Ever read the California constitution? Do not bother. It is long and goes way off topic with sentences such as: “Notwithstanding any other provision of law, gill nets and trammel nets may not be used to take any species of rockfish.”
What, you ask, are fishing regulations doing in the California constitution? They, along with many other random tidbits that should be legislative and not constitutional law, were added via ballot initiatives: a system that, in the spirit of democracy, allows concerned citizens to put constitutional amendments up for a simple majority vote. Once amended the constitution trumps any related legislation, can affect court rulings, and is difficult to change or correct without another ballot initiative. The silly thing is, this problem is quite easy to fix: make amendments more difficult to pass.
For example there are currently at least two constitutional amendment initiatives in the works that attempt to repeal Proposition 8: the amendment that banned same-sex marriage last November. Arguments as to whether Proposition 8 is even a valid constitutional amendment aside, this is a game of ping-pong with a document that controls how the California government functions and protects the rights of its citizens.
The current system is just too easy. It does not take much to put an initiative on the ballot. One that amends the constitution only needs signatures equivalent to 8 percent of voters in the last gubernatorial election. For a legislative initiative you need 5 percent. Neither of these percentages present a problem if you have money: you just hire a firm that gets them for you. And that is where the differences end.
But the initiative system is worth fixing. Although it is flawed, it is a powerful and useful tool. It gives people a system to check their elected representatives, and it is one of the reasons California is viewed as a progressive state. When the initiative system started in 1911, it checked corruption in Sacramento, and subsequently became responsible for many laws related to education, rent control, transportation, and taxes.
But as people and special interests realized how easy this new system was, more and more props were put before the voters. Even legislators and the governor use initiatives to pass legislation that they fail to pass the “normal” way. Constitutional amendments were not that common at first, but became more popular because they are more difficult to alter and repeal. Today, every single initiative currently submitted to be placed on the ballot is a constitutional amendment.
The California Commission on Campaign Financing proposed solutions to this problem back in 1992 when they recommended that constitutional amendments either require 60 percent of the vote to pass, or a simple majority in two consecutive elections. Both would make constitutional amendments more difficult to pass, but the second also addresses the question of who finances the campaigns for these propositions. For instance, the full scope of the participation of the Mormon church in the Yes on 8 campaign including the total amount of money they donated only became public months after the election. A second election allows voters to include this information in their decision, and allows the opposition campaign to form an adequate response. Two elections also require more money and energy from both sides of the campaign, and makes the amendment process less appealing to those who want to, say, put fishing regulations in the constitution.
California is better off because of its use of initiatives, but the system needs a fix. After all, it only takes a majority vote to amend the constitution and deny minority rights, but it takes two thirds of the legislature to pass a budget and keep the state from going bankrupt. But until it is remedied 51 percent of the vote will overturn Prop 8 in the next election, and like everyone else, I'll take advantage of the system while we have it.
