Anatomy of a Trojan Horse: California’s permissive single-subject rule
California’s initiative process is a product of the so-called “progressive era” of the state’s politics. Republican Gov. Hiram Johnson led the charge for the use of various direct appeals to the electorate (initiative, referendum and recall) when he ran for office in 1910. In 1911, voters gave approval to the new governor’s proposals.
Johnson’s levers of direct democracy have gone through periods of heavy use and disuse over the past century in California. According to the Public Policy Institute of California, most initiatives are met with failure. Of late, voter reluctance has turned into outright cynicism. They perceive the initiative process, in particular, to be beholden to special interests. Relatedly, Californians also have struggled with voting for initiatives because of their complexity. It is easy to understand why.
Initiatives often focus on issues that defy easy explanation. While the narratives crafted for voters focus on vague but positive constructs of the purported outcomes, highly technical legal elements undergird and give meaning to initiatives.
In an effort to avoid confusion among the electorate, there are 14 states that limit initiatives or constitutional amendments to “single subjects.” While seemingly straightforward, the application of such rules is anything but.
In California, the word “subject” remains unmoored from statutory or constitutional definition. Thus, it has fallen to the courts to craft the necessary meaning. Unfortunately, the result has been calamitous. California’s single-subject rule centers on a “reasonably germane” test that is exceedingly lax. For example, Propositions 45 and 46 have qualified for the November ballot, even though both clearly include “second” subjects.
Prop 45 is nominally an initiative focused on the prior approval of health insurance rates. Still, the property/casualty industry in California would be well-served to pay careful attention, because Prop 45’s language goes further:
“With respect to health, automobile and homeowners insurance, the absence of prior insurance coverage…shall not be a criterion for determining…rates, premiums or insurability.”
In a throwback to California’s automobile insurance portable persistency discount rating battles (Prop 17 and Prop 33), the initiative’s backer, Consumer Watchdog, is making a move to further circumscribe the use of automobile insurance persistency discounts. One wonders, prospectively, whether the currently admissible practice of offering non-portable persistency discounts will be challenged under the auspices of Consumer Watchdog-friendly precedent.
As deceptive and dangerous as Prop 45 is, Prop 46 may pose an even greater threat. It focuses on increasing the amount of non-economic damages recoverable under the Medical Injury Compensation Reform Act (MICRA). Such a change is of great significance to health-care providers, insurers and trial attorneys, but means little to the average voter. For this reason, proponents of the initiative included a second “hot button” subject, a provision to force drug tests on doctors.
In the words of the initiative’s chief proponent, including the drug-test provision was the “ultimate sweetener.” According to the Los Angeles Times, “when his group brought the proposal before focus groups…’the only thing that made them light up was drug testing of doctors.”‘
Compounding the confusion in the single-subject test is the fact that a partisan elected official, the attorney general, drafts initiative descriptions. In the case of Prop 46, Kamala Harris has opted to obfuscate the true purpose of the initiative by not mentioning MICRA until the fifth and final sentence of the initiative’s description. How does that look?
It would be in the best interests of California’s direct democracy for the California Supreme Court, should it have a chance, to attach greater significance to its ruling that one of the purposes of the single-subject doctrine is “to minimize the risk of voter confusion and deception.” In the cases of Prop 45 and 46, confusion and deception reign. As a result, California’s democracy suffers.