BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Alex Padilla, Chair
BILL NO: AB 2439 HEARING DATE: 6/17/14
AUTHOR: DONNELLY ANALYSIS BY: Frances Tibon
Estoista
AMENDED: 4/8/14
FISCAL: YES
SUBJECT
Secretary of State: initiative information
DESCRIPTION
Existing law requires the Secretary of State (SOS) do all of the
following upon request of the proponents of an initiative
measure which is to be submitted to the voters:
Review the provisions of the initiative measure after it is
prepared prior to its circulation.
Analyze and comment on the provisions of the measure with
respect to form and language clarity.
Request and obtain a statement of fiscal impact from the
Legislative Analyst.
Provides that the review performed shall be for the purpose
of suggestion only and shall not have any binding effect on
the proponents of the initiative measure.
Existing law requires the SOS to prepare and make available a
pamphlet describing the procedures and requirements for
preparing and circulating a statewide initiative measure and for
filing sections of the petition, and describing the procedure
used in determining and verifying the number of qualified voters
who have signed the petition.
Existing law requires the Legislative Counsel to cooperate with
the proponents of an initiative measure in its preparation when
requested in writing by 25 or more electors proposing the
measure when, in the judgment of the Legislative Counsel, there
is reasonable probability that the measure will be submitted to
the voters of the State under the laws relating to the
submission of initiatives.
This bill requires the SOS to post on his or her Internet Web
site and include in the Statewide Initiative Guide pamphlet,
information describing that the following services are available
to the proponents of a proposed measure:
1) The Legislative Counsel's cooperation in preparing an
initiative measure, as specified in current law; and,
2) The SOS's review of prepared initiatives prior to
circulation, pursuant to current law.
BACKGROUND
Current Assistance : As noted above, existing law requires the
SOS to prepare a Statewide Initiative Guide which provides an
overview of the procedures and requirements for preparing and
circulating initiatives, for filing sections of the petition,
and describing the procedure of verifying signatures on the
petition. However, the guide is for general information only
and does not have the force and effect of law, regulation, or
rule.
Step one of the SOS's Statewide Initiative Guide states that the
"first step in the process of qualifying an initiative measure
is to write the text of the proposed law. The initiative
measure's proponent(s) may obtain assistance from the Office of
the Legislative Counsel in drafting the language of the proposed
law. Proponent(s) must obtain the signatures of 25 or more
electors on a request for a draft of the proposed law;
proponent(s) must then present the idea for the law to the
Legislative Counsel. If the Legislative Counsel determines that
there is a reasonable probability the initiative measure will
eventually be submitted to the voters, the Legislative Counsel
will draft the proposed law. Proponent(s) may also seek the
assistance of their own private counsel to help draft the text
of the proposed law, or they may choose to write the text
themselves. "The SOS's guide also lists the contact information
for the Office of the Legislative Counsel.
The requirement for the Legislative Counsel to assist proponents
in the drafting of the language of a proposed initiative measure
became law in 1945 through the passage of SB 1138 (Fletcher &
Burns), Ch. 111, Statutes of 1945. According to the Legislative
Counsel's Office, it is difficult to quantify how often this
request for service has been utilized; however, it is not
AB 2439 (DONNELLY)
Page 2
uncommon for the Legislative Counsel to receive requests for
drafting assistance. However, in practice, the requests tend to
come from initiative proponents with more limited financial
resources. Initiative proponents with greater financial
resources tend to use private counsel or legal firms that
specialize in certain issue areas, such as the Political Reform
Act, when drafting the text of a proposed initiative.
In 1975, the Legislature passed and the Governor signed AB 1142
(Hayden), Ch. 955, Statutes of 1975, which required the SOS,
upon the request of the proponents of an initiative measure
which is intended to be submitted to the voters of the state, to
review the provisions of the initiative measure after its
preparation and before its circulation. The review consists of
analyzing and commenting on the provisions of the measure with
respect to form and language clarity and obtaining a statement
of fiscal impact from the Legislative Analyst. Additionally,
existing law provides that the review would be for the purpose
of suggestion only, having no binding effect on the proponents
of the initiative measure. According to the SOS's office, since
its implementation into law, only a handful of proponents have
requested this service.
COMMENTS
1. According to the Author : The initiative process was created
as a progressive reform to break the stranglehold of
entrenched economic and political interests on California's
political system. The initiative has given the people a
means of direct control over their government and has allowed
them to enact many important reforms over the past century.
The right of initiative is reserved by the people under our
constitution, and has been described by the courts as one of
the most precious rights of our democratic process.
Although the initiative system provides a valuable means for
citizens to influence public policy, some critics have
claimed that initiative measures sometimes contain drafting
errors which could create legal ambiguities if adopted by the
voters.
Fortunately, California law already provides two avenues for
optional drafting assistance to initiative proponents. The
first method is through the Legislative Counsel, who can
AB 2439 (DONNELLY)
Page 3
assist in writing the measure before it receives an
initiative title, and the second is through the Secretary of
State, who must provide a review of a measure's form and
language clarity prior to circulation.
While assistance from the Legislative Counsel requires a
petition signed by 25 voters and a determination that there
is a reasonable probability the measure will be submitted to
the voters, assistance from the Secretary is available upon
request. However, only a few initiative proponents have ever
requested assistance from the Secretary, in part because so
few have been aware of its availability. For example, while
the Secretary's "Statewide Initiative Guide" notes the
assistance offered by the Legislative Counsel, it makes no
mention of the assistance available from her own office.
This is clearly a missed opportunity to improve the
initiative process for the benefit of all Californians.
Therefore, AB 2439 will ensure that the Secretary of State
publicizes the availability of all assistance offered to
initiative proponents under existing law, by placing notices
in the Statewide Initiative Guide, on her Internet website,
and on any other materials that describe the initiative
process. This initiative reform proposal was recommended by
the non-partisan Center for Governmental Studies.
2. Center for Governmental Studies : The author's statement
above references that this bill originated from a proposal by
the Center for Governmental Studies. In 2008, the Center for
Governmental Studies released a report entitled "Democracy by
Initiative: Shaping California's Fourth Branch of
Government." The report provides a variety of recommended
reforms to the initiative process. One of those
recommendations provided by the report seeks to address
problems that arise with poorly drafted initiatives.
According to the report, poorly drafted initiatives can
result in a variety of unpleasant scenarios. For example,
ambiguous or imprecise terminology can result in
implementation problems, drafting omissions and oversights
can result in unintended consequences and interpretation,
excessive length can overwhelm voters with too many issues,
complicated wording can promote voter confusion and
constitutional deficiencies can frustrate voters and cause
proponents to start the enactment process all over again.
AB 2439 (DONNELLY)
Page 4
The report provides a number of recommendations to reform the
initiative process. This bill includes one of those
recommendations - publicize drafting assistance availability
through the Legislative Counsel and the SOS's offices.
According to the report, even if a small number of proponents
took advantage of this assistance, it would improve the
quality of statutory and constitutional language put in place
by initiatives. The report does concede that "[m]any
initiative proponents view official review and criticism of
their proposals as a major inconvenience and one that can
sometimes be usurped for political purposes." Additionally,
the report states that "[e]ven supporters of an optional
drafting assistance program concede that review procedures
may be open to political opportunism? Moreover, it is
difficult to prod the authors of legislation into seeking the
opinions of others if they are not required to do so."
PRIOR ACTION
Assembly Elections and Redistricting Committee: 6-0
Assembly Appropriations Committee: 17-0
Assembly Floor: 78-0
POSITIONS
Sponsor: Author
Support: None received
Oppose: None received
AB 2439 (DONNELLY)
Page 5