ADDRESSING THE DELIBERATIVE DEFICIT: A PROPOSAL TO IMPROVE THE BALLOT-INITIATIVE PROCESS.

• Author: Aronin, Scott

INTRODUCTION 182 I: THE HARMFUL TENSION BETWEEN DELIBERATION 185 AND THE INITIATIVE A. California's Dual Commitment to Both Principles 185 1. Deliberation 185 2. The Initiative Power 187 B. The Initiative's Deliberative Deficit is Harmful 188 1. Harms of the Initiative Process 189 2. Defenses of the Initiative Process 192 III. TRADITIONAL INSTITUTIONS' INABILITY TO ADDRESS THE 194 DELIBERATIVE DEFICIT A: The Judiciary's Institutional Constraints 195 1. Single-Subject Rule 195 2. Amendment-Revision Distinction 197 3. Separation of Powers 198 B. The Legislature's Institutional Shortfalls 200 1. Erosion of Legislative Deliberation 200 2. Governance Reform and the Legislature's Conflict 202 of Interest C: The Direct-Democratic Process's Informational 205 Deficits and Lack of Expertise IV: A PROPOSAL TO ADDRESS THE DELIBERATIVE DEFICIT 207 A. An Independent Commission to Advise on Ballot 207 Initiatives B. Past Literature's Suggestions for Reform 211 C. Past Constitutional Commissions Providing the 215 Proposal's Foundation D. Envisioning the Commission in Action 218 CONCLUSION 221 INTRODUCTION

Two core principles in California's state constitution are deliberation and direct democracy. Deliberation is a policymaking process where "existing desires should be revisable in light of collective discussion and debate, bringing to bear alternative perspectives and additional information." (1) Direct democracy comprises "forms of direct participation of citizens in democratic decisionmaking." (2) One of the most powerful direct-democracy tools California voters have at their disposal is the ballot initiative. (3) There is, however, an inherent tension between the initiative and deliberation. With some of the nation's most politically charged initiatives (4) and one of its richest direct-democracy traditions, (5) California tests the limits at which deliberation and the initiative can co-exist in spite of this tension. Given the limitations traditional institutions face in checking the initiative power, (6) deliberation has generally been hindered at its expense. This has created a deliberative deficit in initiative policymaking.

Though the process is here to stay, reforms can help address its deliberative deficit. (7) This Note proposes a path initiative forward that circumvents traditional institutions' limitations in addressing it. Creating an independent advisory initiative commission (Commission) would address the initiative process's deliberative shortcomings without circumscribing electorate discretion or power. To ensure the Commission's independence, voters would ideally elect Commissioners. (8) The body would also be independent of legislative or gubernatorial oversight. Before initiatives appear on the ballot, the Commission would research and debate the policy's intricacies and unexpected second-order effects. (9) It would then recommend substantive edits to the initiative's drafters. As opposed to reforms targeted at providing voters with more information, (10) the Commission would have the goal of producing a better-drafted initiative before presenting it to the electorate. The drafters would then have final say whether to adopt the Commission's recommended changes.

The Commission would help produce more effective initiatives that have fewer unintended second-order effects for two reasons. First, it would focus only on technocratic changes. It would not scrutinize or critique initiatives' normative aims. Second, it would make recommendations to drafters before they finalize initiatives' text, not advocate how the electorate should vote. (11)

The Commission would most beneficially address the deliberative deficit where detailed intricacies are central to policy outcomes, for example with initiatives focused on tax (12) and state-legislature (13) reform. Initiatives in these policy areas are rife with potential unintended consequences that neither an initiative's drafters, nor the broader electorate anticipate. (14)

Though many initiative drafters might choose to ignore the Commission's recommendations, (15) many will not. There would be minimal cost to drafters accepting the body's technocratically focused changes. The recommendations would not curtail voters' high-level normative choice; they would only aim to nip unanticipated consequences and efficacy concerns in the bud. (16) Independently, drafters could reap large benefits from accepting the changes. Adopting Commission-recommended reforms would help drafters put on the ballot more effective policy to achieve the normative ends they claim to have. And it would help them draft a policy that is newly shored up against potential lines of critique, making it more popular with voters come election day. (17)

This Note proceeds as follows. Part II establishes that deliberation and the initiative are core principles in California's constitution. It then discusses these two principles' inherent tension, how this tension leads to a deliberative deficit, and why this deficit is harmful. Part III discusses traditional institutions' limited ability to address this deficit. It focuses on California's judiciary, legislature, and the direct-democratic process itself. Part IV then proposes the Commission to add more deliberation to the initiative process while not sacrificing California's commitment to direct democracy. Part V concludes by relating the preceding Parts' discussion to the broader American state-constitutional system.

I: THE HARMFUL TENSION BETWEEN DELIBERATION AND THE INITIATIVE

1. California's Dual Commitment to Both Principles

   A deliberative system of governance and direct democracy are two fundamental parts of California's political structure and culture. The initiative is arguably direct democracy's most prominent manifestation. This Section defines and establishes how deliberation and the initiative gained their current stature in California politics, discusses the nature of California's commitment to each, and shows how the two principles are in tension with each other.

   1. Deliberation

      California's deliberative process is best understood within the broader American context. The United States Constitution guarantees to every state a republican form of government. (18) Though nonjusticiable, (19) this guarantee shows that since the nation's founding, all levels of American government were envisioned as republican. The Federalist No. 10 explicitly defines the republican form as a representative government, not a pure democracy. (20) Scholars often point to "deliberation" as a core republican principle. (21) A deliberative process, as defined in this context, is one where "existing [policy] desires should be revisable in light of collective discussion and debate, bringing to bear alternative perspectives and additional information." (22)

      It is against this backdrop that California held two Constitutional Conventions: one in 1849 and one in 1878-1879. (23) The values of "collective discussion and debate" underpinning America's deliberative process heavily influenced both these documents' framers. Throughout the 1849 Convention's debates, speakers took it as given they were making a deliberative republican government, not a pure democracy. (24) A similar commitment to deliberative republicanism permeated the 1878-1879 Convention. In response to a proposed change that would have allowed a simple majority of the legislature, as opposed to two-thirds', to submit an amendment to popular vote for approval, one speaker stated the two-thirds vote should remain because it required "more deliberation and care." (25) Several others agreed. With no one voicing dissent, the convention rejected the change. (26)

      Deliberation remained a core virtue in California governance through the advent of direct democracy in the state. In 1911 as part of a national wave of progressive-era reforms, California adopted the initiative, referendum, and recall. (27) The arguments these changes' opponents made, though ultimately unsuccessful, often claimed the legislature needed to conduct "a more careful consideration of all proposed laws rather than provide [the initiative and referendum,] which will bring forth a class of statutes largely the product of the public whim[.]" (28) Opponents felt "every law... should be subject to deliberation and amendment." (29) They further posited the complexities of modem economic and commercial relations exacerbated direct democracy's risks. Without studying measures and hearing from competing experts, it became more difficult to understand each nuanced detail of industrial-era public policy. (30) This argument failed to carry the day at the start of the twentieth century, but it has gained increasing resonance over the past fifty years. (31)

      California still maintains fealty to deliberation, even with direct democracy becoming an increasingly important policymaking tool. The California Supreme Court has recently affirmed that "'comprehensive changes' to the Constitution require more formality, discussion and deliberation than is available through the initiative process." (32) The initiative therefore has not eradicated deliberation from California's constitution; it coexists alongside it.

   2. The Initiative Power

      Direct democracy, via the initiative, has also become permanently ingrained in California's system of govemance. (33) An initiative's drafters need signatures from at least 8% of the electorate to get the measure on the ballot. (34) It then only needs a simple majority to be adopted. (35) Though drafters can request assistance from California's Office of Legislative Counsel, who must help when the measure will be submitted to the electorate with "reasonable probability," the service is optional. (36) The entire initiative process can therefore occur without the legislature's input. (37) And even so, the review process only addresses the language of the initiative, not any substantive concerns with its underlying policy. (38)

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