The California Propositions

Wherein I pretend to be an editorial page.

California’s unfortunate experiment with direct-democracy-by-checkbook continues. Kevin Drum is right to say that, as a general rule, any law proposed by initiative pretition should be rejected. The legislative process, as ugly as it is, at least usually generates a law that is competently drafted, and the people who propose it are accountable to the public. Neither is true of initiative petitions.

The obvious exception to the “always vote no” rule would be proposed political reforms, where there’s at least a plausible argument that the legislative process is part of the problem to be solved; an anti-gerrymandering proposal, for example, would deserve to be considered on its merits. In addition, initiative petitions would seem to be an appropriate means of fixing disasters generated by previous initiative petitions, since the legislature can do so only by super-majority.

Especially noxious are the treasury-raid initiatives that appropriate money, usually into the pockets of their sponsors. Those should be voted for only under very special circumstances.

But not all of the measures on the ballot are initiatives. Some are legislative measures requiring voter approval.

I hadn’t intended to post on this topic, but I’ve had three emails from readers. Consequently, I’ve decided to actually do my homework for once. Here are my conclusions, for what they’re worth. If you want to violate the theorem of rational ignorance, the Secretary of State has a good website with texts, analysis, and arguments for and against. And the League of Women Voters has another good site.

Prop 1A is part of the Great Schwarzenegger Budget Kluge. After he stole a bunch of local revnue to quasi-balance his budget, local officials came up with Prop. 65 to prevent that in the future. Prop. 1A is a compromise the Gubernator came up with, to reward the local governments that went along with his money grab and punish the school committees that fought it. Prop. 1A protects local revenues, but not local school district revenues, from the state, except for the revenues that Gov. Girly-Man is going to use now and make his successor repay. NO on 1A

Prop. 59 is a legislative constitutional amendment strengthening the state’s public record laws to require open meetings. Clear Channel Communications is spending money for it, which sounds bad, but other than that I see nothing wrong with it. YES on 59

Prop. 60 is a legislative constitutional amendment to enshrine the party primary in the state constitution. Prop. 62 proposes moving to Louisiana-style two-stage general elections, where the two top vote-getters in the first round, regardless of party, compete in the second round. Prop. 60 would make that impossible. Yes on 60, No on 62.

Prop. 60A is a legislative constitutional amendment dedicating the revenues from the sale of surplus state property to paying back the bonds from the Great Schwarzenegger Budget Kluge. I see no reason why the voters shouldn’t ratify the legislature’s judgment. YES on 60A

Prop. 61 is a treasury raid, appropriating $750 million for children’s hospitals. I have no idea whether spending more money on children’s hospitals is a good idea, or what the competing uses of those funds might be. I don’t know whether, if spending more money on children’s hospitals is a good idea, this bill does it in the right way. It’s not my job to know. That’s what we pay officials and legislators for. NO on 61

Prop. 62 proposes Louisiana-style two-step general elections. After an open preliminary election, the top two vote-getters, regardless of party, would run off against each other. That would replace the current system of partisan primaries followed by a general election. The argument for it is (per the proponents’ website) is that gerrymandering has made most legislative races uncompetitive. True enough, and a good reason to get rid of gerrymandering.

But Prop. 62 wouldn’t touch gerrymandering. Instead, it would in effect eliminate political parties. I see no adequate reason to take such a dramatic step, and there has been nothing like the sort of debate there should have been on this issue.

I’m a little bit daunted by being on the same side of the question as the Howard Jarvis Taxpayers Association and the teachers’ unions, and the other side of the question from Leon Panetta, the LA Times, and the San Jose Mercury-News. On the other hand Der Gropenfuhrer supports Prop. 62, while Common Cause opposes it. Both facts are reassuring. NO on 62

Prop. 63

is another treasury raid, this one for mental health, with a price tag in the billion-dollar-per-year range. Mental health services are underfunded. This is not the way to fix that problem. NO on 63

Prop. 64 is supposed to be about limiting frivolous lawsuits. I can’t tell from the text of the law or the arguments now many of the lawsuits it would prevent are in fact frivolous. But the “private attorney general” idea isn’t in principle a bad one, and the suspicion that the people most opposed to tort suits are the tortfeasors is hard to escape. Again, this might be a good idea, but you and I are in no position to judge. NO on 64

Prop. 65 was the original measure to protect local revenues from state grabbers. Its sponsors have abandoned it in favor of Prop 1A. I’m going to vote for it just as rude gesture everyone involved, but I don’t expect it to pass. Unseriously, then, Yes on 65.

Prop. 66 would modify California’s “three strikes” law — itself one of the initiative process’s many bastard children — in ways to reduce its harshness. The third strike would have to be itself a violent or serious felony to trigger a 25-to-life sentence; the list of such felonies would shrink (losing, notably, burglary of an empty dwelling, unintentional infliction of serious injury in the course of committing another felony, non-violent witness tampering, and felonies not otherwise considered violent or serious committed as part of a street gang); preventing multiple strikes being counted as the result of a single trial; and making the whole thing retroactive.

If “Three Strikes” had been a regular law rather than an initiative, I’d be strongly tempted to vote against Prop. 66 just on process grounds: the whole campaign has been paid for by one millionaire whose son got caught in the toils of a “Three Strikes” provision that applies to first-time offenders. The young man will get out of prison about two years early if the proposition passes. That’s exactly the objection to the initiative process: it’s intolerable that rich people can have laws written to order.

The details, if you’re interested:

In California anyone sentenced for a “serious or violent” felony, even a first-time offender, isn’t eligible for parole until he has served 85% of his nominal sentence. When the sponsor’s son was 20, he killed two people while driving drunk. Driving drunk is a felony, but not a serious or violent felony. But under current law, even unintentional infliction of serious injury while committing any felony is “serious or violent.” By removing that offense from the list of “strikes,” the proposition would make the sponsor’s son eligible for parole right away rather than two years from now.

Since the original sentence was the result of a plea bargain, approving Prop. 66 would in effect allow the kid and his lawyers to welsch on that deal. Is 85% of eight years in prison too long for getting drunk and unintentionally killing two people? Probably. But I can’t say it shocks my conscience, and I resent the fact that this rich guy’s kid is going to catch a break other people’s kids wouldn’t catch.

But I digress.

For what are basically technical reasons, repeat-offender laws are mostly a bad idea in crime-control terms. They concentrate prison cells on people too old to commit much in the way of crime: it’s the offender’s current personal crime rate we ought to care about, not his lifetime accumulation of convictions. And sending someone to prison forever and a day on some trivial offense is neither just nor efficient.

And yes, the offenses can get pretty trivial: even petty theft, which is usually a misdemeanor, becomes a felony if the offender has a prior misdemeanor conviction. So if the offender also has two prior “strikes” — say, two burglaries — someone who steals the now-proverbial slice of pizza can wind up going to prison for 25 to life without ever having so much as threatened to hurt someone, under a law that’s supposed to be about controlling violence.

On the other hand, keeping violent offenders in longer is, on average, probably a good idea. And having something called “Three Strikes” on the books may act as a cheap deterrent even if it’s not often enforced. From that perspective, the hideous injustices under “Three Strikes” are as much a feature as a bug, since they help give people with long criminal histories the clear message that they need to mind their p’s and q’s.

All things considered, though, “Three Strikes” really can’t be supported on its merits. California really has too many people behind bars, and by any rational standard “Three Strikes” misallocates what we ought to treat as scarce resource. Given that it was passed by initiative, the legislature is never going to change it, so going back to the voters is the only way to do so. Prop. 66 is far from ideal, and it’s hard not to resent the little bit of special pleading for the sponsor’s son, but it’s the only alternative to the status quo now available.

In addition, its passage would send an important message to politicians nationwide: the voters are still angry about crime, but they’re no longer so terrified that they reflexively support anything that sounds tough, no matter how stupid it is.

[Special bonus: the disgustingly frivolous Jerry Brown, whose fecklessness on crime got us “Three Strikes” (and a reactionary California Supreme Court) in the first place, is now running for Attorney General and is making robo-calls against the proposition. Our current governor is also against it. The chance to flip off the Moonbeam and Der Gropenfuhrer with the single push of a stylus doesn’t come around every day, and should be seized when offered.]

So, not without reluctance but absolutely without any doubt, I’m going to vote YES on 66

Prop 67 is yet another treasury raid, this one $500 million a year for emergency medical services and uncompensated care reimbursement. Just to make things worse, like Prop. 13 it’s a Constitutional amendment and thus virtually unrepealable. Absolutely NO on 67

Prop 68 is yet another Treasury raid, this one by a couple of sheriffs who have gone partners with non-Indian gambling interests to appeal to anti-tribal prejudice in the hopes of grabbing a quick buck. The idea is to threaten the tribes with competition from non-Indian casinos unless they all agree to fork over a quarter of their earnings to the state. Since at least one tribe is certain to hold out, the result will be to allow non-tribal casino gambling. Some of the resulting state revenue is to be dedicated to local law enforcement. I think I’m for non-Indian casinos — anything bad for Las Vegas is good for America — but this proposition isn’t the way to do it. I suggest that you politely tell the card-room owners and Lee Baca to go screw themselves. NO on 68

Prop. 69 is a small treasury raid for a purpose I’m mostly in favor of: making a DNA data base on a par with the existing fingerprint database. There are some important differences, of course: your fingerprint only identifies you, while your DNA may contain information you could legitimately want kept private. Given that there’s some intrusion on privacy here, requiring that anyone arrested in connection with a felony give a DNA sample seems hard to justify. It’s small money — $20 million a year in a state budget of $100 billion is below the rounding error — but I see no real argument that the normal legislative process can’t handle this matter. And in the legislative process, this curiously one-sided measure might be modified to include funding for DNA work to clear the innocent imprisoned. Not, on balance, a horrible law, but it doesn’t meet the high threshold for approving an intitiative. NO on 69

Prop. 70 is the flip of Prop. 68, an attempt by the gambling tribes to lock favorable treatment for their casinos into the state constitution. I’m not opposed to gambling (though it’s pretty clear that we need to do more than we now do about the spread of compulsive gambling) and I’m generally sympathetic to the claims of Native Americans to some sort of reparation for the extraordinarily rough time we immigrants have given them, but there’s no good reason to make this one-sided measure part of the constitution of California. NO on 70

Prop 71 is yet one more treasury raid (number six for this year, if I haven’t lost count). It’s a moderately big raid: $3 billion in bonding authority, which means about $200 million a year in debt service.

Moreover, the money goes to a brand-new authority rather than, for example, the Regents of the University of California, who at last count owned three of the best twenty medical schools in the world and at least three top-ten biology departments. The suspicion is that the sponsor, whose son has juvenile diabetes, will have considerable pull with the authority, which will probably then devote a good slice of its research effort to juvenile diabetes. The authority is to have 29 (!) members, appointed to represent the interest groups involved, including five named UC campuses and advocacy groups for ten named diseases or disease categories.

Now offhand I can’t think of a single reason why California should subsidize the rest of the world by allocating its taxpayers’ money to stem-cell research. That’s why we have federal government, and probably ought to have some sort of G-7 or WTO deal about research funding. And given the governing structure, I’d bet that a substantial amount of the cash gets pissed away.

So why, I hear you ask, is the proposition number above in blue rather than red? Answer: the success or failure of Proposition 71, and the size of the margin, will be read by politicians in Washington as a measure of the enthusiasm of voters about stem-cell research, and in a larger sense about the voters’ willingness to ignore the fatwas of our would-be mullahcrats, whether Catholic, Protestant, or Muslim. (The halachic provision that allows health to trump just about anything else, plus the distinction made by most rabbis between zygotes and fetuses, means that Jewish mullahs aren’t much of a problem here; anyway, outside of Israel, the rabbinate doesn’t usually aspire to political power.)

Is that demonstration worth imposing a tax of $4 a year on every Californian? Probably, even recalling that most Californians aren’t as prosperous as you or I. And probably the authority won’t manage to waste all of that money. And probably there will be some local benefits in terms of eventual commercialization to partially repay the cost to the state’s taxpayers.

So, firmly holding my nose against its stench, I plan to vote YES on 71

Prop 72 is a referendum, not an initiative. The legislature passed a law requiring employers of more than 50 California workers to cover employee health insurance or pay into a state fund that would provide coverage for the otherwise uninsured, and the business lobby hired signature-gatherers for a petition to overturn that law.

The same deference to the legislative process that dictates voting against any initiatives unless some extraordinary reason compels supporting it implies that laws passed by the legislature and put to referendum should in general be upheld unless either the process or the substance was so outrageous as to justify a citizen veto.

I don’t any strong argument that mandatory employer health coverage is an especially bad idea. Rather the reverse: given the way unpaid care is treated in health-care accounting, every employer who doesn’t provide employee coverage is costing everyone else in the state money. Nor is this law an especially bad implementation of pay-or-play. Nor was the process behind the law was badly flawed.

Yes, the law might create some competitive disadvantage for California firms competing in interstate or international commerce, which is a good reason to have a national rather than a statewide mandate. And yes, the “notch” effect will lead to some games-playing as firms try to stay below the 50-California-employee threshold.

Still, on balance, I think I like the substance of this law. Not being an expert, I can’t be confident of that judgment. But even if on balanced I disliked the proposed law, I would still think (again as a non-expert) that I shouldn’t be making the call, and that the right way to fix whatever problems it had was through legislative amendment or repeal, not through direct democracy.

So, for substance reasons I’m not quite sure of and for process reasons I’m quite sure of, I’m voting

YES on 72

Summary (you may take this into the polling booth with you):

1A No

59 Yes

60 Yes

60A Yes

61 No

62 No

63 No

64 No

65 Yes

66 Yes

67 No

68 No

69 No

70 No

71 Yes

72 Yes

And, finally, for the Angelenos in the audience: YES on Measure 1

Los Angeles is under-policed by a factor of at least two: with half the population of New York City, and four times the area, it has fewer than a quarter as many cops. Bill Bratton is pretty much a genius as a police manager, but he can’t make bricks without clay. Lee Baca is nobody’s idea of a genius, but even he could probably get the Sheriff’s Department to do a job that was miserable instead of unspeakable if he merely had too few troops rather than having grossly too few troops.

Too few cops means both too much crime and too many people behind bars. (Policing is a partial substitute for incarceration as a means of deterrence.) The extra half-cent on the sales tax would be a bargain.

This should be a shoo-in, but under @#%&! Prop 13 it requires a two-thirds vote, and that’s going to be tight. So get out and vote for it, and tell your friends to do the same.

That’s it for this year’s propositions.

Of course, the proposition I’d most like to vote for two years from now would be a Constitutional amendment abolishing the initiative (and probably the referendum and recall as well) and repealing all measures previously passed by initiative, with a one-year window for the legislature to repass any of those laws that might be worth keeping. Who knows? Representative government might be good for California. It might even be popular.

But I’m not holding my breath.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

One thought on “The California Propositions”

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