Archives for posts with tag: California

Unfortunately, I do not have time right now to chime in on the very important ballot measure committee contribution disclosure lawsuit, ProtectMarriage.com, which is before the U.S. Court of Appeals for the Ninth Circuit.  I’ve served as an expert in several campaign finance lawsuits across the country, including the case California Pro-Life Council v. Getman (9th Cir. 2005), when my research was used to bolster the constitutionality of California’s ballot measure disclosure requirements.  I must say that it’s gratifying to see that my 2005 Election Law Journal article with Elizabeth Garrett that details the deceptive practices of “Veiled Political Actors” is once again being used to support the case for the public disclosure of the activities of ballot issue committee, as required under California’s Political Reform Act.

If you’re interested in the topic, I’d urge you to read the Campaign Legal Center’s amicus brief filed in ProtectMarriage.com v. Bowen

As the Legal Center points out in its press release, “In the last decade alone the Supreme Court has upheld disclosure laws by votes of 8-1 three times, most recently in Doe v. Reed.  In his concurrence in the case, Justice Scalia made very clear the importance of transparency to the health of our democracy:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.  This does not resemble the Home of the Brave.”

As the lead author of the “Direct Democracy Scholars” amicus brief in Doe v. Reed, I couldn’t agree more with Justice Scalia’s wise words or the Campaign Legal Center’s analysis.

Crack reporter, Nicholas Confessore, in his story, “Anti-Gay Marriage Group Recommends Creating Tension Between Gays and Blacks,” recounts a classic tale of an interest group trying to use a ballot initiative to drive a wedge into a party’s base.

More than a decade ago, I wrote about the GOP using this tactic in California and Colorado. No time to summarize it here, but here’s a link to my 2001 article, Initiative to Party, with Caroline Tolbert on the topic, and it’s also retold in my book, Educated by Initiative.

 

Well, it looks like the Ballot Initiative Strategy Center’s hard-hitting TV issue ads that ran in Colorado in 2008, calling out Ward Connerly for his deceptive effort to ban Affirmative Action, were spot-on.

New York Times has the latest in the alleged con-job he’s been running.

Here’s an excerpt from my 2005 Election Law Journal article with Elizabeth Garrett on “Veiled Political Actors” in ballot issue campaigns, which highlighted some of Connerly’s deceptive practices, which turned out to be just the tip of the iceberg :

Using 501(c)s to shield the identities of entities active in direct democracy is likely only to increase. The American Civil Rights Coalition
(ACRC) was established by Ward Connerly in 1997 following the passage of California’s Proposition 209, the successful 1996 anti-affirmative action initiative. The ACRC was the sponsor of Proposition 54, a racial privacy initiative that attempted to prohibit state and local governments from collecting data on or using classifications based on race, ethnicity, color, or national origin. According to campaign finance filings with the FPPC, ACRC contributed 94 percent ($1,570,400 of $1,671,958) of the total raised in 2001–02 by the ballot issue committee, Yes on Proposition 54/Racial Privacy Initiative Sponsored by American Civil Rights Coalition.112 The contributions made to ACRC were subsequently transferred to its sister ballot committee to help finance the paid signature-gathering effort to qualify the measure.113

California Secretary of State Debra Bowen has certified the first initiative to qualify for the November 6, 2012, ballot.  If it is approved by voters, the initiative–known by proponents as “Paycheck Protection” and opponents as “Paycheck Deception”–would restrict political fundraising by prohibiting use of payroll-deducted funds for political purposes.

It’s time to set the record straight on the origins of this deceptive ballot measure, which traces its history to anti-tax crusader, and Republican insider, Grover Norquist.

In the late 1990s, Norquist and his DC-based Americans for Tax Reform organization backed several conservative initiatives on statewide ballots, including so-called paycheck “protection” measures. The major source of his funding for his efforts, it was later revealed,was the Republican National Party.  In 1993, Norquist had authored a mock policy memo (fictitiously dated “November 9, 1996”) addressed to “Republican Congressional Leaders.”  His fictitious memo detailed the GOP’s hard won “success” in the 1996 elections.  Noting the electoral power of initiatives, Norquist wrote, “I believe the wave of initiative elections in 1992 and 1994 paved the way for Republican electoral victories this year [1996].”  He highlighted how initiatives limiting legislative terms, cutting taxes and government spending, as well as anti-crime, victims rights, and parental rights ballot measures, brought fiscal and “social conservative Republican voters to the polls.”

Republican leaders apparently were convinced by Norquist’s electoral prediction.  In October 1996, the Republican National Committee (RNC) quietly contributed $4.6 million in soft money to ATR to promote federal candidates by broadcasting issue ads. While Norquist’s nonprofit did not have to disclose its subsequent expenditures, a congressional investigation (Minority Report) into campaign finance abuses in the 1990s found that ATR acted “as an alter ego of the Republican National Committee [RNC] in promoting the Republican agenda and Republican candidates, while shielding itself and its contributors from the accountability required of campaign organizations.”

Norquist’s ATR subsequently funneled a substantial amount of the RNC money to issue groups in California, Colorado, Oregon, and Nevada that were sponsoring paycheck protection ballot measures.

For example, in 1998, ATR was a major contributor to the sponsors of Oregon’s Measure 26, a paycheck “protection” initiative that qualified for Oregon’s November, 1998 ballot.  ATR also helped to finance paycheck “deception” measures in Nevada and Colorado, but they were stymied by the courts in Nevada and stalled by a union-led counterproposition in Colorado.

Earlier in 1998, Norquist’s ATR successfully spearheaded the financing of a California ballot measure designed specifically to weaken organized labor. During the crucial petition gathering phase of the campaign, ATR transferred $441,000 to the Campaign Reform Initiative in California, one of four issue committees advocating Proposition 226, a paycheck “protection” measure.  In the end, California voters defeated the measure at the polls, in large part because labor unions spent over $23 million fighting the June 1998 primary initiative.

Rather than paycheck protection, the history of these ballot measures is steeped in deception.

For more background on paycheck “protection”/”deception” ballot measures, see Daniel A. Smith. 2004. “Peeling Away the Populist Rhetoric: Toward a Taxonomy of Anti-Tax Ballot Initiatives,” Public Budgeting and Finance 24 (4): 88-110, and Elizabeth Garrett and Daniel A. Smith. 2005. “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” Election Law Journal 4 (4) 295-328.

That’s what Dan Schnur, the director of the Jesse M. Unruh Institute of Politics at the University of Southern California, told Adam Nagourney in a front page article, “In California, Asking Voters to Raise Taxes,” in today’s New York Times.

According to Schnur, “The November 2012 ballot is going to be the political equivalent of bumper car. What we have seen historically is that voters who are overwhelmed or overloaded with things tend to vote ‘no’ on everything.”

While it sounds convincing, Mr. Schnur’s statement is not really backed up by the data.

In California, between 1911 and 2010, voters considered 1180 statewide initiatives, popular referendums, and legislative referendums, passing 666 of them, for a passage rate of 56%.  When it comes to statewide initiatives, popular referendums, and legislative referendums on the ballot in general elections, Californians have approved 491 of the 893 measures.

Here’s a graph of the number of general election statewide ballot measures by year in California, and the accompanying passage rates, over time:

It’s pretty hard to discern a clear relationship over the years that suggests that an increased number of measures on the statewide ballot leads to a decreased percentage of measures adopted by the voters.

Here’s another look at the same data, using a scatterplot:

Again, there’s not a very clear pattern over the last century when looking at the number of statewide ballot measures in a general election and the overall passage rate of those measures. As the linear regression equation indicates, the relationship is quite weak. (And no, that’s not a data entry error: there really were 47 measures on California’s statewide ballot in 1914).

So, what are we to make of Mr. Schnur’s comment, in light of the data?

More measures on the ballot does not lead necessarily to lower overall support for ballot propositions. California voters don’t get “overloaded.”

California voters are not stupid, and are certainly not “dumber than chimps” as Skip Lupia rightly notes. They are able to pick and choose down the ballot, even very long ones, making binary choices that best match their own preferences. It is essential, of course, that voters have informational cues, or heuristics (such as campaign spending on a ballot measure that indicates support or opposition by vested interests) which can help voters with their civic duty when serving as lawmakers for a day.

So bring on the ballot measures in 2012, even those raising taxes on the wealthy to pay for educational and energy programs. Californians are up for the challenge.

According to a recent Field Poll, which comes on the heels of similar findings in a  PPIC poll, Californians still like the institution of direct democracy, although support has tapered off quite a bit over the years.

Over half those polled this fall think that statewide ballot propositions are a “good thing,” with only 13% viewing the process in a negative light.  Back in 1978, on the heels of Proposition 13, 83% of those surveyed in a Field Poll said it was a “good thing.”

What do Californians like? By a margin of 56% to 32%, those polled support having propositions on general election ballots, which will be the case following the June 2012 primary election, as Governor Brown just last week signed Senate Bill 202.

The poll also reveals that a majority of Californians trust fellow citizens via the ballot propositions more than the state legislature to “do what is right on important government issues.”  As I wrote back in September:

Reforming the initiative process in California is an easy task compared to the one really plaguing California. The real issue facing the state is whether the state legislature will reform itself so that Californians will regain confidence in the legislative process. This will take considerable effort, but until it is achieved, Californians will continue to invest their trust in the initiative process, as flawed as it may be.  And if the legislature doesn’t clean up its own house soon, the citizens of California may take to the initiative to do it themselves.

If the California legislature continues to fail to govern responsibly, citizens (and corporate interests) will respond by turning to the initiative and popular referendum, as the mechanisms provide immediate response, if not ideal representation, of the interests of those living in the state.

As I’ve said publicly time and again, I’m unequivocally ambivalent about direct democracy. I’ve written a book critical of the populist rhetoric (faux populism) of ballot measures, and another praising the “educative effects” of direct democracy. My dozens of articles on direct democracy are empirically driven, as I’ve tried to keep a normative-neutral stance in my academic writings. Direct democracy is by no means a perfect system, but neither is representative democracy.

As with every other state, the record of direct democracy in California is certainly mixed.  Direct democracy just happens to be more prevalent in California than most other states. It trails only Oregon in the number of initiatives that have been qualified for the ballot since the state adopted the process in 1911.

Over the next century, hundreds of initiatives will again surely become qualified for the ballot.  Just this last week, Governor Jerry Brown took a courageous step to improve the process by signing Senate Bill 202, which now limits California ballot initiatives to November elections.  Besides the expected charges that the bill will help Democrats by having initiatives on the ballots in higher turnout elections, critics of SB 202 claim that citizens may be overwhelmed by the number of propositions that are expected to appear on general election ballots. Yet since 1912, California has averaged only 6.3 initiatives every two-year election cycle. Certainly, potential voters can handle this level of initiatives. Indeed, the state managed to survive the 1914 ballot, which had more than 40 statewide measures (initiatives, popular referendums, and legislative referendums)!  (Citizens wound up rejecting 11 of the 17 initiatives.)

Despite its flaws,there’s much to admire about the initiative process in California. The state has one of the best disclosure laws on the campaign financing of ballot measures, and as I’ve written elsewhere, it has solid laws regulating the circulation of petitions.

To be sure, reforms could be made to the state’s s initiative process. First, California does not make signatures submitted on initiative and popular referendum petitions, which could reduce fraud in the signature gathering process, as the Supreme Court of the United States recognized in its 2010 decision, Doe v. Reed. Second, is the only state that permits the process where the legislature may neither amend nor repeal an initiative statute. Both of these areas should be addressed by the state legislature in the coming years.

The process ofdirect democracy, as practiced in California over the past century, certainly has exhibited considerable vulnerabilities. There’s room for improving the system.  But over the years, it also has served as a “gun behind the door,” as Woodrow Wilson–a critic of direct democracy–reluctantly referred to the initiative process. It has kept the state legislature in check, given citizens a voice, and helped to engage the electorate and affect candidate campaigns. No political system is perfect, including California’s hybrid democracy, but it has lasted a century and it will no doubt continue to endure for years to come.

In Minnesota and California, campaigns opposing gay marriage and the teaching of gay history, respectively, are refusing to play by the rules. Stories here, here, and here.

This news story, by @gustafsoncraig, in the San Diego Union-Tribune, about a petition gathering effort in San Diego, gets it wrong when it comes to regulations on signature gathering in California. Almost anything does not go in California when it comes to signature gathering efforts.

A simple visit to the CA Secretary of State reveals the regulations on signature gathering.

In addition to having to disclose if he or she is being paid or a volunteer, when asked, a petition gatherer must disclose on the petition his or her name and place of residence, as well as attest that he or she is qualified to be a registered voter in California. The gatherer must also attest that he or she witnessed the appended signatures on the petition and that each signature is the genuine signature of the person whose name it purports to be.

Equally important are the regulations placed on the person in charge of the petition gathering effort, as well as all paid signature gatherers.  Prior to circulating an initiative petition for signatures, these individuals must “execute and submit to the proponent(s) a signed statement,” that reads (Elections Code § 9609)):

I,__________, acknowledge that it is a misdemeanor under state
law (Section 18650 of the Elections Code) to knowingly or willfully
allow the signatures on an initiative petition to be used for any
purpose other than qualification of the proposed measure for the
ballot. I certify that I will not knowingly or willfully allow the
signatures for this initiative to be used for any purpose other than
qualification of the measure for the ballot.

Furthermore, there are numerous criminal penalties for signature gatherers who misrepresent the content of the petition they are circulating, including misrepresenting the purpose or contents of the measure to potential signers. Straight from the Secretary of State’s handy handbook:

The Elections Code imposes certain criminal penalties for abuses related to the circulation of initiative petitions. It prohibits circulators from misrepresenting the purpose or contents of the petition to potential petition signers, intentionally making a false statement in response to a voter’s inquiry as to whether the circulator is a paid signature gatherer or a volunteer (Elections Code § 18600), and from refusing to allow prospective signers to read the initiative measure or petition or Attorney General’s summary. (Elections Code §§ 18601, 18602.) No person may offer or give payment or anything of value to another in exchange for signing an initiative petition. (Elections Code § 18603.) The code also makes circulators, signers, and others criminally liable for signing or soliciting to sign false, forged, fictitious, or ineligible signatures and names. (Elections Code §§ 18610-18614.) The law provides criminal penalties for persons, including public officials, who make false affidavits (for example, the circulator’s declaration is an affidavit), returns, or certifications concerning any initiative measure. (Elections Code §§ 18660, 18661.)

Circulating petitions within 100 feet of a polling place or an elections official’s office on election day is prohibited. (Elections Code § 18370(a).) The law prohibits any person from soliciting or obtaining money or anything of value to aid in unlawfully stopping circulation or the filing of an initiative measure. (Elections Code §§ 18620-18622.) It also prohibits any person from stealing petitions and from threatening petition circulators or circulators’ relatives with the intent to dissuade them from circulating the petition (Elections Code §§ 18630, 18631). Any person who is paid by the proponent(s) to obtain signatures on any initiative petition is subject to severe penalties for failing to surrender the petition to the proponent(s) for filing. (Elections Code § 18640.)

Unlike in other states–including Washington where Doe v. Reed, the important 2010 US Supreme Court decision, emanated–in California “the petition or list of signatures may be used for no purpose other than the qualification of the initiative measure,” including for mailing lists or fundraising. (Of course, Butcher-Forde, Howard Jarvis‘ fundraising team in the 1970s-1980s, routinely flouted this restriction.)

My friend Thad Kousser at UCSD offers some good insight:

There’s no ‘truth in advertising’ law in politics,” he said. “What we have is a system designed to give microphones to both sides who can call the other out for lying and also a robust political press. … You mislead the public at your own peril because the benefits for lying in a campaign are far outweighed by the costs of really being caught in a lie.”

Kousser added, “That’s certainly true as a candidate because it becomes a character issue if you’re seen as lying about the other candidate. It’s not quite so clear whether this holds true for initiative campaigns.”

But when it comes to signature gathering campaigns in California, there are rules, and petition gatherers, as well as potential signers of petitions, would be wise to be aware of them.

 

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