Rogue Initiative

One of the seemingly simple sections of Proposition 73, the successful political-reform initiative on the June primary ballot, was designed to prohibit state and local officeholders from using public funds to mail newsletters to their constituents. A literal reading of the section, however, discloses that it bans all mass mailings at public expense--including presumably tax bills, tax-refund checks and everything else.

Few people had looked carefully at Proposition 73, for it seemed to have little chance of passage. Once it won, however, thousands of elected officials and officeholders throughout California took a closer look at Article 4, Section 3, and were horrified by the all-inclusive wording: “No newsletter or other mass mailing shall be sent at public expense.” That portion of the measure became law immediately on passage.

In panic, officials flooded the state Fair Political Practices Commission with questions about mailings like tax-assessment notices and bills, public-meeting agendas, schedules and catalogues from public colleges and public-information periodicals of all sorts.

In response the commission has issued an emergency advisory that exempts most such mailingsfrom the prohibition, although the ban still would apply to any mailing that contains an elected officeholder’s photo or signature. The commission later will draft proposed regulations after public hearings.

This vague language is another example of a major flaw in the initiative process. While such quirks occasionally slip into law in the regular legislative process, at least they can be corrected quickly. Initiative statutes adopted by a vote of the people can be changed only by another vote of the people.

It may be months before the Fair Political Practices Commission untangles the confusion over just this one sentence. Someone could sue to enforce a literal interpretation of Article 4, Section 3. And even the common-sense interim ruling of the commission may have to be carried to ridiculous extremes. For instance, the state ballot pamphlet that was sent to all voters in California by Secretary of State March Fong Eu carries a printed certification from Eu, declaring that the pamphlet has been prepared in accordance with law. The certification, of course, carries Eu’s signature, and therefore presumably would violate the new law of Proposition 73.