It’s crunch time for ballot negotiations

High-stakes, down-to-the-wire discussions and daily strategy sessions. Deals falling apart multiple times, then coming back together. Fine-tuning language and running it by dozens of players and interest groups. Late-night phone calls and Dr. Pepper-fueled marathons to help seal the deal.

In a typical year, negotiations to remove qualified measures from the statewide ballot require both political will and intense legwork in a short period of time, all to beat a looming deadline. But with less than four weeks until the June 27 cut-off date, this year is shaping up to be even trickier for negotiators.

Those invested in policies ranging from worker lawsuits and personal finance education to health care funding and retail theft will be working to get the attention of lawmakers preoccupied with other, urgent work. The Legislature faces a separate deadline this month to pass a new budget while closing a formidable fiscal gap, amid haggling over potential bond measures to fund school construction, housing, and climate-related projects that Democratic leaders hope to pass this year.

Negotiators will spend this month playing what multiple people with experience making these deals described as a game of high-stakes, multidimensional chess (and another simply referred to as a “clusterfuck”). Their success or failure in the next 24 days will determine the shape of the ballot that appears before California voters in November.

“I can’t tell you how many hours of the day were consumed” by ballot talks, Gov. Gavin Newsom said in response to a reporter’s recent question about the current crop of measures. “This is the season, and we are engaged in a number of advanced conversations around these initiatives. Stay tuned.”

An evolving process

Although the ability to negotiate things off the ballot has increasingly become a standard part of the electoral calendar and the political strategy for those working in the industry, it has actually only been possible in this form for the last decade.

Facing pressure to rein in the ballooning number of measures on Californians’ ballots, then-Gov. Jerry Brown signed a law in 2014 allowing for legislative compromise on qualified measures. The law gave proponents of a measure the ability to pull it until 131 days before Election Day, which this year falls on June 27.

Until the reforms were passed, those hoping to take measures off the ballot or use them as leverage to negotiate only had two options: They could hold onto their signatures and try to reach a deal before formally submitting them, or they could leave the measure on the ballot but not run a real campaign for it, effectively orphaning it.

“We tried to create a process whereby we could weed out the measures that were real versus not real, and give a heads up to the Legislature so that they could start the process early and see if there was any level of negotiation,” said Bob Hertzberg, a former Assembly speaker and Senate majority leader who has been involved in efforts to reform the ballot measure process both during his time in the Assembly and outside the Legislature.

The new rules, which include other provisions that give a measure’s proponent control of its fate even after submitting qualifying materials to the secretary of state, mark an effort to reach back to a lost history of California’s direct democracy. From the origins of the citizen initiative in 1911, lawmakers had been able to negotiate them off the ballot but changed the rules in 1966 because the power had been rarely used by the then-part-time Legislature.

By empowering legislators to take a hand in the process, the 2014 reforms have entirely changed strategy for ballot measure proponents. With an established off-ramp available, often the goal of qualifying a measure for the ballot today is not to actually win the vote but to use the threat of a costly, distracting campaign merely as leverage to win recognition in the Capitol.

In 2018, a deal between labor and business interests on soda taxes kept a related measure off the ballot. And that same year, the backer of a planned measure on consumer data privacy pulled it when the Legislature agreed to pass the California Consumer Privacy Act (although he ultimately took the issue to the ballot in 2020 to reform and expand that law).

Two years ago, a proposed plastics ban was pulled from the ballot after negotiators crafted a compromise law introducing new restrictions on single-use plastics and packaging waste. And labor groups and the fast food industry struck a deal last fall to establish a minimum wage for fast food workers, satisfying both business and labor interests that would have spent dearly on it.

“It’s not 20 people sitting around a table like you’re marking up a bill in Congress,” said Hertzberg, who has been involved in several of these deals while serving in government and as an outside consultant. “It’s a number of parallel discussions in many rooms … it’s a very fluid thing.”

The contours of a deal

This year, negotiations are already underway on several measures, including those concerning worker lawsuits, health care funding and a new high-school curricular requirement. On a handful of others, including those related to non-violent criminal penalties and taxation, there looks to be an appetite from at least one side to strike a deal and avoid an expensive or politically tricky ballot fight. Reflecting that pressure to slim down the ballot, state Sen. Ben Allen last week pulled his constitutional amendment on public housing, citing legislative progress made on the issue since the measure qualified in 2022.

There is only so much to learn from past legislative deals since crucial specifics — the core players at the table, who kicks off negotiations, and who runs them — vary from issue to issue. But political strategists, lawyers, lobbyists and interest groups involved in past or current discussions say any potential deals have a few key elements: One side (typically opponents a qualified measure, although not always) approaches the other to feel out the willingness to pull a drop a ballot campaign. Initial conversations among key stakeholders in each of the major interest groups involved lead to rounds of discussions involving an ever-growing cast of characters.

Once a deal seems within reach, the key players meet again in person to hammer out the final details. Sometimes key legislators or administration officials are involved from the start; sometimes they’re brought in later when the contours of a deal have already been figured out. The process can take months, or it can be compressed into the final, frenzied weeks before the deadline.

“I had never been in a situation with quite this much intensity, this many moving parts,” said Jennifer Fearing, an environmental lobbyist involved in a 2022 deal over a plastics ban that had qualified for that year’s ballot. “I had been lobbying for nearly 20 years — but had never done anything like that.”

Trying to bridge the cultural gap between ecologically minded activists and chemical industry interests through humor, Fearing brought a tongue-in-cheek bingo card to one marathon negotiating session. When the measure was formally pulled from the ballot, she had the bingo card printed on t-shirts and handed them out.

“You have to be able to build some trust, but have to balance that with who you represent — and not allow yourself to become so chummy that you take a bad deal,” she said. Still, over the course of the talks, “you develop a grudging respect: That they have a job to do, and I have a job to do.”

In all cases, the negotiations take an inordinate amount of time — and often go until the absolute last minute. (In the case of the plastics deal, the compromise law was signed and the ballot measure was pulled on the last possible day.)

A gloomy June

Because most of the action is taking place behind the scenes, the next 24 days will be full of murky rumors and posturing — making it nearly impossible for outsiders to determine who’s actually talking to whom and whether (and when) they’ll reach agreement. Just because certain groups are in conversation doesn’t necessarily mean a measure’s proponents, who have the final say on whether or not to pull it, are ready to make a deal.

“The mythology of what goes on, and the reality of how many of these actually get to a place where people sit down and have meaningful conversations, are not the same,” said Gale Kaufman, a longtime ballot measures strategist.

Time is running out: Any deal would need to be signed on June 27 at the latest, and the Legislature requires bills to be published for 72 hours before they can come to a vote. That means that the final text of any negotiated compromise only has about three weeks before it needs to be submitted to the Legislature.

This year, as interests seeking to make progress on specific measures will have to contend with a Legislature even more distracted than usual. Assembly and Senate leaders pushed back on some of Newsom’s proposed spending cuts in a joint budget proposal last week, and are likely to be absorbed by the budget between now and the June 15 deadline to pass it. Lawmakers are also trading drafts of three separate potential bond measures, on school construction, climate-related projects and housing.

Any deals to negotiate things off the ballot will be competing for their notice in the coming weeks — making the process unpredictable and likely full of last-minute activity.

“Everybody wants to wait until the last second to get the maximum amount of leverage out of their position and they won’t agree until the final point,” Hertzberg said. “And then all of the sudden, it comes together.”