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.
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.