Taking It To The Streets
More and more, Californians are choosing to make up the rules themselves through ballot initiatives. Is grassroots law making democracy in action or mob rule?
Thursday, April 6, 2000
Martha Norton isn''t sure where they got her name. But when the representative for a group of conservation activists phoned her Monterey home in 1968, she readily agreed to help them. The group was working to place a proposition on the California state ballot that would curb coastal development and ensure public access to the coast.
Norton was recruited to sit on a committee of eight locals-half Democrats, half Republicans, she muses--to organize signature-gathering efforts and a grassroots campaign to pass the California Coastal Initiative. Norton''s job was to organize precinct walkers.
With Norton in the lead, a band of citizens ranging from grandmothers to college students pounded pavement through neighborhood after neighborhood, both coastal and inland, knocking on doors, gathering signatures for a petition to put the initiative on the ballot. When enough signatures were gathered, they hit the streets again, talking with folks and encouraging them to vote for the proposed law.
With the efforts of Norton and hundreds of other foot soldiers across the state, the California Coastal Initiative passed in 1972. That success led to the state Legislature passing the Coastal Act in 1976, and to sweeping changes in how coastal development would proceed in California.
When asked why so many citizens would devote so much time, energy and shoe-leather to getting a law passed, Norton''s answer is simple: "We were afraid that we were losing our beautiful coastline to development."
It takes a certain spirit, Norton says, to drag yourself onto the street, day after day, in search of signatures or a commitment from one more voter. More than that, it takes a burning frustration with elected officials. The Coastal Initiative proponents found their inspiration in the coastal beauty... and in city officials who turned a blind eye to environmentalists as they approved taller, bigger and more developments along the oceanfront, blocking out citizens who have the state constitutional right to access the California coastline.
Indeed, the history of state ballot initiatives is rooted in the dissatisfaction with the politicians we elect to conduct our business. Swept up in turn-of-the-century Progressive politics, the movement toward initiative rights in California arose from a disgust with the big business-controlled state Legislature. The East Coast had Tammany Hall, California had Southern Pacific Railroad. In an era when bribery and buying off candidates was business as usual, the state electorate found a hero in Governor Hiram Johnson, who led the crusade to break Southern Pacific''s control of state politics.
In 1911, by way of special election, Californians gained the right to make laws through initiatives and repeal laws enacted by the Legislature through referendum. Citizens in 24 states and thousands of local municipalities and counties have the right to initiative and referendum. In California, the right to initiative is guaranteed by the state Constitution.
But critics of the initiative process argue that things may be getting out of hand.
In the past two decades, California has seen a dramatic increase in the use of initiatives. At least in part, political scientists attribute the increase to the passage of the famous Prop. 13 in 1978-the mother of all California initiatives, which reduced the burden of property taxes in the state. "Success breeds success. In Prop. 13, the people saw a tangible reform they could do," says Dane Waters, president of the Initiative and Referendum Institute in Washington, DC.
Today, Californians use the initiative process more than almost anyone else, second only to the citizens of Oregon. Californians have approved 92 state laws by initiative since 1912. And, as California cities and counties, including Monterey County, continue to struggle with growth, a recent wave of land-use initiatives have made their way to local ballots (see related story.)
"Californians, more than people in any other state, know how to use the initiative process," Waters says. "It''s part of their culture."
When Leaders Fail Us
The initiative process was designed as a tool to carry out citizens'' First Amendment right to redress grievances with their government. When legislators, supervisors and councilmembers stop listening, voters have the option of taking issues directly to the voters themselves. As President Theodore Roosevelt once said, the initiative "should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative."
"The initiative process should be used as a last resort, that''s the way it was designed," Waters agrees.
In its purest form, the initiative process is a check and balance to elected bodies, which, for one reason or the other, are not acting in alignment with their constituency. Sometimes, as Gasper Cardinale found out, just gathering enough signatures to qualify an initiative for the ballot is enough to catch officials'' attention.
Cardinale and his son, Rocco, own a coffee roasting company in Carmel. When they attempted to serve a brief lunch menu of soups, salads and sandwiches at their coffeehouse, the Carmel Planning Commission rejected their request, citing a city ordinance designed to keep fast-food chains out of downtown Carmel. The Cardinales appealed to the City Council, but again their request was rejected. Their avenues of recourse exhausted at city hall, the pair took the law into their own hands. "It was our turn to throw the tea overboard," says Cardinale.
The Cardinales launched an initiative effort that would allow them to serve lunches at their coffeehouse. They needed 480 signatures to get the law on the ballot. After standing in front of the Carmel Post Office for two and a half weeks, they secured 600 signatures.
But the soup/salad/sandwich initiative never reached the ballot. When the Cardinales took the petition before the City Council, the 600 signatures were enough to convince Councilmember Sue McCloud, who held the swing vote, to change her mind. "Once we showed her the signatures, she became a believer," Cardinale says.
The council granted the Cardinales the right to serve soups, salads and sandwiches at their coffeehouse.
While citizens like the Cardinales expect elected officials to be responsive to their needs, that doesn''t always happen. Elected bodies, by nature, often have different priorities than voters. For instance, part of a city council''s job is to balance the budget and keep the city fiscally healthy--which tends to make city councils more pro-development than its constituency by the sheer fact that growth equals new tax revenue. "Developers tend to have a fair amount of influence over city councils," says Steve Scott, political editor for the Sacramento-based California Journal.
Elected officials also tend to avoid issues that are either politically risky, limit their careers, or curb their ability to govern. For instance, term limits for state legislators would have "never seen the light of day in the Legislature," says Scott. Yet the ballot initiative enacting term limits was passed easily by California voters in 1990. Prop. 13 was passed by a whopping 65 percent of voters after the law was rejected by the Legislature. And it took an initiative to legalize the use of marijuana for medical purposes in California.
Likewise, over the years, poll taxes have been abolished, women have won the right to vote, and child labor laws have been enacted through grassroots ballot initiatives.
"Elected officials are human," says Waters. "Through the initiative process, the people have the ability to enact reforms that legislatures are not willing to do. It''s not a replacement of representative government, it''s a check and balance."
An Imperfect Process
In a perfect world, we wouldn''t need voter initiatives and referendums. Our lawmakers would pass fair and wise laws that strike a balance between freedom and order. However, we don''t live in a perfect world. We live in a society where the right to petition the government is essential to redress and balance decisions made by our elected officials. By the very same token, the initiative process itself is imperfect, lending itself to corruption, special interests and prejudice.
"One of the biggest complaints I hear about the initiative process is that it''s rule of the majority," Waters says.
And when the majority rules, the rights of the minority are often trampled. Despite California''s ethnic diversity, voters have a bad record for discriminating against minorities, particularly Latinos. In 1984, voters overwhelmingly passed a proposition to make voting materials in English only. Ten years later, voters passed Prop. 187, which denied social services for illegal aliens, even though the state''s agricultural industry depends heavily on Mexican migrant workers. And, in 1998, California''s voters passed Prop. 227, which eliminated non-English education to children, despite teachers'' obvious argument that it''s impossible to teach a child math in English if the kid doesn''t understand the language.
Last month, the passage of Prop. 22, also called the Knight Initiative and the "Defense of Marriage" Initiative, outlawed marriage between same-sex partners. Prop. 22, which states only marriage between a man and a woman is recognized in the state of California, creates a controversial, discriminatory law the Legislature wouldn''t have touched with a 10-foot pole.
What''s unsettling about Prop. 22 is that, according to news reports, initiative author Pete Knight''s crusade was spawned by his personal intolerance of his own son''s homosexuality. Even so, his defense-of-marriage spin sugar-coated the campaign, and had enough appeal to capture 61 percent of the vote.
"The initiative process is definitely subject to abuse," says Bob McKenzie, a Monterey resident and public affairs consultant, who has worked on campaigns to defeat several local initiatives. "People with a strong self-interest can dress it up, put a tuxedo on it and sell it to the public."
However, just as the people use initiatives to check elected bodies, the courts check the people. "Can the initiative process be used to disadvantage certain groups? Yes," Waters says, "but the courts are there to stop that from happening."
In California, the courts have been reluctant to stop an initiative before it reaches the ballot. On the state level, only two initiatives have ever been pulled off the ballot after their content was deemed unconstitutional. But once an initiative is passed, it, like any other law, can have its constitutionality challenged in court. For instance, Prop. 187, which denied social services to illegal aliens, was thrown out by the courts.
Critics also point to the inflexibility of lawmaking by initiative. Because voter initiatives cannot be repealed or amended except by another vote of the people, they can tie the hands of elected officials and bureaucrats whose job it is to conduct the public''s business. If Measure B, the Monterey Coastal Protection Initiative, had not been rejected by voters last month, the Monterey City Council would have had to refer a number of more-or-less routine land-use planning decisions to the voters-a potentially costly and time-consuming prospect.
For those reasons, elected officials tend to be uncomfortable with voter initiatives. In the battle over Monterey''s Measure B, the mayor and all four councilmembers jumped on the campaign bandwagon to defeat the measure, which by its very existence suggested the council wasn''t doing its job.
"Wait a minute. Is this [initiative] saying that we''ve been doing a poor job?" defended Monterey Mayor Dan Albert during the Measure B campaign. "I''d say no, we''re not."
And, while gay marriage was already barred in California, Prop. 22 effectively pre-empted any future debate or discussion the Legislature may have about legalizing marriage for gay citizens.
Ironically, while the voter initiative affords democracy in its purest form, it''s often criticized as an anti-democratic process. Measure B was fervently criticized by opponents for the lack of public process in writing the proposed law, which would have created a complex zoning ordinance to limit development along Monterey''s coast.
Before lawmakers pass a law, its language passes through the hands of staffers, elected officials and the general public by way of public hearings. Throughout the process, a proposed law often goes through a number of revisions and, at least theoretically, trouble spots are ferreted out. On the other hand, an initiative can be written by one person with no legal experience whatsoever. If accepted by the voters, the law goes into effect as is, flaws and all.
Critics argue that the lack of public process surrounding an initiative can lead to harmful unintended consequences, especially considering that campaigns often come down to soundbites with the real issues lost in the shuffle. Prop. 13 has certainly been criticized over the years for robbing California schools of millions of dollars. And Measure B opponents offered voters an arms-length list of horrible things that would happen to the city of Monterey, including bankruptcy, should the initiative pass.
The flipside of that argument is that elected officials can always offer voters the opportunity to amend laws passed by initiative. In the case of Prop. 13, the Legislature has never attempted to do that.
Although initiatives may lack a public hearing process per se, they do force issues into the public eye, issues that might never enjoy any media attention otherwise. Even unsuccessful initiative campaigns can raise awareness about issues and pave the way for future reforms.
"I would venture to say that the people in Monterey know more about Measure B than they do about anything passed by the City Council," Waters says. "The reality is initiatives get more publicity and more public exposure than anything that comes out of legislative bodies."
Money for Votes?
Perhaps the most depressing complaint about the initiative/referendum process is the infiltration of big money and corporate power. Since 1976, California has seen a steady increase in initiative campaign coffers, peaking at a staggering $193 million spent to qualify and campaign for state propositions in 1998.
Locally, Measure B advocates, who raised about $17,000 for their efforts, were faced with a $100,000 war chest funded by development interests to defeat their measure.
"Big money has made it much more difficult to get things passed," says Monterey''s Martha Norton.
Increasingly, financially vested groups are using the process to pass laws to their advantage. Initiative-seeking business interests have fueled an entire industry of advertising agencies, professional signature gatherers, public relations firms and consultants specializing in initiatives.
"The initiative process has gone from being a vehicle of a grassroots rebellion to another arrow in the quiver of the institutional powers that be," says California Journal''s Steve Scott.
The insurance industry spent $30 million just to gather enough signatures to put Props. 30 and 31--referendums to overturn insurance reforms passed by the Legislature-on the March 7 ballot. In 1998, the supporters of the Tribal Casinos Initiative poured in a staggering $66 million to get the proposition passed. In the same year, the tobacco industry spent $30 million in an attempt to defeat Prop. 10, a tobacco surtax to fund early childhood development programs.
However, thanks to a healthy dose of voter skepticism, money doesn''t always equal victory. For instance, Prop. 10 passed despite the fact that the tobacco industry outspent initiative supporters more than three to one.
In fact, according to a study by the California Public Policy Institute, groups with an economic interests are only able to pass 22 percent of their initiatives, whereas 60 percent of citizen-driven initiatives pass.
"Contrary to popular belief, if you''re rich, you can''t just go out and put something on the ballot and get it passed," says the Initiative Institute''s Waters. "It doesn''t work that way."
Wisdom of the People
In 1972, Martha Norton''s four years'' of precinct-pounding bore fruit with the passage of the California Coastal Initiative. Twenty-eight years later, her efforts to pass the Monterey Coastal Protection Initiative, written in the spirit of the earlier state proposition, failed.
Monterey political watchers theorize it failed due to voter confusion. The initiative itself was long and complicated to those unfamiliar with zoning ordinances, and the initiative opponents did their best to confuse the voters by putting a magnifying glass to the measure''s minute complexities. Their strategy is typical, and it worked.
Generally speaking, voters won''t vote for something they don''t understand. "It''s very difficult for the layperson to fully understand everything on the ballot," says Tony Anchundo, Monterey County''s registrar of voters. "When it comes down to propositions and measures, someone will arbitrarily vote ''no'' on an issue because they don''t understand it."
For that reason, consultants estimate the "no" side of an initiative campaign can count on a 10 percent advantage from the start. "It''s generally understood among campaign consultants that, if you want a ''no'' vote, all you have to do is go out there, spend a lot of money, and confuse the voters," Waters says.
For critics of the initiative process, that should be good news. The electorate is not prone to pass laws willy-nilly. Through June 1998, voters passed only 33 percent of state initiatives on the ballot. And, with many proposed initiatives failing to make it to the ballot, the success rate is even lower. Only 8.34 percent of the total proposed state initiatives ultimately become law. While 272 initiatives qualified for the ballot from 1912 through June, 1998, another 771 initiatives were withdrawn or failed to secure the required number of signatures to qualify for the ballot.
The voters tend to show an amazing amount of wisdom when faced with ballot initiatives, which tends to ensure that special interests and corporations can''t get away with passing laws by the sheer act of spending loads of money signature gathering and campaigning.
"You usually see people trying to make an informed vote. People want to do the right thing," says California Journal''s Scott. "As long as voters exhibit what they generally exhibit, which is a pretty good amount of common sense, than there will be enough of a check."