Reclaiming Our State Government

Co-Host of the nationally syndicated radio program, Law Business Insider

2010 could be the year of Citizen Power.  This could be the year when we begin to
fight back against the bitter partisan politics of organized political parties
in California.

Californians are angry because we recognize the winds of
partisan self-interest have eroded Citizen Power.  Not since the days of Governor Hiram Johnson, who in 1911
successfully championed Citizen Power through enactment of referendum, recall
and initiative to overcome the power of the special-interests of the day — the
railroads – have the people been as angry. Our frustration with partisan
politics is evident as the ranks of "Decline-to-State" registered voters have
swelled to almost twenty-one percent of all voters.

Citizen Power is not supposed to be just a catchphrase or a
mere truism. The California Constitution says "All political power is inherent
in the people."  There is no
equivalent phrase in the Federal Constitution. The hardy pioneers intended for
California to be more populist than the Federal Government. But the political
parties have managed to wrest power from us in spite of the guarantee of this
"Popular Sovereignty Provision."

We were cautioned by no less authority than George
Washington.  His Farewell Address
warned:  "[although political
parties] may now and then answer popular ends, they are likely, in the course
of time and things, to become potent engines . . . to subvert the power of the
people and to usurp for themselves the reins of government . . ."

In spite of Washington’s well-grounded fear, we know now
from practical experience that political parties serve a useful purpose. The
problem is that we have allowed the political parties to become our masters
when they should be our servants.

How has this happened? 
Our state system was designed to work best when Citizen Power flexed its
collective muscle through the "one-man, one-vote" principle.  The system was not designed to function
where politicians must satisfy well-funded groups, corporations and unions
instead of the ordinary man and woman, and where political organizations
arm-twist on issues of primary importance only to the few, instead of issues of
common importance to the many. 
Dwight Eisenhower warned us of the "military-industrial complex" when he
probably should have warned us of the "political party-special interest
complex."

This writer is waging a court battle for Citizen Power over
a state law described as the "Disaffiliation Requirement."   The Disaffiliation Requirement is
just one of a number of ways the political parties have managed to keep the
partisan harness over the head of Citizen Power.

The Disaffiliation Requirement is an obscure law known
primarily to professional politicians that locks an unwary citizen candidate
from running for office as a member of one political party unless the candidate
has been disaffiliated from all other political parties for at least one year
before the filing deadline for the primary election.  The Disaffiliation Requirement impedes cross-pollination
between the political parties.  In
other words, the Disaffiliation Requirement preserves ideological purity.  

The Disaffiliation Requirement supposedly precludes
political instability. But the justification is a diversion.  California did not have a
Disaffiliation Requirement until 1959. And the Disaffiliation Requirement does
not apply to elected officials who are free to switch party allegiance.

The Disaffiliation Requirement and a number of other state
laws cut the legs out from underneath Citizen Power.  Add to the list of these laws the Closed Primary which
waters the deserts of partisan politics with extremists, and legislative
redistricting which places the party foxes in our state legislature in charge
of the henhouse.

 The political
parties have successfully opposed open primaries in California for many years
in spite of the fact that most Californians favor the concept.  In 1996, over the opposition of both
the Republican and the Democratic Parties, Californians approved an open
primary, only to have the Democratic Party file a court challenge invalidating
the initiative.

The Open Primary will be before California voters once again
this June. Proposition 14 is modeled on the measure approved by voters in
Washington State, which takes the two highest vote-getters from a single,
combined primary who then face-off in the general election.  Unlike the Open Primary approved by the
California voters in 1996, this form of the Open Primary has already been
blessed as constitutional by the High Court. 

Early polling shows the Open Primary initiative has the
overwhelming support of about two-thirds of registered voters.  But the political parties will do
everything within their power to defeat the initiative at polls. Why? The
answer is as simple as it is frustrating. 
The Open Primary transfers political power to the ordinary man and
woman.   

Legislative redistricting is a practice that most of us have
tolerated but do not like.  Two
years ago we passed Proposition 11 and created a non-partisan, non-party
affiliated citizens’ commission to redraw state legislative districts. The
partisan state legislature previously controlled the redrawing of state
legislative districts.  Having the
partisan state legislature in charge of redrawing legislative districts goes
against everything my father taught me about sharing.  If two want the last piece of a good pecan pie one slices it
into two pieces and the other gets to choose which slice he wants. Placing the
partisan state legislature in charge of redistricting is like having the same
person slice the pie and then choosing which slice he wants for himself.

Charles Munger, a California political activist, wants to
expand Proposition 11 to allow the citizens’ commission to redraw California’s
congressional districts. The effort is drawing fire, particularly from the
Democratic Party which has the most to lose, at least in the short-term,
because as the majority party in Sacramento it controls redistricting.  Nancy Pelosi and Karen Bass are funding
efforts to defeat Munger’s anticipated initiative and to repeal Proposition 11.  Why? The citizens’ commission transfers
political power to the ordinary man and woman.

Meanwhile, my skirmish for Citizen Power goes on. I have
asked the courts to declare the Disaffiliation Requirement to be an
unconstitutional transfer of power from the people to the political
parties.  This is an issue that has
never been brought to the state courts before.  Interestingly, the California Attorney General is fighting
me.

The trial court in my case declined to confront head-on
whether the Popular Sovereignty Provision invalidates the Disaffiliation Requirement,
basically kicking the matter upstairs to a higher court. A court ruling on the
scope of the Popular Sovereignty Provision could have constitutional
implications for the Open Primary and the citizens’ commission on
redistricting. The California Supreme Court declined to hear my case on a
fast-track basis and my appeal is currently pending before the Court of Appeal.
The principle of Citizen Power remains an important principle to
vindicate.  I will continue to
fight for that principle as long as the courts allow me to fight.

2010 is the year when Citizen Power has the opportunity to
strike blows against politics as usual. 
Each of us should wage the fight for this worthy cause whether it is
before the courts or at the ballot box. We need to make the political parties
work for us the people once again.

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