An Interview with Dr. Kenneth Miller, Professor of Government at Claremont McKenna College, this interview was co-hosted by Charlotte Bailey (CMC ’16) and Adrian Vallens (CMC ’14)
Bailey: Dr. Miller, thank you for doing this interview. Could you briefly explain the history of the initiative process, specifically in California, and its evolution up to today?
Miller: The initiative process came to the United States and California by way of Switzerland. There were American reformers in the 19th century who believed that the initiative system, which then existed in the Cantons of Switzerland, could provide a remedy to what they thought was the capture of representative government by special interests. The initiative process promised that the people could enact laws directly, going around their representatives and thereby converting public opinion into public policy directly. There was a deep concern about the capture of legislatures by special interests, especially corporate interests in California—the railroads—so the idea started to get traction in the western part of United States where populism and later progressivism were at that point flourishing.
Bailey: In your opinion has the initiative process constrained the California legislature? Or has it left it relatively unchanged?
Miller: If I might, I first should probably say a little bit more about California and how it got the initiative process. California was not the first state to adopt the initiative process; the first was South Dakota in 1898. But the first state to use the initiative process was Oregon, which during first decade of 20th century really developed the process and used it extensively. So the initiative process was originally called the Oregon System. California adopted the initiative process in a special election in 1911 and started adopting initiatives in 1912. So it’s about a century old in California. Many states adopted the initiative process during the progressive era, especially western states, and today 24 states out of 50 have this system. Since California adopted the process, California has used it more extensively and more consequentially than any other state.
So with respect to the original question about the effects on the legislature, the important thing to note is that the initiative process in California has been used with an irregular frequency. Early after its adoption, it was used frequently in 1910s and 1920s. Then in the 30s, 40s, 50s and 60s, its usage declined, so that by the 50s and 60s it was moribund, essentially. In the 1970s there was a major revival of the usage of the initiative process in California and the other states. One of the most notable initiatives that really demonstrated its potential impact was Proposition 13 in 1978, which was the Howard Jarvis initiative that rolled back property taxes in California and made it more difficult to raise taxes in the state. It was a landmark piece of constitutional amendment in California. After that, various interest groups recognized that they could use the initiative process to achieve things that they could not otherwise achieve through the legislative process. By going directly to the voters, they could achieve fundamental policy changes in a way that was not necessarily possible through the give and take of normal legislation.
Vallens: Did we start seeing court involvement with initiatives during this revival period after Proposition 13? Or did court review of initiatives begin before then?
Miller: One of the interesting questions is the extent to which the initiative process bypasses the checks and balances of the American constitutional system of government. In a way, it really does bypass legislatures to a large extent, especially in California where the legislature cannot amend initiatives unless the initiative itself allows for its own amendment. The voters can lock-in policies without the legislature having an opportunity to amend or appeal them without first going back to the voters. There really are only very limited legislative checks on the initiative process. The most important and frequently used check is judicial review, where the courts bear a heavy responsibility for exercising a check on what is otherwise pure direct democracy. The courts have used the power of judicial review to constrain the initiative process extensively over state history. Going back to the earliest use of the initiative process, many initiatives have been challenged after the election and many have been overturned either in part or in their entirety by the courts. The phenomenon where opponents of initiatives challenge them in courts has actually accelerated over time and now it’s become a pervasive part of the initiative process. At least for some issues, it’s more frequent than not that an initiative will be challenged after the election.
Vallens: Can we talk a little more about why certain groups might challenge initiatives and others may not? Some of the literature I have read says that one constraint on groups going to court over initiatives is that the groups that oppose them disband after the elections and there is no one to bring a lawsuit. So when does that type of situation occur, in contrast to situations where there is strong legal action?
Miller: Well there are a couple of factors that determine whether an initiative will be challenged after an election. One is the subject matter of the initiative. There are certain types of issues that are pursued through the initiative process, such as criminal justice initiatives to increase criminal penalties or restrict the rights of criminal defendants, which routinely are challenged by persons who are being prosecuted in the criminal justice system. And there are a number of constitutional protections in both the state and federal constitutions that provide opportunities to challenge tough-on-crime initiatives. Another type of issue is campaign finance reform initiatives. They’re routinely challenged for being in violation or in conflict with the First Amendment of the U.S. Constitution. Typically, initiatives that deal with rights and definitions of rights, or restrictions on rights, are challenged after the election. But there are also other kinds of issues that might come into conflict with the rules of federalism or the technical rules for adopting initiatives. California, like a lot of other states, has a rule called the single subject rule, which states that an initiative can only have one subject. If it is a complicated measure dealing with several different issues, then an opponent will often come along and say that it violates the single subject rule.
Vallens: Was the single subject rule passed via initiative?
Miller: The single subject rule passed through a constitutional amendment put on the ballot by the legislature after an initiative that had many thousands of words and wide-ranging effects over many different issues passed. It was an omnibus proposal. It was called “ham and eggs.” It was so complicated and complex that there was a consensus in the state that there should be some sort of restriction on how many subjects an initiative can contain. So now there is a single subject rule. However, it should be said that the California courts have been pretty lenient in their definition of what constitutes a subject. So if something falls within a general topic area, like political reform, the courts will say it’s cohesive enough that we can say that it falls within a single subject. Other state supreme courts have been more restrictive and have struck down initiatives under their own single subject rules. This shows the variation in how different courts treat the initiative process in different states. California has been more protective of the initiative process than state supreme courts in states like Florida and Colorado have been.
Vallens: Is that related to the fact that in California judges appear on the ballot?
Miller: Well in most states judges face election, so I don’t think that’s it. It’s not completely clear why the California judiciary as a whole has been rhetorically supportive of the initiative process. On the other hand, the California Supreme Court has struck down many initiatives on substantive grounds, not on technical grounds like the violation of the single subject rule. They have been quite willing to strike down initiatives as violating either the state or the federal Constitution. Initiatives get challenged either in state or federal court. Increasingly, opponents of initiatives have turned to the federal courts where they have found many judges receptive to federal constitutional questions regarding California ballot measures.
There’s a new wrinkle in this that was created by the US Supreme Court’s recent decision in the case of Hollingsworth v. Perry, the Prop 8 case. In that case the federal district judge declared that Proposition 8, the 2008 initiative that declared “only marriage between a man and a woman is valid or recognized in California,” violated the US Constitution. The Attorney General and Governor of California declined to defend Proposition 8 on appeal and the question was whether the official proponents of the initiative had standing under Article III of the federal Constitution to defend the initiative in federal court. The Supreme Court and the judges in the Hollingsworth case said that proponents of initiatives do not have standing. This creates a situation where if an opponent gets a federal district judge to declare an initiative invalid and the state officials decline to defend it in court, then the state officials in that scenario effectively have veto power over initiatives. We are seeing this in other states like Nevada, where state officials are relying on the Hollingsworth decision and are not appealing similar marriage initiatives that are currently being challenged in federal court.
Vallens: Have there been any attempts to remedy that potential problem?
Miller: Election law scholars and practitioners are lookingat different scenarios that might satisfy Chief Justice John Roberts’s opinion in the Hollingsworth case. Roberts says there is an agency problem in that public officials are essentially agents of the public and so they represent the public’s interest in defending state laws, whereas initiative proponents are not strictly agents of the people because nobody has elected them and so they cannot be held accountable. Therefore, Roberts held that proponents should not have Article III standing.
Vallens: But in the US v. Windsor case, didn’t the court allow-
Miller: Well, in the Windsor case, the Obama administration declined to defend DOMA, but the House of Representatives used the BLAG (Bipartisan Legal Advisory Group), essentially composed of House Republicans and a few Democrats, to intervene. The US Supreme Court allowed this on the grounds that these were elected government officials. Initiative proponents are usually private citizens, so the Windsor case is an exception. There has been some brainstorming among legal scholars as to how the initiative process can work around this. For example, an initiative could by its terms designate initiative proponents as being agents of the state for purposes of defending an initiative if it has been challenged after the election. It isn’t clear whether or not that would satisfy what the Supreme Court is requiring, or whether the state could create an office separate from the office of the Attorney General to represent initiatives when the Attorney General refuses to do so. But it hasn’t really been worked out. All of this creates a real problem for the initiative process in circumstances where initiatives are opposed by government officials. The original theory of the initiative process was that it was supposed to give people the power and opportunity to countermand government officials if they were not acting consistently with majority opinion, and so what this recent decision of the Supreme Court does, which Kennedy in his dissenting opinion notes, is it undermines the basic premise of the initiative process.
Vallens: I’m surprised that hasn’t come up sooner.
Miller: There was one case in Arizona in the 1990’s that came about when voters tried to pass an “Official English” initiative that would establish English as the official language of Arizona, so that public officials wouldn’t do any business in Spanish. This was challenged in federal court and the Arizona officials declined to defend it. It turned out that the US Supreme Court said the issue was moot because the person challenging the law left state employment and thus no longer had standing. They didn’t reach the merits, but in the opinion the Court expressed grave doubt as to whether the initiative proponents would have Article III standing. By a 5-4 decision in the Hollingsworth case, the Court said proponents do not have standing in such cases. There was an interesting ideological divide on the court. The majority consisted of Chief Justice Roberts, Justice Scalia, Justice Ginsburg, Justice Breyer and Justice Kagan. The dissenters were Justice Alito, Justice Thomas, Justice Kennedy and Justice Sotomayor. It didn’t fall along the normal lines. There might have been a backstory there in which the Court was attempting to dodge the thorny issue of same sex marriage, so perhaps this was a way to make the Proposition 8 case go away without having to deal with the issue of gay marriage broadly. On the other hand, the Court is going to have to face the issue in the next year or two. There are so many related cases now heading directly for the Supreme Court. Probably not this term, but next term, they’re going to have to address the issue.
Vallens: Will they also have to address the standing issue as well, especially as they try different things?
Miller: I think there’s going to be enough cases on the same sex marriage issue, both initiatives and constitutional amendments, which will avoid the standing problem. So the Court will have to deal with the substantive issue. I think the Court has now created a problem going forward for the initiative process where if there are other contentious issues where state officials decline to defend a restriction on affirmative action or some restrictive thing on criminal justice issues, this could be an opportunity for state officials to strike down initiatives they don’t like without having to go through full judicial adjudication.
Vallens: So this relates back a little bit to the politics of the initiative process. If you have one liberal group that passes an initiative but the government is conservative, you’re going to have a clash.
Miller: Right, absolutely. You can see that on an issue like gun regulations or things like that, or even campaign finance reform.
Bailey: So looking to this year’s elections, what are the more controversial initiatives coming up on the ballot that you think are likely to pass and/or be challenged?
Miller: There are a couple of criminal justice initiatives that have not yet qualified but have been heavily circulated. One would expedite the process for the capital punishment appeals process in California. That would potentially face legal challenge after the election. Another would reduce the criminal penalties for certain offenses in California. I think these two really demonstrate the asymmetry in judicial review of initiatives; those that tend to be more restrictive with respect to rights face more challenges, whereas those that seek to expand rights are less subject to legal challenge. The check on the latter group is exclusively a political challenge, since the people can decide not to expand rights. But if they choose to restrict rights, the courts can come along andsay that it violates the Constitution. On reducing criminal penalties – there is no Constitutional restriction on doing so. Additionally, there may be a marijuana initiative. There is actually a latent legal issue with state legalization of marijuana, which is that it comes into conflict with federal law. Is it permissible for the state to legalize something that the federal government criminalizes? So far, there have been some cases on this but none that have squarely addressed that question. That conflict could be an issue moving forward. Again, it is typically the case where states are more restrictive on rights than the federal government where you get litigation.
Bailey: Last question. It’s about Proposition 13, which you touched on little bit earlier. It is over three decades old and still very much part of the California Constitution. Do you think it is too protected by interest groups at this point to be overturned or amended?
Miller: I think Proposition 13 represents a moment and an era in California, which was essentially a conservative moment in the 1970’s through the recent period. At least on tax policy, Californians were quite conservative and uniformly proposed tax decreases. There has been slippage on that with things like Proposition 30 two years ago. As the electorate in general becomes more democratic and liberal, I think there is an opening for Proposition 13 to be at least modified, if not completely repealed. There are certainly ways in which you could modify it. You could say it applies only to residential properties, not commercial properties, which would create what is called a split roll. This is a quite plausible amendment. One could also modify the restriction on a 2/3 vote on raising taxes. There are certain parts of Proposition 13 that are vulnerable if strategically attacked by well funded opponents, but Jerry Brown, who was governor when Proposition 13 was adopted the first time, is very wary of taking it on. I don’t think he will be the one to do it. I think it will likely be some future governor or another initiative advocate who will make the case that Proposition 13 needs to be modified to reconstruct the fiscal system in the state.
Bailey: Thank you so much, Professor Miller.
Vallens: Yes, thank you.
Miller: It’s been a pleasure.