Vargas: California’s experiment with direct democracy has failed

For more than a century, California has been an experiment in a form of direct democracy, giving “the people” unparalleled and extensive power to shape their laws and rebuke their politicians through initiatives, referendums and recalls.

Just 5% of Californians working together can force a proposition onto the ballot, a referendum on a piece of legislation or an (insanely expensive) recall election of the governor of the state. In an off-year election, that ballot measure can then be passed by significantly less than a majority of the voting population. No other people in the nation enjoy such power.

Predictably, this power has been used (and abused) in ways that have been devastating to vulnerable communities and lucrative to local plutocrats. Today, the poster child for that failure is the looming recall of Gov. Gavin Newsom, a recall election estimated to cost taxpayers a shocking $400 million.

Unlike Gov. Gray Davis, whose universal unpopularity led to a successful recall in 2003, Gavin Newsom is remarkably popular for a governor in the middle of a crisis. In the wake of the COVID-19 shut down, 59% of Californians approve of his handling of re-opening schools, 59% approve of his handling of the economy and 56% oppose the recall effort.

And yet we’re forced down this expensive path by one and a half million malcontents. Republicans are lining up to be the next Arnold Schwarzenegger, who was elected to replace Gray Davis by a bare plurality, one of three Republicans in the past 30 years to take the governor’s chair without a mandate from a majority of California voters.

As Senator Josh Newman points out, this appears to be an actual strategy. Force low-turnout elections and win with less than a majority of the vote. The recall election, intended as a majoritarian check on the chief executive, has been perverted into a minoritarian power grab.

But the recall is only the latest insult imposed on Californians by the decaying ruins of this populist experiment in direct democracy.

In the wake of AB 5, a law that guaranteed ride-share drivers access to employment benefits and a minimum wage, three large ride-share corporations placed Prop 22 on the ballot. They spent over $200 million on a spiffy ad campaign promising a minimum wage, minimal benefits and low prices, and it worked. Millions of Californians voted to strip ride-share drivers of their right to full benefits and the right to organize. In a classic bait and switch, the promised wages and benefits then never materialized, and these corporations jacked up prices to recover the cost of the ad campaign.

This should come as no surprise, however. Plutocrats and corporations have been using California’s direct democracy system to buy friendly laws since the beginning. The Southern Pacific railroad was perhaps the most blatant when, in 1900, the company had a $2 billion bond proposition placed on the ballot for rail construction, the proceeds from which would flow mostly into the company’s coffers.

In 2020 alone, almost half of the ballot measures were authored by, sponsored by or funded by large corporate interests or a handful of wealthy individuals. Direct democracy is a great way to get rich or protect your corporate interests.

However, it would be unfair to say that the proposition system only benefits plutocrats. It also benefits bigots, who have repeatedly attempted to enshrine bigotry into our (already bloated) state constitution.

Proposition 187 barred undocumented workers from access to public services. Proposition 209 barred state and local governments from attempting to alleviate and ameliorate race and gender discrimination, leading to a massive decline in students of color at all University of California campuses. Proposition 8 barred gays and lesbians from access to marriage and its benefits. Two of these were later overturned as violations of Californians’ fundamental human rights, illustrating how direct democracy in California has become a tool of oppression.

Don’t expect direct democracy to fix itself either. Proposition 15 in 2020, for example, was designed to fix Prop 13, a 1978 proposition so poorly drafted that UCLA law professor Donald Hagman charged the authors should be arrested for “drunken drafting.” Prop 13 gutted education funding to pay for tax breaks for homeowners and large corporations, something that even conservative anti-tax economists have admitted turned out to be inefficient and counterproductive. Prop 15 would have closed the loophole for corporations and limited the tax breaks only to homeowners, but it failed.

It’s time to admit the truth. California’s experiment in direct democracy has failed, and this rotting corpse of a long dead brand of popular government isn’t going to fix itself. We just need it to end. End the recalls. End the referendums. End the initiatives. It’s time to let direct democracy finally die in California.

San José Spotlight columnist Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce. His columns appear every second Thursday of the month.