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Sunday, November 1, 2009 (SF Chronicle)
Ronald M. George
A matter of great concern to people in and out of government is the
increasing use of the ballot initiative process to bring about
constitutional and statutory changes, especially in the structure and
powers of government. Although two dozen states permit government by voter
initiative, nowhere else is the practice as extreme as in California.
These frequent amendments have rendered our state government
dysfunctional.
One might reasonably ask: Is the voter initiative, in its current form,
an
impediment to the effective functioning of a true democratic process? The
nation's founding fathers, wary of the potential excesses of direct
democracy, established a republic with a carefully crafted system of
representative democracy. This system was characterized by checks and
balances that conferred authority upon the officeholders of our three
branches of government in a manner designed to enable them to curtail
excesses engaged in by their sister branches.
California's Constitution permits a relatively small number of petition
signers - equal to at least 8 percent of the voters in the latest
gubernatorial election - to place before the voters a proposal to amend
any aspect of our Constitution.
The Legislature (by a two-thirds vote of each house) shares the power to
place proposed amendments before the electorate. California, however, is
unique among American jurisdictions in prohibiting its Legislature,
without express voter approval, from amending or repealing even a
statutory measure enacted by the voters unless the initiative itself
specifically confers this power.
Thus it is considerably easier to amend the California Constitution than
the U.S. Constitution, under which an amendment may be proposed either by
a vote of two-thirds of each house of Congress or by calling a convention.
An amendment can be ratified only by the legislatures of (or by
conventions held in) three-quarters of the states.
As a result, while only 17 amendments to the U.S. Constitution (in
addition to the Bill of Rights, ratified in 1791) have been adopted since
that document was ratified in 1788, more than 500 amendments to the
California Constitution have been adopted since the document's
ratification in 1879.
The majority of these amendments were placed before voters by the
Legislature, but many with the most severe impact on the operation of
state and local government have been the product of the initiative
process.
Perhaps most consequential in their impact on the ability of state and
local government to function are constitutional and statutory mandates and
prohibitions - often at cross-purposes - limiting how elected officials
may raise and spend revenue. Lawmakers, and the state itself, have been
placed in a fiscal straitjacket by a steep two-thirds-vote requirement -
imposed at the ballot box - for raising taxes.
A similar supermajoritarian requirement governs passage of the state
budget. This situation is compounded by initiatives imposing
constitutional requirements of specified levels of financial support for
public transportation and schools. These constraints - when combined with
a lack of political will (on the part of some officials) to curb spending
and (on the part of others) to raise taxes - often make a third
alternative, borrowing, the most attractive option (at least until the
bankers say "no").
Initiatives have enshrined myriad provisions into California's
constitutional charter, including a prohibition on the use of gill nets
and a measure regulating the confinement of barnyard fowl in coops. This
last constitutional amendment was enacted on the same 2008 ballot that
amended the Constitution to override the California Supreme Court's
decision recognizing the right of same-sex couples to marry. Chickens
gained valuable rights in California on the same day that gay men and
lesbians lost them.
California's fiscal crisis, substantially aggravated by initiative
measures, has caused the judicial system to cope with cuts to its budget
by closing all courts in our state one day each month. The initiative
process places additional burdens upon the judicial branch, as many
initiatives are poorly drafted and require years of litigation to ferret
out their intended meaning.
The court over which I preside frequently is called upon to resolve legal
challenges to initiatives. Needless to say, we incur the displeasure of
voters when, in the course of performing our constitutional duties as
judges, we are compelled to invalidate such a measure.
One thing is fairly certain, however. If a proposal, whatever its nature,
is sufficiently funded by its backers, it most likely will obtain the
required number of signatures to qualify for the ballot, and, if it does
qualify, there is a good chance the measure will pass. And poorly funded
efforts, without sufficient backing to mount an expensive television
campaign, are highly unlikely to succeed.
Californians need to consider some fundamental reforms. Otherwise, I am
concerned that we shall continue on a course of dysfunctional state
government, characterized by a lack of accountability on the part of our
officeholders as well as the voting public.
Ronald M. George is the chief justice of the California Supreme Court.
This commentary was originally delivered Oct. 11 in a Cambridge, Mass.,
speech to the American Academy of Arts and Sciences. Contact us at
forum@sfchronicle.com.
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Copyright 2009 SF Chronicle