This is an article written by Matthew Fleischer for Frying Pan News. Check Frying Pan News for regular in-depth coverage of Prop 32, its funders, and how it will impact working Californians.

Any lawyer with some experience in Sacramento politics can draft language for a statewide initiative. But crafting deceptive ballot measures that can trick people into voting against their core beliefs is nothing less than an art form.

For many years, the undisputed master of the misleading initiative has been Thomas Hiltachk. So it’s little surprise that Hiltachk is the author of Proposition 32, which promises to rid Sacramento of special interest money – but which would actually give almost complete control of state politics to corporations and the super-rich by effectively crippling the ability of unions to participate in elections and lobbying. Hiltachk has also quite possibly written into the initiative a poison pill that would shield corporations from its provisions and leave only unions to suffer the consequences if Prop. 32 passes.

A full-time political and election lawyer since 1998, Hiltachk is an old hand at drafting legislation benefiting Big Tobacco or beating back living wage campaigns. He is also the California Republican Party’s go-to legal mind for penning regressive ballot initiatives intended to give conservatives maximum political power in an otherwise majority progressive state. Like the political consultants at the Dolphin Group, Hiltachk is known for promoting “Trojan Horse” political gambits. As Hendrik Hertzberg put it in a 2007 New Yorker piece, Hiltachk and his law film Bell, McAndrews & Hiltachk, “specialize in initiatives that are the opposite of what they sound like.”

In other words, when political ideas won’t fly with voters on merit, Hiltachk and company trick Californians into voting against their wants and interests-and use every legal maneuver possible to keep voters unawares. If recent history is any indication, Hiltachk and his law firm have only one goal: Getting Republicans elected at any cost. (Hiltachk did not return repeated requests for an interview.)

Proposition 32 is just the latest in a string of initiatives authored by Hiltachk that do exactly that. In 2003, Hiltachk penned the initiative to recall then-California Governor Gray Davis. He later served as the spokesman and legal counsel for Rescue California-the committee that spent $3.6 million lobbying and signature-gathering for the initiative. When Davis lost his recall election to Arnold Schwarzenegger, Hiltachk had little trouble finding his next job-as legal counsel to the new governor.

Working for the Schwarzenegger state house, however, didn’t stop his own efforts to push California’s political agenda as far right as possible. In 2006, Hiltachk and his firm authored and pushed for the Fair Pay Workplace Flexibility Act-a progressive-sounding bit of legislation that would have increased California’s minimum wage by a pittance. Hovering just above that carrot, however, was a giant stick. The bill would have eliminated overtime pay for many workers and frozen all future minimum wage raises without the consent of two-thirds of both houses of the California legislature-a nearly impossible feat.

In 2009, Hiltachk authored and promoted California Proposition 23-which would have eliminated the protections of California’s landmark environmental bill AB 32. As with Prop. 32, Hiltachk’s measure received the backing of the Koch brothers, to the tune of $1 million, donated through their company Flint Hills Resources. It failed miserably at the polls. But that didn’t deter Hiltachk-who served as legal counsel for billionaire Meg Whitman‘s gubernatorial campaign. The first thing Whitman vowed she would do in office was to suspend AB 32.

This past March, Hiltachk’s law firm even sued to prevent Democratic 10th Congressional District candidate Jose Hernandez from listing his job title as “astronaut” on the June ballot. Hernandez, whose life could not possibly better encapsulate the American Dream, grew up the son of immigrants, working in the agricultural fields outside of Stockton, California. He didn’t learn to speak English until he was 12. Hernandez literally worked his way up from the ground to become a scientist and crew member of the 2009 flight of the space shuttle Discovery.

A reaffirming life story? Not in the world of Thomas Hiltachk, where one person’s giant step for mankind is no cause for community pride-only litigation.

Hiltachk’s influence isn’t confined to state politics. In 2007 he was the legal mastermind behind the failed Presidential Election Reform Act-which proposed divvying up California’s massive pool of electoral votes by congressional districts in presidential elections, instead of in the current winner-take-all fashion. The effort would have virtually ensured a permanent gift of 20 electoral votes to Republican presidential candidates-a larger electoral chunk than the all-important state of Ohio. For good measure, Hiltachk is also the treasurer for this year’s No on 37 campaign-an agribusiness attempt to thwart labeling of genetically modified foods.

Proposition 32’s Trojan Horse nature fits Hiltachk’s modus operandi-it’s a law masquerading as campaign finance reform that really serves as part of a national effort to gut unions and enhance the clout of the Republican Party. But this particular effort is far less precise than his previous campaigns. For instance, his decision to leave the term “corporation” undefined in the ballot language will clearly invite a host of lawsuits should the measure pass. Do LLCs count as corporations? How about non-profits?

Not to mention that Prop. 32’s proposed restrictions on union and corporate donations to individual candidates seem to conflict with the recent Supreme Court Citizens United ruling.

Hiltachk is no sloppy legal mind. One has to assume these conspicuous holes are intentional. Could it be that Prop. 32 was designed so that only a part of it could stand up to a constitutional challenge? Say, for instance, the one thing backers of Prop. 32 have historically been interested in-the end of union workers’ automatic payroll deductions?

“Prop. 32 has a separability clause,” says Alan Crowley, a labor lawyer with the legal firm Weinberg, Roger and Rosenfeld. “In theory, if a law is challenged, the parts that aren’t ruled illegal could go forward. Hypothetically that might be enforced.”

If this scenario unfolds, Prop. 32 will have the effect its backers no doubt intended-to give corporations and wealthy donors unchallenged control of state politics.

From the Santa Cruz Sentinel, Sept 16, 2007:

Given the widespread anger at the record of the Bush administration, few people think it will be easy for a Republican to win a fair presidential election in 2008.

But the backers of a proposed California ballot initiative aim to make it easy – by getting around that inconvenient word “fair”.

Devised by Sacramento political attorney Thomas Hiltachk, the Presidential Election Reform Act is a clever confidence trick, disguised as reform of the Electoral College. The PERA’s true purpose is to guarantee about 20 additional electoral votes to the Republican Party, with the aim of setting up a GOP victory not just in the 2008 presidential election, but in many more to follow.

Here’s how it would work.

Currently, California, like most states, awards its 53 electoral votes as winner-take all. Many voters are unhappy with this system, and quite understandably, since it can serve to override the popular will. If voters in a congressional district elect a representative from Party A, most of them probably also support Party A’s presidential candidate. But the electoral vote from their district may very well end up going to the Party B’s candidate if Party B wins more of their state’s districts overall.

The PERA seeks to take advantage of voters’ frustration over outcomes like this. But it does so in the time-tested manner of the classic con game: distract the mark with bait, then make the switch.

The bait is the promise of reform. The switch is the unmentioned fact that the PERA would amount to a unilateral disarmament by California, a large blue state. Meanwhile, large red states, such as Texas, would continue under the old system.

The PERA’s backers call themselves Californians for Equal Representation. Since Equal Representation is part of their name, you might think they’d also throw their support behind a national reform effort, which could lead to equal representation everywhere – including red states. But that isn’t truly their aim, particularly since Californians for Equal Representation is actually a front for the California Republican Party.

The group’s address is initiative-writer Hiltachk’s law firm. Hiltachk is also Gov. Arnold Schwarzenegger’s election lawyer. And, as the New Yorker’s Hendrik Hertzberg has pointed out, he is a specialist in “initiatives that are the opposite of what they sound like – the Fair Pay Workplace Flexibility Act of 2006, for example” That one was, in fact, designed to slash overtime pay and make it almost impossible to raise the minimum wage.

Unsurprisingly, California Republicans enthusiastically endorsed the PERA at their convention in Indian Wells this past weekend. Interestingly, though, the governor has expressed reservations. As one of the world’s best known self-made men, Schwarzenegger has said he was uncomfortable with the “loser’s mentality” represented by “changing the rules in the middle of the game … saying I cannot win with those rules, so let me change the rules”.

The governor’s fellow Republicans would have done well to heed his advice, because if they win this campaign, it will be at the cost of serious damage both to their party and to democracy itself.

Why, after all, is the public angry at the Republican record in the White House and the Congress? To answer that question is to recite a list of failures and scandals: the falsehoods that spawned the war; the “compassionate conservatism” that brought Guantanamo Bay and the abandoning of New Orleans; the widespread spying on American citizens; the schemes of Jack Abramoff, Tom DeLay, Randy “Duke” Cunningham, Mark Foley and others; the politicization of the Justice Department; and, sadly, so on.

In this context, do Republicans really want to trumpet their endorsement of another slick maneuver around the public interest?

If they do, they will likely pay even more heavily at the polls than they have so far. After all, as Idaho Sen. Larry Craig has shown so dramatically, most Americans are quite tolerant, but not if they conclude you’re a hypocrite.

Nevertheless, given events at its California convention, the Republican Party may well be bent on further self-destruction. But unfortunately, it is not only the party that will suffer. We all will. That’s because these repeated insults to trust erode voters’ basic belief in our laws and institutions. How many times can you play people for suckers before they conclude the whole thing is just a rigged game? Too many Americans have already come to just that conclusion.

We’ve learned this lesson before, in the Dust Bowl. You can exploit and exhaust the soil for so long, and you may even prosper while you do. And then, one day, the wind comes up and the soil blows away.

Well, it’s happening again. Only this time it’s happening to the soil of democracy – the public’s trust.

We call on all people of every party, including the many Republicans of good conscience – many of whom we have heard from who are deeply disturbed by the direction their party has taken – to repudiate the Presidential Election Reform Act.

By all means, let’s reform the Electoral College. But as we talk about how to do it, let’s use words with their original meanings, not new meanings we’ made up to mask selfish, ulterior motives. Just like fair pay doesn’t mean “slash my wages,” “reform” doesn’t mean “scam the system”.

“Reform” means make it better – for everyone.

That may seem quaint to the creative minds behind crafty tricks like the Presidential Election Reform Act, but it’s what democracy is supposed to be about.

By Zach Friend (chair, Santa Cruz County Democratic Central Committee), Vinz Koller (chair, Monterey County DCC) & Spencer Critchley (spokesman, Monterey County DCC).

While Democrats have been hyperventilating about Thomas Hiltachk’s proposed June ballot referendum, the Presidential Election Reform Act, even going so far as to attempt to place a counter-initiative on the ballot written by Chris Lehane, hardly anyone seems to have noticed that not all Republicans are supportive of such a wholesale change in our nation’s electoral system.

It seems like a central assumption for California Democrats has been that all Republicans, of course, would get behind a simple change that would increase their chances for holding onto the presidency in 2008. But apparently, some Republicans are capable of complex thought, even federalist ideology. Who knew.

Such an example would be Thomas Del Beccaro, the Vice Chair of the California Republican Party and the Chairman of the Contra Costa Republican Central Committee. Del Beccaro has recently written an interesting criticism of the current move to change California’s electoral system:

For those interested in immediate gratification, that would mean that California’s 55 electoral votes would not go in unison to Hillary in 2008 — but as many as 22 would go to the Republican nominee — thereby making it much easier for a Republican to win the Presidency.

However, before you blush with expediency, it may be worthy to pause.

Recall that the Electoral College is a rather unique American construct. 

Our Founders were loathe to accept the wiles of direct democracy so they established our Republic. Amongst the compromises necessary to craft our Constitution were concessions to smaller states.  Those concessions included two houses of Congress which featured a Senate giving each state, small and large, the same number of votes.  That was designed to be a moderating force.

It also included the use of Electors to vote for our Presidents and Vice Presidents.  The Electoral College, as it came to be known, was a bulwark against the prospect of large majorities in large states electing Presidents to the exclusion of the rest of We The People.

As a practical matter today, the Electoral College prevents the Democrats from winning the Presidency by the popular vote of New York City, Los Angeles, Chicago, Philadelphia, Seattle, etc. – all to the exclusion of the red, fly-over states.

Snazzy illustration on the flip…

Del Beccaro then points to this map as an example of the vicissitudes that could face Republicans if such a plan were to gain nationwide traction:

[K]eep in mind that: the Democrats want to scrap the Electoral College altogether.  That is their determined goal because they really would need to do no more than to campaign in but a few blue places which, as this map displays, include the largest of cities.

Now, I have to admit that I’m not fully up to speed on all the issues swirling around the Hiltachk proposition and Lehane counter-proposition, but it seems to me that if there are sizeable pockets of Republican opposition to Hiltachk’s “Presidential Election Reform Act” proposal which can be exploited, along with a more general Democratic opposition, then perhaps that path might be significantly easier than the counter-proposition alternative.  Or is Del Beccaro a lone voice in the wilderness?