BILL ANALYSIS �
ACA 19
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Date of Hearing: May 17, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
ACA 19 (Allen) - As Amended: May 10, 2011
SUBJECT : Initiatives.
SUMMARY : Establishes an indirect initiative process.
Specifically, this constitutional amendment :
1)Requires the Secretary of State (SOS), upon certification that
a petition for an initiative measure has been signed by the
number of electors required under existing law for the measure
to qualify for the ballot, to transmit that initiative measure
to the Legislature.
2)Permits the Legislature to amend an initiative measure
transmitted to it, if the initiative measure amends the
constitution, and to pass the amended form of the initiative
measure as a legislative constitutional amendment by
concurrent resolution, two-thirds of each house concurring,
within 30 legislative session days after the transmittal of
the initiative measure to the Legislature, and not less than
131 days prior to the next general election. Provides that
the original initiative measure shall not be submitted to the
electors, and the legislative constitutional amendment instead
shall be submitted to the electors, if both of the following
conditions are satisfied:
a) The proponent, or a majority of the proponents, if
applicable, accepts the legislative constitutional
amendment in lieu of the initiative measure or the part of
the measure that proposes an amendment to the Constitution,
and so informs the SOS; and,
b) The Attorney General (AG) determines that the
legislative constitutional amendment as enacted furthers
the purposes of the initiative measure.
3)Permits the Legislature to enact into law any initiative
measure transmitted to it, including adopting amendments to
the initiative measure, if the initiative measure is a statute
only, by enacting a bill. Provides that the enacted bill
shall become law and the initiative measure shall not be
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submitted to the electors, only if all of the following
conditions are satisfied:
a) The bill is enacted as a statute within 30 legislative
session days after the transmittal of the initiative
measure to the Legislature, and not less than 131 days
prior to the next general election;
b) The proponent, or a majority of the proponents, if
applicable, accepts the bill as enacted and so informs the
SOS; and,
c) The AG determines that the bill as enacted furthers the
purposes of the initiative measure.
4)Provides that, in the case of an initiative measure that
amends both the constitution and statute, the original
initiative measure in its entirety shall be submitted to the
voters unless the Legislature approves both a statute and a
legislative constitutional amendment pursuant to the
procedures outlined above.
5)Requires the Legislature to return an initiative measure to
the SOS within 30 legislative session days after the measure
is transmitted to it, and not less than 131 days prior to the
next general election, unless a legislative constitutional
amendment is passed or a statute is enacted in lieu of the
initiative measure, as described above. Provides that if the
Legislature does not return the initiative measure to the SOS
within 30 legislative session days and not less than 131 days
prior to the next general election, it is deemed that the
Legislature returned the measure in the same form as it was
initially presented to the SOS. Requires the SOS to submit
the measure at the next general election held at least 150
days after it qualifies unless the proponent, or a majority of
the proponents, if applicable, of the measure withdraws the
measure not later than 90 days prior to the date of the
election at which the measure is scheduled to be submitted to
the electors, and so informs the SOS.
6)Permits the Legislature to amend or repeal any statute enacted
pursuant to the process described above in accordance with any
of the following methods:
a) At any time, provided that the statute is amended or
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repealed by another statute passed with two-thirds of the
membership of each house concurring;
b) At any time, provided that the statute is amended or
repealed by another statute that becomes effective only
when approved by the electors; or,
c) Provided that at least six years have elapsed since the
effective date of the statute, by any other statute,
subject to the vote requirements that would otherwise apply
to that statute.
7)Provides that, for the purposes of this constitutional
amendment, "legislative session day" means a day on which the
Members of both houses of the Legislature are required to be
in Sacramento to attend a session of the Legislature.
EXISTING LAW :
1)Permits voters to propose statutes or amendments to the
Constitution by initiative. Requires an initiative petition
for an initiative 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 statewide initiative measures to
the voters at the next general election held at least 131 days
after they qualify, 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 19 is a good governance bill that will result in
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higher quality propositions that will create better and more
consistent laws. It will also provide a larger degree of
transparency throughout the process, save money, and help the
public to understand the initiatives they are voting on."
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; in
the others, it 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
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
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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, and voters abolished it in 1966.
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
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.
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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 an initiative to be withdrawn from the ballot by
endorsing a bill, constitutional amendment, or both, that has
been approved by the Legislature, provided that the AG makes a
determination that the bill, constitutional amendment, or
both, furthers the purposes of the original initiative.
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 bill, constitutional amendment, or
both, 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
Legislature fails to act, the proponents submit the 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
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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)Arguments in Opposition : According to the Howard Jarvis
Taxpayers Association, "Our foremost concern with ACA 19 is
that the measure absolutely eviscerates Article 2, Section 10
of the State Constitution. What is to stop the Attorney
General from saying that an income tax increase 'furthers the
purpose' of Proposition 63, which established a new income tax
rate to fund mental health programs in 2006? If ACA 19 is
approved, tax increases could essentially be passed at will
with no vote of the people."
Also in opposition to this measure, the California Taxpayers
Association writes:
Article IV, Section 1 of the California Constitution
provides that "the legislative power of this State is
vested in the California Legislature which consists of the
Senate and the Assembly, but the people reserve to
themselves the powers of initiative and referendum." ACA
19 would add unnecessary complication to this delineation
of power, and may result in initiatives being blocked from
appearing before the voters against the wishes of those who
signed petitions to qualify the measure for the ballot.
ACA 19 also would allow the Legislature to take action to
keep an initiative off the ballot over the objection of
some of the initiative's sponsors. The Legislature
currently has the authority to introduce and act on
legislation that is similar or identical to statutory or
constitutional changes proposed in pending initiatives. It
is not necessary to expand this authority to also allow the
Legislature to supplant initiatives that have qualified for
the ballot.
6)Technical Issue and Suggested Amendment : The most recent set
of amendments to this constitutional amendment inadvertently
omitted one change and, as a result, created an inconsistency.
To correct this technical error, committee staff recommends
the following amendment:
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On page 5, line 16, strike out" 150" and insert:
131
7)Previous Measures : 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.
8)Related Legislation : ACA 12 (Gatto), which is pending in this
committee, proposes to establish an indirect initiative
process.
9)Approval of Voters : As a constitutional amendment, this
measure requires the approval of the voters to take effect.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
California Taxpayers Association
Howard Jarvis Taxpayers Association
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094