This article seeks to enhance public consideration of the pros and cons of streamlining California's informal-administrative-rulemaking procedures for reforming the state's direct democracy. To provide a concrete focus for discussion and quick adoption, Appendix I includes proposed amendments to existing California statutory provisions. This article provides a context for considering the proposed legislation by elaborating on five questions: Why Deliberation? (Part I): In this Part, the Article makes the case, both on the substantive merits and on practical political grounds, for focusing on deliberation-enhancement as the best "next wave" of initiative reform.8 Why the Administrative Model? (Part II): This Part expands the arguments in the Working Group Report to defend an assertion that might seem initially counter-intuitive: even though orthodox direct democracy rhetoric assumes that voters endorsing initiatives are like legislators passing bills, in reality, the closer analogy is to the roles and dynamics common to administrative rulemaking. Why Streamlined Informal Rulemaking? (Part III): Assuming the appropriateness of an administrative rulemaking model, an obvious next question arises because both my 2007 article and the Working Group Report propose a substantially streamlined version of the informal-notice-and-comment procedures California (like most other states and the federal government) uses to make administrative rules. A skeptic might ask: if the administrative rulemaking model is so appropriate in describing the relationship of voters to initiative proponents, why shouldn't the full panoply of notice-and-comment procedures (including multiple potential stages of judicial review) be transposed into the direct-democracy context? Part III presents answers grounded both in appropriate public policy and political practicality. Specifically, this Part identifies several "design specifications" for savvy selective borrowing. Why This Proposal's Specific Choices? (Part IV): This Part relates the numerous design choices reflected in our reform proposal to the design specifications identified in Part III. The discussion explains which aspects of California's current administrative-rulemaking procedures the reform proposal borrows, adapts, and ignores-and why. What Strategic Questions Remain on the Way to Proposal Enactment? (Part V): Getting a reform proposal from final formulation to actual adoption raises a number of strategic questions. This Part addresses four questions facing anyone considering how to adopt streamlined notice-and-comment procedures for direct democracy.
Glenn C. Smith, More D (Deliberation) for California’s DD (Direct Democracy): Enhancing Voter Understanding and Promoting Deliberation Through Streamlined Notice-and-Comment Procedures, 48 CAL. W. L. REV. 1 (2011).