No need to bother with appointing an attorney general to replace Kamala Harris once she’s elected to the U.S. Senate. There’s already big money behind several campaigns to give me the job.
And it’s not just me. Rich Californians and interest groups want to give you the power of the attorney general, too.
This desire to seize legal authority is a very important part of many of the 17 statewide measures on the November 8 ballot – though you probably haven’t heard of it.
If you read the entire measures (as a future attorney general like me must do), you find in the majority of them provisions that have nothing to do with their stated purpose, like limiting debt or reforming the legislature or reducing prescription drug prices.
You’ll find language that will give people who were never elected to anything the power to represent the state in court. Just like the attorney general.
These provisions vary in their particulars, but they are all supposed to protect the ballot initiatives in which they’re included. Specifically, the provisions are designed to make sure that their ballot initiative, if successful, gets a full legal defense if it’s challenged in court after passing.
That’s a concern because of same-sex marriage and Prop 8. California’s governors and attorneys general declined to defend Prop 8 after it passed, leaving it to the initiative proponents to do the defending. But then the U.S. Supreme Court, in a decision that invalidated Prop 8’s ban on same-sex marriage, said initiative proponents don’t have standing to sue.
So in the last two cycles, we’re seeing initiatives that have language granting non-governmental officials the standing to sue. It’s not yet clear if these provisions will pass legal muster. And I, for one, don’t think they should; it seems to me that the refusal of an attorney general or governor to defend an initiative is a healthy check on the process. In Prop 8, the refusenik officials were right—Prop 8 violated fundamental human rights, and didn’t deserve a defense.
What’s interesting from reading this November’s statewide measures is that there is not yet a consensus on how to give ballot initiatives a guaranteed legal defense.
The most common solution is to give the initiative sponsor power to represent the initiative. That’s what Prop 53, which would require a vote on revenue bonds; Prop 58, on eliminating waivers for bilingual education; and Prop 66, which wants to speed up the death penalty; propose. It’s also what the self-styled good government reformers Prop 54, which would put new restrictions on the legislature in the name of transparency, want for themselves. (Or to put it another way, the reformers not only want to limit the legislature’s power to wheel and deal, they want to give themselves the power of the attorney general).
The proponents of Prop 60 and 61 go even further; they not only would make themselves legal protectors of the measures, they would have themselves sworn in a public employee to make sure their legal standing to give their measure legal protection is kosher. Prop 65 invents a new independent counsel role; such a counsel would be appointed if the a.g. and governor won’t defend the measure.
But I really appreciate Prop 55, to keep the Prop 30 income tax rates in place, and Prop 63, on gun and ammunition control, personally. They would allow me to behave like an elected official – you too – because they confer authority on any citizen of the state to intervene and defend those initiatives.
Is it wise to give any citizen that kind of power? It may be awhile before we find out – it’s still a very rare occasion for the a.g. and governor to refuse to defend an initiative. So the debate over whether this is a good idea could be years away.
Or it could come sooner. What might happen if a proponent or citizen doesn’t like the way the a.g. is defending a measure – and decides to use an initiative’s power to intervene? That could be quite a mess.
Whenever that debate comes, it will come. And the case against handing over such legal authority to initiative proponents – or to you and me – is pretty strong. The state has a variety of legal interests, sometimes in conflict, and a limited amount of resources. Our elected officials, like the a.g., represent broad interests and thus have to balance those interests and manage resources.
But a citizen or initiative proponent empowered to defend one initiative labors under no such limits and no balancing tests. They, or we, could pursue a legal strategy that might be good for the initiative but bad for the state as a whole. And there would be – if such initiative provisions were found to be valid – no restrictions on the legal ends to which people-powered legal interveners could go.