The Madness of Proposition 26

In November 2010, the California electorate approved Proposition 26, a little-known and little-followed proposal, in a close vote.

Proposition 26 was one of those propositions written to be intentionally confusing and difficult to understand. It requires a two-thirds majority to approve certain fees instead of a normal majority. Most people probably thought of these fees as something like sales taxes or property taxes. In fact, the fees generally constitute taxes on business activities which harm society, such as alcohol retailers or businesses that use hazardous waste. In other words, most people thought of Proposition 26 as involving tax cuts, when in reality it’s about environmental regulation.

Proposition 26 has also added several billion dollars to the state budget deficit, something that an informed voter could only know by digging deep into the legislative analysis (the relevant text is at the end of the third-to-last paragraph). It constitutes one of those complex matters which should have been decided by the legislature, not the ballot box.

There is one final problem with Proposition 26 and with the proposition system generally. 52.5% of Californians voted for Proposition 26, while 47.5% voted against. Proposition 26 requires a 67% supermajority to pass certain fees. In other words, a bare majority of voters – half of whom probably had no idea what they were even voting for – was able to require 67% legislative approval for a policy to be enacted.

This is not just bad policy, it is rather undemocratic. 52.5% of voters should not be able to create a 67% supermajority requirement. A 67% supermajority requirement ought to require 67% approval of voters, not 50.1% – which is the current system in California.

In the 2008 presidential election 52.9% of Americans voted for President Barack Obama. Say, for instance, that those 52.9% of Americans also amended the constitution to require 67% of Americans to vote against Obama for him to lose re-election. Everybody would call that an undemocratic violation of American principles. Yet that is effectively how California’s proposition system currently works.

Here is a proposed reform: the next proposition that creates a supermajority requirement will need supermajority approval as well. 50.1% of Californians should not be able to set a 67% bar for policies to pass. It is practically impossible to get two-thirds legislative support in any Western democracy. Changing the law to create such a barrier should be just as difficult as well.

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3 Responses to The Madness of Proposition 26

  1. Henry says:

    I disagree. Firstly, a 2/3 majority in the legislature usually requires a lot less than 2/3 of the popular vote due the nature of First Past the Post. But crucially, they’re dealing with different branches, the people and the legislature, the latter of which are supposedly subservient to the former. Restricting what the legislature can do is not anti-democratic, it is more alter-democratic, since it shifts the balance of power more towards direct democracy. Although your previous posts indicate that you prefer representative democracy, your rationale appears to more along the lines of its effectiveness rather than it being inherently more democratic.

    In any case, I don’t see anything undemocratic about a proposition than can be approved with a simple majority and then repealed by a simple proposition. A truly undemocratic proposition would require a greater majority to repeal than to enact (or otherwise had a significant disenfranchising effect).

    • inoljt says:

      Thanks for the comment and the discussion.

      I do think that you make a lot of good points. You’re right that a 2/3 legislative majority requires less than 2/3 of the popular vote.

      But it certainly requires more than 1/2 of the popular vote – and it’s incredibly difficult to get a 2/3 legislative majority. The composition of the legislature ultimately reflects the will of the voters. Getting a supermajority in the legislature requires far more than 50% support in the overall electorate. Under normal circumstances, a party would need something like 58% support among Californians to get a 2/3 majority in the legislature. If you’re going force a ~58% popular majority for a new fee to pass, you’d better have 58% support for this. And yet under the proposition system you only need 50.1% of the vote to force a supermajority of Californians to bend to your will. I believe that’s not just bad policy – which it certainly is – but also undemocratic.

      ( A note: Since 1900, there have been a total of only eight congresses in which a party has had a >2/3 majority in the House of Representatives. The last time occurred in 1976. During the last three times one party did get a 2/3 legislative majority in the House, they on average won 14.8% more of the vote than the opposing party – note that all this is from wikipedia. So you can imagine the difficulty of getting a 2/3 majority to do anything of importance in the legislature.)

      • Henry says:

        My point about a 2/3 majority in seats not requiring 2/3 of the voters is not crucial to my argument that this proposition is not anti-democratic. (Too many negatives?) I’m merely pointing out that the two aren’t directly comparable, i.e. if you insist on supermajority support from a FPTP legislature and supermajority from the electorate, the size of the former should be smaller than the latter.

        It is true that this proposition can stop bills that legislators representing a majority of voters support. However, if a majority of voters ever feel disadvantaged by this, they can always vote to repeal the proposition. A long-term “tyranny of the minority” is unlikely.

        So why would a voter simultaneously vote for this proposition and a Democrat whose ability to pass legislation is hobbled by the same proposition? Because representative democracy is fundamentally about delegating decisions to an agent, and for all its advantages it inevitably suffers from principal-agent problems. Since it is costly to monitor an agent, it can be better to simply restrict his or her options.

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