Proposition 25: Legislators Must Police Themselves?

State Controller John Chiang | Photo: Randy Bayne/Flickr/Creative Commons License

Back in June 2010 California voters passed Proposition 25. That measure, named the "Majority Vote for the Legislature to Pass the Budget Act," lowered the threshold required to pass a budget from two-thirds of both state legislative houses to a simple majority of both houses.

But the initiative did more than that: It also stated that if lawmakers do not pass a budget on time they will not get paid until they do successfully do. Politically, it was smart move to sell the measure to the public by saying something like, "legislators shouldn't get paid if they don't do their jobs." That's true, but that little provision was really just there to sweeten the deal.

As it turned out in the summer of 2011, lawmakers did not pass a balanced budget on time after Governor Jerry Brown vetoed their initial plan. State Controller John Chiang, relying on Proposition 25, then stopped paying legislators' salaries. All told they lost less than two weeks of pay.

In an unwise public relations move, legislators sued, claiming that Chiang did not have the authority to stop legislators from being paid and a Sacramento Superior Court judge tentatively agreed last week. In essence the ruling said it is legislators who have the authority to stop pay, not the State Controller. Based on a separation of powers issue that may well be the correct legal decision, it is hard to imagine that the voters thought legislators would be policing themselves when they voted for this initiative.

This speaks to a larger problem: the initiative process itself. First, initiatives may not always be what they seem. Initiatives often have unintended consequences. Second, initiatives often end up in courts. Even those initiatives written by experienced drafters are often challenged and litigated for years because we either don't know what all or part of the measure means, or we don't like what we think it means.

Jessica Levinson writes about the intersection of law and government every Monday. She is a Visiting Professor at Loyola Law School. Read more of her posts here.