It’s no surprise that we sometimes do things that aren’t good for us. For instance, I am allergic to cats, but I love them. In fact, as I am writing this column, our cat is draped over my shoulder — one of his favorite places — and I will probably start sneezing in about 10 minutes. 

Although I’m allergic to the cat, I weigh the pleasure I receive from petting him against the discomfort it causes me. Most of the time being close to the cat wins, and I pay the price. Even when I don’t pick him up, I pay a price because he lets me know he’s unhappy.

I’m sure that an economist somewhere would describe this as some type of economic behavior, but I prefer to think of it as a personal rational choice. It doesn’t hurt anyone else if I pick up the cat (except my wife who must listen to me sneezing). If I make the choice, I pay the price — for the most part.

Considering the Common Good

Our lives are full of truly personal choices that have downsides: too much food, too little exercise, too loud music, etc., and we generally don’t regulate such conduct. It’s only when the rights and property of other people are at least indirectly affected that we begin to impose expectations andpenalties on others.

We all learned as children that our precious right of free speech does not allow us to yell “fire” in a crowded theatre. Very clearly the rights of others are affected by such irresponsible behavior. We also can’t drive over the speed limit (generally), trespass on another’s property or pollute our air and water supply past certain levels. Such actions are generally treated as offenses against the “commonweal,” or the public good or welfare.

In fact, the basic system of laws we have enacted over time — usually through our elected representatives — is based on the concept that we have a duty to our fellow citizens to act in a way that does not impinge on their personal freedom, happiness and safety. I am aware of countless times as I was growing up that my own parents (or friends’ parents) stopped me when I was engaged in a dangerous, stupid or otherwise harmful act that was designed to make me happy, so I would not put someone else’s happiness or safety at risk. I was typically told that such limits were the price of living in a “civilized” society (that is to say, an orderly society based on rules and laws). 

As I aged, I learned I had even more responsibilities to my fellow citizens. For example, when I rent an apartment I can’t damage the walls or appliances without incurring penalties. Likewise, as I came to own property and earn income, I learned of my obligations to my broader community to pay taxes to support our common services, including services I didn’t even use. Again, the notion of the common-weal is the foundation even for our sys-tem of taxation and service delivery.

When I later chose a career in government and then in law, I learned about the great care that normally goes into drafting new laws and amendments, the extensive airing and exchange of ideas in committees, and the repeated votes both on the floors and in committees. The final check and balance, in the systems that have it, is the chief executive’s potential veto.

Our truly beautiful system of lawmaking, beginning with the framework contained in the U.S. Constitution and found in similar detail in the constitutions and charters of every state, city and county in the nation, almost always guarantees that some level of care will be taken to balance the rights and interests of those who are affected by a new law. In fact, when bills are occasionally passed without committee scrutiny, they are usually branded as “abuses” that should not be tolerated and often are targeted for a veto by the chief executive. Furthermore, those who participate in such affronts to the commonweal are sometimes treated as pariahs and may even become the target of recall efforts.

Accountability Lacking in Initiative Process

In a state that values government transparency and accountability as much as we do in California, doesn’t it seem strange that we so easily tolerate open recklessness in the ballot initiative process? In fact, it has some similarities to the state lottery, it seems to me. Anyone who can pay the price of filing and qualifying an initiative has the right to spin the wheel and see what the electorate thinks about their idea — no matter how ill considered or misrepresented it might be.

When government spends money to purchase goods and services, we typically expect it to be done by competitive bidding or selection. When lawmakers legislate, we generally expect them to do it in the open and to consider public testimony. When governors, mayors, city managers and county chief administrative officers make policy, we expect them to explain the basis for their actions and to be held accountable for their errors and omissions. No such accountability exists for those who misuse the initiative process.

Under our current initiative system in California, I could file a statewide ballot initiative for $250 called the “Protect Our Homes Act,” qualify it for the ballot with $2 million in funds from a wealthy out-of-state businessman who actually had the measure drafted by his out-of-state lawyers, and run a campaign to secure its passage — all without ever telling or admitting to the public that the measure really would decrease protections for most people’s homes. I could then raise funds to pass the measure from individual home-owners who honestly believed that it was going to help protect their home from government abuse.

As a result of my actions, I could cause hundreds of groups and individuals to spend millions of dollars to defeat the ballot measure when it appeared on the statewide ballot. I could do all of this without any legal penalty for my actions — whether reckless or willful — to mislead the electorate. 

Overrun by Outside Influences

Sound like something you might find in some Third World country? Think again. This is all possible in California and recently happened with Proposition 90. Drafted, dreamed up and financed by an out-of-state millionaire, Prop. 90 showed up on the scene in March 2006 and was formally approved for the ballot in late June. Between then and Election Day, a coalition of more than 400 organizations worked to educate California voters about the harmful consequences of the measure.

In effect, the No on Prop. 90 campaign had to act like a truth squad, exposing the misleading statements and half-truths of those promoting the measure. Fortunately, we were lucky and voters rejected the proposal, but it took a lot of work and money to get the facts to the voters. Along the way, more than 80 editorial boards smelled “something rotten” with Prop. 90, and they urged voters to reject it too.

As author Robert Fulghum pointed out in the title of his best-selling book, all we really need to know we learned in kindergarten.When I hurt someone else in kindergarten because I was thoughtless, reckless or dishonest, I couldn’t get away with it by saying, “But I didn’t mean to.” I learned that being responsible for your actions meant more than acting surprised that what I did affected someone in a way I didn’t intend.

No law that is drafted and enacted is ever perfect. In fact, some of them are downright embarrassing. Because of the legislative process, however, there are at least some opportunities to expose the folly of a proposed law, assess its impacts and improve its language. No such opportunity exists in the California initiative process, and it is increasingly clear we are at risk of the process being taken over by out-of-state groups with agendas and war chests that will allow them to set public policy in California for many years to come.

Next time someone tries to hijack the California initiative process for their own deeply personal, cynical and deceptive purposes, I hope the people of California tell them they need an excuse, a really good excuse — one better than “the dog ate my homework” — or they had better not ever set foot in California again. Since we can’t count on a Marshall Dillon (of TV series “Gunsmoke” fame) to tell them to hightail it out of town, we’re going to have to do it ourselves, using some virtual tar and feathers. Better yet, we might even find a way to prevent it in the future. I vote for that.

This article appears in the January 2007 issue of Western City
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