California voters lay down the law at the ballot box -- routinely
By Sam Stanton Bee Staff Writer (Published Aug. 4, 1996) It was a nasty fight between the utilities and conservationists, and a few days before the election the environmentalists made a last-ditch plea in a newspaper advertisement: "The People Still Rule," the ad stated, and a few days later the voters proved it, handily approving Measure 11 to keep dams off the Klamath River. The year was 1924, the voter-initiative process was still in its infancy and high-priced campaign managers had yet to come up with the concept of 30-second attack ads. Today, 84 years and 238 measures after California voters first got their chance to influence their future by taking issues to the ballot for a direct vote of the people, the process is under attack. Voter pamphlets explaining the various measures often exceed 100 mind-numbing pages in length, and this November's will hardly be any different. Already, a dozen measures have qualified for the ballot, making it one of the longest ballots in state history. Special interests use their millions and influence to buy petition signatures to get their measures on the ballot, then rent the airwaves and fill them with ads to push for passage. Some cloak their true corporate goals in the guise of well-intended public policy. "It's a tradition," Charles Price, a political scientist at California State University, Chico, and expert on the process, said of the varied and numerous measures brought up each election. "People are used to it." But after nearly a century of letting the voters decide on issues as diverse as the death penalty and school prayer or prizefighting and nuclear proliferation, there is one element of initiatives that remains true: The people still rule. About 800 have been proposed over the years, but most failed even to win enough signatures to make the ballot. Of the 238 initiative statutes and constitutional amendments placed on the ballot, the voters have approved only 77, a paltry 32.4 percent approval rate.
Voters have rejected efforts to register handguns (Proposition 15 in 1982) and tossed out a bid to keep all stores, factories or barber shops closed on Sundays (Proposition 26 in 1930). They overcame an $18 million spending binge by the tobacco lobby to reject efforts that would have weakened local anti-smoking ordinances (Proposition 188 in 1994) and denied efforts to allow doctor-assisted deaths for terminally ill patients (Proposition 161 in 1992). Despite the fact that the vast majority of initiative efforts either fail before or once they get to the ballot, the process and its impact are defined more by the relatively few number that pass. Voters have approved the use of the death penalty and a get-tough act against criminals labeled the "three strikes and you're out" measure. They enacted sweeping protections of California's fragile coastline after a recalcitrant Legislature refused. They created a crop of instant millionaires and a means of education funding through the creation of the state lottery (and at the same time banned casino gambling). They banned virtually all public services to illegal immigrants, but the courts have stopped enactment so far. They even approved daylight-saving time, though it took a few tries before voters consented. No single measure, however, has had a more sweeping impact than one passed 18 years ago by a 65 percent to 35 percent margin. It was called Proposition 13 and enacted strict new limitations on property tax bills, something championed by two anti-tax crusaders, the late Howard Jarvis and Paul Gann. While Proposition 13 gave property holders a big tax break, it also radically changed the way governments in the state fund services. It led to a fee system for government services that is vast and, to some, as much of a burden as was the old property tax system. Proposition 13 did much more than limit the amount of money the state would have available to spend on government each year. It also reinvigorated the initiative process itself, both in California and in many other states. "There's no question that Proposition 13 brought it roaring back to life because of its dramatic impact," said Joel Fox, president of the Howard Jarvis Taxpayers Association. "It touched a core with Americans all across the country because 13 blazed across like a prairie fire that went from west to east."
It also spawned a vast new industry devoted to encouraging new initiative efforts and getting them onto the ballot. Before Proposition 13 passed in June 1978 as the only measure on the ballot, voters had faced decisions on 153 other measures over a 66-year time span. In the 18 years since, 84 measures have been placed on the ballot and countless more are on the way. "What we've seen is right after passage of Proposition 13 the public was wildly supportive of initiatives," said Mark DiCamillo, director of the Field Institute, which has surveyed California voting trends for decades. "They thought initiatives were great, but some of the bloom has come off the rose. "There are still a majority thinking they're a good thing rather than a bad thing, but the majority is down by about 20 percent. Still, you can't write the story that the public is mixed over the initiative process." In fact, the past two statewide ballots each carried five initiative measures, and California is approaching a record number for the coming November ballot. The reasons given for the glut of measures are varied -- a highly partisan Legislature unable to address some issues, the clout and money of special interests, and a public bent on taking matters into its own hands to fight crime, taxes or other problems it perceives are not being corrected by politicians. "The initiative process is a release valve to a government not operating," said J. Fred Silva, executive secretary of the California Constitution Revision Commission, a body that recently issued a report recommending changes to improve the initiative process. The initiative process started out as exactly that: a means to circumvent a government that was not following the will of the people. It began in California just after the turn of the century, when special interests and the railroads were perceived as having too much control over state government. At the time, only South Dakota had provisions for voter initiatives, and reform leaders in California looked to that state and to Switzerland, where the concept originated, to see if it would work here. Campaigning on a platform to break the monopoly of influence enjoyed by rail barons, Hiram Johnson was elected as a reformist governor, and the stage was set for the voters to decide whether they should have the right to bring matters to the ballot. In a special election Oct. 10, 1911, the measure passed overwhelmingly, with 168,744 approving and 52,093 voting against. California became the 10th state in the Union to provide for initiatives, giving citizens the ability to take measures to the ballot if they were able to prove they had enough support.
The rules were relatively simple: For an initiative statute (which would enact a new law), the number of signatures of registered voters needed was equal to 5 percent of the number who voted in the last gubernatorial election. For an amendment that would make a measure part of the state's constitution, and more difficult to change, the figure was 8 percent. A third type of measure also was approved. Under "indirect initiative," the Legislature had 40 days to approve or reject the proposed amendment. If it didn't act, the measure went to the ballot for statewide vote. That approach was little used and repealed in 1966. At first, qualifying a matter for the ballot was a simple matter of collecting enough signatures. In 1912, only 53,484 signatures were needed for an initiative statute, and three made the ballot: one that would allow the merging of city and county governments, another to ban bookmaking and a third to let local governments raise money. But the newly empowered electorate disappointed measure organizers when it came time to vote: All three measures lost. That usually has been the case when the fate of ballot measures are decided. Only about one-third of those that make the ballot pass, and getting measures placed on the ballot is much more difficult, and costly, these days. Organizers hoping to place a measure on this year's ballot must gather -- or pay to have gathered -- about 433,000 signatures. When the initiative process first began, "it seemed manageable for a small group of dedicated citizens who could envision collecting the signatures," Price said. "Today, in 1996, with the population of 33 million and hundreds of thousands of signatures needed, a few dedicated people just wouldn't have the chance of collecting the signatures needed. So, you need money and you need organization." That is hardly a stumbling block, if the issue is one that holds widespread public interest. "Some initiatives are extremely easy," Price said. ""Three strikes,' illegal aliens, people would wait in line to sign these petitions, and petition companies didn't have to pay as much money per signature because they were such popular issues. "On other issues like the open primary initiative that passed in March, I think a lot of people weren't sure what it was and what it meant and its impact. I think they had to pay their solicitors a lot more money."
As difficult as the process may now be to get items on the ballot, there is no evidence to suggest the process is withering. Already, a dozen measures have made the November ballot, ranging from the legalization of growing marijuana for medicinal purposes to an effort to raise the state's minimum wage. How many may pass is impossible to say, although there are historical guidelines that give some experts a chance to guess. If a measure makes it onto the ballot with a struggle, for instance, it can largely be declared dead before the voters even bother with it, according to a study DiCamillo made of all measures that have passed since Proposition 13. "If it starts out with any kind of hesitancy, if it isn't widely embraced by the public from the beginning, its chances are nil," he said. "If the final poll showed it behind, it always loses. It's 31 out of 31 (since 1978)," he added. "You can almost go to the bank on that. And if it starts out weak in the first measure, you can always count on it losing." Even those thought to have widespread support do not have a lock on winning. Initiatives shown in polls as being wildly popular often lose when it comes time for the voters to decide, and the survival rate of those is about 50-50, DiCamillo said. Others that appear to have a lock on victory often do win, such as Proposition 187 in November 1994, which approved efforts to deny certain public services and education to illegal immigrants. But the case history of Proposition 187, one of the most controversial initiative measures ever voted upon in California, also points out an unintended consequence of the entire process. Although the measure passed and had the strong backing of Gov. Pete Wilson, who rode it to a re-election victory over Democrat Kathleen Brown, it has yet to take effect. The reason? The courts. hallenged almost immediately on the basis of its constitutionality, the measure has been held up by court rulings. While controversy still rages over the issue -- fistfights over the matter broke out in Los Angeles over the July Fourth holiday during dueling Independence Day celebrations -- the courts often make the final decision on voter initiatives.
The "three strikes" measure that passed overwhelmingly two years ago is the latest measure to fall victim to the courts. Although the measure was in place for two years, the California Supreme Court ruled in June that judges still should have the authority to disregard prior convictions when sentencing defendants, something that struck at the heart of the "three strikes" law. Legislative efforts to amend the sentencing law are under way, and the "three strikes" and 187 challenges are hardly the first for the state to face. Even with the courts as a check for unconstitutional or flawed measures that make their way into law, the final arbiter for most measures is the voter. That fact alone startles some, who say the inherent power of the voters to make decisions on virtually any issue can conflict strongly with their own self-interest. For Eppie Johnson -- whose Eppie's restaurants in Sacramento may have to lay off workers if Proposition 210, the minimum-wage measure, passes -- that is a fact that deeply concerns him. "Maybe the voters should also decide how much I charge for my food," Johnson said. But the process has been well-tested over the decades, and many say that if change is needed it is necessary only in minor ways. Even in an age when special-interest groups masquerade as something they are not or mislead the public as to the real impact of their initiatives, many experts agree the voters typically can see through the smoke. "I think campaigns have become more sophisticated along with individual PACs and labor unions," said Tupper Hull, who has organized initiative campaigns and is working to defeat the move to boost the minimum wage. "But I still think the voters in California make pretty smart choices and are pretty damn smart when it comes to figuring out those that are not in their interest and those that are in their interest."
Initiatives to be on the ballot this November
Here are the voter intitiative measures on the Nov. 5 ballot, along with key sponsors or supporters: Proposition 207, would prohibit any restrictions on the right to negotiate attorneys' fees -- whether fixed, hourly or based on a contingency. Sponsored by the Consumer Attorneys of California. Proposition 208, would limit individual campaign contributions per candidate to $250 in legislative districts and $500 in statewide races. Limits would be doubled for candidates who agree to spending caps. Sponsors include California Common Cause and the League of Women Voters of California. Proposition 209, the self-titled California Civil Rights Initiative, would eliminate state and local affirmative action programs that give preferential treatment on the basis of race, sex, color, ethnicity or national origin. Supporters include Gov. Pete Wilson and Sacramento business consultant Ward Connerly, a regent of the University of California. Proposition 210, would mandate an increase in the state's minimum wage from the current $4.25 per hour to $5 an hour in March 1997 and to $5.75 an hour in March 1998. Supporters include the California Labor Federation, AFL-CIO, and the California Council of Churches. Proposition 211, would make it easier for shareholders to prevail in lawsuits in state court against corporate directors. It also would prohibit any new limits on fee arrangements between attorneys and clients. Supporters include William Lerach, a San Diego securities lawyer. Proposition 212, would limit individual campaign contributions per candidate to $200 in statewide races, $100 in most other races. Committees of small donors could donate up to 100 times the limit. Sponsors include the the California Public Interest Research Group (CalPIRG). Proposition 213, would prohibit uninsured motorists and drunk drivers involved in automobile accidents from recovering monetary damages for pain and suffering. Sponsored by state Insurance Commissioner Chuck Quackenbush. Proposition 214, would prohibit health maintenance organizations from requiring doctors not to inform patients about all treatment options and would prohibit financial incentives to doctors for delaying or denying care. Supporters include the Service Employees International Union.
Proposition 215, would legalize the cultivation, possession and use of marijuana for medicinal purposes if authorized by a doctor. Supporters include Assemblyman John Vasconcellos, D-Santa Clara, and George Zimmer, president of the Men's Wearhouse. Proposition 216, would prohibit health maintenance organizations from offering financial incentives to doctors to limit medical care, and would require a second opinion before care recommended by a patient's doctor is denied. Supporters include consumer advocate Ralph Nader and the California Nurses Association. Proposition 217, would continue tax rates of 10 percent and 11 percent for residents with taxable incomes of $100,000 and $200,000, respectively, with the revenues earmarked for local government services. Sponsored by the California Tax Reform Association. Proposition 218, would make it harder for local governments to impose benefit assessment districts and would require voter approval of any increases in general taxes. Sponsored by the Howard Jarvis Taxpayers Association.
Lottery initiative was one consultant's roll of the dice
By Dan Bernstein Bee Capitol Bureau (Published Aug. 5, 1996) Californians who enjoy playing Super Lotto, Scratcher and other lottery games perhaps have no one to thank more than Kelly Kimball. Kimball, head of a Los Angeles signature-gathering firm, was evaluating business prospects for the 1984 election and didn't see many voter initiatives on the horizon. So instead of waiting for an interest group or politician to approach him to collect signatures for a proposed initiative, Kimball decided to drum up some business on his own. His idea? A state lottery initiative. His target? Scientific Games Inc., a Georgia-based lottery equipment company and subsidiary of Bally Manufacturing Corp. The result? Scientific Games pumped more than $2.1 million into the campaign for a lottery, which passed 58 percent to 42 percent. The company later won a $40 million contract to print game tickets, develop a computer system and provide consulting services. Meanwhile, Kimball's firm netted about $200,000 for its work recruiting and supervising the scores of paid workers around the state who collected the voter signatures needed to place the lottery measure on the 1984 ballot. Some people who were involved in the campaign said they believe a lottery initiative would have been on the ballot regardless of Kimball's efforts, that California was a huge lottery market just waiting to be tapped. But the mere fact that Kimball took the initiative to meet with representatives of Scientific Games more than a year before the lottery measure was launched is vivid evidence of what's at stake for the cottage industry that has grown up around voter initiatives in California. That industry includes not only paid signature gatherers, but also political consultants, media buyers, polling firms and law firms that make millions of dollars each election year on voter initiatives.
Win or lose, they all get paid. "They've got staff and offices and a direct interest in seeing that the initiative cauldron keeps boiling," said Charles Price, a professor at California State University, Chico who has written extensively about the initiative process. Indeed, some law firms and political consultants now specialize exclusively in voter initiatives. Given the potential profits from initiative campaigns, it's not surprising that they shun work on behalf of candidates. "If the pie is big enough, a consultant can take not a gigantic slice and make a lot of money," said Darry Sragow, a Democratic political consultant who works mostly for candidates. "Consultants like initiatives because there's not a candidate upon whom you're dependent. There's less second-guessing." Most political consultants charge at least $10,000 per month, and most also receive a commission of up to 15 percent on all media ads they place. Those fees can add up to several hundred thousand dollars in a typical well-funded campaign; in some cases, a consultant can earn millions. Law firms that work on initiatives can earn up to $200,000 depending on the range of services they provide -- everything from drafting the initiative to screening campaign materials to going to court to challenge the official "title and summary" of the initiative on the ballot. "We're part of the massaging process," said Vigo "Chip" Nielsen, whose firm has worked on voter initiatives for more than 20 years. And, of course, there are the professional signature-gathering firms. Given that initiative proponents have 150 days to collect either 433,000 or 693,000 voter signatures -- depending on the type of initiative -- even groups with vast volunteer networks must rely on paid signature gatherers. The rule of thumb is that hiring a firm to collect the signatures necessary to place a measure on the ballot costs between $700,000 and $1 million. This year, a flood of requests to independent contractors prompted them to demand more money per signature, driving up the cost. "A lot of them (initiative proposals) got started late, and they got into a price war," said Michael Arno, president of American Petition Consultants in Gold River. "If you didn't have the money you got squeezed out. You've got a finite pool of workers out there." The profits for the initiative industry never were higher than in 1988, when 18 voter initiatives appeared on the primary and general election ballots -- including five measures that dealt with automobile insurance issues.
Thanks largely to the deep pockets of the insurance industry, partisans spent more than $120 million on campaigns for voter initiative campaigns in 1988 -- about a third more than interest groups spent on lobbying state government that year. But the insurance industry, which spent about $80 million to influence voters, was a big loser: It failed to defeat Proposition 103, which called for rolling back automobile insurance rates, and its own initiative to implement a no-fault automobile insurance system lost by a 3-to-1 margin. San Francisco political consultant Clint Reilly, who reportedly received more than $7 million for his work, managed the insurance industry campaign. Despite the crushing defeat, the chairman of the campaign said recently he did not believe Reilly was overcompensated. "Whatever (Reilly) made I felt he was entitled to," said Stanley Zax, chairman of Zenith Insurance Companies. "He gave up every other business opportunity. He showed up and played the game in a highly professional way." Ironically, the campaign manager for the successful Proposition 103 campaign, Bill Zimmerman, went on to head a recent campaign to institute a sweeping no-fault automobile insurance measure, Proposition 200. Zimmerman said he changed his views about no-fault insurance in 1994 after seeing it could be designed to cover the injuries suffered by the vast majority of drivers and to lower insurance rates. "In 1991, I was unaware that such a system could ever be structured," he said. Zimmerman and other proponents decided to couple the no-fault proposal (Proposition 200) with another initiative to limit attorney contingency fees in certain cases (Proposition 202). The move was designed in part to dilute expected opposition from the state's trial lawyers. Then, to attract financial support from the state's high-tech industry, proponents drafted a third measure (Proposition 201) aimed at curbing shareholders' lawsuits against corporate directors. Because of the volatile prices of high-tech stocks, computer firms have been particularly vulnerable to such lawsuits and were eager to put a halt to them. Proponents knew the no-fault measure almost certainly was doomed without a huge amount of money that could come only from the insurance industry, Zimmerman said. That support never materialized, and all three measures went down to defeat in the March primary amid a heavy barrage of negative television commercials paid for by trial lawyers.
Zimmerman's firm, Zimmerman and Markman, received more than $409,000 during the campaign, public records show. Zimmerman disputed that figure, saying his firm earned no more than $300,000, including commissions. Zimmerman denied proposing any of the three initiatives to line his pockets, although he acknowledged that the shareholder measure increased his fees by attracting funds from the high-tech industry. Consultants hired to oppose voter initiatives can increase their profits by developing counter-initiatives. The theory is that dueling measures increase voter confusion, and when voters are confused they tend to vote no. But running two campaigns instead of one also can produce more revenues for a consultant. Counter-initiatives were very popular in 1990, when voters faced a dizzying assortment of environmental measures with nicknames such as "Big Green," "Big Brown" and "Forests Forever." The agriculture and timber industries hired Dick Woodward, a Burlingame political consultant, to run the campaign against two of the environmental measures: Proposition 128, a proposal to tighten pollution, health and conservation laws; and Proposition 130, a proposed bond measure to acquire ancient forest lands and limit logging. As part of his strategy for defeating Proposition 130, Woodward said he recommended that the forest industry place its own measure on the ballot -- Proposition 138 -- and promote it as a more reasonable alternative. Public records show that Woodward's firm, Woodward & McDowell, was paid more than $700,000 for its work against Propositions 128 and 130, and received another $380,000 for its work in favor of Proposition 138. All of those measures lost. Woodward denied he ended up making more money by running a campaign for the counter-initiative, contending the industry had a fixed budget that was simply split between the two campaigns. "I suppose there could be some firms that make more money as a result of (counterinitiatives)," Woodward said. "We didn't." A veteran of the initiative business, Woodward also ran the campaign for the lottery initiative in 1984, a relatively low-budget affair in which his firm made $189,000, according to public records. Woodward said he was brought into the campaign by Kimball, who was having trouble persuading Scientific Games to fund a lottery initiative campaign in California.
They later teamed up with San Francisco lawyer Barry Fadem, who drafted the voter initiative so that a third of the money raised from the lottery would go to public education, a major selling point in the campaign. As Kimball tells it, he wasn't quite sure what he was getting into when he set out to devise a lot tery initiative. "I called some friends in Sacramento and asked if they knew any lobbyists for lottery companies," recalled Kimball. "I got pointed to Scientific Games, a subsidiary of Bally (Manufacturing Corp.). I had never heard of them before. I didn't think it would get off the ground." According to Kimball, negotiations with representatives of Scientific Games bogged down over how much money could be raised and how it would be spent. But after hearing Woodward outline a game plan during a breakfast meeting at the Fairmont Hotel in San Francisco, the company agreed to go forward. "They were trying to test the temperature," Woodward said. "There was some reticence on their part until they saw some polling (information)." Asked about his unusual role in the campaign, Kimball made no apologies for recruiting an initiative proponent as a way to drum up business. "People in California wanted a lottery, but every time a bill was run through the Legislature it was snuffed out immediately," Kimball said. "I'm not ashamed (of my role) because this was the reason for the initiative."