To quote the character Ron Burgundy from the classic meditation on California local media, Anchorman, after a senselessly and murderous battle between rival news teams – “Wow. That got out of hand quickly.”
Over the past few days, commentators and thinkers from across the California political spectrum – from Erwin Chemerinsky to Jon Coupal – have lost their… well… you know what… over the U.S. Supreme Court’s decision in the Prop 8 case. The Californians’ problem with the decision had nothing to do with marriage equality and everything to do with the initiative process.
Their core fear: the court’s decision not to grant standing to bring a case to the original proponents of Prop 8 poses a gaping hole in the initiative process. Elected officials will be able to torpedo initiatives, the argument goes, by doing what Governors Brown and Schwarzenegger and Attorney General Harris did in the Prop 8 case: by refusing to defend the law.
This is absolutely total nonsense. And by raising a fear about a court decision we should not fear, supporters of the initiative process are taking their eye off a truly serious threat to the process: a Big Labor-backed bill that could criminalize the process of petitioning the government.
More on that threat later. First, let’s dispatch with the fear-mongering about the court and let Erwin and Jon chill out.
A couple of points. First, initiative proponents in California continue to have standing to represent and defend their ballot initiatives in California courts. Prop 8, in fact, has made this fact clearer than ever before, with rulings from the California Supreme Court and the U.S. Supreme Court itself. Which ruling says that proponents can defend their initiatives? The very same U.S. Supreme Court decision that has everyone full of fear.
The only limitation on standing for initiative proponents is this: proponents do not have standing in federal court to defend initiatives when they can’t show an injury. This is an unlikely series of events. And it’s only likely to happen when a ballot initiative threatens an important right (like say, the right to marry the person you love) and when the proponents have no injury (such as proponents who pass a ban on same-sex marriage even though same-sex marriage doesn’t hurt them at all). I, for one, think it’s a good thing – and a very, very mild check on the initiative process – to make it harder for people to use the initiative process to take away the civil rights of a group of people when that group of people isn’t hurting them. Proponents of such initiatives should go to hell – not to court.
Also worth noting: the U.S. Supreme Court decision, in limiting the standing of initiative proponents in this way, did not take a single thing away from initiative proponents. They’ve never had standing in such cases – indeed, to give them standing would have set a new precedent. So knock off all the crying and gnashing of teeth – the court ruling imposed the status quo when it comes to standing.
Now, please take a moment to dry your eyes – and then take a look at a real threat to the initiative process. It’s a deceptive bill called AB 857, an attempt by Big Labor to limit access to the process and perhaps criminalize it.
The bill is dressed up as reform, a way of improving the process. Its headline is a requirement that 20 percent of signatures to qualify an initiative be solicited by circulators who are not paid. This is bad news for the process for two reasons. It’ll raise the cost of qualification, since unpaid circulators cost more per signature than those who are paid per signature, and thus reduce access to the process. (This is good for rich people and interest groups, like the labor sponsors of this legislation). It’ll also add to legal challenges around measures, as disputes over who is a paid circulator and who is not end up in court. (And those court fights will add to costs and thus reduce access).
And that’s only a piece of this thing. There is a whole new regulatory regime for petition firms and circulators, with new codes, and accounting – all of which regulates a process (petitioning the government) that is essential to our First Amendment Freedoms, and all of which will reduce already limited access to the ballot. The bill even requires petitions circulated by unpaid circulators to be in one color, and petitions circulated by paid circulators to be a different color.
Run afoul of these rules and your initiative or referendum would be thrown out.
The legislation ought to be called the “Let’s Turn the Ballot Initiative Over to the Unions, Corporations and Mungers Act of 2013.”
By the way, it’s worth nothing that the same legislative majority party that balked at paying costs related to the state public records act is perfectly willing to pick up the tab for this new regulation of the petition process. It’s almost as though people in Sacramento are engaged in a War on Public Participation.
New penalties and new misdemeanors are part of the soup. And you thought there were already too many people in the criminal justice system in California.
Finally, it doesn’t increase confidence in a bill when you read its findings and those are wrong. Among the bogus history in this bill is this inaccurate, disingenuous bit: “For the past 30 years, a disturbing trend in the state’s political process has undermined the original intent of the initiative power. Whereas the initiative was reserved by the voters for the purpose of allowing voters to participate in direct democracy, now the integrity of the initiative process has been corrupted by well-financed special interests.”
First off, today’s process is the same process, with all its significant problems, that we had 100 years ago. And this bill itself is a corruption of the process by a well-financed special interest.
Hold your fire on the Supremes – and go after this stinker.