Subject: California Voters Take Law Into Own Hands With Ballot Initiatives
Date: Published: 11/8/88 265 lines
Source:  Wall Street Journal.  Copyright Dow Jones & Co. Inc. 

    Vox Populi:  
    California Voters Take
    Law Into Own Hands
    With Ballot Initiatives
    ---
    Populism Is Running Amok,
    Critics Say, With 29 Issues
    At Stake in Today's Vote
    ---
    'Those With the Gold, Rule'
    ----  
    By Richard B. Schmitt
    Staff Reporter of The Wall Street Journal

    California's voters have more on their minds than a choice
 between George Bush and Michael Dukakis in today's elections.
    Will a vote in favor of a 25-cent-a-pack increase in the
 state cigarette tax lead to smuggling, gang warfare, wild
 shootouts and the murder of innocent children?  Will a limit
 on legal fees in damage cases put some lawyers out of
 business?  Will requiring doctors to report to authorities the
 names of patients who are even suspected of having AIDS
 violate their civil rights?  
    Those are but a few of the concerns raised by the presence
 on the California ballot of 29 initiative and referendum
 proposals, taking up 150 pages of fine print in the official
 state voter's manual.  Four competing propositions deal with
 rising auto insurance rates.  One, to require a 20% cutback,
 is sponsored by a Ralph Nader-backed group.  Another, to
 create no-fault insurance, is sponsored by the insurance
 industry.
    Legislatures normally decide such questions after research
 and analysis, public hearings, lobbying pro and con, and
 often lengthy debate.  California has a legislature that works
 that way, too.  But here, as probably nowhere else since
 ancient Athens, every voter can become his own legislator.
 Forget research, analysis, hearings, lobbying and debate.
 Television commercials, financed by interest groups on one
 side or the other of a proposition, are far less
 time-consuming and much more interesting.
    For 75 years, Californians have been taking the law into
 their own hands through popular initiative.  Inspired by a
 progressive revolt against a legislature dominated by
 railroads, the process has evolved into something of a
 hallowed tradition.  The state's supreme court has called it
 "a battering ram to tear through the exasperating tangle of
 the legislative process."
    But lately the initiative process itself has become an
 exasperating tangle, an exercise gone awry in a populism "run
 totally amok," in the words of Willie Brown, speaker of the
 California Assembly.
    To counter the tendency of voters to approve anything that
 sounds good and reject anything that sounds bad, lobbies
 spend heavily on slick marketing, electronic demagogy and
 legal vote-buying to defend their interests.  Minority groups
 of less-than-overwhelming popularity -- gays, people with
 AIDS, lawyers and insurers -- especially risk being put upon,
 in the absence of intervention by the courts.
    If pre-election polls are correct, the lawyers and
 insurers could have their pocketbooks gored today, some say
 ruinously.  Doctors are almost unanimous in condemning an AIDS
 reporting measure as homophobic and counterproductive, but
 for better or worse it is winning.
    "When issues of civil rights are involved, it is very easy
 to end up with tyranny of the majority.  That is something
 that the legislative process is in theory designed to
 prevent," says Benjamin Schatz, an attorney for National Gay
 Rights Advocates, a San Francisco public-interest law firm.
 "I have been sorely tempted to propose an initiative to ban
 initiatives."
    The process is bogging down in sheer complexity.  Several
 propositions contradict one another, yet all may win or lose.
 Initiatives in the past have given birth to a steady stream
 of new initiatives designed to emasculate or expand the older
 measures.  Some of the laws have produced unintended results
 or have been so badly crafted that it has taken years of
 litigation to mend them.
    Some believe that the profusion of initiatives has become
 too much for ordinary people to handle.  For a state whose
 economy ranks among the world's 10 biggest, and which is
 often a bellwether for legal developments nationally, they
 say the process is inappropriate.
    "There is no way that a majority of voters is going to be
 able to sort through all the propaganda and make an informed
 choice," says Carol Federighi, president of the California
 League of Women Voters.  They won't have much time, either:  
 Over the weekend, a federal appeals court rejected a
 challenge to a state law that limits voters to 10 minutes in
 voting booths.
    In simpler times, Californians used the initiative process
 to put a floor under wages and a ceiling on interest rates,
 as well as to outlaw prize-fighting, bookmaking and liquor.
 The state's population explosion after World War II dealt the
 process a blow because reformers had trouble gathering enough
 signatures to qualify proposals for the ballot -- 5% of the
 voters in the most recent gubernatorial campaign.
 Sophisticated direct-mail solicitation in the 1970s made it
 easier.  Professional consultants now guarantee any idea a
 place on the ballot for a fixed fee that ranges from $400,000
 to $1 million.
    Twenty-two other states permit referendums, but in none of
 those states have the measures become so commonplace -- or so
 nationally significant -- as in California.  The national
 property-tax revolt began with the passage of Proposition 13
 in 1978.  A strong new labeling law, voted two years ago, is
 forcing national distributors to put clearer health warnings
 on dangerous products.
    "The rest of the country barely notices if an initiative
 passes in Colorado or Arizona," says David Schmidt, who edits
 "Initiative & Referendum:  The Power of the People," a
 newsletter published in San Francisco.  "What succeeds in
 California inspires imitators in other states."
    Interest groups are spending $130 million this year to
 support or defeat California initiatives.  That is more than
 the spending in any other election campaign except for the
 presidential race.  The big spending often succeeds, eroding
 support for proposals that initially seemed likely to win.  A
 survey by UCLA law professor Daniel Lowenstein showed that
 big spending to defeat initiatives succeeds nine out of 10
 times.  "It is an eminently pervertible part of the process,"
 says David Roe, an attorney for the Environmental Defense
 Fund in Oakland.
    A 1982 initiative to require a five-cent deposit on beer
 and soda containers was favored by 80% of voters in early
 polls.  But opposition by the beverage industry, which, among
 other things, advertised the negative effect of a deposit law
 on Boy Scout recycling centers, defeated the measure.  The new
 tobacco-tax initiative was supported by 75% of the voters in
 early polls; now about 50% support it.
    A tobacco-industry commercial warning of increased gang
 violence from cigarette smuggling -- a concern that state
 law-enforcement officials have disavowed -- was produced by
 the same man who made Mr. Dukakis look dopey riding a tank in
 a commercial for Mr. Bush.  In another ad, the industry
 featured an "undercover cop" who is really a desk-bound
 sergeant and sideline actor who had a bit part in the movie
 "To Live and Die in L. A.  "
    The producers of commercials on the other side of the
 tobacco tax are no slouches, either.  One of their ads shows
 an emphysema victim breathing through a pair of oxygen tubes.
 "There's nothing you can do for me," he says, "but we can
 teach kids not to smoke."  The ad notes that the man died
 after the commercial was filmed.
    A pizza-parlor commercial on San Francisco radio parodies
 the pitch against the tobacco tax.  In the commercial, the
 issue is mandating "real cheese" in pizza, encouraging "thugs
 and punks" to take over dairy farms to profit from rising
 mozzarella prices.
    Initiatives are sometimes more, or less, than they are
 made out to be.  Of the $600 million that the new tobacco tax
 would raise in its first year, only 20% goes to education
 programs of the kind that the health professionals are
 touting in some advertising urging approval of the tax.  The
 tax money would also benefit public recreation areas -- and
 medical care for indigents, which would also benefit doctors.
    Legal experts say the proposal to limit attorneys' fees in
 personal-injury cases could be unconstitutional.  The plan to
 require reporting of AIDS patients could drive the stricken
 underground and frustrate research.  And several insurers have
 said that the proposal to slash auto insurance rates,
 endorsed by Mr. Nader, would drive them out of the state and
 perhaps even into insolvency.
    One proposition would provide millions of dollars for
 state public schools and community colleges.  But because of
 limits on state spending required by a previous initiative,
 the money could come at the expense of the strapped
 state-university system.  "It appears to be solving an
 important issue, but it has a definite impact on those of us
 in education who are left behind," University of California
 vice president William Baker says of the initiative.
    Other initiatives have produced bad law or unintended
 consequences.  The U. S. Supreme Court found a 1964 attempt to
 give homeowners expanded freedoms in selling their houses to
 be an unconstitutional attempt at private discrimination.
 Californians thought they had toughened up their death
 penalty law through a 1978 initiative, but the state supreme
 court, headed by Rose Bird, found enough flaws in the law to
 invalidate dozens of death sentences.  In 1986, the voters
 ousted Ms. Bird.
    In 1979, Proposition 4 authorized a cap on state spending.
 But the cap was tied to the inflation rate, and lower
 inflation has squeezed state spending more than even the
 proposition's proponents had in mind.  They lost an attempt to
 ease the law with two initiatives last June.
    Competing propositions on the same ballot create legal
 problems.  Those propositions with the most votes take
 precedence in cases of conflict, but all propositions that
 win a majority vote become law.  Court battles are still
 deciding the effect of a pair of campaign finance reform
 measures approved last June.  Proponents of one of the winning
 propositions complain that the result will be worse than no
 reform at all.  Legal experts shudder at the thought of four
 insurance proposals being enacted in today's election.
    Some see the rights of minorities endangered.  In recent
 years there have been propositions to allow school districts
 to ban employment of homosexual teachers and to quarantine
 AIDS patients, and the 1964 proposition would have
 legitimized private discrimination in housing.  But all were
 rejected, either by voters or the courts.
    But the latest AIDS reporting initiative is winning.  While
 the earlier movements were often associated with right-wing
 extremists, the latest proposal is endorsed by Gov. George
 Deukmejian.  Besides requiring doctors to report known or
 suspected AIDS patients, the measure would force people with
 the AIDS virus to reveal intimate partners to the state and
 would permit employers to give AIDS tests as part of making
 hiring decisions.
    Even the system's harshest critics contend that the
 initiative process is still capable of good.  Some studies
 have suggested that special-interest money is more effective
 at defeating proposals than passing them, indicating that the
 process hasn't become entirely the servant of those
 interests.  But there is concern that the process has become
 an alternative to reasoned legislative law-making rather than
 a last resort.  "There has been a major retreat from
 representational government," says Harry Snyder, West Coast
 Regional Director for Consumers Union.  "Our legislature
 basically does not work anymore."
    Many are suspicious of the influence that lobbies exert on
 the state legislature.  Most of the major initiative proposals
 of recent years, among them those dealing with auto insurance
 and campaign finance, have followed fights in which lobbies
 blocked legislative action.
    In 1986, the banking industry delivered written promises
 of $200,000 in campaign contributions to 75 legislators on
 the eve of a crucial vote over opening the state to
 interstate banking.  The Sacramento County district attorney
 declined to prosecute, saying that there was no hard proof
 that the banks were buying votes.
    "We're all on the borderline of being felons {because}
 there are votes being switched for money," state senator
 Joseph Montoya said last April, according to the Los Angeles
 Times.  Five months later, Mr. Montoya and three other
 legislators were identified as having accepted money from a
 federal sting operation aimed at exposing extortion in the
 state government.  The four legislators deny any wrongdoing,
 but indictments are considered possible.
    Major reforms in the initiative process, such as limiting
 payments for gathering qualifying signatures, appear to be
 doomed under a U. S. Supreme Court decision in June that
 endorsed an unfettered initiative process in Colorado.
    Other proposals, such as requiring public,
 legislative-like hearings to debate the issues, or restoring
 indirect initiatives in which the public can in effect force
 a legislative floor vote on an issue, are typical of the
 marginal reforms that people here believe are the best that
 can be hoped for.
    Today's ballot includes an initiative that would for the
 first time require the disclosure in campaign advertising of
 major contributions to an initiative drive.  Its proponents
 hope to open the process to greater public scrutiny, but they
 expect no radical reform.
    The initiative process has become a little like the golden
 rule, says James Rogers, an Oakland lawyer who is floating a
 $300,000 personal loan to the Truth-in-Initiative campaign.
 "Those with the gold," he says, "rule."

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