Initiative Titles, Summaries Must Be Fair and Objective

Tuesday, September 12, 2017

Page 9

IN MY OPINION (Column)

Initiative Titles, Summaries Must Be Fair and Objective

By JON COUPAL

The attorney general of California has the responsibility of preparing the “title and summary” for ballot measures to be submitted to the voters. Pursuant to that authority, California Attorney General Xavier Becerra issued the title and summary for one of the most anticipated ballot initiatives for the 2018 election. Here is his description: “Eliminates recently enacted road repair and transportation funding by repealing revenues dedicated for those purposes.”

Confused? Try this excerpt from the ballot summary: “Eliminates Independent Office of Audits and Investigations, which is responsible for ensuring accountability in the use of revenue for transportation projects.”

If you have no clue that this is actually the initiative to repeal the gas tax you wouldn’t be alone. As drafted, the title and summary make every effort to hide the fact that the measure is targeting one of the most unpopular laws in recent California history. Though the words “gas” and “tax” are not in the ballot title, they do at least appear in the ballot summary. But they are followed by the suggestion that the initiative also acts to eliminate the Independent Office of Audits and Investigations—an office that does not yet exist.

This obvious effort at obfuscation, and ultimately voter confusion, flies in the face of a promise Becerra made during his confirmation hearing. Asked last January what he would do to ensure the objectivity of ballot titles and summaries, which is the constitutional responsibility of the attorney general to produce, Becerra testified that “the words I get to issue on behalf of the people of this state, will be the words that are operative to everyone.”

Becerra’s readiness, just months later, to depart from this approach in order to protect the gas tax—which was championed by his own party—is just the latest example of how attorneys general use their influence over the ballot to manipulate voters and advance the interests of their allies. To put an end to this damaging practice, Assembly Constitutional Amendment 3, by Assemblyman Kevin Kiley, was introduced earlier this year, a measure that would strip the attorney general of the power to write ballot titles and summaries, and transfer that authority over to the nonpartisan Legislative Analyst’s Office.

Unlike the attorney general, the Legislative Analyst is not a politician. A trusted source of impartial information since its creation in 1941, the LAO’s primary mission is to provide the state Legislature with reports on fiscal and policy issues. The office is also tasked with preparing the fiscal analysis for ballot initiatives, making it well suited for the responsibility of writing titles and summaries, too.

Since the introduction of ACA3, the Sacramento Bee, Los Angeles Times and Orange County Register have all endorsed the measure, arguing that, no matter the party in power, the temptation to manipulate a ballot initiative’s language is too great for an attorney general to resist.

Their concerns are supported by a long history of abuse that stretches back to at least 1966, when Attorney General Tom Lynch, tasked with describing the initiative to create a full-time Legislature, at first misleadingly framed it as a measure to raise legislative salaries. More recently, in 2013, Attorney General Kamala Harris drew criticism for describing public pension reform as the “elimination” of state constitutional protections for pensioners, using language that had been poll-tested by opponents of the initiative. Other examples abound, from both sides of the aisle.

The high stakes of the initiative process make any attempt at reform difficult, particularly when the party controlling the Legislature also holds the Attorney General’s Office. When ACA3 was brought before the Assembly Elections Committee earlier this year, the bill had the support of every major good government group in the state, including the Howard Jarvis Taxpayers Association, California Common Cause and the League of Women Voters of California.

The only opposition was a representative from the Attorney General’s Office. Nevertheless, the bill failed 2-4 on a party-line vote, with one Democrat abstaining.

Initiatives are powerful tools of direct democracy, allowing the people of California to take direct control over the state’s political destiny when the Legislature has failed. But this is only possible when voters have an accurate description of what they are voting for. ACA3 would assure just that, and when it returns for consideration next year, we urge legislators on both sides to support this measure to redeem direct democracy in California.