The Legislature Takes On Initiatives

The talk of the Capitol last week was of “the Hertzberg bill,” which changed the calendar for certain activities related to ballot measures, with the intent to ease legislative fixes to proposed ballot measures – if proponents were amenable.

Though the bill was enacted in 2014, the new process hasn’t been employed until this year, when three ballot proposals came under legislative scrutiny.

Here’s how it works.

The Constitution provides that all ballot measures qualified at least 131 days before a statewide election must be set for that ballot. Prior to 2015, proponents could pull the plug on their proposed initiatives prior to submitting signatures to county election officials to count signatures. But once submitted to counties, the process was out of the proponent’s hands.

The new legislation gave the proponent until the 131-day qualification deadline to decide to withdraw a proposed initiative, adding 30 to 60 days to any decision to pull the plug. Since by a prior act of the Legislature all initiatives now appear on the November ballot, this dropped the do-or-die date into the last week of June, prime time for Legislative negotiations.

 Which is exactly what went on last week.

 The 131-day cliff was Thursday, June 28, which motivated negotiations on three proposed measures:

  • The Taxpayer Protection Act, which would have increased the vote threshold for all local taxes to 2/3 voter approval, was shelved after legislative negotiations resulting in a ten-year moratorium on new local excise taxes aimed at groceries and beverages.
  • The Consumer Right to Privacy Act, which would have enacted a consumer opt-out from sharing information, accompanied by a draconian private right of action, was withdrawn by the proponent after a very similar measure was passed by the Legislature, but which won’t take effect until 2020 and enables the Legislature in the meantime to modify and ameliorate the worst problems.
  • The Healthy Homes and Schools Act, which would have overturned an appellate court decision that found the existence of lead paint in homes to be a nuisance, subject to enormous mitigation fines and penalties, and created a state fund to mitigate the dangerous lead paint in homes. Proponents withdrew the measure when the Legislature agreed to drop legislation that would have applied the court decision statewide.

Legislators, especially those in the majority party, often express resentment at proposed initiatives as usurping the role of the Legislature to solve problems. But initiative proponents just as often point to the Legislature as the problem – in not addressing problems the proponents think should be solved.

The new process hasn’t necessarily improved the Legislature’s mood, since even though they have a better opportunity to act on potential ballot measures, the last-minute negotiations unnerved many legislators.

There’s also a fear that an unintended consequence of this new process may be the filing of ever-more initiative proposals, as a way to leverage the Legislature, although for the leverage to be serious, the prospects of passage must be very credible.

But back to the “Hertzberg bill.” Sen. Bob Hertzberg was a staunch supporter of this new process, and actively participated in negotiations over at least two of the measures that were dropped from the ballot.

But fun fact: Senator Hertzberg wasn’t even in the Legislature when his eponymous bill was enacted. The author was Senate Leader Darrell Steinberg. Sen. Hertzberg, as a private citizen, was an active participant in the commission that developed the idea (full disclosure: as was I) and led the charge for just this reform, as the next best thing to a formal legislative role in ballot initiatives.

Loren Kaye, President, California Foundation for Commerce and Education