The following was posted by Dan Walters at the SacBee’s Capitol Alert.

The League of Women Voters, which was part of Gov. Arnold Schwarzenegger’s coalition to pass redistricting reform last year, parted company with the governor today, declaring opposition to four of the six budget-related ballot measures he wants approved at the May 19 special election.

“We oppose these measures because they are not the solution to our long-term financial crisis, with the continuing structural deficit in the state budget and flawed budget process,” said Janis R. Hirohama, LWV president.

“We make this decision with regret. We would support real reform to make the state budget process more accountable and give the Legislature and governor effective tools to advance state priorities. However, these hurriedly drafted propositions, produced at the end of a flawed process that kept both the public and most legislators in the dark, will only make our fiscal situation worse.”

The league’s announcement came just as Schwarzenegger was touting the package before the prestigious Commonwealth Club in San Francisco.

I would add that the League of Women Voters is one of the most influential endorsements in the state.

This morning, New York Times columnist David Brooks criticized his GOP allies on Capitol Hill for pushing a federal spending cap, calling it “insane.”  But here in California, the discredited theory of Reaganomics lives on …

I’ve been on record supporting a special election to get the budget reform California desperately needs – such as scrapping the “two-thirds rule” in the legislature, or helping local governments raise revenue.  But now that a statewide election is set for May 19th, no such measures will be on the ballot.  Instead, the six propositions we will get to vote on are Schwarzenegger gimmicks that would cripple the state’s ability to function, throw us further into debt, and roll back a small handful of fiscal victories.  A campaign must start now to urge a “no on everything” vote, repeating the success that progressives had in 2005 by defeating Arnold’s special election.  The Governor, however, is a lot savvier this time.  Prop 1B (which deals with school funding) is a naked ploy to keep teachers from opposing Prop 1A (an awful spending cap), and there’s a dangerous possibility that organized labor will sit out this whole election.  Democrats are not unified in their opposition, as State Senate President Darrell Steinberg even gave Schwarzenegger cover last week at a press conference when he promoted the “budget reform” package.  Only by exposing this election as another Arnold scam can the state come out winning, helping to map a sane fiscal future for California.

Many observers noted the “parallel universe” that California – a very blue state – experienced when it passed Proposition 8 on the same night we elected Barack Obama.  Today, it’s déjà vu all over again.  Nationally, President Obama’s budget proposal is a sharp repudiation of the Reagan Era – with progressives on the offensive, and optimistic about the future.  But at the state level, right-wing ideologues still dictate our budget policy.  Progressives are on the defensive, allowing a Republican Governor to pit constituencies against each other – while some Democrats reluctantly believe our choices are the bad and the worse.

After a grueling process where Republicans (once again!) abused the state’s two-thirds vote requirement, Arnold and the legislature finally passed the budget by cutting a deal.  In exchange for the necessary GOP votes and the Governor’s signature, a special election was called for May 19th to pass some budget “reform.”  It was a Faustian bargain that cries out the need to scrap the two-thirds rule, and I don’t fault Democrats for using any means necessary to pass a state budget.  But now that Propositions 1A-1F are on the ballot, voters don’t have to approve them – and the Democrats shouldn’t encourage them.

Proposition 1A: Spending Cap to Disaster

As I’ve written before, a spending cap would cripple the state’s ability to provide essential services.  It’s been tried in Colorado, and the results were disastrous.  A spending cap would give California a permanent fiscal straitjacket – which is precisely what the right-wing extremists in the legislature have always wanted.  All of them signed the infamous Grover Norquist pledge – from the same guy who wants to “shrink the size of government so we can drown it in a bathtub.”

Prop 1A creates a spending cap by nearly tripling the amount of revenue that gets locked into the state’s Rainy Day Fund – and bars the flexibility to use that money in times of need.  It also strictly regulates how the state can spend “unanticipated” revenues.  It gives the Governor more power to unilaterally cut certain spending without legislative approval – such as blocking cost-of-living adjustments.  Given that Arnold already killed the renters’ tax credit for seniors and the disabled, why give him the power to terminate more programs?

A spending cap was the only way Republicans in the legislature would support any tax increases to pass a budget.  And it’s true that Prop 1A includes several revenue measures: (a) raise the sales tax from 8 to 9%, (b) up the vehicle license fee that Arnold slashed on his first day in office, and (c) raise the income tax on every bracket by 0.25%.  But a vote against Prop 1A doesn’t stop those tax increases from going into effect; it just means they expire in two years, and there would then be a fight in the legislature to extend them.  What is the “upside” if Prop 1A passes?  Those taxes would instead sunset in four years – 2013.

Selling out the state’s flexibility in exchange for these (mostly regressive) tax increases to stay on the books for an extra two years?  Sounds like an awful deal to me.  As the Legislative Analyst’s Report says, a lot of what Democrats got in Prop 1A is temporary – while the spending cap parts are permanent.  “Once these effects have run their course,” it said, “Prop 1A could continue to have a substantial effect on the state’s budgeting practices.”

Proposition 1B: Attempting to Bribe the Teachers’ Union

It will take resources to defeat Prop 1A, and getting organized labor (the one progressive institution who can deliver) to oppose it will be essential.  Arnold suffered a humiliating blow in 2005 because unions went all out to defeat his special election, but they had good reason to do so: each ballot measure that year was a direct assault on working people.  

Schwarzenegger clearly learned from that mistake, which is why Prop 1B was designed to throw a bone at the California Teachers’ Association – hoping to keep most unions out of defeating Prop 1A.  Prop 1B would guarantee school funding through $9.3 billion in “supplemental payments” – but it only goes into effect if Prop 1A passes.

I’m all for school funding – but at the cost of passing Prop 1A?  So far, Arnold’s ploy is working.  The CTA has offered “interim support” for Prop 1B, while no union has taken a position on Prop 1A.  Given the expense of defeating statewide ballot measures, unions are being understandably cautious about entering the fray – unless there’s a consensus in the labor movement to defeat Prop 1A.  Education advocates should consider that the $9.3 billion in Prop 1B is not an annual appropriation, but doled out over a five to six-year period.

Education is a high budget priority – but so are housing, health care and public transit.  Even if Prop 1B guaranteed additional funds for public schools, the straitjacket of Prop 1A means all other issues we hold dear will be sacrificed.  It’s the classic “divide-and-conquer” strategy Republicans use all the time to keep progressives fighting with each other.  While every group is protecting its budget during these tough times, now is not the moment to take the bait.  Despite the attractive “sweetener” of 1B, Prop 1A must fail.

Proposition 1C: Arnold’s Awful Lottery Idea

This is just the latest in a series of reckless Hollywood gimmicks the Governor has proposed – sinking our state deeper into debt, and strangling our ability to get anything done.  Prop 1C would let the state borrow $5 billion against future lottery sales.  What will Arnold propose next year – borrow against future tax revenues?  Is there any end to our credit card Governor’s nerve when it comes to raiding our fiscal future?

Propositions 1D and 1E: Turning Back the Clock

It’s rare when California voters approve fiscal measures that both (a) create more revenue and (b) fund good projects.  In 1998, voters passed Proposition 10 – a cigarette tax that created a Childrens’ Health Fund.  In 2004, voters passed Proposition 63 – a 1% tax on millionaires to fund mental health programs.  Props 1D and 1E would re-direct these tax revenues – slashing programs voters created for a purpose.  Arnold tried to cut funding for mental health before, but Prop 63 prevented him from doing so.  We can’t let this happen.

Proposition 1F: Do-Nothing Reform

The last measure on the May ballot – Proposition 1F – sounds like a good idea.  It would ban statewide elected officials from receiving pay raises if the budget has a deficit.  But does anyone honestly believe this is the kind of “structural budget reform” the state needs that would justify an expensive, statewide, off-year special election?  Even if it’s good public policy, the budget savings are miniscule.  This is more about Arnold trying to score political points against the legislature than proposing a sensible long-term solution.

Democrats Have to Stop Being Scared

All too often, liberals get spooked by the state’s dire financial situation – agreeing to go along with an awful Republican budget “solution” at the ballot to prevent cuts that affect poor people.  In 2004, for example, Arnold proposed two ballot measures – Propositions 58 and 59 – sold as necessary to solving the state’s $15 billion deficit.  I’m embarrassed to admit I voted for both of them, because I feared what would happen if they failed.

Prop 58 was a $15 billion bond to pay off just one year’s budget deficit – which we are now stuck paying interest on.  Prop 59 was a state “balanced budget amendment” that has placed California in a permanent fiscal straitjacket.  In the long run, was it a good idea to support such a reckless solution?  Conventional wisdom at the time was that a “yes” vote would prevent devastating budget cuts.  But what if we stood up as a matter of principle?

Assembly Speaker Karen Bass (D-Los Angeles) has sent signals that she won’t support the special election measures, and State Senator Loni Hancock (D-Berkeley) has publicly opposed Prop 1A.  Democrats are unified about wanting to scrap the “two-thirds rule,” but that won’t be on the May 19th ballot.  And when Arnold  had a press conference last week to promote his special election measures, one of the leaders who flanked him was State Senate President Darrell Steinberg (D-Sacramento.)

I like Darrell Steinberg.  He’s been a champion for mental health funding, and is a vast improvement over his predecessor, Don Perata.  But standing next to Schwarzenegger to promote a reckless special election with no budget solutions to vote for was disgraceful.  Props 1A-1F must be defeated, because they would wreak long-term havoc on the state.  They are awful Republican solutions, and Schwarzenegger should be left alone to defend them.

Because if Democrats unify to sink these ballot measures (with substantial help from labor), Arnold will have to own these defeats – just like he did in 2005.  And when we have to go back to the drawing board, progressives will have the upper hand.  Unless, of course, too many Democrats went along to support these failed proposals.

Paul Hogarth is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.

From today’s Beyond Chron.

It’s depressing to think – after having just lost an expensive and exhausting campaign – that repealing Proposition 8 could mean going back to the ballot.  It is unfair and unjust that a slim majority of California voters took a fundamental right away from a minority, jeopardizing equal protection.  But the state Supreme Court heard oral arguments on the City Attorney’s lawsuit yesterday, and the signs were very discouraging.  Justice Joyce Kennard (who last year voted to grant marriage equality) was hostile to the case against Prop 8, and Chief Justice Ron George was skeptical.  Not that there isn’t any hope: perhaps the extreme arguments made by Prop 8 lawyer Kenneth Starr will inadvertently sway the Court into recognizing the measure’s dangerous effects.  But no one should expect the Court to repeal Prop 8.  Activists must get ready for a 2010 proposition campaign as the next available remedy, however deficient a political solution that would be.  We must learn from the colossal mistakes of the past campaign, and a new generation of activists will make it happen.

Unlike the federal Constitution – which can only be amended by a two-thirds vote of the U.S. Senate and a three-fourths vote by the state legislatures – California can change its constitution by a simple majority vote of the people.  The state distinguishes between an “amendment” and a “revision” (with the latter requiring a higher threshold), but there is very little case law to flesh out the details.  Generally speaking, an amendment tinkers around the edges of the constitution – while a revision has a more profound impact.  Prop 8 abolished a fundamental right for a protected minority group (i.e., gays and lesbians), when a core purpose of the Courts and the constitution is to protect minorities.  If that doesn’t have a profound impact, I don’t know what does – since no rights are sacred.

The legal grounds to overrule Prop 8 are sound, but that doesn’t mean the Court would do it.  Roe v. Wade didn’t just happen because an all-male Supreme Court woke up one day to discover that women have a constitutional right to choose.  A mass movement worked for years to make this inevitable.  A political movement is necessary to overturn Prop 8, giving judges the “space” to do the right thing.  Even then, the courts are an inherently conservative institution that shy away from controversy – and rely heavily on caution, tradition, legal and historical precedent.

Shannon Minter of the National Center for Lesbian Rights (NCLR) had barely started his oral argument yesterday morning, when Chief Justice Ron George interrupted.  “Are you saying the passage of Prop 8,” said George, “also took away – beyond the label of marriage – the core of the substantive rights of marriage?”  Minter gave an admirable response, but the question wasn’t a good sign.  George had written the marriage decision that argued the term ‘marriage’ was essential to enjoying its rights and dignity, but now he was parsing it out as just a word.  And he’s the “swing” vote on the Court’s 4-3 split.

Associate Justice Joyce Kennard – who had also supported the Court’s marriage decision – then piled on, maintaining an adversarial tone throughout the three-hour proceeding.  “What Prop 8 did was take away the label of marriage and its applicability to same-sex couples,” she said, “but it left intact our holding that sexual orientation is a suspect class.  Is it still your view the sky has fallen in and gays and lesbians are left with nothing?”

By far the most revealing exchange was when Deputy City Attorney Therese Stewart began to mention Kennard’s opinion last year.  Kennard cut her off, became extremely defensive and said: “in the Marriage cases, the Court was asked to do what it normally does – interpret a statute.  Here, we have a body of case law that talks about amendments and revisions.  We are talking about the power of the people – an inalienable right.”  The right of voters to change the Constitution was Kennard’s main concern throughout the arguments.  “How can the court willy nilly disregard the will of the people,” she asked.

Kennard also zeroed in on the precedent of an earlier case, where voters were allowed to restore the death penalty by passing a constitutional amendment – after courts had thrown it out as cruel and unusual punishment. “It would appear to me,” she stated, “that life is a fundamental right.”  But unlike equal protection or fundamental rights, the definition of cruel and unusual punishment is “public standards of decency” (i.e., will of the voters.)  As attorney Raymond Marshall said, “cruel and unusual punishment is unique because it’s an issue that can be decided by the people.”  He also added that voters did not single out a suspect class to receive the death penalty, and the matter still has judicial review.

Chief Justice George repeatedly focused on two points throughout the oral arguments, which don’t bode well for the result.  When Shannon Minter explained how rights cannot be taken away by mere amendments (because an amendment must be consistent with the Constitution’s general principles), George characterized that logic as a “one-way street.”  How can an amendment extend rights, he asked, but then not take them away?  He also repeatedly asked if the problem was with how California changes its constitution, and that maybe the amendment process could just be changed – a “political solution.”

As I stood in Civic Center Park to watch the proceedings on a satellite video, George’s skeptical queries – peppered with Kennard’s “questions” that were actually long-winded statements – gave me a sinking and depressing feeling that we were going to lose.

If there’s a glimmer of hope, it may be from the other side’s presentation.  Kenneth Starr (of Monica Lewinsky fame) gave the oral argument for upholding Prop 8, and blurted out a few legal points that – if drawn to their conclusion – would create an awful precedent.  By arguing that Prop 8 could not be overruled, he said: “the people are sovereign … even if unwise.  And they can tug at equality.”  In other words, no protections for minorities are sacred – as long as a majority of the voters choose to enshrine it in the constitution.

Can the Court reconcile the precedent of upholding Prop 8, with Ken Starr’s notion that we can “tug at equality”?  When asked if rolling back domestic partnerships for gay couples would also be a valid use of the initiative process, Starr said it would be an “acceptable amendment” – which may have disturbed some of the Justices.  It was clear from oral arguments the Court will not go along with Starr’s request to invalidate the 18,000 marriage licenses of same-sex couples who wed before the passage of Prop 8, but how can they recognize it as a valid amendment without incorporating Starr’s logic?

Don’t count on the Supreme Court to do the right thing – certainly not after today’s oral arguments.  If we’re going to win back marriage equality, it may have to be at the ballot box in 2010 – after an organized, grassroots effort collects signatures and then passes a constitutional amendment to repeal Prop 8.  Everyone agrees that “No on 8” ran an awful campaign, and a whole new crop of activists who felt alienated by its top-down structure are coming out of the woodwork to create a better future.  The trick is to keep that energy going.

What’s amazed me is how many groups organically sprouted out of Prop 8’s passage.  Join the Impact is still going on strong, and One Struggle, One Fight is planning a March to Sacramento at the end of the month.  The Courage Campaign is building the grassroots infrastructure we’ll need to run a successful statewide campaign, and a new group – And Marriage for All – is doing the critical outreach to communities of color.  And I’d be remiss not to acknowledge what Marriage Equality USA and Molly McKay has done for years, cultivating a network of grassroots chapter leaders through the state.

I won’t lie.  The prospect of having to wage another statewide electoral campaign for me is overwhelming, exhausting and depressing.  The lawyer in me still yearns for “justice in the courts,” with a majority of Justices concluding Prop 8 was not a proper amendment.  It would make those right-wing blowhards explode, because we’d have marriage equality in this state for good – and they could never take it away at the ballot box again with lies and distortions.  But I know that if we must go back to the voters, we’ll never walk alone.  A whole new army of allies have joined us, and this time we’re determined not to lose.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.

(A spending cap would most certainly not be a positive for our budget mess. – promoted by Brian Leubitz)

From today’s Beyond Chron.

With the state bankrupt and giving I.O.U.’s instead of tax refunds, the California legislature is expected to vote on a mid-year budget later this week.  It’s bound to have horrific cuts, but no one has details because it’s being crafted in secret negotiations with the “Big Five” (Governor + party leaders in each chamber.)  Democrats control 63% of the legislature, but the “two-thirds rule” lets Republicans run the show.  And the minority refuses to vote for a single tax increase – unless Democrats agree to kill the eight-hour workday (and other similar extortions.)  Everyone thinks a statewide special election is inevitable, which could help us get meaningful budget reform.  But June 2nd would be a terrible time to do it, because none of the needed fiscal reforms would be on the ballot.  Instead, we’d have the Governor’s awful proposal to borrow money off future lottery revenue – and a deeply insidious proposal to cap state spending.  While San Francisco has no choice but to call a June special election (or else cut half of its General Fund), the state musn’t go full speed ahead.

After writing a piece last week that argued the need for California voters to approve budget reforms, I developed a weird sense of dread that my article was written in vain.  Of course we must abolish the “two-thirds rule” so the state can pass a sane budget, and the political mood is ripe for some fiscal reforms that would save local government.  But op-ed pieces alone don’t put good things on the ballot, and the fact we may have a statewide special election soon doesn’t guarantee voters will get the chance to weigh in on these ideas.

To place an amendment on the California ballot, you either need (a) a two-thirds vote of the state legislature, or (b) a petition with 700,000 valid signatures, i.e. eight percent of how many voted in the last gubernatorial election.  Placing an initiative statute – such as restoring the upper-income tax bracket – would require 430,000 signatures, or 5% of the last turnout.  The first option isn’t likely (why would two-thirds of the legislature vote to scrap the “two-thirds” rule?), so the realistic approach is to start collecting signatures.

Democrats have submitted an initiative to lower the threshold to pass the state budget from two-thirds to a 55% majority, and are in the process of gathering signatures.  But if we have a June special election, voters still won’t have the opportunity to pass it.  Because in order for ballot initiatives to qualify for an election, all signatures must be turned in 131 days beforehand – and June 2nd is 120 days away.  Our only hope to have this passed is to delay any statewide special election until August, or possibly even into November.

As for other budget reforms that are desperately needed (and politically winnable among voters), no one has even started collecting signatures for them yet.  Progressive activists must file these initiatives with the Attorney General’s Office for review immediately – so that we can start the expensive and time-consuming process of gathering nearly a million signatures.  Otherwise, they won’t be on the statewide special election – and it will all be academic.

What initiatives would we expect to see on a June 2nd statewide special election?  According to the Secretary of State’s Office, four propositions have already qualified.  Two are budget related, and both would make the fiscal crisis worse.  One is Arnold Schwarzenegger’s idea to borrow money from the state’s future lottery revenues – which would sink us even further into debt.  But a recent poll has voters not liking it, so hopefully it would go down in flames.

The second proposal – however – is far more dangerous, because the same poll showed 70% of respondents calling it a “good idea.”  Authored by State Senator Roy Ashburn (a Central Valley Republican), it would impose a mandatory state spending cap – putting California in a fiscal straitjacket that would render us impotent at addressing our needs.

Spending caps have been tried elsewhere.  Colorado passed a spending cap in 1992, and the disastrous results include: (a) teacher salaries plummeted from 30th to 50th in the nation; (b) children receiving full vaccinations fell from 24th to 50th; (c) and low-income adults with health insurance dropped from 20th to 48th.  “By creating a permanent revenue shortage,” said the Center on Budget and Policy Priorities, a spending cap “pits state programs and services against each other for survival each year and virtually rules out any new initiatives to address unmet or emerging needs.”

An analysis by the California Budget Project projects that, if voters approve a Republican spending cap, the state would have to cut $40 billion a year – “eliminating all General Fund support for higher education; the judiciary; child support services; health care services; resources – including fire protection; and environmental protection.”  This is no accident.  The sponsors’ true intentions are simply to starve the public sector, shrinking the size of government (as their mentor famously said) so we can “drown it in the bathtub.”

But that’s the reality we would face with a June 2nd statewide special election.  Voters like the idea of restricting how much the government can spend, knowing we are in bad budget times and sacrifices must be made.  It won’t be impossible to defeat this proposal, but we’ll have to work hard (and devote a lot of resources) to educating voters about its dire consequences.  And it will be far more difficult, and quite infuriating, if there are no sensible alternatives on the same ballot – while everyone is asking for solutions.

A statewide special election makes no sense – unless progressives can also qualify their own budget reforms (eliminate the “two-thirds rule”; restore the upper-class tax bracket; amend Prop 13 to exempt commercial property; amend Prop 218.)  But going full speed ahead doesn’t give us that opportunity.  It only poses the risk of doing more harm than good – and we can’t afford to screw it up.

The same, however, cannot be said about San Francisco’s independent effort to hold a special election on June 2nd.  Facing a $576 million deficit that could mean cutting half its General Fund, the Supervisors have no choice today but to move ahead.  While the City has its own fiscal straitjacket that will hamper its ability to raise revenue, we don’t have the luxury of time to make sure the state can fix its own house in order.  We’ll have to walk alone for now.

From today’s Beyond Chron.

Because Governor Schwarzenegger is impotent at brokering a budget, the state will be out of money on February 1st – and will start issuing I.O.U.’s.  That means no tax rebates, no financial aid and no other means of assistance.  Now we are looking at a statewide special election to get out of this mess.  If all we get is more Arnold gimmicks to delay the problem another year, it will be a tragically wasted opportunity.  Because now, more than ever, the public is willing to consider tax reform to get us out of the right wing fiscal straitjacket.  Beyond the Democrats’ effort to scrap the archaic two-thirds budget rule, legislators must consider placing ballot measures to amend Prop 13 (by exempting commercial property) – and eliminate Prop 218’s onerous requirement that local revenue measures get a two-thirds vote by the electorate.  With the recession wreaking havoc on our fiscal health, the public has finally woken up to the horror of right-wing tax policy.  For the first – and possibly only – time, voters might approve progressive ways to raise revenue.

Scrapping the Two-Thirds Budget Rule

Liberal bloggers were ecstatic yesterday to report that a new PPIC poll shows a majority of Californians would abolish the two-thirds requirement to pass a state budget.  And they should be.  Despite California being a solid blue state, Republicans in the state legislature from the Central Valley and Orange County have blocked our budget each and every year – because they adamantly refuse to vote for a single tax increase whatsoever in any way, shape or form.  This “tyranny of the minority” has blocked any effort to raise revenue during hard times – forcing the state to make painful cuts and borrow more money.

Specifically, the poll in question showed that a 53-41 majority of likely voters would support lowering the budget vote requirement down to 55%.  The Public Policy Institute of California (PPIC) has been asking this question every year since 2005, and it’s the first time that a majority of voters approved this idea.  As recently as May 2008, the question failed 39-53, with similar poll results in earlier years. Clearly, a seismic shift in public opinion has occurred.

Getting rid of the “two-thirds” rule is a priority for Democrats in the state legislature, who have tried in vain to forestall this crisis.  In a bout of desperation, they finally crafted a manipulation of the tax rules to get around the two-thirds requirement – only to have Schwarzenegger veto it right before Christmas.  If the Governor calls a special election, Democrats have said they will place a Proposition on the ballot to abolish the two-thirds requirement.

But it would be a lost opportunity to stop there …

Local Revenue Raising Reform:

Scrapping the “two-thirds rule” would make it easier to pass a state budget, but it would do nothing to solve the perennial revenue crisis that local governments face – a crisis that comes from state law.  Prop 218, which passed in 1996, requires all special taxes at the local level to get a two-thirds vote of the electorate.  Prop 13 also requires most local tax increases to be on the ballot.  So when San Francisco faces a $576 million deficit, these fiscal straitjackets mean requires us to have an election to raise taxes – which is never an attractive prospect.  

How in the world would Californians give up their power to raise taxes at the local level?  The same PPIC poll asked about lowering the requirement to raise special taxes at the local level from two-thirds to 55% (i.e., amend Prop 218 to make it less draconian.)  A majority (50-44) said it was a “good idea,” but the margin was closer among “likely voters.”  Prop 218 passed thirteen years ago with little fanfare – because progressives were too distracted by trying to save affirmative action (No on 209), raising the minimum wage (Yes on 210) and supporting medical marijuana (Yes on 215.)  Its damage has been catastrophic, but now we have a chance – possibly the only chance ever – to undo it.

Reforming Property Tax Revenue

Would voters also repeal Prop 13?  Don’t be silly.  The 1978 tax measure that castrated property tax revenue – and spawned the Reagan Revolution across the country – is still popular with Californians, especially long-term homeowners who enjoy the stability of capped increases.  But a Field Poll from June 2008 showed they’re open to amending it, and I couldn’t imagine a better time – when public opinion is willing to entertain such measures – to put it on the ballot in the name of rescuing the state.

Prop 13 was billed as saving residential homeowners, but by far its biggest beneficiaries have been corporations who own commercial property.  Because commercial property has much lower turnover, they pay much lower property taxes.  Imagine, for example, how much more revenue the San Francisco public schools would get if just one building – the Transamerica Pyramid – were exempt from Prop 13.  In the same June 2008 poll that showed voters strongly support Prop 13, the idea of “split roll” taxation either got 46-43 support or a whopping 61-27 approval (depending on how the question was asked.)

Progressives like Rob Reiner have been talking about a “split roll” amendment to Prop 13 for years.  Now is the moment to finally pass what folks have been saying for years.

For the June special election, San Francisco may put another parcel tax on the ballot – like they did in June 2008 to raise public school teachers’ salaries.  I voted for Prop A, but was not thrilled that every homeowner got levied $198-per-year, regardless of the size or value of their property.  Which means I will now pay the same amount for my 400 square-foot Tenderloin studio that Dede Wilsey pays for her mansion in Pacific Heights – which is unfair.  I’m not against taxing property owners, but let’s have some equity here.

Guess what?  San Francisco isn’t allowed to pass a “progressive” parcel tax, because Prop 13 requires them to be “flat.”  Rather than repeal Prop 13 entirely, allowing cities to pass parcel taxes that are not regressive sounds like a politically possible solution.

Other Budget Solutions for the Special Election

While structural solutions must be the priority, expect the statewide special election to have a lot of specific revenue measures on the ballot.  Schwarzenegger’s fiscally reckless idea to borrow against future lottery revenues is not popular and would fail, but the PPIC poll showed that his alcohol tax proposal would easily pass – and his regressive temporary sales tax is mildly popular.  What’s most interesting, however, is that raising the vehicle license fee by $12 would pass 61-37 – and even Republican voters support it by a 7-point margin.

If the Governor wants the special election to be about tax measures (most of which are just quick fixes), Democrats must demand a Proposition to raise income taxes for the wealthy.  The PPIC poll showed that idea passing by a 40-point landslide, one of the most popular revenue proposals.  Democrats in the legislature tried restoring the upper-income tax bracket to Reagan-Wilson levels last summer, but with the “two-thirds rule” could not muster its passage.  And the Governor never supported it – although he gladly repealed a $347/year tax credit for low-income seniors with the stroke of a pen.

If we’re going to raise taxes, let’s do it right.  Put a tax measure on the special election ballot to restore the upper-income tax bracket, and see if the voters like that better than Schwarzenegger’s ideas.  With the fiscal crisis devastating our state coffers, it’s time for everyone to sacrifice – but let’s demand that those who can afford to pay give their share.

From today’s Beyond Chron.

I didn’t join the street protests against Proposition 8 right after it passed.  My gut reaction was: “where were all these people when we had the chance to defeat it?”  But “No on 8” ran a terrible campaign that would not have effectively used more volunteers, and it’s possible that many had tried to get involved.  Now the state Supreme Court will decide what to do about Prop 8, and City Attorney Dennis Herrera has put on a strong case to have it overruled.  But that doesn’t mean the Court will do the right thing; even the best legal arguments can lose.  A mass movement of peaceful protest is crucial at building the political momentum to attain marriage equality – which can convince the Court it’s okay to overturn the “will of the voters.”  Social movements rely too much on lawyers and politicians to make progress – without effectively using the masses of people who want to help.  Now people are angry, and this weekend we saw mass protests across the country.  It’s now time for everyday people to get involved.

As Barbara Ehrenreich once argued, Roe v. Wade didn’t just happen because a majority of Supreme Court justices decided women have the right to choose.  It was after a mass movement worked hard for many years to make that politically possible.  While we like to believe the best legal arguments always win in Court, judges are – at the end of the day – politically connected lawyers who wear robes.  As much as Dennis Herrera’s lawsuit is well written and legally sound, it’s still a leap of faith for the state Supreme Court to override a popular majority in the last election.  And citizen action – if done effectively – can go a long way to give them the political courage to do the right thing.

Public outrage at Prop 8’s passage has not just been a few angry protests in the Castro, or righteous indignation at churches.  People who never thought of themselves as “activists” have suddenly been spurred into action – and they’re using the same tools the Obama campaign used to win the presidency.  For example, my friend Trent started a Facebook group called “Californians Ready to Repeal Prop 8.”  He expected a few hundred people to join, but in less than a week the group had over 200,000 members.  Efforts are afoot to collect signatures for a statewide proposition – in 2010, or sooner if we have a special election.

This viral activism is in stark contrast to the “No on 8” campaign – where people relied on political leaders who failed us in waging a statewide effort.  My first involvement with “No on 8” was in July, right after the San Francisco Pride parade.  The campaign had just collected thousands of postcards at Pride, and our task was to call these people and recruit them to volunteer.  But a lot of people come to SF Pride from across the state, and all the volunteer activities were in San Francisco.  It was a lot to ask someone who lives in Monterey or Santa Rosa to come table at a Farmer’s Market in San Francisco for a day.

I asked the campaign why they couldn’t just get people to do “No on 8” activities in their own communities.  They didn’t have to wait until the campaign could afford to open offices in other parts of the state.  Online groups like MoveOn have perfected the model of using the Internet to connect like-minded activists to each other – and get them to meet in “offline” locations to push their political cause.  My suggestion was ignored.  Now we see spontaneous efforts – organized online via social networks, without any “leaders” – to lay the groundwork for a future Proposition campaign to restore marriage equality.

November 15th was a massive “Day of Protest” against Prop 8, and we predictably had a huge rally in San Francisco.  But we also had nearly 2000 people in Sacramento, a whopping 12,000 in Los Angeles, 5000 in San Diego, 2500 in Santa Rosa, and over 1000 in Downtown Ventura.  And it wasn’t just a statewide action – 12,000 took to the streets in Seattle, 5000 in Boston, thousands in Chicago, 1000 in Albuquerque and even a rally in Peoria.  Prop 8 hit a nerve felt past California’s boundaries: during a presidential election that gave millions hope, one of our bluest states voted to take away peoples’ fundamental rights.  People are upset, and want to get involved.

Now Prop 8’s fate is in the hands of our state Supreme Court – who must decide if the greater good (equal protection under law) is worth telling 52% of California voters they can’t eliminate marriage rights.  Peaceful protests can give judge the resolve to do the right thing.  Unlike George W. Bush – who said he didn’t “listen to focus groups” after 2 million people across the world marched against the Iraq War on a single day – I believe that our justices will take these protests seriously.  Which is why they matter so much.

From today’s Beyond Chron.

When SF City Attorney Dennis Herrera sued last week to overrule Proposition 8, I didn’t expect him to prevail – as much as I appreciated him trying.  As wrong as it sounds, the initiative process allows a bare majority of California voters to change our state constitution – and with other states having passed similar marriage amendments, I couldn’t see how the courts would repeal it.  But after having read Herrera’s well-written brief and done some legal research, I am now more optimistic that justice will prevail.  Prop 8 was not your typical “amendment” that merely tinkers with the California Constitution.  It was a drastic revision that deprives a “suspect class” (gays and lesbians) of a fundamental right under equal protection.  And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities.  While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time.  And unlike many states, California has explicitly found sexual orientation to be a “suspect class.”  If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of “change.”

It’s been hard for me to be happy about last week’s Election results – despite Barack Obama’s landslide victory, a more progressive Congress and a good night locally for San Francisco progressives.  People are angry and depressed about the passage of Proposition 8 – because unlike other states where gay couples had no marriage rights, here the right has just been stripped away.  And if there was one state where we felt we could defeat such an amendment at the ballot box, it would be California.

It doesn’t seem right that a bare majority of voters can change the Constitution by taking away peoples’ rights.  The purpose behind California’s initiative process was to allow voters to pass laws when the state legislature wouldn’t act – giving the “power of the people” a sovereign role.  But even a Constitutional amendment just requires a majority vote – with the only “protection” being a higher signature threshold than an initiative statute.  However, as Mayor Gavin Newsom said after Prop 8 passed, “protections in the Constitution have always been there to respect the rights of the minority versus popular opinion.”

Amending the federal Constitution is far more difficult than the California Constitution – as we don’t have a federal initiative process, and you need a two-thirds vote of the U.S. Senate and three-fourths of state legislatures to ratify it.  The Federal Marriage Amendment that George Bush championed in 2004 was never about amending the Constitution – because the right-wing couldn’t realistically get a supermajority to make it happen.  It was just a political ploy to get Bush re-elected.  Karl Rove knew a majority of the country doesn’t support gay marriage, making it the perfect “wedge” issue to accomplish a short-term goal.

Likewise, Massachusetts has a higher threshold for changing its Constitution.  You can’t just gather signatures and then let the people decide – the state legislature has to formally vote to put it on the ballot.  After the Massachusetts Court ruled for marriage equality in 2004, the right wing tried to launch a Constitutional amendment.  But the Democratic state legislature refused to put it on the ballot – and as more and more gay couples got married (and people saw that the sky didn’t fall), public opinion evolved to support it.

But Dennis Herrera’s lawsuit on behalf of the City and County of San Francisco – which Santa Clara and Los Angeles Counties have now joined – highlights a critical distinction in California’s Constitution that gives me hope.  Even if voters pass a Constitutional Amendment, the courts can still decide if it was merely an “amendment” – or a substantive “revision.”  And if it was a “revision,” voter approval by a simple majority is not enough – it also requires an okay by the state legislature (which probably wouldn’t happen), or a constitutional convention.  Why the distinction?  Because mere “amendments” tinker around the edges; “revisions” are far more fundamental changes.

And the Courts have thrown out such changes to the Constitution as “revisions” under the right circumstances.

In June 1990, California voters passed Proposition 115 (the Crime Victims Justice Reform Act) – a conservative “law-and-order” measure that said certain criminal defendants would not have more rights than provided by the U.S. Constitution.  Prop 115 had passed as an amendment, but the state Supreme Court called it a “revision.”  Why?  Because, in Raven v. Deukmeijan (1990), they said Prop 115 had “such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.”  Prop 115 adversely affected a defendant’s right to due process, equal protection, assistance of counsel, and the standards for “cruel and unusual punishment” – which effectively made it a “revision.”

Likewise, Prop 8 is a drastic “revision” (if not moreso) because it violates equal protection for a minority group.

Last May, the California Supreme Court found that depriving same-sex couples the right to marry violated equal protection – and that LGBT people are a “suspect class.”  A “suspect class” is a group that has suffered discrimination and needs protection.  The central purpose behind equal protection is to protect unpopular minorities from a political majority who could take away their rights.  You can’t simply change the Constitution by majority vote to take away the right of gay people to marry – because that right comes from the equal protection clause.  As Herrera wrote in his brief, “without a judiciary that has the final word on equal protection, there simply is no such thing as equal protection.”

Of course, not all Constitutional amendments are “revisions.”  California’s term limits law, for example, significantly altered how long members of the legislature can stay in office – but it did not violate the foundational nature of our Constitution.  Even a Proposition that said the death penalty was not “cruel and unusual punishment” (which, like in this case, overruled a Supreme Court decision) was deemed acceptable – because one of the standards for determining what is “cruel and unusual” punishment is public opinion.  On the other hand, what do you do when the people pass an amendment that violates the fundamental rights of a minority?

What if in the aftermath of September 11th, California voted to change its Constitution to require all Muslims to travel with passes?  What if California – afraid that undocumented workers were “invading” the state – voted to expel Latino kids from school, or deny them medical treatment?  That would violate equal protection, but would it be constitutional just because proponents gathered the minimum number of signatures necessary so that it was a “constitutional amendment” (rather than a statute)?  It isn’t hard to see that, without some safeguards in place, our state’s equal protection clause can become Swiss cheese.

Granted, I was at first skeptical that Prop 8 could be found unconstitutional – because after all, a lot of other states have passed similar marriage amendments through the initiative process.  Hasn’t this been tried before, and weren’t those amendments upheld?

Yes, but the facts are distinguishable.  Alaska’s voter-approved amendment, for example, was upheld – but Alaska can’t just change its constitution by collecting signatures and having a bare majority of voters approve it.  Like Massachusetts, you need two-thirds of the legislature to put it on the ballot – which makes Alaska’s “amendments” the functional equivalent of a “revision” in California.  So it has some minimal safeguards for initiatives that California does not have.  Moreover, Alaska’s Constitution does not recognize LGBT people to be a “suspect class” – so the violation under equal protection was harder to prove.

In Oregon, however, the state Supreme Court upheld its marriage amendment – and even rejected the notion that it was a fundamental “revision” to their state’s Constitution.  But that ruling, Martinez v. Kulongoski (2008), was flawed – and our state Supreme Court would be wise not to follow it.  In Martinez, the Oregon Court almost exclusively relied on a decision from 1994 that found an anti-gay measure to be an “amendment” rather than a “revision.”  If you read the case, it actually gave the subject short shrift.

But a lot has changed in the field of gay rights since 1994 – as far as court rulings are concerned – that should influence the Prop 8 ruling.  In Romer v. Evans (1996), the U.S. Supreme Court threw out a Colorado proposition that repealed anti-discrimination laws protecting gays and lesbians – because they said hate is not a “rational basis” for violating equal protection.  In Lawrence v. Texas (2003), the U.S. Supreme Court overturned Texas’ sodomy ban – because the right to privacy extends to consensual sex (it also said you can’t make it illegal for gay people while making it legal for straights.)  The Martinez court ignored both cases.

Finally, California’s marriage ruling on May 15th was not just remarkable for granting marriage rights to same-sex couples.  The most important part of the decision was that gays and lesbians were deemed a “suspect” class – and discrimination based on sexual orientation must pass strict scrutiny.  Even if voters later passed Prop 8 to eliminate the right to marry, the other parts of the decision stand – meaning that to discriminate against gays violates equal protection of the highest order.  The Supreme Court must overrule Prop 8 – asserting that a simple vote of the people just can’t do it.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.