters to agree with them. They got voters to agree with them on Barrio Logan, well see what happens on minimum wage but even though money can buy your way on to the ballot, it can’t determine how voters will decide the final vote. So that’s the ultimate backstop of direct democracy. Maureen Cavanaugh: But then the argument is that why do we elect representatives in the first place when congress votes on an issue and the President signs and the issue is usually closed. It doesn’t go back to the voters. Thad Kousser: Sure. Our founders wanted that republic and our founders who are career politicians wanted that purely republican form of government but in California and most western states we don’t have this. We have this hybrid between republican form of government and a direct democracy that gives voters the final say and as many reform efforts as we have seen and we just saw state reform passed into law that just went into effect January 1, that have changed the initiative process is a very important ways. Many reform efforts tinkering at the edges as we have seen, California voters jealously guard that ability to have the final say and in San Diego and statewide California voters get to make that final call. Maureen Cavanaugh: Brian, if you were going to change the city or the state referendum process for that matter, how would you like to see a change? Brian Adams: Well, there are some states who limit types of issues that can actually get on the ballot. So there are a number of states, for example, let’s say that all ballot issues have to be revenue neutral meaning if you are going to cut taxes, you have got to cut spending or if you are going to increase spending you have got to raise taxes or things along those lines. The revenue neutral provisions are very useful, there is a number of other states that have different provisions regarding how they define what a single subject is and others sorts of restrictions there are a number of states that allow the state legislature after certain number of years to overturn an initiative. So in California, we passed an initiative that stays on the book forever unless we have another initiative. In a number of states, that they pass an initiative after say five or ten years the state legislature would then have the ability to overturn that if the initiative no longer applies or no longer popular or so forth. Maureen Cavanaugh: And Thad same question to you. How would you like to see the process changed? Thad Kousser: Well, I would agree with Professor Adams on a proposal that initiative that spent money have to say where that money comes from so the voters know what they are voting for. And I would have a friendly moment with proposals that’s kind of shuns that initiative after five or ten years, I would say after five and ten years let’s let the voters have another shot. So if we want to keep Proposition 13, if voters still want it, okay, we’ll vote for it again but we shouldn’t have decisions made in the 1960s, 1970s with a very different California electorate govern our politics today. So this would all give voters more power, but I think in some ways scripts some of the problems with the initiative process. Maureen Cavanaugh: And we shall have to see if the San Diego City Council does actually take up the proposal by Councilman Gloria to reform the referendum process. I have been speaking with Brian Adams, Professor of Political Science at SDS and Thad Kousser, Professor of Political Science at UC San Diego. Thank you both. Brian Adams: Thank you. Thad Kousser: Thanks for having us. Maureen Cavanaugh: Coming up can you handle a roadside auto breakdown. Well discuss roadside survival that as KPBS Midday Edition continues.

Councilman Gloria Wants To Make It Harder To Pass Referendums In San Diego
San Diego City Councilman Todd Gloria will ask the City Council and state lawmakers to look into making it harder to put referendums on the ballot after legislation he supported, including raising the minimum wage, were derailed.

San Diego City Councilman Todd Gloria will ask the City Council and state lawmakers to look into making it harder to put referendums on the ballot after legislation he supported, including raising the minimum wage, were derailed.

Todd Gloria Memo on Referendums
Todd Gloria's memo on exploring changes to the referendum process.
To view PDF files, download Acrobat Reader.

Since December 2013, business groups have gathered enough signatures to block three City Council decisions: an update to Barrio Logan's community plan, an affordable housing linkage fee and an increase to the city's minimum wage.

Voters overturned the Barrio Logan community plan update, and the City Council rescinded its decision on raising the linkage fee, a construction fee that goes toward paying for affordable housing. The minimum wage increase will go before voters in 2016.

Gloria said there was "documented deceit" by the paid signature gatherers who worked to qualify some of the referendums, and he wants to make the process more transparent.

"I think that every San Diegan has real questions about whether the referendary tool is really a tool of the people any longer, or is it really just a high-priced tool that's reserved for folks who can afford lobbyists, consultants and others to really affect a political outcome that they could not get through the normal public process," he said.

Gloria said while some of the changes he'd like to explore can only be made at the state level, there are things the city could change, including who funds referendum efforts. He said the financial backers of the minimum wage referendum, including the California Restaurant Association and the San Diego Regional Chamber of Commerce, were not known until after the referendum process ended.

"I think that information would have been informative to the public," he said. "The city could improve the disclosure requirements so that more information would be given to the public in a timely fashion."

Gloria also said he'd like to explore allowing proponents and opponents of a referendum to be present while signatures are being verified. Currently, only those who sponsored the referendum are present.

"Those are two things we as a council could take action on, with the help of the people potentially," he said.

A spokeswoman for the San Diego Regional Chamber of Commerce declined to comment on Gloria's proposed changes.

Jason Roe, who runs the consulting group Revolvis that managed the minimum wage referendum, said Gloria's proposal would lead to disenfranchisement of voters.

"He's attacking the process of putting any public policy on the ballot, but the reality is that voters are going to have their say," Roe said. "The referendum process allows voters to vote on issues that are very important to the city, and I don't understand why someone who's in a position that (Gloria) is in would think it's OK to take away the right of our voters to have a say on these issues."

Roe said it was premature to say whether he'd be involved in fighting against Gloria's proposals if they gain traction.

"I have no idea what the general sentiment is of folks that might be interested in standing up to this bullying from (Gloria), but it's so ridiculous and so anti-democratic that I have a feeling that public opinion may dissuade him from pursuing it much further," he said.

The City Council's Charter Review Committee is already set to review the city's charter and make updates, and Gloria said he wants his changes to be part of that process.

"I would characterize many of these as being technical changes," he said.

Gloria sent a memo Thursday to Council President Sherri Lightner, who also chairs the Charter Review Committee, outlining four pieces of local law he'd like to see changed. They are:

  • Providing "more timely disclosure" of who funds referendum campaigns.
  • Allowing proponents and opponents of a referendum to be present while the Registrar of Voters verifies signatures.
  • Reviewing San Diego Charter Section 23: Initiative, Referendum and Recall, including local signature gathering requirements.
  • Reviewing Municipal Code Article 7, Division 11: Referendum, including updating and clarifying language in Section 27.1116: Withdrawal of Signature from Referendary Petition, Section 27.1117: Time for Submitting Referendary Petition to Clerk and the council's timeline for acting on referendum petitions.

Gloria asked Lightner to put an information item on the Charter Review Committee agenda in early 2015.

When asked whether Lightner would docket a discussion, a spokeswoman said Lightner has asked all councilmembers to send her potential charter changes by Feb. 2. Once all of that feedback has been collected, she will then "organize the meetings thematically."

Gloria also wants to work at the state level on exploring reform, including:

  • Disclosure of who funds referendum initiatives and limiting funding for signature gathering efforts.
  • Raising the percentage of signatures required.
  • Regulating what information is provided on the referendum petition.
  • "Ensuring petition gatherers use factual statements to attract potential signers."

While the city has already adopted its legislative package for the year, Gloria said it could be amended.
"If my council colleagues see as I do that this is an area in need of reform, then we should have the city go on the record as saying this is an area we'd like the state Legislature to spend some time and ask our lobbyists to spend some of their time and to work this issue through," he said.

This summer, a federal appeals court panel overturned a California law that required sponsors of ballot initiatives to identify themselves on their petitions.

Gloria said his purpose is not to make it harder to put referendums on the ballot but to make the process more transparent. However, his proposed areas of change include increasing the percentage of signatures required in a referendum drive.

"That's not my primary intent but we do have to ask, is it simply a matter of a business decision, as we've seen in some cases recently," he said. "If you're a developer who says it'd be easier for me to pay people to gather signatures than to pay an affordable housing fee, then they're going to make that decision. I don't think that was what was intended when the referendary tool was adopted."