Yes on 54

When people who dislike the initiative system argue that it is a terrible system, my default argument back is that the system was intended as a failsafe by people who had fought for more than a generation to overcome effective control of the legislature by a single particularly powerful special interest, and that the initiative system remains one of the best ways to ensure that the people *always* have the power to push an agenda which politicians, for whatever reason, are unable to get behind. This argument has become somewhat less plausible as the signature collection industry has somewhat been captured by special interests, and as the cost of a statewide campaign has mounted to the point where the citizens cannot easily *pay* for a campaign to persuade one another without reliance on big donors; but it remains a useful power, even if it has been diminished.
It is particularly useful when it comes to things like Proposition 54, a populist reform of *the way the legislature does business*. The legislature would never, on its own, done what this initiative tries to do; it is too revolutionary a change to the working of the legislature for the legislature, absent a throw-the-bums-out style revolution, to pass it without external pressure. (The legislature *did* pass a version of it this year, but only as an attempt to persuade the author of the initiative to withdraw it).
Proposition 54 makes the following changes to the rules governing the legislature:
* it amends the state Constitution to say that any person attending a public meeting of the legislature may record the meeting (with audio or video) and broadcast and transmit the recordings, subject to rules regulating placement of equipment;
* it amends the state Constitution to require that, beginning January 1 2018, the Legislature itself shall record all public meetings and make the recordings available on the internet for no less than twenty years;
* it amends the state Constitution to say that no bill may be passed unless the bill, with any amendments, has been published on the internet (in its final form) for at least 72 hours before the vote on the bill, unless the Governor has specifically said that this bill is necessary to address a declared state of emergency and the legislature concurs with that assessment by a 2/3 majority vote.
* it amends the Government Code to repeal a prohibition against using recordings of the  Legislature for political or commercial purposes.
* it specifically requires the Legislature to continue to comply unless the initiative is declared unconstitutional by an appellate court, and requires the AG to act to preserve standing if the initiative is challenged in court and the AG declines to defend i t.
The legislative analyst optimistically estimates that it will cost the legislature  about $1 million a year to record its proceedings and host the video online. I’m not sure how that was calculated, as I expect the bandwidth use to be large, AND at the end of the day, *cost* isn’t really a reason to vote for or against this measure; even the worst case scenario for costs will render them a rounding error (although given the other constitutional limits on legislative expenses, there *might* be an issue with cost-of-hosting-videos crowding out other legislative expenses).
From what I can tell, there are basically two questions to consider with respect to this initiative:
* does repealing the prohibition on political and commercial use of legislative video run the risk that committee hearings will be selectively quoted out of context in political attack ads, and thereby force politicians to increase theirr tendency to use hearings for political posturing rather than actual work? Relatedly, does the repeal on *commercial* use increase the likelihood of really crass commercialization of floor speeches?
* does increasing transparency overall serve the public good, or does it make compromise more dififcult and thereby produce less good policy outcomes?
Let’s look at the last of those questions first, in the context of a specific provision.
Requiring that the text of a bill be available *to the legislators* for 72 hours before the vote is an obvious no-brainer — right now, the *legislators themselves* aren’t guaranteed to get copies of the text with enough notice to allow them to read the thing before voting on it, a fact which raises real questions about what the legislators are basing their votes on.
Posting it *online*, however, is a different issue. The intent seems to be to provide the public (specifically, watchdog and activist groups who have the time and staff to monitor these things) to read the bills and react to them by pressuring politicians not to vote for them in the window between publication and vote. This will increase the degree to which the legislators are responsive to the policy preferences of the activist groups doing this – whether or not that is a good idea depends on how representative the groups are of the interests of the population as a whole, and on the degree to which these groups believe in compromise in the interest of the public good.
At the level of democratic theory, this is an obvious win: the people have the right to know what their legislators are *going to do* in the name of the people, and have the right to use political pressure to keep the legislators in conformance with the will of the people.
And yet in practice, it may not work out as well as theory says it should. There is some evidence from other contexts that increasing transparency reduces the scope for compromise; and the nature of the 72-hour notice requirement is that it will allow well-funded or well-organized groups to notice and object to things while only *in theory* providing the same benefits to less well-funded and less well-organized groups. It *may* have the result of transferring more effective power into the hands of special interests.
Looking to the first question second: one of the reasons the Supreme Court is adamantly opposed to allowing cameras in the courtroom is that it believes that snippets of recordings of oral arguments will be used, out of context, to mislead people for political purposes, and that this will result in the justices, over time, using oral arguments to posture for political purposes instead of using them as indirect ways of persuading one another. There are ways to reduce the risk of this, and prohibiting the use of such recordings in political advertisements is a good start – but it’s really not clear if such a prohibition would be constitutional; if freedom of speech means anything, it means the ability to make political arguments.
Some of the opponents to Proposition 54 have a similar fear about its effects: by explicitly repealing a prohibition in state law that prevents the use of video of legislative meetings in political ads, the proposition creates a situation where statements can be taken out of context, used to mislead, and used to punish people for making compromises.
The argument on the other side, of course, is that this is simply a way for the people to keep their agents in line, and to use documentary evidence of malfeasance to hold legislative agents accountable.
(In theory, there’s a similar argument about allowing video of legislative action to be used for commercial purposes – some company using video of the legislature to sell its goods or services would be demeaning to the legislature, but it seems unlikely; politicians aren’t held in high enough esteem for such a campaign to be effective. *More likely*, though, is someone using out-of-context snippets from a legislative hearing to attack their competition).
I’m deeply, deeply conflicted about this measure.
I think there’s a real risk that video of legislative debate will be misused in misleading ways, and I think that the 72-hour public notice provision empowers those with the time and resources to keep track of legislation, which is a discrete, already quite priviliged, minority of the population. I think it’s a way for special interests to make it harder for legislators to escape their grasp, and it’s a way to make it easier to detect, and punish, compromise and deviaiton from the party line.
And yet.
Right now, it’s basically impossible for legislators to read what they’re voting on before voting on it (and in some cases, it’s apparently impossible for legislators to even get copies of bills before voting on them). That’s *utterly broken* as a matter of process, and it must be fixed.
So the question is: which is more important? Preventing the problems I see with the initiative, or ending the current system under which, in a very real sense, legislators can’t do their job?
I’m coming down – narrowly – on the side of the latter, and so accordingly I’m planning to vote ‘yes’. But it’s not as clear cut as I thought it was when I first heard of the initiative.

No on 53

Proposition 53 is a voter-initiated constitutional amendment to change the way certain kinds of bonds are sold by California and its agencies (but explicitly *not* subdivisions like cities, counties, and school districts).
In order to discuss Proposition 53, it is first necessary to discuss the difference between two kinds of bonds: general obligation bonds and revenue bonds.
A *general obligation bond* is a bond measure which is backed by “the full faith and credit of the state of California”. Legally, repayment on these bonds is one of the first obligations of the general fund; the state is bound on the repayment and must prioritize repayment over almost everything else.
A *revenue bond* is a bond measure which is backed by *a specific revenue stream*. The bond must be repayed out of that revenue stream before the revenue can be used for anything else, but *crucially*, the debt is securitized: if California defaults on the bonds, the bondholders have no ability to demand payment out of anything other than the revenue stream in question.
The normal use cases for this are things like toll bridges (bonds are issued to pay for the construction, and the bonds are repaid out of the toll revenue), dams (bonds are issued to pay for construction and the bonds are repayed either out of the sale of water or out of the sale of power), and aqueducts (bonds are issued to pay for the construction and the bonds are repaid out of the sale of water).
Under the California Constitution as it stands today, *general obligation bonds* can only be sold after they have been submitted to the voters and the voters have approved the sale of the bond. However, *revenue bonds* do not have to be approved by the voters.
Proposition 53 changes the state constitution so that voter approval would be required before the state or its agencies could sell revenue bonds totalling more than $2 billion (adjusted for inflation) for any one project, and prohibits splitting projects into sub-projects to get around this requirement. It also requires the appointment of independent counsel to defend the initiative in court if the Attorney General and the Governor both decline to defend the initiative.
The “appoint an independent counsel” provision is there because both the Attorney General and the Governor refused to defend Proposition 8 in federal court, and their refusal was directly tied to the fact that Proposition 8 was overturned and gay marriage was legalized in the state. That proposition was the first time in half a century that the AG and the Governor had both refused to defend an initiative, and their refusal to do so became a cause celebre in conservative circles in California, triggering a real fear that the Governor and AG could not be trusted to defend future initiatives with which they disagreed. This concern seems to be limited to conservative activist circles (although it probably shouldn’t be), and so inclusion of provisions like this is a reliable indicator of the political affiliation of the authors of an initiative – but, while interesting from a political anthropology standpoint, that really shouldn’t (IMO) be the basis for deciding how to vote on an initiative. 🙂
The provision itself is unlikely to ever go into play, as the scenario envisioned by it only happens once every half century or so, and so it’s harmless; and at the same time, it solves a real problem in federal law (under the precedent set in _Hollingsworth_, if the AG and Governor refuse to defend the initiative in federal court, then *nobody can*; this provision is written in such a way as to explicitly authorize someone to act on behalf of the state, which would allow the initiative to be defended in federal court). In my view, this is an unlikely-to-be-invoked provision that is a very good policy idea, and I would vote for a constitutional amendment to mandate it for *all* initiatives. But a provision which does this *just for a specific initiative* is not a reason to vote for that specific initiative; it’s about *how the initiative is defended if challenged*, not *the merits of the initiative’s policy prosecriptions*.
This is probably the simplest initiative on the statewide ballot in 2016, but it tangles deeply with political philosophy. The question voters are being asked to decide is: “should the voters have to approve the issuance of large revenue bonds”, and ultimately that’s an electoral system philosophy question.
For me, the answer is related to the question: “why do voters have to approve general obligation bonds?”
One argument for voter approval of general obligation bonds is that general obligation bonds *in effect* create a lien against future tax revenue, and the voters should only be legally bound to future taxes with their consent. Under that theory, requiring voter approval for revenue bonds is bizarre; revenue bonds do not constitute a lien against anything other than the specific revenue source tied to the bond; the voters aren’t being bound to future taxes, so why require a vote?
Another argument for voter approval of general obligation bonds is that they (usually) constitute huge projects, and that the voters should in general be consulted before any such huge projects are undertaken; under that theory, the voters should be consulted for large revenue bond projects, too.
Another arugment for voter approval of general obligation bonds is that taking on debt is a *moral* commitment as well as a *legal* commitment, and the voters should be consulted before making such a moral commitment. This extends to revenue bonds because, even if the bondholders have no legal recourse beyond the named revenue stream, the state of California is *morally* on the  hook for the dedbt and can be expected to pay it out of any revenue available to it – so *ethically* the bond binds the voters to future taxes even if legally it doesn’t, and therefore rervenue bonds should be subject to voter approval.
I think, in the end, how you vote on Proposition 53 depends on which theory you hold for why general obligation bonds should require voter approval, and I can’t really offer advice on that score. *I* think general obligation bonds require voter approval because they legally bind the voters to future taxes and so therefore should only be undertaken with voter approval, and so I see no reason to require voter approval of revenue bonds; your mileage may vary.
The official argument in favor seems to be that, by binding the users of particular services to increased fees, revenue bonds bind voters in a way that’s similar to how general obligation bonds bind voters to future taxes. The idea is that this kind of binding is sufficiently like the binding to future taxes as to require the assent of the bound.
But, it seems to me, if that’s the argument, then the vote should be *among the users of the service*. Which is to say: rather than requiring a statewide vote to approve revenue bonds backed by increased fees on the use of water from the aqueduct, the measure should require a vote of *contract customers for aqueduct water*. That would seem conceptually in line with the theoretical argument behind the measure.
One of the points made in the argument against is that this meassure doesn’t contain an exemption for emergencies or natural disasters. That is true; there is no such exemptions in the measure.
The argument for *not* having such exemptions is an old one: such exemptions are regularly abused, and so allowing the exemption nullifies the intent of the measure.
But the argument for having such exemptions is also an old one: if (say) the aqueduct is destroyed in an earthquake, absent an exemption, the repairs to the aqueduct either have to be paid out of *current revenue* (which is difficult to imagine, especially given how constrained the Legislature’s spending is by other constitutional and statutory initiatives) *or* cannot take place until after a statewide election – requiring either a costly special election or, in a worst case, a two year delay before beginning.
It’s not clear to me how likely such emergencies are to be served by revenue bonds; a general obligation bond seems like a more logical choice. But a general obligation bond already requires a vote, so the revenue bond seems like the least bad option under current law … and this measure would take the option away.
I will be voting against. I don’t see a valid theoretical justification, it ties the hand of state agencies seeking to solve real world infrastructure problems, and it doesn’t contain an emergency exemption.

No on 52

I have to admit, I’m really puzzled by Proposition 52, and I am seriously tempted to vote against it on those grounds – if I, a licensed-in-California lawyer who has followed ballot initiatives closely for 26 years, am confused, then it’s probably not something the voters should be voting on in its current form.
According to the ballot label, Proposition 52 “Extends indefinitely an existing statute that imposes fees on hospitals to fund Medi-Cal health care services, care for uninsured patients, and children’s health coverage”. That’s clear enough. But in order to do this it seems to require both an amendment to the state constitution AND a change in statute, and it’s not clear why; worse yet, it’s not clear to me *how* the change to the law does what the Legislative Analyst says it does.
Looking first to the law (, it appears that Proposition 52 does the following things:
(1) it amends the California Constitution to say that, if the legislature wants to change a particular law (Welfare and Institutions Code Article 5.230, the  Medi-Cal Hospital Reimbursement Improvement Act of 2013), those changes must be approved by the voters, unless the legislature either (a) the changes are passed by a 2/3 vote AND (b) either (1) the changes further the purposes of the original law or (2) the changes repeal the law in its entirety (without replacing it with a similar law that imposes a new tax, fee, or assessment).
(2) it amends the California Constitution to require that the fee raised by the original law is not considered revenue for the purpose of things like the overall spending limit or for the rule that says that roughly 50% of revenue must be spent on schools.
(3) it amends the Welfare and Institutions Code to automatically terminate Article 5.230 (the Medi-Cal Hospital Reimbursement Improvement Act) if the legislature fails to appropriate money in the Hospital Quality Assurance Revnue Fund in either the budget act or in a seperate bill enacted within thirty days of the budget act.
(4) it clarifies a rule so that Article 5.230 will automatically terminate given “a net general fund cost incurred due to the act” rather than “a cost to the general fund that is equal to or greater than one quarter of one percent of the general fund expenditures authorized in the most recent annual budget act.”
(5) it repeals the expiration date of the law.
Without even getting into my confusion about how this does what the LAO says it does, this is *bizarre*. It says the legislautre can’t change the underlying program without voter approval unless it does certain things by a 2/3 vote, but it makes it possible for the legislature to effectively repeal the underlying program by majority vote simply by failing to appropriate money from a certain fund. And it makes it *easier* for the underlying program to be automatically cancelled due to financial concerns, in the name of ensuring that the money raised is used for its intended purpose.
The Legislative Analyst has a decent explanation of the background. ( Apparently the state has been collecting a fee, levied against hospitals, since 2009, with the proceeds going (in part) to help fund the state’s share of Medical expenses and (in part) to underwrite the general fund; the part going to medical is currently matched by federal money. The fee will expire in 2018, but it’s been set to expire in the past, and the legislature keeps extending it; however, extension must be approved by the feds.
The LAO claims that the law does the following things:
* makes the program permanent.
* makes it harder for the legislature to end the fee
* makes it harder for the legislature to change the fee
* excludes the fee from the calculation of school funding
I can see how the law makes the program permanent; see (5) above. I can see how it makes it harder to change the fee; see (1) above. I can see how it excludes the fee from school funding; see (2) above.
But it does NOT make it harder for the legislature to end the fee. It *pretends to*, by requiring that a bill to do that pass by 2/3 or be approved by the voters, but because it *explicitly abolishes the program if the money isn’t appropriated*, it doesn’t *in fact* make it any harder – it just requires that the legislature play convoluted games to do so rather than doing so straightforwardly.
It’s pretty clear that the intended result of this initiative is to ensure that, if the federal government allows the fee to be extended, the program will continue in perpetuity, thereby securing a huge financial base for Medical, and that it will make it harder for the legislature to decide to divert the money or abolish it.
It’s also pretty clear to me that the initiative doesn’t actually have that result, probably because it’s a voter initiative and was likely drafted by a sloppy lawyer.
But *even if it did what it said it would do*, I would vote against, because this violates one of my strongest policy preferences for initiatives: it writes a *particular allocation of dollars into the state constitution*. By doing so, it decreases the ability of the legislature to respond to developments, and ossifies and hardens the budget structure. The more we mandate, at a constitutional level, that things be spent a certain way, the less flexibility the state has to deal with economic or environmental catastrophes.
The official argument against, in typical useless fashion, wants to decry hospital ceos who make too much money, but that’s not the problem with this initiative. The problem with this initiative is that it’s an extremely well-intentioned plan to implement bad policy which, due to flawed drafting, doesn’t even accomplish it’s intended goal.
Vote no on Prop 52.