Prop. 17 represented all that is wrong with direct democracy
The most populous state in the Union went to the polls on Tuesday, and as Californians were voting, the Supreme Court issued a bizarre ruling that put an immediate halt to a crucial provision of Arizona’s public financing program. What do the two have in common? I’ll get to that later, but first, here are my thoughts on the California primary.
Lots of people are talking about Meg Whitman’s victory in the Republican gubernatorial primary, but I want to focus on a few of the five ballot propositions that Californians voted on. The HPR’s Peter Bozzo and Andrew Irvine recently wrote a piece for the print edition that warned about the potential dangers of direct democracy, and the beast almost reared its ugly head again this election day. There’s been a lot of national press on Prop. 14, which passed yesterday and eliminates partisan primaries in favor of an open system where all voters can choose from all candidates, and the top two vote getters advance to the general election. More on that later, but first, I want to talk about Prop. 17, which exemplifies all that is wrong with direct democracy.
There are two ways by which an initiative can be placed on the ballot in California. First, the legislature can vote to submit a measure to the public (as was the case with Prop. 14 this year). Second, citizens can submit their own proposals to the voters, provided they are able to garner the requisite number of signatures; this is how Prop. 17 and the infamous Prop. 8 (which banned gay marriage in 2008) qualified for the ballot. Prop. 17 aimed to rewrite the insurance code to “[allow] auto insurance companies to base their prices in part on a driver’s history of insurance coverage.” It was sponsored by a PAC owned by Merucury Auto Insurance Co. Now, call me a cynic, but if a car insurance company puts a confusing measure on the ballot to rewrite the insurance code, it’s probably just a scam to make more money.
And indeed, it was. Take a look at the ad on the Yes On 17 website (the ad is on the right side of the page). It begins with the words, “There’s only one place to get the facts on Prop. 17: the official voter guide.” The ad then proceeds to read three quotations from the guide that paint Prop. 17 in a very favorable light. This makes it sound like these arguments came from a neutral analyst from the State of California, but in fact, the official voter guide contains both neutral analysis as well as arguments in favor and opposed to each proposition, written by private groups. The quotations featured in the ad? Those were all from the section of the guide written by the proponents of Prop. 17. So the Yes On 17 people were quoting themselves–as their words appeared in the voter guide–and trying to make it sound like neutral analysis.
The ad makes it sound like Prop. 17 is a mere formality of dotting the I’s and crossing the T’s in the insurance code. It argues that Prop. 17 will simply allow insurance companies to continue giving a good-driver discount, even if you switch insurers. The real purpose of the proposition, however, was to allow companies to charge higher rates to drivers who–at any point in their driving history–did not have auto insurance. Now, when Congress was having its health care debate, tensions were running high, and there were a lot of proposals floating around. But not a single one of them called for higher insurance rates for Americans who did not have health insurance. That’s pretty much what Prop. 17 would have done (only for auto insurance, not health insurance), and it was unambiguously an awful idea.
But the insurance companies almost pulled a fast one on the people of California. Prop. 17 lost only 52% to 48%. To put that in context, that is a narrower percentage margin than Prop. 8 won by two years ago. Now, I was and am a huge opponent of Prop. 8, but I think direct-democracy measures like Prop. 17 are a bigger threat to California than those like Prop. 8. With Prop. 8, at least Californians knew what they were voting on, but the reason that Prop. 17 was so close is that people were absolutely clueless on what this proposition actually did. Direct democracy just opens the door for special interest groups to sneak very harmful measures into the legal codes and budget.
Now, I’ll turn to Prop. 14 (which has received much more media attention). As I mentioned before, the California legislature–not the citizens of the state–put this measure on the ballot, and generally, those propositions approved by the legislature are safer than those placed on the ballot by the voters. Assemblymen and senators, after all, are paid to investigate legislation, so presumably, they are better judges of its validity than the citizens who are asked to sign a petition as they walk into a grocery store. Prop. 14 eliminated partisan primaries and replaces it with an open election where the top two candidates in an open primary compete in the general election.
As a California voter, this was a very difficult decision for me. On one hand–like any voting scheme–the top-two system has its flaws. You could potentially wind up with a general election contest that features two candidates from the same party. (Suppose, in a heavily Republican district, there are 10 Republicans who split the Republican vote and two Democrats who split the Democratic vote. Under the new system, the two Democrats would almost certainly be the top vote getters and move on to the general election. Still, such a scenario is relatively unlikely.) Analysts also say that candidates will probably have to spend more money in the primary election, now having to reach out to all voters instead of just fellow party members.
These are all legitimate criticism, but I think Prop. 14 will do more good than bad. For one, a lot of people really dislike Prop. 14, which means there may be a lot of future proposals for new, even better voting systems. (I’m a huge fan of instant-runoff voting, which is the system Harvard uses to choose its U.C. president. And we know there has never been any controversy in those elections!) Also, Prop. 14 will produce, on average, more moderate candidates, as the fringe elements of the Republican and Democratic parties will have less of a say in the primary election.
But the two major political parties, as well as virtually all third parties, have come out against the new law; Democrats and Republicans claim that Prop. 14 will take power away from the party establishment, and third parties are complaining that the new law will make it even harder for their candidates to get elected. I think the parties are all wrong. Democrats and Republicans will figure out a way to work within the new framework, and the party establishment will take a more involved role in controlling which candidates run for office. (And the candidates that are encouraged to run will appeal more to moderate voters, which I think is a good thing.) As for the third parties, it’s true it will be more difficult for third party candidates to appear on the general-election ballot, but no one has yet demonstrated that it will actually be harder for third party candidates to get elected. For one thing, it’s already incredibly difficult for third party candidates to get elected, and by changing the system, we’re not necessarily decreasing the already slim odds for third party candidates, we’re just taking away their free pass into the general election.
So what does any of this have to do with Arizona’s campaign finance law? That’s where Prop. 15 comes in. Prop 15., which was defeated handily, would have instated a public financing system similar to the one in place in Arizona, where candidates who opt into the system receive money for the primary and general election, plus additional matching funds if a privately-funded opponent spends more than a certain amount on his campaign. (I discussed the advantages of such a system in an HPR article last year.)
The Court didn’t strike down the law, but it will presumably take up the case when the justices reconvene in October, and in the meantime, it ordered a stay to prevent Arizona from issuing matching funds to publicly funded candidates, including the Republican governor, Jan Brewer (who is in a primary contest against a wealthy challenger spending millions of his own money in the race). An editorial in the New York Times discusses the ruling.
I don’t necessarily agree with those who claim that money and campaign donations should be protected speech, but I certainly understand the argument. But I really have no idea where the Supreme Court is coming from in this recent ruling. The Court seems to be indicating that a state’s decision to distribute extra public financing money to a candidate who is facing a wealthy opponent is somehow an infringement on that wealthy opponent’s right to free speech. The purpose of such financing systems is to offer disincentives for privately funded candidates to spend millions and millions of dollars on their campaigns, but the law in no way prohibits a candidate from spending this money if he so chooses. Even if we assume that money is speech, I’m not aware of any previous ruling where the Court has held that individuals are entitled to uncontested free speech. Maybe resident Supreme Court expert Sam Barr can help me out on this one.
So, anyway, that’s what’s new in the west. Back to you, east coast.
Photo Credit: Ballotpedia
