City Journal Summer 2014

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Summer 2014
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California

Steven Greenhut
Losing Propositions
California’s attorney general politicizes the initiative process—again.
16 January 2014

More than any other state, California relies on what is sometimes called “direct democracy”—ballot initiatives, referenda, and recall elections—for routine governance. To get an initiative on the statewide ballot, citizens must first submit it for review to the state attorney general’s office, which provides a ballot title and summary of the proposed measure. This allows proponents to begin collecting the hundreds of thousands of signatures needed to bring a measure to a vote. Because most voters know nothing more about these measures than what appears in the state’s voter-information guide, the attorney general has what amounts to make-or-break power over such proposals. In theory, the attorney general plays it straight and doesn’t take sides. But current California attorney general Kamala Harris has earned a reputation for sabotaging initiatives opposed by her allies in the state’s public-employee unions—and for writing glowing summaries of those that they support.

No issue is higher on the unions’ agenda than preserving the costly and unsustainable system of pension and health-care benefits for retired state workers. Harris has used the ballot title and summary process several times to undermine reform efforts. Occasionally her meddling has been brazen enough to attract attention even from the state’s liberal newspapers. As the Contra Costa Times editorialized in 2012, “Her summaries on two pension reform measures slated for the November ballot were so blatantly biased that the sponsor of the measures has ended signature gathering, saying the ballot descriptions made it impossible to raise the $2 million they would need to qualify a measure, and has withdrawn them.”

After that disturbing episode—followed by Harris’s glowing description of the Proposition 30 tax increase that Governor Jerry Brown put on the 2012 ballot—California political observers anxiously awaited her title and summary for another pension-reform measure due to appear on the 2014 ballot, this one championed by Democratic San Jose mayor Chuck Reed. “It shouldn’t be necessary to urge Harris or any California attorney general to be impartial,” opined the Los Angeles Times in December. “Under state law, the attorney general is responsible for writing an evenhanded title and summary not ‘likely to create prejudice’. . . . The attorney general should do her best to give a fair and unbiased assessment. She should leave the politicking to the advocates.”

The Sacramento Bee’s Jon Ortiz wondered whether the attorney general would live up to that responsibility. He pointed to a leaked union polling memo, noting that using the language “eliminates pensions” resonates with voters and causes them to oppose any sort of pension reform. “Reed’s measure doesn’t ‘eliminate’ pensions,” Ortiz wrote. “It eliminates the guarantee that pensions can never be altered once promised.” Harris ultimately gave the initiative a bland and unobjectionable title. But in her summary, she followed the recommendations in the union memo. The summary’s first line reads: “Eliminates constitutional protections for vested pension and retiree healthcare benefits for current public employees, including teachers, nurses, and peace officers, for future work performed.”

Reed argues that because annual state pension costs have soared from $3 billion to $17 billion over the past decade, local governments need the power to limit benefits for current workers prospectively. A Santa Clara County Superior Court judge recently gutted the pension-trimming elements of Reed’s plan, which had been approved by 70 percent of voters in his overwhelmingly Democratic city. Reed points out that Harris’s summary “incorrectly claims that the initiative eliminates constitutional protections for vested retirement benefits for future work performed. In fact, the initiative maintains protections for all accrued retirement benefits, including the benefits employees accrue as future work performed.” Some initiative supporters are considering suing the attorney general, though it shouldn’t be necessary for a judge to compel Harris to follow the law. Senate President Pro Tem Darrell Steinberg, a Democrat from Sacramento, said this week that both sides were unhappy, which means that Harris did a “fair job.” Of course, Steinberg, like most California Democrats, is closely allied with the public-sector unions.

The Democrats have supermajorities in both legislative houses and control the governor’s office and every statewide constitutional office. Legislators, at union officials’ behest, have introduced bills limiting ballot initiatives to high-turnout general-election cycles—a “reform” that benefits only Democrats, thanks to their voter-registration advantage. Taking the title-and-summary duties away from a partisan stronghold such as the attorney general’s office and vesting it instead in a nonpartisan government department, such as the Legislative Analyst’s Office, might help some—though the unions would surely try to block it. They’re quite happy with the current arrangements.

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