How A Bill Becomes A Law

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Here's a tale of good governance: California State Sen. Deborah Ortiz (D-Sacramento) is working to change the recently passed Proposition 71 to ensure that "Californians" get their fair share of the handout. Writes the San Francisco Chronicle's Bernadette Tansey:

[Ortiz] said she will urge fellow legislators today—the first day back in session—to fix what she sees as serious defects in Proposition 71, which endanger the interests of taxpayers, California patients and research subjects.

Ortiz said she supported the $3 billion stem cell funding initiative backed by a private citizen's coalition because she saw it as the only chance to advance a promising medical technology that could lead to better disease treatments.

But she said she feels honor-bound to correct elements that "ought not to have been there" in the statute developed by Palo Alto real estate developer Robert Klein. "Now I have an obligation to fix it," she said.

Ortiz said nothing in the initiative guarantees that the funding windfall for corporate and academic research programs will also benefit Californians—either in the form of royalties to the state or as inexpensive access to the therapies that may result from the studies.

Whole story here, and worth reading for details on what problems Ortiz is trying to fix and why there's little chance of her fixing them. The language of Prop 71 makes it almost impossible for the state legislature to make changes once it's passed. All of this was known well before the initiative was voted on, was widely reported in the press, and provided important talking points for 71 opponents.

So the obvious question is why Ortiz supported the initiative. In fairness to Ortiz, this was a ballot inititative, not a bill before the legislature; I also expect we're probably better off minimizing the amount of the pork that goes to "Californians" rather than private companies, since private companies still have (a few) limitations on their ability to vote themselves yet more pork.

But why campaign for something that you don't agree with, on the off chance that you might be able to fix it once it gets passed (an even-more-off chance than usual in this case)? I think back to a debate I saw between Newt Gingrich and some Now-Forgotten Democrat in which, after the NFD complained that Gingrich was making a fuss over "some technical details" in some pending legislation, Gingrich fired back: "When this bill is passed these won't be technical details, they'll be the law of the land!" Ortiz can claim she didn't want to miss the chance to advance a new technology, but since when is advancing new technologies the first priority of a state senator? Considering that Prop 71 deals with medical issues, you'd think "do no harm" would have been a guiding principle for one of its most influential advocates.

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  1. Is it unlibertarian to hate California’s proposition system? Because I do, I really, really do.

    I know I have gaius in my corner.

  2. I don’t make my own decisions based on how libertarian they are (since this would mean that I’m coercing myself to hold to libertarian principles rather than arrive at my decisions freely, which would be unlibertarian). Anyway, I’ve truly grown to loathe the Cali ballot initiative process. I always thought the idea of having public referenda was really cool, until I experienced it firsthand. Maybe they could place some official limit, like you can only have one proposition per election. That would be arbitrary and not logical, but it would at least make voting easier and force them to choose one really good proposition rather than a bunch of bad ones. Then again, they might get around that by attaching all kinds of riders to the one proposition. Oh, they scheme and scheme!

  3. I strongly feel that we need an updated “I’m Just a Bill” School House Rock that shows the actual process in all it’s undignified glory. Kids, these days desensitized to obscenity and shocking images by way of video games, are ready for the truth.

  4. Didn’t they do that in the Simpsons?

    there’s a lot of bad people
    who have got too much freedom
    and I want to make easy for police to beat em
    and I’ll crush all opposition to me
    and I’ll make Ted Kennedy pay
    if he fights back, I say that he’s gay

  5. Funny someone else should mention “I’m Just a Bill”. I used to love that song, but the blatant manipulation that once made me feel all sorry for the poor widdle bill now just makes me want to rip him up and set him on fire.

  6. Bellyache all you want about California’s voter initiative, but just remember this. One of the worst propositions on the ballot, Prop 72, was not some random voter initiative, but a referendum on a very bad statute that had already made it through the normal legislative process. If Cavanaugh got his way, Prop 72 wouldn’t have been on the ballot, it would have been law.

  7. or is it “there’s a lot of flag burners”?

    doing it from memory

  8. I continue to have mixed feelings on ballot measures. The biggest problem I have is that the measures present “either/or” questions, yet I look at some of them and think “Hmm, with an amendment or two this might be a half way decent compromise…” Except that you can’t go through that process on the ballot, it’s just yes or no.

    But then I remind myself that our esteemed legislators rarely turn out good products when they have the chance to avail themselves of amendments, debates, and deliberations. And now and then the voters make some genuinely good decisions.

    In the end, I think it’s nice to have a way around the mediocrities that we call legislators. We rarely do any worse than them, and sometimes we do better. When in doubt, I’ll side with more options.

  9. Ortiz has nothing to lose here. On the one hand, she can say she supported a winning proposition, on the other, she can claim she’s fighting for what’s best for California. What’s intellectual consistency got to do with it? It’s about PR.

  10. I guess that if I could change the ballot measure process I’d make it like this:

    A measure is approved for the ballot. Once it’s approved, the legislative chambers and the governor are given the opportunity to submit amended versions of it. Maybe local officials are given the same chance (at least X number of mayors, city councilors, and county supervisors, representing at least Y number of people, where X is at least 20 and Y is at least 35% or some other suitable number).

    Voters can approve as many version as they like, and the version with the most votes wins (assuming its approved by at least 50% of those people voting).

    In some ways we already have this, to the extent that when 2 ballot measures conflict the one with the more votes takes precedence. But let’s make the process more explicit so that we get more balancing of alternatives instead of a single yes/no question. The process would then be that the people raise an issue (via a petition), the elected leaders weigh in with their proposals, and then the people decide. It would still be direct democracy (for good or for ill) but it would have a greater infusion from the deliberative process.

    For those concerned about the dilemma facing a voter who strongly prefers version 1 but also finds version 2 acceptable, and wants to know whether to vote for one or both (or a voter who doesn’t like any but would at least grudgingly accept version 1), there are more sophisticated voting algorithms out there, but that’s a separate matter.

  11. For California, the changes I would make are: (1) a maximum # of initiatives that could be on any one ballot. 5 is a good number. Then, if you meet the minimum signature requirements but you’re not in the top 5, you’ll have to gather more signatures to pass another initiative, or wait til next time; (2) State Supreme Court should review every qualifying initiative before it goes on the ballot, instead of overturning the unconstitutional ones afterwards; (3) some sort of limit on what kinds of questions can become initiatives. There are way too many technical nuts-and-bolts-of-governance things on the ballot. Let us decide the big stuff.

  12. For California, the changes I would make are: (1) a maximum # of initiatives that could be on any one ballot. 5 is a good number. Then, if you meet the minimum signature requirements but you’re not in the top 5, you’ll have to gather more signatures to pass another initiative, or wait til next time; (2) State Supreme Court should review every qualifying initiative before it goes on the ballot, instead of overturning the unconstitutional ones afterwards; (3) some sort of limit on what kinds of questions can become initiatives. There are way too many technical nuts-and-bolts-of-governance things on the ballot. Let us decide the big stuff.

  13. Steve-

    The only problem with a court reviewing a measure before it passes is that the best way to judge a law is in the application, not in the abstract.

    Still, I see your point.

  14. The only problem with a court reviewing a measure before it passes is that the best way to judge a law is in the application, not in the abstract.

    Can you expand on this? Are there any states where the courts get prior review of pending legislation? It would seem to make a hash of the notion of separation of powers, though I can’t put my finger on why. I’m intrigued by this idea.

  15. Tim

    In Florida ballot initiatives have to be reviewed by the FL Supreme court before they can be placed on the ballot. I understand the legislature has given them this power so it doesn’t run against separation of powers.

    Of course it hasn’t stopped us from getting dandies like human rights for pigs and a bullet train (fortunately we got a second chance on the latter).

  16. If “first do no harm” were taken seriously, at least with regard to medical issues, we wouldn’t have mandatory fluoridation of municipal water supplies in California. Oh yeah, and whatever happened to “the patient always has the right to refuse treatment”? Don’t even get me started on medical marijuana (though Prop. 215 was, imho, an example of the electorate getting it very right). Medical legislation isn’t usually about doing what is best for patients. It is about control, as in, those who are in authority having control over those who are not.

    This practice of supporting, voting for, or signing bad laws with the expectation that they can be “fixed” in the legislature or overturned by the courts later, seems to happen altogether too often these days. You’d think that voters would notice this kind of thing and defeat the perpetrators at the polls — or recall them! But no. Incumbents win re-election almost universally, President Bush among them. Didn’t he sign the BCRA expecting the courts to strike it down? For THAT REASON ALONE we should have shown him the door, not to mention the Iraq Adventure, the Prescription Drug thing, and the esclation of the war on politically unfashionable drugs. How much screwing up will the public tolerate? All of it, apparently.

  17. In practice, we all must decide whether we like a particular school trustee, mayor, legislator, senator, etc. There are always ups and downs to the people we have to choose from.

    They then are faced with votes on bills and budgets that are inevitably flawed in some way. Sure, they have the power to offer amendments and such, but ultimately you’re always faced with an up-or-down vote.

    So why is it such a bad thing for the people to judge whether the flaws of a particular measure outweigh its benefits?

  18. Prior review doesn’t strike me as a separation of powers problem as a ripenss/standing issue, i.e., there is no “case or controversy.” Of course states can allow their courts to hear hypothetical cases even though their federal counterparts couldn’t, but I’m not sure how much good that would do. Suppose that the next Prop 187 survives a constitutional challenge in the state court, makes it to the ballot, and wins. Now its opponents will just sue in federal court, instead.

  19. They then are faced with votes on bills and budgets that are inevitably flawed in some way. Sure, they have the power to offer amendments and such, but ultimately you’re always faced with an up-or-down vote.

    So why is it such a bad thing for the people to judge whether the flaws of a particular measure outweigh its benefits?

    The only reason why I’m bothered by this is that we don’t have the same flexibility of deliberation and compromise that legislators have. Sure, in the end the legislators have to vote yes or no. The difference is that they get to engage in some back and forth negotiation and compromise and revision before voting yes or no (which admittedly doesn’t always lead to a better law), whereas We the People are given something and we have to take it or leave it rather than sending it back for revisions (well, we could, but we’d have to wait 2 years until the next election).

    I guess I’d be happier if I was confronted with 2 or 3 different bills, plus none of the above.

  20. thoreau,

    Why not just shoot down the proposition or initiative if you don’t like it? Heck, the main reason I vote at every opportunity is to vote no on any number of crazy-headed govmint schemes. When you have a couple of dozen items on the ballot like here in SF, that’s a lot of NOs! Didn’t someone once say, “The government that governs least, governs best”? Seems rather libertarian, doesn’t it?

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