BILL ANALYSIS �
ACA 12
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Date of Hearing: August 16, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
ACA 12 (Gatto) - As Introduced: December 9, 2010
SUBJECT : Statewide initiative measures: legislative amendment.
SUMMARY : Permits the Legislature to propose amendments to an
initiative measure prior to that measure appearing on the
ballot. Specifically, this constitutional amendment :
1)Provides that an initiative measure will appear on the ballot
at the next general or statewide special election held at
least 176 days after the initiative qualifies for the ballot,
instead of at the next general or statewide special election
held at least 131 days after the initiative qualifies for the
ballot.
2)Requires the Secretary of State (SOS) to transmit a copy of
each initiative measure certified for the ballot to each house
of the Legislature not later than 176 days prior to the date
of the election at which the measure is to be voted on.
3)Permits the Legislature, not later than 30 days after both
houses receive a copy of a certified initiative measure from
the SOS pursuant to the procedure outlined above, to propose
an amended form of the measure by a concurrent resolution
adopted by each house. Provides that the concurrent
resolution may be adopted by a majority of the membership of
each house of the Legislature. Requires that the amended form
of the measure address only the subject matter addressed by
the certified initiative measure.
4)Requires the Legislature, immediately upon adoption of a
concurrent resolution proposing an amended form of a certified
initiative measure, to deliver that amended form to the
proponents of the measure and the SOS.
5)Provides that if a majority of the proponents accept the
amended form proposed in the concurrent resolution, not later
than 131 days prior to the date of the election at which the
certified measure is to be voted on, the amended form shall be
placed on the ballot in place of the proposal set forth in the
certified measure. Provides that if the amended form is not
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accepted by a majority of the proponents by that date, the
original certified measure shall appear on the ballot, and the
amended form shall not. Provides that if the amended form is
not accepted by a majority of the proponents, information
regarding that amended form shall be included in the ballot
materials relating to the initiative measure.
6)Provides that, for the purposes of this constitutional
amendment, the "proponent" is the person or entity that
presented the SOS with a petition for an initiative measure
that has been certified to appear on the ballot.
EXISTING LAW :
1)Permits voters to propose statutes or amendments to the
Constitution by initiative. Requires an initiative petition
for a measure that amends or enacts a statute to contain a
number of signatures equal to five percent of the votes cast
for candidates for Governor at the last gubernatorial election
in order for that initiative to appear on the ballot.
Requires an initiative petition for an initiative that amends
the state constitution to contain a number of signatures equal
to eight percent of the votes cast for candidates for Governor
at the last gubernatorial election in order to appear on the
ballot.
2)Requires the SOS to submit a statewide initiative measure to
the voters at the next general election held at least 131 days
after it qualifies, or at any special statewide election held
prior to that general election. Permits the Governor to call
a special statewide election on any initiative measure.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Constitutional Amendment : According to the
author:
ACA 12 would allow the legislature to amend an
initiative measure certified for placement on the
ballot.
Current law requires initiative proponents to submit
their proposal to the Attorney General's office before
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circulating a measure. The Attorney General obtains a
fiscal analysis from the Department of Finance and the
Joint Legislative Budget Committee and then provides
the proponent with a title and 100 word summary which
must be printed at the top of each petition.
Proponents pay a fee of $200 (an amount established in
1942) which is refunded if the initiative qualifies
for the ballot. Initiative proponents have the option
of submitting their measure for review by Legislative
Counsel, but they rarely do so. After filing, no
further changes can be made to a measure.
A lack of legislative review has resulted in state
and/or federal courts either partially or fully
striking down many initiatives over the years and
unintended consequences have increased as the number
of initiatives has increased, causing cost to the
State and a burden on Californians in our attempts to
comply.
ACA 12 seeks to provide a way for the legislature and
the public to participate (by way of hearing) in the
analysis of an initiative, while still allowing the
initiative proponent to have control over their
measure.
ACA 12 would require the Secretary of State to
transmit a copy of an initiative measure certified for
the ballot that would amend the Constitution to each
house of the Legislature no later than 176 days prior
to the election at which the measure is to be voted
upon. Within 30 days the Legislature may propose an
amendment. If the Legislature proposes amendments to
the initiative measure and are accepted by the
proponent, or a majority of the proponents, the
amended version of the initiative measure would appear
on the ballot in place of the certified initiative
measure. If the amendments proposed by the
Legislature are not accepted, information regarding
the proposed amended form will be included in the
ballot materials relating to the initiative measure.
The measure would allow for the legislature to provide
a way for the proponents of a measure to fix any
unforeseen flaws in their proposed initiative before
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it goes to the ballot. There is little room for
mischief because the proponents would reserve the
right to refuse any proposed changes by the
legislature at any time. Unlike other states where the
legislature can put a competing initiative comprised
of their proposed changes, ACA 12 would only put on
the ballot what the proposed changes were in an effort
to give voters more information as to the
inner-workings of the initiative and any potential
flaws that may exist.
2)Indirect Initiative Background : According to the National
Conference of State Legislatures (NCSL), eight states
currently offer some form of an "indirect" initiative process.
Maine, Michigan, Nevada, Ohio, Utah, and Washington provide
for an indirect initiative process for statutory initiatives
only; Mississippi provides the process only for constitutional
amendment initiatives; while Massachusetts includes both
statutory and constitutional amendment initiatives.
In the indirect initiative process, a proposed initiative is
referred to the legislature after proponents have gathered the
required number of signatures. The legislature has the option
to enact, defeat or amend the measure. Depending on the
legislature's action, the proponents may continue to pursue
placement on the ballot for a popular vote. In three states
(Massachusetts, Ohio and Utah), proponents must gather
additional signatures to place the measure on the ballot if
the Legislature defeats the measure or proposes amendments
that are unacceptable to the proponents; in the others, the
measure automatically goes on the ballot.
Alaska's and Wyoming's initiative processes are sometimes cited
as indirect. However, instead of requiring that an initiative
be submitted to the legislature for action, they provide only
that an initiative cannot be placed on the ballot until after
a legislative session has convened and adjourned, thus
providing the legislature with the opportunity to address the
issue if it so chooses.
Two states - Utah and Washington - offer both the direct and
indirect initiative process; proponents have the option of
choosing either. In Utah, the initial signature requirement
is lower for the indirect process. This serves as an
incentive for proponents to choose the indirect route and thus
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incorporate the legislature into the process. Qualifying an
initiative directly to the ballot requires signatures equal to
10 percent of the votes cast for governor in the last
election; presenting an indirect initiative to the legislature
requires signatures equal to 5 percent of the votes cast for
governor in the last election. However, if the indirect
initiative is rejected by the legislature, proponents must
gather additional signatures equal to 10 percent of the votes
cast for governor, creating a total signature threshold for
indirect initiatives that is higher than that for direct
initiatives. As a consequence, use of Utah's indirect
initiative is significantly lower than use of the direct
method.
California had an indirect initiative process until 1966. It
was available in addition to the direct process, and
proponents were permitted to choose the process they
preferred. However, the indirect option was used successfully
only once before it was abolished by voters.
NCSL notes that the indirect initiative is frequently offered as
an improvement over the direct initiative because it allows
for legislative analysis, committee hearings, and floor
debate. Legislative deliberation and debate on the issue
itself and its effect on other existing policies may result in
an improved initiative proposal because unintended
consequences and errors may come to light.
NCSL also notes that pitfalls exist in the indirect initiative
process, however, which prevent it from being a panacea to the
problems with the initiative process. The main argument
against the indirect initiative is that, where the process is
currently offered, legislatures rarely take up the initiative
proposal and, when they do, they almost always reject
initiative proposals. Rarely do they engage in negotiation
with initiative proponents and seek to craft a compromise.
Most often, indirect initiatives are rejected by the
legislature and end up on the ballot for a popular vote; in
this case the indirect process has done little but prolong the
initiative process.
3)Speaker's Commission on the California Initiative Process : In
2000, then-Assembly Speaker Robert M. Hertzberg created a
commission on the California initiative process. The goal of
the Commission was to examine the initiative process and
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recommend changes to make the process more responsive to voter
concerns. The Commission issued its final report in January
2002. Among the recommendations proposed by the Commission
was the creation of an indirect initiative process that would
allow the Legislature to enact an initiative into law, with
the proponents' consent, thereby removing the need for the
initiative to go to the ballot.
In stating the desirability of creating an indirect initiative
process, the Commission noted that when drafting problems are
discovered in an initiative being circulated, there is no
process for correcting such mistakes. The Commission's report
argued that allowing the Legislature to review initiative
measures, and make minor changes or suggestions for changes to
such measures, could reduce technical problems or unintended
consequences in initiative measures.
There is one key difference, however, between this proposal and
the recommendation by the Commission for the creation of an
indirect initiative process. While this measure provides that
all initiatives would be subject to Legislative review, the
Commission recommended that the indirect initiative process be
voluntary.
4)Should Initiative Proponents Have the Final Say ? This measure
gives the proponents of an initiative measure the authority to
allow that initiative to be substituted on the ballot by a
measure that was approved by the Legislature.
It is unclear whether the proponents of an initiative measure
should have this authority. The initiative process is the
power of the electors to propose statutes and amendments to
the Constitution, and to approve or reject them. The hundreds
of thousands of voters who signed petitions to place the
initiative measure on the ballot would have no recourse if
they did not agree with the measure approved by the
Legislature.
However, such a situation is already possible under existing
law. It is not uncommon for initiative proponents to collect
more than enough signatures than necessary to qualify an
initiative for the ballot, but to delay turning in some of
those signatures in the hopes of prompting the Legislature to
adopt a bill or constitutional amendment that is consistent
with the purposes of the initiative measure. If the
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Legislature fails to act, the proponents submit the remaining
signatures and the initiative measure qualifies for the
ballot. If the Legislature adopts a bill or constitutional
amendment that is consistent with the purposes of the
initiative measure, the proponents do not submit the remaining
signatures, and the initiative measure fails to qualify for
the ballot. In this scenario, which already occurs under
existing law, those voters who signed petitions to place the
initiative measure on the ballot have no recourse if they do
not agree with the proponents that the bill or constitutional
amendment approved by the Legislature was consistent with the
intent of the initiative measure.
5)Initiative Statutes and Voter Approval : Unlike other recent
proposals to establish an indirect initiative system in
California (see below), this constitutional amendment does not
provide a mechanism for initiatives that propose to amend
state statute only to be enacted without appearing on the
ballot. If the proponents of an initiative statute collected
and submitted a sufficient number of signatures for that
measure to appear on the ballot, some form of that measure
would have to appear on the ballot even if the Legislature
enacted the initiative measure into law in its entirety,
without any changes.
One of the potential impacts of an indirect initiative process
is that it may allow a proposed initiative measure to be
enacted into law without a vote of the people, thereby
reducing the number of measures that voters are asked to
consider. The author and the committee may wish to consider
whether it would be appropriate to amend this constitutional
amendment to provide that a proposed initiative measure can be
withdrawn from the ballot if that measure only amends state
statute, if the Legislature approves a statute that addresses
the same subject matter as the initiative measure, and if a
majority of the proponents of the initiative measure accept
the statute enacted by the Legislature in lieu of the
initiative measure.
6)Arguments in Support : In support of this measure, the
American Federation of State, County and Municipal Employees,
AFL-CIO writes:
Assembly Constitutional Amendment 12 will allow for
the correction of imperfect initiatives before they
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reach the voters by allowing the Legislature to
suggest amendments to an initiative on the ballot.
During the past election, one significant criticism of
California's Proposition 19 was that the measure was
poorly written and could have exposed employers to
increased liability. If ACA 12 had been in effect,
then Proposition 19 could have been reviewed and
improved by the Legislature prior to reaching the
ballot. Though we do not wish to debate the value of
any proposition, we do suggest that better policy and
governance might arise from additional legislative
input in the ballot initiative process, creating a
system that better serves the interests of all
Californians.
7)Arguments in Opposition : In opposition to this measure, the
California Taxpayers Association writes:
ACA 12 may result in initiatives being placed on the
ballot in a dramatically different form than approved
by petition-signers. An amended version of an
initiative might be opposed by those whose signatures
put the initiative on the ballot. ACA 12 even
provides for a scenario in which a sponsor of an
initiative might oppose the version that ends up on
the ballot.
Under ACA 12, if proponents of an initiative do not
accept the Legislature's substitute version, ballot
materials would include unspecified information about
the version that was rejected. Using the ballot
pamphlet to provide information about measures that
are not on the ballot may result in voter confusion.
This also may have the effect of suggesting a "no"
vote on the original - an improper use of public
resources.
ACA 12 would provide that the Legislature's substitute
version "shall address only the subject matter
addressed by the certified initiative measure."
However, based on California's experience with the
existing single-subject rule for initiatives, it is
uncertain how or if this provision would be enforced.
Additionally, ACA 12 would increase state spending for
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legislative activity and printing additional ballot
materials, without identifying a new source of revenue
or reductions in existing spending to offset the cost.
8)Previous Legislation : ACA 18 (Nation) of 2005, and ACA 13 (Ed
Hernandez) of 2009, both proposed establishing an indirect
initiative process. Both measures were approved by this
committee, but neither measure was brought up for a vote on
the Assembly Floor.
9)Related Legislation : ACA 19 (Allen), which is pending on the
Assembly Floor, proposes to create a voluntary indirect
initiative process.
10)Approval of Voters : As a constitutional amendment, this
measure requires the approval of the voters to take effect.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
Opposition
California Taxpayers Association
Howard Jarvis Taxpayers Association
PawPAC
One individual
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094