No on Prop 31 – the analysis

This is the second in a continuing series of blog posts analyzing the major propositions on the November 2012 California ballot. The post on Prop 30 can be found here.

We Americans: we tend to care about constitutional structures almost as much as we do about the actual issues.
Everyone has ideas about how to improve government by tinkering with the Constitution, congressional procedures, or whatever’s handy. Term limits! End the filibuster! Don’t pay legislators if they don’t pass a budget! Make them send their kids to public school! We seem to have inherited the notion of checks and balances so thoroughly that we keep assuming one more check or balance will put everything right again. 
This is very arm’s-length for me. I prefer, in my efforts, to push more directly for what I want done. When you get enough of society and elites on your side substantively, procedural issues don’t matter so much.* But the same goes for bad policy and bad governance: they have a way of skirting or making irrelevant procedures meant to contain them. (Term limits didn’t make politicians impartial citizens, it transferred power to lobbyists and staffers.)
A lot of Prop 31 is a grab bag of these policies, tinkering around the edges rather than offering real reforms. It also contains two ill-advised shifts in the locus of power.
The grab bag first:
1. Pay-as-you-go budgeting, where any new spending over $25 million has to be offset by increased revenue, and vice versa with tax cuts needing decreased spending. This is fairly meaningless since a balanced budget is already required by the Constitution – it just means you have to match up every change one direction with one in another direction, rather than do them all at once.
2. Require 3 days of publicity for bills and amendments before they’re enacted. Nothing wrong with this; nothing big would come of it either. (This is about big bills getting pushed through at the last minute, but I doubt the sunshine of 3 days will do much except at the margin.)
3. Let the Legislature budget for 2 years at a time. A decent idea; more long-term thinking is always welcome. But with state revenue as volatile as it is, corrections will probably always be urgently needed at the one-year-in point.
4. Regular objective-setting and performance evaluation for all state programs. Fine in principle; will very likely devolve into an ineffective box-checking ritual. As I read it, for example, the Department of Parks and Recreation could pass the constitutionally-mandated evaluation by scribbling in at the beginning of its budget, “The Department met the objective of achieving a quality environment by continuing to maintain 280 park units,” and having the Legislature approve the statement.

This is what I mean about arm’s-length measures. You can’t write a constitutional amendment requiring policymakers to be good at their jobs. If you think programs are working badly, instead of devoting millions to writing propositions, it makes more sense to actually work to bring the problems and potential fixes to people’s attention.

So all of the above are fairly weak changes. Now here are the two big troubling bits of 31.

1. In a fiscal emergency, the Governor can call a special legislative session to take immediate action. If the legislature doesn’t pass a fix within 45 days, the Governor can unilaterally reduce spending wherever not constitutionally or federally required, up to the projected shortfall amount.

Our governmental structures generally reflect a belief that overall budgets – like laws – are too big a deal to be decided by one person; it should be a popularly-elected body doing the work, or sometimes, in California’s case, the public itself. In this situation, the Governor would suddenly be able to make a budget unilaterally. That’s a lot of power.

It wouldn’t be so bad if this power were only to be used in true fiscal emergencies, where the state is literally running out of cash and the Governor vitally needs to take prompt action of some kind. But the existence of the emergency is declared by the Governor. And all the Governor has to do for this declaration is to estimate that revenues will drop substantially below spending, or spending will rise substantially above revenues, in the current fiscal year. What is “substantially”? How reliable does the estimate have to be? The text gives no answers. But reasonable people can disagree about the exact state the budget is in, and this would give the Governor a strong incentive to make estimates erring on the side of disaster in order to claim the new power.

Do you trust a hypothetical Governor from the party you oppose to wield this power legitimately? If not, it’s probably a bad idea to give the power to anyone.

2. This last provision is even more ambitious. Prop 31 would allow local government entities to get together to form a “Community Strategic Action Plan,” in order to provide all their services in a more collaborative, efficient way.

All well and good. I myself think California has far too many special districts: there are school districts, utilities districts, transportation districts, park districts, hospital districts, even mosquito abatement districts and street lighting districts. It would be nice to bring all these services within a unified, inclusive planning process. And the proposition reallocates some state funding to go preferentially to localities doing this, making it likely that everyone would take part.

Of course there’s a catch. It goes as follows:

If the parties to an Action Plan… conclude that a state statute or regulation… impedes progress toward the goals of the Action Plan… the local government entities may include provisions in the Action Plan that are functionally equivalent to the objective or objectives of the applicable statute or regulation.

In short, these Action Plans allow local governments to rewrite state law. The text goes on to say that unless both houses of the Legislature reject the proposal within 60 days of its submission, the rewriting will go into effect.

A lot of state programs are run on the ground by local governments in California with state money; I’m sure there are many counterproductive morasses of laws and rules that make it hard for them to actually achieve their goals. But once more, this is a tremendous shift in the locus of power. Normally, for state law to change, there needs to be a lot of support: both houses and the Governor’s signature. Under this provision, initiative shifts to the locality, because the change is made automatically unless the Legislature can pull together enough support to stop it. If the two houses disagree, or if someone important blocks the rejection bill in one house, the change goes forward. (Also, the Governor loses any veto power.)

The big two laws mentioned in the debate over Prop 31 as targets for circumvention are the California Environmental Quality Act and the California Clean Water Act. (That’s not always meant critically; CEQA in particular is disliked by many in business for slowing down projects.) But the text is so vague, and the power conferred so broad, it seems to open up infinite possibilities. Here are some further outcomes I can think of:

  • Foster care and adoption is a service administered at the county level. Currently, state law requires same-sex couples to be eligible to adopt. Localities could try to reverse this. The overall purpose of adoption programs, they could say, is to do the best for children, and we have determined that only heterosexuals are fit parents.
  • Undocumented immigrants are ineligible for many state services. San Francisco could make them eligible under an Action Plan; they could even say it would be a more efficient use of funds by forestalling future spending on things like preventable health conditions or poverty-based social problems (and if it doesn’t, they might have some of the bonus money given for setting up an Action Plan).
  • If a locality believes the completely spurious link between autism and vaccinations, its public health departments could stop vaccination campaigns and school districts could abandon vaccination requirements. The goal of such requirements, after all, is improved health…

Besides the shift in the locus of power, another core problem is that Prop 31 assumes state laws can only be judged on the efficiency they achieve, when in fact quite a lot of them rest on collective value judgments or determinations of fact. And there are enough laws on the books that for every scenario anyone has suggested, there are probably hundreds more possible. Devolving this much power to localities is halfway to splitting the state into pieces, and while California’s constituent parts are very diverse, I think the state still works better as a single unit than otherwise.

There are also a great many short-term practical problems with the idea. It would automatically mean dozens of lawsuits trying to clarify the initiative’s intent, draining more money and attention away from pressing issues. There may be a massive loophole: the California Budget Project points out that there are some periods when the Legislature is in recess for significantly longer than 60 days and therefore would have trouble even considering an Action Plan’s law-revision. Finally, policy chaos would be especially rife for laws where the devil is in the details, and the Legislature could fail to notice the true impact of a proposed minor-seeming change.

For all these reasons, I will vote no on Prop 31 as a misguided exercise in reform almost for its own sake.

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