The Supreme Court Could Axe Efforts to Reduce Big Money

This post originally appeared in the Huffington Post. 

The Supreme Court has decided to review a 1998 Arizona law which provides public financing to qualified candidates. This decision will likely define the constitutional boundaries of public financing laws across the country.

Critics claim programs that provide public funding for candidates are welfare for politicians, that the public should not be forced to support candidates with whom they disagree, and that public funds could be better spent in other areas. Proponents, on the other hand, contend that these programs provide qualified candidates who may not have access to campaign funds with the opportunity to run competitive campaigns, allow candidates to spend time with all of their constituents and not just those who can provide campaign donations, reduce corruption or the appearance of corruption, either of which may arise as a result of private contributions, and increase public confidence in their elected officials.

In an effort to allow publicly financed candidates to remain competitive in the face of heavy opposition spending from privately financed opponents or independent expenditure groups, many public campaign finance laws provide so-called "rescue funds." These rescue fund provisions now stand on constitutionally shaky ground because of the Court's 2008 decision in Davis v. FEC.

In its misguided 2008 decision, the Supreme Court found struck down a portion of the Bipartisan Campaign Reform Act (popularly known as McCain-Feingold), the so-called "Millionaire's Amendment," on First Amendment grounds. That amendment provided that a candidate running against a self-financing candidate could raise triple the normal contribution limits. The Court found that this amendment unconstitutionally limited a self-financing candidate's First Amendment right to spend as much of his own money as he wishes, concluding that a self-financing candidate would be not want to continue spending his own money if he knew his candidate would be able to raise larger contributions. In addition, the Court looked with disfavor on the state's asserted interest in leveling electoral opportunities for candidates of differing personal wealth.

Enter John McComish and company. McComish and some past and future candidates and a political committee challenged the constitutionality of the rescue funds provisions contained in Arizona's public campaign financing law claiming in essence that under the Court's 2008 decision the First Amendment rights of non-publicly financed candidates and independent groups is infringed upon under Arizona's law, because their spending triggers a publicly financed candidate's receipt of additional public funds. Put another way, plaintiffs claimed that they would not want to keep spending money if that action triggered the receipt of public funds by an opposing candidate.

The 9th U.S. Circuit Court of Appeals disagreed, finding that Arizona's public campaign financing law was not the same as the Millionaire's Amendment, in part because the purpose behind the two provisions is different. The Millionaire's Amendment was designed to level the electoral playing field, an interest that has never been in favor with the Court. The purpose of Arizona's public campaign financing law, by contrast, is to reduce corruption or its appearance, an interest that have long been upheld by the Court.
Further, the Millionaire's Amendment treats similarly situated candidates disparately, while Arizona's law treats different candidates differently. In Arizona's law, one candidate opts into a public financing scheme, and another does not.

In June, in an ominous move, the Court issued an order to stay the Ninth Circuit's ruling.
The Court's ruling will likely determine the constitutional limits of rescue fund provisions across the country. If rescue funds provisions are struck down on First Amendment grounds, the continued viability of public financing laws will be called into question. It may be difficult to convince candidates to take part in public financing programs if they cannot get additional public funds when faced with high spending opponents or third parties.

An earlier, lengthier version of this article is cross posted in the Daily Journal.

Political Spending & Citizens United

Here is an audio link to an interview I did on a local NPR station about the Supreme Court's decision in Citizens United:

From the KQED website:

The political world is buzzing over today's big ruling by the U.S. Supreme Court that lifts seemingly all restrictions on campaign cash funneled into groups that operate independently of candidates for Congress.
Of course, those of us in the Golden State know a thing or two about free flowing money into "independent expenditure" groups. And so it seems -- once again -- as California goes, so goes the nation.

The big ruling in the case known as Citizens United v. FEC has implications for the entire national political system, and we won't repeat here what's being said in many other news reports.
But it is worth noting that the decision appears to create a national system that mirrors the one in existence here in California since voters approved Proposition 34 almost ten years ago -- a system where contributions made in support or opposition of a candidate, but independently of that candidate's campaign, aren't subject to any limits.

"Now the federal system is the same as California," said Jessica Levinson. I interviewed Levinson for a radio story that airs tomorrow morning on The California Report (check this posting tomorrow for audio).

Levinson says the ruling from the Supremes is a "game changer" in the world of political money, and will no doubt lead to a "flood" of money from big corporations and labor unions into the 2010 election season.
(Before we go any further, an important note: the ruling has no impact on races in California for governor, legislative seats, or other state constitutional officers. It only applies to campaigns for federal contests like those for Congress, and only then to independent political organizations; it did not wipe out existing campaign contribution limits made directly to candidates.)

So what kind of change has the no holds barred money allowed under Prop 34 brought to California politics? Plenty, according to a report last year from the state's campaign watchdogs, the Fair Political Practices Commission.

In many ways, the world of independent expenditures, "IEs" in political parlance, has meant candidate controlled committees are no longer the main focus of California's campaign cash bonanza. And Levinson says that for any state with laws on the books mimicking the national McCain-Feingold law at the heart of Citizens United, it won't be long before they, too, become like the wild west of California politics.

U.S. Sen. Barbara Boxer (Photo: Getty Images)

Most analysts who have weighed in so far say the 5-4 decision is likely to have a big impact on the race to replace or return Democrat Barbara Boxer to the U.S. Senate.

"Now, corporations or labor unions can tap into vast sums of money," said Levinson, "and directly make independent expenditures that either slam her or make her look like the greatest legislator in the world."
Boxer reported this week that she has $7.2 million in the bank for her race this year, but today's ruling may mean that's not going to be anywhere near enough to hold on to her job. And while the ruling may help any of her three potential GOP challengers -- Tom Campbell, Chuck DeVore, or Carly Fiorina -- it's Campbell and DeVore who lack personal funds to run a competitive race, and thus may be most happy with the ruling should either of them come out on top in the June primary.

The Court's ruling could also impact the handful of hot California races for the U.S. House of Representatives, as an interest group intent on tipping the outcome can do so with very few restrictions. Suppose, for example, state and national environmental groups want to ensure that their old nemesis, former congressman Richard Pombo doesn't win either the GOP primary for a different Central Valley seat in Congress or, failing that, the November general election? Now they've got a way to spend as much as they want to make that case.
It's worth noting that not everyone is either outraged by the SCOTUS ruling or thinks it's the end of campaign finance laws as we know them. And Levinson says it's important to remember that the Court left intact the donor disclosure laws that are on the books. But at the same time, the national politicos now face a much different campaign cash landscape... and they may want to look westward to see what lies ahead.

"City to Cut Watchdog Programs to Save Layoffs"

Here is an audio link to an interview I did on a local NPR station about the Los Angeles city budget:

http://www.kcrw.com/news/programs/ww/ww090511city_to_cut_watchdog

From the KCRW website:

"The LA City Council's trying to close a $530 million shortfall in a $7 billion budget, and major cuts are expected. The big stuff includes possible layoffs, a reduction in hiring new police officers and closing parks and libraries. But some relatively “little” things, including cuts to the Ethics Commission, are raising political questions. Created by a vote of the people, it's being slashed by almost 18% percent compared to an average of less than 10% across the board. Another proposal that has raised a firestorm of protests would cut the budget of neighborhood councils from $50,000 to as low as $11,200."

"GOP wave hits House but Dems win big in California"

Here is an audio link to an interview I did on the local NPR station about the November 2010 election results:

http://www.scpr.org/programs/airtalk/2010/11/03/post-election-wrap-up-and-analysis-how-will-the-po/?c=45232

From the KPCC website:

"The dust has mostly settled on midterm election 2010. As predicted, Republicans took over the House, netting 60 seats so far. In a press conference this morning, President Obama acknowledged that voters are “frustrated” with the pace of economic recovery. But in California, Dems won big, despite high unemployment and economic uncertainty. Democratic Senator Barbara Boxer beat GOP challenger Carly Fiorina. Meg Whitman lost the Governor’s race to Jerry Brown, despite dropping $160-million on her bid. Why did Dems do so well in the Golden State and not so well nationally? What do all the GOP victories mean moving forward? Larry talks with candidates and movers and shakers on the left and right, about the impact of this pivotal election and what comes next."

"Follow the money - your guide to California's well funded propositions"

Here is an audio link to an interview I did on the local NPR station about the money behind the California November 2010 ballot measures:

http://www.scpr.org/programs/patt-morrison/2010/11/01/follow-the-moneyyour-guide-to-californias-well-fun/

From the KPCC website:

"So you procrastinated filling out your sample ballot and aren’t sure how you should vote. Don’t fret; Patt has the 411 on all the propositions. Not sure if you should legalize marijuana (Prop 19), give the green light to redistricting (Prop 20 & 27), or direct more money to parks (Prop 21)? Patt can help. The key to knowing the real interests behind these propositions, which could help in your decision to support or oppose them, is to follow the money trail. Special interests abound in this election, from medical marijuana growers to state employees to huge oil companies, and they have been very liberal in steering their money for and against causes that could hurt their bottom lines. As we delve into the potential impact of each proposition we’ll also reveal who has funded the campaigns. Get your pens ready and hide your wallets, as we mix politics and money on election eve."

"The Bell effect – 8 city officials arrested in early morning round-up"

Here is an audio link to an interview I did on the local NPR station about the scandal in the City of Bell:

http://www.scpr.org/programs/patt-morrison/2010/09/21/bell/

From the KPCC website:

"At least eight City of Bell officials were arrested this morning, bringing months of FBI and L.A. County district investigations over various allegations of corruption to a dramatic climax as police, equipped with a battering ram, broke down the door of Mayor Oscar Hernandez and brought him out in handcuffs. From the now infamously high salaries of Bell’s city council, to the questionable city contracts in Maywood, city-level corruption seems to be spreading across the southland. Why now? Is it a lack of investigative reporting during a recession; no resources for potential whistleblowers to seek legal representation; or the absence of oversight created by charter cities like Bell? Patt talks with some policy experts about the seemingly widespread corruption popping up across L.A. County and what structural oversights may have allowed them to happen in the first place."

"Primary election results: Fiorina vs. Boxer, Whitman vs. Brown"

Here is an audio link to an interview I did on the local NPR station about the June 2009 election results:

http://www.scpr.org/programs/airtalk/2010/06/09/primary-election-results-fiorina-vs-boxer-whitman-/

From the KPCC website:

"Yesterday voters across California – some of them anyway – decided on state ballot measures and chose who gets to run in the November election. Meg Whitman won the Republican nomination to face Jerry Brown for governor, while Carly Fiorina claimed the party's nod in the U.S. Senate race against incumbent Democrat Barbara Boxer. California voters also approved Proposition 14, which creates an open primary system. Nationally, Arkansas Democrat Blanche Lincoln withstood a party challenge for her Senate seat, and in Nevada the Tea Party-backed Sharron Angle will take on Senate Majority Leader Harry Reid in the fall. Larry Mantle looks at what yesterday's results mean for November."

"Bell pensions and municipal corruption: what are the options for reform?"

Here is an audio link to an interview I did on the local NPR station about the scandal in the City of Bell and pension reform:

http://www.scpr.org/programs/airtalk/2010/07/22/bell-pensions-and-municipal-corruption-what-are-op/

From the KPCC website:

"Bell citizens are up in arms over the news that city leaders are pulling exorbitant salaries – up to $800,000 a year – and that resulting pensions for some officials could reach $600,000 a year. But such outrageous salaries for public employees aren’t illegal in California. The key to reforming city pensions, say experts, is citizen involvement – but are there legislative options, perhaps at the state level, to prevent runaway salaries for local officials?

 

I appeared on a local NPR station a few months ago to discuss the scandal in the City of Bell: http://www.scpr.org/news/2010/07/22/bell-discuss-firing-high-paid-officials/

Bell to discuss firing high-paid officials

July 22, 2010 | AP

The Bell City Council is considering firing its police chief and two top administrators whose high salaries sparked outrage in the small suburb southeast of Los Angeles.

The council members — most of whom make nearly $100,000 a year for part-time work — have scheduled a closed-door session Thursday to discuss the dismissal of Chief Administrative Officer Robert Rizzo. Rizzo makes more than $787,000 a year to run the city of about 40,000 people. That's nearly twice the salary of President Barack Obama.

The council also will discuss dismissing Assistant City Manager Angela Spaccia and Police Chief Randy Adams, who earns 50 percent more than Los Angeles' police chief.

Jessica Levinson  told KPCC’s Larry Mantle today that even if people in Bell don’t like that city manager Robert Rizzo makes $800,000 a year, everything he’s doing is legal.

“Unfortunately a lot of reform happens as a result of scandal. We’ve seen that so many times when it comes to reform laws. I am so glad that this issue is getting so much attention and it’s already being debated very hotly between the gubernatorial candidates and our sitting governor. I hope that we’ll get some real reform.”
If Rizzo takes advantage of certain legal loopholes, his yearly pension could increase by almost $300,000 from its base of $600,000. The city manger could make more in retirement than on the job.
The district attorney's office is investigating to see if the salaries violate California law.

Copyright 2010 The Associated Press.

The Supreme Court Could Axe Efforts to Reduce Private Money in Campaigns

This article originally appeared in the Daily Journal in October 2010.

The Supreme Court will soon define the constitutional boundaries of
public campaign financing laws across the country. Public campaign
financing laws provide candidates for elected office with government
funds to run their campaigns. Critics claim these programs are welfare
for politicians, that the public should not be forced to support
candidates with whom they disagree, and that public funds could be
better spent in other areas. Proponents contend that these programs
provide qualified candidates who may not have access to campaign funds
with the opportunity to run competitive campaigns, allow candidates to
spend time with all of their constituents and not just those who can
provide campaign donations, reduce corruption or the appearance of
corruption, either of which may arise as a result of private
contributions, and increase public confidence in their elected
officials.

In order to allow publicly financed candidates to remain competitive
in the face of heavy opposition spending from privately financed
opponents or independent expenditure groups, many public campaign
finance laws provide so-called "rescue funds." These rescue fund
provisions, meant to allow publicly financed candidates to remain
viable throughout the campaign cycle, now stand on constitutionally
shaky ground because of the Court's 2008 decision in Davis v. FEC.

In Davis, the Court struck down a portion of the Bipartisan Campaign
Reform Act (popularly known as McCain-Feingold), the so-called
"Millionaire's Amendment," on First Amendment grounds. I believe that
decision was misguided and simply wrong. Regardless of the wisdom of
the Davis decision, it has precedential value and the Court's
rationale in that case threatens the continued viability of rescue
funds.

Under the amendment, the contribution limit applicable to a candidate
who ran against a self-financing candidate tripled (rising from $2,300
to $6,900) if the self-financing candidate spent over a threshold
amount of his own money, $350,000. The amendment was designed to allow
a candidate running against a heavily self-financing candidate to
remain competitive.

The Court found that the amendment acted as an impermissible
expenditure limitation on a self-financing candidate. The amendment,
however, did not impose [any] limitation on a self-financing
candidate's spending. Rather, under the amendment, a self-financing
candidate's spending merely triggered the opportunity for that
candidate's opponent to raise larger contributions.

The Court, however, found that the state's asserted interest in
leveling electoral opportunities for candidates with differing
personal wealth was insufficient to justify the burden the
asymmetrical regulatory scheme placed on a self-financing candidate's
First Amendment rights. Indeed, the Court's ruling stressed the
problem of two candidates running under the same regulatory scheme
being subject to different contribution limits.

The Court paid little heed to the purpose behind that asymmetrical
scheme, allowing candidates to stay competitive when running against
wealthy self-financing candidates. Instead, the Court concluded that
the state's asserted interest in leveling electoral opportunities for
candidates with differing personal wealth was insufficient to justify
the burden the amendment placed on a self-financed candidate's First
Amendment rights.

Enter John McComish and company. Relying on the Court's reasoning in
Davis, some past and future candidates and a political committee
challenged the constitutionality of the rescue funds provisions
contained in Arizona's public campaign financing law. The plaintiffs
claimed that such provisions unconstitutionally infringe on the First
Amendment rights of non-publicly financed candidates and independent
expenditure groups, whose spending triggers a publicly financed
candidate's receipt of additional public funds. The plaintiffs' claim
rested on the theory that their First Amendment rights are burdened
when a statutory scheme provides additional public funds to another
candidate based on their spending. Similar to the plaintiff's claim in
Davis, McComish and the other plaintiffs claimed that the public
financing scheme acted as an impermissible disincentive on their right
to speak (spend money).

The 9th U.S. Circuit Court of Appeals disagreed, finding that
Arizona's public campaign financing law was distinguishable from the
provision at issue in Davis on a number of grounds. While the Davis
Court applied strict scrutiny, finding that the law presented a
substantial burden on speech rights, the 9th Circuit applied a less
searching level of review, finding that the law imposed only an
indirect or minimal burden on plaintiffs' speech rights.

The 9th Circuit found a number of important differences between the
Millionaire's Amendment and the rescue fund provisions at issue in the
Arizona case. First, the purpose behind the two provisions is
different. The Millionaire's Amendment was designed to level the
electoral playing field, an interest that has never been in favor with
the Court. The purposes of Arizona's public campaign financing law, by
contrast, are to reduce corruption or its appearance and encourage
participation in a public campaign financing scheme, two interests
that have long been upheld as compelling by the Court. In addition,
the Millionaire's amendment was an impermissible restriction based on
the identity of the speaker, meaning whether the candidate was or was
not wealthy. The Arizona public campaign financing law, however,
includes no identity-based restrictions. Further, the Millionaire's
Amendment treats similarly situated candidates disparately, while
Arizona's law treats different candidates differently. As the 9th
Circuit pointed out, it is permissible to subject opposing candidates
to different regulatory schemes when one candidate opts into a
voluntary public campaign financing system and one does not.

Essentially, plaintiffs desired the "right to speak free from
response." However, as the 9th Circuit correctly found, there is no
such right, and to the contrary, "the purpose of the First Amendment
is to secure the widest possible dissemination of information from
diverse and antagonistic sources."

The rescue funds provision imposes no limitation on a candidate's or
third party's expenditures. It merely allows publicly financed
candidates with the funds necessary to respond to that speech.

The Supreme Court issued an order to enforce the district court's
injunction against the distribution of rescue funds. This is an
ominous move by the High Court. The injunction will be in place until
the Court rules on an appeal of the 9th Circuit decision or until the
Court decides not to consider an appeal. When and if the Supreme Court
rules on Arizona's public campaign financing law, the Court could
determine the constitutional limits of rescue fund provisions across
the country.
 

Charitable Giving: A Path Towards Corruption?

This post originally appeared in the Huffington Post.

Since its founding, our country has struggled with how to properly limit the negative influences of money over politics. For more than one hundred years, we've trained our eyes to the potential evils posed by corporate spending in the political marketplace. Some of our first campaign finance laws focused on prohibiting corporations from giving directly to candidates.

Simple enough, right? We prohibit corporate contributions to federal candidates and we need not worry about the ability of these government-created entities, designed to amass money in the economic marketplace, to unduly influence the political marketplace. Wrong.

There are still a myriad of ways for corporations to flex their economic prowess in electoral campaigns. Thanks to a recent Supreme Court ruling in Citizens United, corporations can tap into their general treasury funds to spend unlimited amounts on so-called electioneering communications--advertisements which clearly identify a candidate, but which are not made in coordination with a candidate.

But wait, there's more. As has recently come to light, corporations also give to office holders' charitable foundations and favorite charities. Officeholders or their families have aided in the creation or running of more than twenty-four charities that regularly accept donations from corporations. These same corporations often ask these same officials to enact favorable laws and policies.

Corporate contributions to a lawmaker's charity are currently unlimited. The question is, is there anything wrong with that? Are corporations just trying to be good corporate citizens, promoting good causes during a time when many charitable foundations are stretched to the breaking point? Or are these corporations trying to curry favor with politicians? Put another way, is a charitable contribution merely a way to gain access to and influence an elected official? And what about the politicians who founded these charities, should they be celebrated for bringing money and attention to worthwhile causes? Or should these politicians be scrutinized for being able to run seemingly endless campaigns thanks to the corporate dollars flowing to their organizations?

And the answer is....likely all of the above. It is up to us to determine whether this giving goes too far. Is it to the detriment of a healthy and functioning democracy or it is necessary to support important charitable interests? In order to properly make this determination, and to deter the more sinister transactions, disclosure is key.

Corporations are not inherently evil. They are endowed with many state-created benefits--limited liability, favorable tax treatment, endless life--so that they can be successful in the economic marketplace. This is vitally important. Corporations help to drive our economy, in part by creating products we use and employing millions of workers. This is surely a time to promote job growth and charitable giving.

It is now the time to ask what we want to do about corporations' donations to officeholders' foundations and officeholders' favorite charities. The first step towards answering that question is effectively disclosing information concerning who is giving, how much they are giving, to which foundations are they giving, and when are they giving.

Chartering Towards Destruction: The Real Cause of the Scandals in Bell and Vernon

This post originally appeared in the Huffington Post.

The ire over the scandal-ridden cities of Bell and Vernon rages on. Residents of Bell are now circulating a petition to recall the entire city council. The public, increasingly outraged and disillusioned, is asking how its officials got away with giving themselves exorbitant salaries, top notch medical insurance, hefty retirement plans, and high-paying consulting gigs. The answer, simply put, is Bell and Vernon are both charter cities. 

In California there are two types of cities; general law cities, whose governing document is the state code and who are bound to follow state law on municipal issues, and charter cities, whose governing document is its own city charter and who have the freedom and authority to follow that charter on municipal issues. Nearly twenty percent of California's cities have voted to become charter cities.

The decision to become a charter city is a double-edged sword. Charter cities afford city officials, who know their cities best, the power to enact and tailor laws and policies to best serve a community's needs. Unfortunately, with greater discretion comes greater opportunity for abuse. In charter cities officials are free to set their own salaries, and that is exactly what officials did in Bell and Vernon, to the tune of hundreds of thousands of dollars per year. Instead of serving their constituents interest, these unscrupulous officials opted to use this control and discretion to serve themselves by lining their own pockets.

The real tragedy of Bell and Vernon is that it leads to the erosion of the public's confidence in their elected officials. Approval ratings for public officials are at all time lows, and when officials start behaving badly, it hardly helps matters. An attrition of confidence can cause constituents to stop engaging in the political process all together.

Why does that matter? We live in a democracy, and a healthy democracy fundamentally depends on an engaged citizenry. The less we vote and engage in the process, the less our elected officials truly represent us.

So what can we do to ensure this doesn't happen again? One obvious way to try to address the problem of inflated salaries, and in general officials' abuse of discretion, is to increase disclosure. Information equals power. City residents should know how much those who seek to serve them are compensated for their jobs. Online disclosure, for those with internet access, is the fastest and easiest way of getting vital governmental information to the public. In addition, disclosure could deter at least some of this bad behavior. If officials know the public is watching, they may think twice before paying themselves large sums of money.

Residents could also require that city officials' salaries be limited in the city charter. Five years ago California passed a law limiting the pay of council members in general law cities. While that law cannot affect charter cities, city charters could include similar salary-limiting provisions. 

Campaign Contributions to Judges: Improving the Third Branch or Touching the Third Rail?

This post originally appeared in the Huffington Post.

A new survey indicates that a majority of members of both parties think that judges are influenced by campaign contributions. To state the obvious, this is bad news.

Our government is one of checks and balances, and the judiciary branch is one-third of that system. The judiciary, arguably more than any other branch, should be above politics. This is why federal judges have lifetime appointments. The rationale is that this allows judges to make decisions based only on what is right and correct under the law, and not based on what will benefit that judge's contributors or help that judge win the next election.

Whether or not some judges actually are influenced by campaign contributors, the perception that they are is lethal. How can we be expected to play by the rules if we don't think the rules will apply equally to all of us?

Justice for sale is no justice at all. Reform may be necessary to combat the toxic perception that the wheels of justice turn only for those with money. The judicial branch is designed to among other things; uphold unpopular views in the face of a challenge from an angry majority. Simply put, the judiciary is the last stop on the road to the tyranny of the majority.

What can we, as citizens, do to ensure the integrity of the judiciary? The good news is that there are many options. The bad news is that none of them represents a silver bullet.

One option is to give all state judges lifetime appointments, just as their federal bench brethren enjoy. The public will likely be reticent to adopt this approach, as they like the power to choose their judges and determine whether or not they will keep their jobs.

Another option is to provide judicial candidates with full public campaign financing. This could go a long way towards reducing the appearance of corruption as it could all but eliminate the need for judicial candidates to raise campaign contributions. However, the question remains whether money, like water, will always find a way. Critics of this approach will also likely argue that public financing will merely force campaign money underground.

Another approach, perhaps a middle ground, is to increase disclosure of contributions made to, and independent expenditure made about, judicial candidates. We could increase disclosure so that anytime a judge hears a case in which one of the lawyers or one of the parties was a campaign contributor, that information is disclosed online for anyone and everyone to see. Increasingly, the name of the game may be more and better information. There is no substitute for a citizenry armed with information.

Is Money Speaking in California's Race for Governor?

This post originally appeared in the Huffington Post.

In one corner we have Mega-Meg Whitman. In the other corner stands Downtown Oakland Jerry Brown. The fight will not only determine who will be the next governor of the great State of California, but could also tell us whether money really does talk.

Our campaign finance law is based on one primary assumption, that money is speech. If that is true, Meg Whitman sure is talking a lot. Meg Whitman has a lot of money. Good for her. The question is, is it fair for her to be able to tap into her vast personal financial resources for her bid to be the next governor? Whitman has spent more of her own money on her gubernatorial bid, approximately $120 million, than any other candidate in American history. Let me repeat: Meg Whitman, in her maiden campaign for elected office, has spent more of her own funds than any candidate in our country, ever. Has she also spoken more, conveyed more than any other candidate?

In 1976 the Supreme Court concluded that money spent in campaigns is basically the equivalent of speech. For those who follow politics, it is hard to overstate the ramifications of this decision. The court found that because money is speech, the government cannot limit a candidate's ability to use her own funds in a campaign. The court concluded that such a restriction would impermissibly muzzle the speech of a self-financed candidate. Thirty-four years later, enter Meg Whitman. Decidedly unrestricted and ready to spend.

If the Supreme Court is right, presumably I should hear more from, and know more about, Meg Whitman than my overly chatty neighbor, who recently regaled me with a lengthy story about her dog's finicky eating habits. Once the Supreme Court decided money is speech any restriction on the amount of money that could be given or spent in an election has to be analyzed under the First Amendment. The First Amendment stands as a vital protection against governmental censorship, an edict rings out that, "the more speech the better." It is hard to argue with that.

However, when it comes to a candidate's spending of her own money, the public should ask themselves, which situation produces more speech, one in which a wealthy candidate's spending is restricted, or one in which it is not? Framed in the negative, what is more dangerous, restricting a candidate from spending her own money, or risking the possibility that she will drown out the voices of others? There may not be such a thing as too much speech, but there could be something to the idea of too much spending. 

Brown and Whitman Face-Off: Many Differences, Few Surprises

This post originally appeared in the Huffington Post. 

In the smack down between Mega-Meg Whitman and Downtown Oakland Jerry Brown, the candidates gave us few surprises, but drew starkly different pictures of how they would govern the Golden State.

This was a classic standoff between a populist public official and a successful businesswoman. While Brown spoke about kids and teachers, Whitman decried the benefits of tax cuts and the need to create jobs.

Presentation

Whitman was calm, smooth, articulate and formal. Brown was folksy, and even a bit bumbling at times. We can perhaps see these two, in another life, as the unfailingly organized schoolmarm (Whitman) and the rebel rousing student (Brown).

Whitman, standing solid as a tree trunk, stayed close to her message, stressing her goals of creating jobs, reforming welfare and the pension system, and cutting taxes. Brown, many times swaying from side to side, used humor to deflect his advancing aged, swore twice, joshed about old drinking days in Sacramento, and emphasized his past experience.

Experience

Whitman has argued that since she knows how to create jobs in the private sector, she can do the same in the public sector. At one point, she told the audience that she comes from the "real world," where you get things done. The implication of course being that Brown was born and bred in the public sector, where officials do nothing but bicker and stagnate. She has long presented herself as the business person's candidate, who has the business acumen to turn this dysfunctional state around.

Brown positioned himself as the old warrior -- stronger for the battles he has fought at every level of government and ready to take on the biggest task yet: leading California back from the brink. Over and over again, Brown stressed the difficulties of the job and tried to make the case that only he was up to the task.

Whitman, repeatedly using the Einstein quote that "[t]he definition of insanity is doing the same thing over and over again and expecting different results," tried to not-so-subtly convince the voter that it would be nothing short of ludicrous to once again send Brown to the governor's office in hopes of a better or different result. Brown, in comparison, consistently told the crowd that he's tough enough to make the hard decisions, that he's been there and knows what needs to be done.

Indebtedness

Each candidate tried to convince the voters that the other opponent would be in the pocket of special interests. Whitman said that putting Brown in charge of California, specifically labor union negotiations, would be like putting Count Dracula in charge of the blood bank. Whitman again and again hammered Brown on his ties to unions. Whitman also tried to turn her massive self-funding into an advantage, saying she is indebted to no one.

Brown, on the other hand, said he's stood up to labor unions and that it is Whitman who wants to pay back her friends -- the rich -- with a capital gains tax cut. Brown said he wants to fund education, not billionaires.

***

Love them or hate them, these candidates are very different. Sadly, perhaps their only area of agreement is that California is in a bind. Let's hope one of them can help. 

What All the November California Ballot Measures Have in Common

This piece originally appeared on the Huffington Post.

Californians will soon be asked to vote on nine ballot measures dealing with everything from legalizing marijuana to how our elected officials pass a budget to whether to suspend a clean energy bill.

These measures, disparate as they are, all have one thing in common: They are all initiatives. Californians adopted the initiative process back in 1911. So in one year, we can all wish a big happy 100th birthday to the process that put citizens on the same footing as legislators.

The initiative process was adopted to help give power back to the citizens when it became clear that the legislature was unduly influenced by special interests. Sound familiar? Apparently, we can take comfort in the fact that at least some of our government's problems aren't new ones.

Back in 1911, the special interest Californians most feared was the railroad companies, who had a stranglehold over the State's legislature. Therefore, we adopted a process that allows the citizens to bypass the legislature and directly enact laws. I know, I was a bit skittish too when I first discovered that we don't need our elected officials to pass laws. Jane Citizen, step right up and enshrine your favorite program in our state constitution!

The sad irony is that the process, adopted to give citizens protection against moneyed interests, has now become dominated by those same interests. Now, the question seems to be, do you have $2 million and a desire to enact a law in California? Congratulations! Step right up, you're the next contestant on, "Lets Make a Law."

This process of direct democracy is here to stay. So let's try to improve it.

Here are two ideas to ponder: First, California could institute a system of pay-as-you-go. Do you want to enact a new program? No problem, just tell us how we're going to pay for it. Do you want to cut taxes or fees? Great, merely direct us to the program(s) that will be cut if the measure passes.

This proposal is not without its drawbacks, but it is worth considering. A system of pay-as-you-go would force the electorate to decide how much they want a specific program or revenue cut, in light of its consequences. I was at the harbor recently, and I saw the ship named, "Tax Cuts and More Services" sail away.

Another solution is to improve disclosure. It is important for the voters know who has provided the funding in favor and against initiative proposals. This gives valuable information about who could be harmed and hurt by an initiatives passage.

Disclosure can work. To the surprise of many, on the June 2010 ballot, Propositions 16 and 17, funded by Pacific Gas & Electric (PG&E) and Mercury Insurance, respectively, both went down in defeat. The two companies promoting those initiatives outspent the opponents by huge margins, but they still didn't pass. Why not? One answer could be that people looked on the bottom of slate mailers and the scroll across the TV screen, or listened to the end of radio commercials, heard the names PG&E and Mercury Insurance and simply stated, "No, thank you."

Whatever your solution is for the initiative process, there's a surefire way to send a message to proponents and opponents of the November measures. Vote.

Oops, They Did It Again

This piece originally appeared on the Huffington Post. 

Happy 100 day anniversary California budget negotiations!

California's budget deal is anything but cause for celebration. True, the state has now ended the most protracted budget negotiations in its history. The state will also be able to start issuing debt, which is needed to pay for a myriad of things, such as public works projects. In addition, localities will get some much anticipated state funds. However, the legislature closed the state's $19 billion budget gap with unduly optimistic predictions and accounting gimmicks.

The rosy predictions contained in the budget deal:

First, California has balanced its budget in part based on the assumption that the state will get $5.4 billion in federal funds. The problem is that the federal government has indicated that it will give something closer to $1.3 billion. So there is about $4 billion that we can fairly safely assume the state will be short next year.

Second, the budget assumes that California will have higher than expected tax receipts. Why? A cynic would say because the state needs to balance the budget, and utilizing unreasonably optimistic predictions is the way to do it.

Where will the remainder of the revenue come from?

The state expects to receive $1.2 billion in revenue from the delay of a corporate tax break. California is also getting approximately $2-3 billion from a transfer of state funds, which eventually will have to be paid back. 

Next, on deck, the spending cuts:

40 percent of the $19 billion budget gap is made up in spending cuts. These cuts include:

1. A roll back of benefits to state workers, including a higher retirement age and a requirement for larger employee contributions to pension programs.


2. Reductions in medical care to inmates


3. Reductions in pay to state in-home care workers


4. A reduction in approximately3 billion in funding to schools, funding which is in fact voter mandated, and will have to be paid back in the future.

Agree or disagree with Republicans, but it's a testament to the power of the state's minority party that the new budget includes no new taxes. In California, because there is a two-thirds vote required to pass a budget, the minority party holds a great deal of power.

On November 2, Californians will vote on whether to retain the two-thirds vote requirement. I urge the voters to weigh in. Whatever their decision on the two-thirds requirement, the voters should tell their public officials that the time for accounting gimmicks and unrealistic expectations is gone. 

California's Newly "Balanced" Budget Is a Farce

California's budget deal, coming 100 days after the protracted budget negotiations began, is anything but cause for celebration. True, the state will be able to start issuing debt, which is needed to pay for a myriad of things, such as public works projects. Localities will also get some much anticipated state funds. However, the legislature closed the state's $19 billion budget gap with unduly optimistic predictions and accounting gimmicks.

Now, on to the rosy predictions contained in the budget deal:

First, California has balanced its budget in part based on the assumption that the state will get $5.4 billion in federal funds. The problem is that the federal government has indicated that it will give something closer to $1.3 billion.

So there is about $4 billion that we can fairly safely assume the state will be short next year.

Second, the budget assumes that California will have higher than expected tax receipts. Why? A cynic would say because the state needs to balance the budget, and utilizing unreasonably optimistic predictions is the way to do it.

Next, where will be remainder of the revenue come from?

The state expects to receive $1.2 billion in revenue from the delay of a corporate tax break. California is also getting approximately $2-3 billion from a transfer of state funds, which the state will eventually have to be paid back. So there is another few billion that the state will have to pay back in the future.

We're now up to $7 billion that the state will have to pay off in the near future. 

Next, on deck, the spending cuts:

Forty percent of the $19 billion budget gap is made up in spending cuts. These cuts include: (1) a roll back of benefits to state workers, including a higher retirement age and a requirement for larger employee contributions to pension programs; (2) reductions in medical care to inmates; (3) reductions in pay to state in-home care workers; and (4) a reduction of approximately $3 billion in funding to schools, funding which is in fact voter mandated, and will have to be paid back in the future.

If you're still counting, we've now tallied approximately $10 billion that the state will have to pay back in the coming year or years. 

The voters should tell their public officials that the time for accounting gimmicks and unrealistic expectations is gone. California just "closed its budget gap" by employing rosy predictions and accounting gimmicks, which actually demonstrate that the state is in the red to the tune of $10 billion.

Which Way Are the Political Winds Blowing as We Enter Election 2010?

This post originally appeared on the Huffington Post.

I walked outside today with the distinct feeling that madness has descended upon us. As I crossed the street the wind nearly pulled the legs out from under me. Even the trees were shown no mercy. They now stand askew, a monument to nature's forces.

Next week voters across the nation will go to the polls. We will elect, among others, Governors, Senators, and members of Congress. But we can't predict the outcome of many races. Why?

We simply don't know which ways the political winds are blowing. (Too silly? Stay with me here.)

Voters may be waiting to be knocked off their feet, and they just haven't. Too often we feel we are voting for the lesser of two evils. Meg Whitman explicitly acknowledges as much in her latest campaign commercial, as she tries to tell voters why this is not so. In an era of candidates who must explain that they are not witches, I worry that it is too easy to disengage from the process.

Too many voters have either tuned out or turned off. They either don't like the candidates and/or don't feel part of the political process. Voter apathy is an enormous problem in a representative democracy. By definition our government is premised on the belief that our elected officials represent us, not just a small sliver of us.

There are no easy solutions to the problem of voter apathy. Assuming we make barriers to voting reasonably low, there is just no simple way to get much of the public jazzed about electing their State Senator. I fear that too many people know the answer to "Who won American Idol?" as opposed to "Who won your State Senate race?"

Of those taking part in the process, many remain undecided. They may, like the trees (I've almost made my point, hang tough), simply lean one way, but not markedly so. In California one in five voters is not registered as a member of either major party, instead, they are listed as Decline to State (DTS).

I count myself among their ranks. First, I work for a non-partisan organization. Second, I teach and I want my students to feel comfortable sharing their political views without knowing whether or not they comport with mine. Third, I simply don't feel fully at home in either party.

DTS voters, if they make it to the polls, can sway many elections. But we don't know exactly who they are. They are the ultimate X factor. Are they in the middle of the two parties -- too socially liberal for the Republican Party but too fiscally conservative for the Democratic Party? Or are they, on the other hand, to the right or left of the main street parties -- do they feel Republicans are too moderate or Democrats are not liberal enough?

I have no quick answers or solutions. After my wind swept morning I'm still walking and talking and plan on walking my way right into the voting booth. I may not be thrilled with some of the choices, but I'm sure going to weigh in on them. Care to join me?