From the Dispatch

Supreme Court 2009-2010: Pro-Corporate, But Continued Trend Towards Deferral to State Authority

Nathan Newman — Tue, 29 Jun 2010 11:26:57 -0400

Yesterday, the Supreme Court ended its term with a bang with a ruling in McDonald v. City of Chicago that state gun control regulations can be struck down by federal courts based on the Second Amendment. While the number and scale of blockbuster decisions was not so high this session, the singular impact of the Citizens United case earlier in the term unleashing unregulated corporate money on elections, combined with the dangerous implications of the Rent-A-Center, West v. Jackson arbitration decision, emphasizes the pro-corporate bias the Supreme Court has increasingly exercised in recent years.

As detailed below, other decisions on public university governance of student groups, property rights challenges to beach restoration programs and regulation of ballot initiative processes, did continue the trend in recent terms of the Supreme Court deferring to state authority in major cases. And criminal justice cases continued to be a mixed bag of protecting individual rights versus upholding state discretion.

Table of Contents:
- Citizens United and the Supreme Court’s Pro-Corporate Bias
- Supreme Court’s Deferral to State Authority
- Criminal Justice
- Conclusion

Citizens United and the Supreme Court’s Pro-Corporate Bias

There is little question that Citizens United will be one of the major cases that defines this year’s term—and in many ways will frame the legacy of the rise of Chief Justice John Roberts and Justice Samuel Alito whose presence on the court has led to the dismemberment of campaign finance regulation.

"A Massive New Threat of Corruption and Corporate Control": With Citizens United, the Supreme court has given corporations the same free speech rights as individuals and allowed unlimited election spending by corporations when not coordinated with candidates.

U.S. Senator Sheldon Whitehouse of Rhode Island said recently,

The Citizens United decision -- yet another 5-4 decision [opens] our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

To emphasize its hostility to restrictions on the power of the wealthy over our elections, the Supreme Court ordered a freeze of Arizona's public financing matching funds system which gives candidates participating in public financing additional funds when opponents spend above benchmarked levels of spending. This means that publicly-financed candidates will be eligible to receive only one-third of the money to which they'd otherwise be entitled.

Letting Corporate Arbitrators Decide if Their Own Decisions are Unfair: In Rent-A-Center, West v. Jackson, the Supreme Court - by the same pro-corporate 5-4 vote lineup of Justices - further closed the courthouse door for individuals abused by their employers. The Court held that employees cannot only be forced to have complaints about racial discrimination or other employer abuses decided by private arbitrators (a reality decided in previous terms), but also that where an employee feels the terms of the arbitration agreement are unfair and unconscionable, it is up to the corporate-chosen arbitrator to decide if the arbitration agreement is unfair. In this case, for example, the arbitration agreement limited claims an employee might bring against the employer, while exempting those claims that Rent-a-Center might raise, and restricted an employee’s ability to gather evidence.

Instead of allowing a judge to decide whether the agreement to arbitrate could be enforced, the Supreme Court majority leaves it to the arbitrator chosen by the agreement alleged to be unfair to decide the issue, cutting off access to the courts even for the most basic threshold issue of whether these arbitrators and the rules imposed are a fair substitute for a day in court.

Privatizing Democracy: So just as corporations now have unlimited rein to use their money without regulation to dominate elections, those same corporations now have de facto have authority to run private courts to decide the legal rights of their own employees without little or no judicial restraint.

Supreme Court’s Deferral to State Authority

However, beyond these pro-corporate decisions, the Supreme Court, often with surprising configurations of majorities, continued its trend in recent years of deferral to state authority in more cases where core corporate interests are not at stake.

States and the Second Amendment: The exception to the trend this year was McDonald v. City of Chicago, which extended the Second Amendment to restrict state gun regulations. But even in that case, the majority went out of its way to affirm that many traditional gun control regulations will still be upheld even where an individual right to keep firearms for self-defense in the home is protected. Since most states have their own constitutional and statutory reasonableness test for gun regulations, the practical effects of McDonald may end up being relatively limited.

Rejecting “Takings” Doctrine: While right-wing constitutional lawyers for years hoped to create a majority to limit most local government land regulations as illegal “takings” under the Constitution, the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection not only rejected a property rights challenge to a state beach-erosion statute, but Justice Anthony Kennedy refused to even give a fifth vote to the proposition that a court ruling could ever constitute a “taking” of private property, a sign that most reasonable land use regulations will be protected from federal judicial second-guessing in the future.

Universities and Groups Excluding Gay Students: In Christian Legal Society v. Martinez, state universities retained their authority to deny funding to student groups that exclude certain students, such as gay and lesbian students, from membership. The Court upheld the University of California-Hastings' policy of requiring student groups to take on "all comers" as a prerequisite to official school recognition as a reasonable and viewpoint neutral restriction.

Public Disclosure of Ballot Initiative Signers: Given increasing use of fraud by those promoting right-wing ballot initiatives, progressives won an important victory in Doe v. Reed, in which the Court held that disclosure of signers of political ballot initiatives did not generally violate the First Amendment (although they might be able to in the future argue that specific harms could lead to some restriction on disclosure in a future case). In a strong argument for respecting state regulation of ballot initiatives, Justices Sotomayor, Stevens and Ginsburg wrote:

These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy “considerable leeway” to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification).

Reviewing Public Employee Text Messages: In a slightly idiosyncratic case, the Court in City of Ontario v. Quon unanimously held that a police department’s decision to review the text messages of employees who exceeded the monthly limit on their office pagers in order to determine whether the monthly limit should be raised was reasonable under the Fourth Amendment.

Criminal Justice

Criminal justice decisions by the Supreme Court invariably combine a combination of invocation of individual rights, discussions of state authority and obscure procedural explorations. While cases this term had few singular disruptions of previous principles, they had a number of clear incremental changes effecting state criminal proceedings. (See this ACLU writeup for an extended list of additional cases).

State Convictions and Immigration: Of import for current debates on the role of states in immigration policy, the court ruled in two cases that courts had to carefully weigh how state criminal statutes interact with federal deportation rules:

In Padilla v. Kentucky, the Court held that attorneys have an obligation to carefully advise their clients of the immigration consequences of pleading guilty. In this case, the defendant– a lawful permanent resident for 40 years who pled guilty to drug trafficking – was incorrectly advised by his lawyer that he was unlikely to face deportation because of his long stay in the United States.
In Carchuri-Rosendo v. Holder, a unanimous Court ruled that defendant’s conviction for possession of a single Xanax tablet without prescription, following an earlier state court conviction for possession of less than two ounces of marijuana, could not qualify as an aggravated felony under federal immigration law, and thus did not render the petitioner ineligible for potential discretionary relief from deportation.

Restricting Miranda: The Court significantly limited restrictions the Miranda “right to remain silent” in a series of cases limiting the Miranda ruling:

In the most critical case, in Berghuis, Warden v . Thompkins, a 5-4 decision of the Supreme Court affirmed that a suspect did not properly invoke his right to remain silent, so statements were properly admitted in court. Justice Sotomayor, writing for four dissenters said, “the Court today creates an unworkable and conflicting set of presumptions that will undermine Miranda’s goal.”
In Florida v. Powell, the Court held that police warnings that a suspect had a right “to talk to a lawyer before answering any questions” adequately complied with Miranda, since the right does not require a particular set of words for police compliance.
In a 6-3 Graham v. Florida decision authored by Justice Kennedy, the Supreme Court found a Florida law unconstitutional under the Cruel and Unusual Punishments Clause where juvenile offenders could be sentenced to life in prison without parole for a non-murder.
In Maryland v. Shatzer, the Court held that police did not violate the law by collecting incriminating statements from a person who had invoked his Miranda rights two and a half years earlier, and that the right against interrogation lasts only 14 days after invocation.

In other key decisions effecting state proceedings:

In Bobby v. Van Hook, Wong v. Belmontes and Porter v. McCollum, the court created a series of new standards for when counsel is so ineffective as to warrant a new trial.
In Presley v. Georgia, the Court concluded that a defendant’s Sixth Amendment right to a public trial had been violated when the public was excluded from the jury voir dire proceedings.
In Holland v. Florida, a 7-2 decision authored by Justice Breyer, the Court agreed that an attorney could harm his client so badly that the defendant’s time to seek habeas must be extended.

Conclusion

Elana Kagan’s likely replacement of Justice Stevens on the Court is unlikely to change the broader trends on the Court and states will continue to face the challenge of reining in the corporate election spending unleashed by Citizens United and protecting access to justice in the courts eroded by the Rent-a-Center case. As People for the American Way wrote in a recent report, Rise of the Corporate Court: How the Supreme Court is Putting Businesses First, “the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations.”

While deferral to state authority has emerged as an increasing consensus among the Justices on a number of issues, lurking in the dissents of the most conservative Justices are even more extreme pro-corporate and right-wing views that with one more ally could push legal doctrine in ways that would completely erode democratic decision-making over economic and social policy. So even the more positive trends on the Court warrant only partial relief, since small changes in personnel in the future could readily enable the more activist impulses of the block of the four most right-wing members of the Court.

Resources:
Progressive States Network - The Supreme Court and the States 2008-2009: Trend Defending State Authority Emerges this Term
Scotusblog - Everything you read about the Supreme Court is wrong
ACLU - ACLU Summary of the 2009 Supreme Court Term
People for the American Way - Rise of the Corporate Court: How the Supreme Court is Putting Businesses First
Alliance for Justice - The Corporate Court

Anti-Tax Forces Lose at Ballot/Split Decision on Gay Unions/Other Election Analysis

Nathan Newman — Thu, 05 Nov 2009 12:30:19 -0500

While the governors' races in New Jersey and Virginia got most of the headlines, other state races around the country delivered a mixed message by voters on a number of issues.

Anti-Tax Forces Continue to Fail at the Ballot Box: The defeat of three anti-tax initiatives that were on the ballot in Washington state and Maine left the anti-tax movement as the big losers of the night -- and this just continues a multi-year string of defeats by the right-wing on tax issues. In both states, voters rejected the so-called TABOR ("Taxpayer Bill of Rights") initiatives that would have created rigid formulas restricting the power of states to raise revenue that would have crippled those states' capacity to provide services like education, health care, emergency services, and public safety. Voters in Maine also rejected a proposal to slash the excise tax on new and hybrid cars, which would have undermined local revenue around the state.

Back in the early 90s, the right-wing managed to pass a TABOR system in Colorado at the ballot box, which had disastrous consequences, including large declines in K-12 funding and increased higher education tuition rates. The measure additionally hindered the state's ability to address the lack of medical insurance coverage for many children and adults (see the PSN Dispatch on "TABOR's Disastrous Record in Colorado"). This led voters to partially repudiate TABOR at the ballot in 2005. And when the right-wing tried to enact TABOR-like initiatives in states across the country in 2006, progressives highlighted fraud in signature collecting in multiple states and the issue was thrown off the ballot in Michigan, Montana, Nevada, Oklahoma and Missouri. On Election Day, voters in Maine, Nebraska and Oregon finished the job in voting down the remaining TABOR initiatives. And in 2008, anti-government tax measures were defeated overwhelmingly in Massachusetts, North Dakota and Oregon. So the 2009 results in Maine and Washington reflect that voters reject the rhetoric of the right-wing anti-tax movement -- a message more elected leaders should recognize as they grapple with budget crises needing new revenue.

Split Vote on Gay and Lesbian Unions: Even as Washington state voters supported a broad domestic partnership law providing many of the legal protections of marriage, Maine voters by a close margin rejected a state law granting full marriage equality to gay and lesbian partners. While the Maine loss was heartbreakingly close, supporters of marriage equality took heart from the fact that 47% of Maine voters supported it, something that would have been impossible even a decade ago. And as we detailed this past Monday, young voters overwhelmingly support marriage equality, so victory is inevitable in coming years. "As a young person in Maine, I actually feel very confident that marriage equality will be the law in our state at some point in my lifetime. I hope it's in the next couple of years," Maine House Speaker Hannah Pingree said.

Voters Continue to Support Public Investments: Despite tough economic times, voters continued to support initiatives to dedicate funding to long-term initiatives for economic growth and environmental sustainability:

In Maine, voters approved a $71 million bond issue for improvements to highways and bridges, airports, public transit facilities, ferry and port facilities, including port and harbor structures that will make the state eligible for over $148,000,000 in federal and other matching funds.
In New Jersey, voters approved a bond act that would authorize $400 million in funds to acquire and develop lands for recreation and conservation purposes, preserving farmland, buying flood-prone or storm-damaged properties, and historic preservation projects.
Texas voters established a "National Research University Fund" to dedicate $500 million to turning seven Texas universities into top Tier 1 research institutions.

Although Gov. Ted Strickland opposed the initiative, Ohio voters, desiring jobs and economic growth, approved casinos in Cincinnati, Cleveland, Columbus and Toledo. Supporters of the measure estimate the casinos will create 34,000 jobs, bring $200 million in licensing fees and generate an estimated $651 million annually in revenue for Ohio. Ohio voters also approved selling $200 million of bonds to provide services and compensation to residents who are veterans of conflicts in the Persian Gulf, Afghanistan and Iraq.

Denver Anti-Immigrant Measure Rejected: Denver voters soundly rejected a so-called car impound initiative, which was designed to target undocumented immigrants by requiring police to seize the vehicles of every unlicensed driver they stop.

Mixed Message for Progressives in Candidate Elections: In New York, a Democrat won a state Assembly seat that no Democrat had won since before the Civil War, even as progressive Gov. Jon Corzine lost in New Jersey. In the recent Virginia Governor's race, the conservative Democratic candidate spent much of his time explaining how he opposed a public option in health care, opposed robust climate change legislation, and opposed reforms to protect the freedom of workers to form labor unions. His subsequent loss highlights an important, perennial message for progressive candidates: when given a choice between a conservative and a conservative Democrat, voters will choose the true conservative.

Results were even more mixed when you look down ballot. New Jersey Democrats held onto their large majorities in the Assembly with little change, while conservatives in Virginia gained a number of seats in their House of Delegates. And conservatives gained majority control of the Pennsylvania Supreme Court by winning a hotly contested race for a state Supreme Court seat. Yet as Progressive Majority details, local progressive candidates did well throughout the country, although progressives lost in a few upscale suburban districts around New York City.

On the Ballot: Defeating TABOR, Defending Relationship Equality Laws & A Roundup of Other Ballot Issues

Nora Ranney — Mon, 19 Oct 2009 14:12:59 -0400

While New Jersey and Virginia are getting a lot of national press for high-profile governors races, the action on state ballots this year is in Maine and Washington, with scattered other issues playing out in additional states.

In both Maine and Washington, right wing groups have the same anti-tax initiative on the ballot and similar efforts to repeal laws giving gay and lesbian relationships protection under state law -- with the same kind of deception and fraud by the same right wing organizations that we've seen year after year in ballot initiatives.

Along with giving a roundup of the range of initiatives on the ballot in this off-year election, this Dispatch will give special focus to the campaigns against TABOR and defending relationship equality laws.

Table of Contents:

- TABOR Resurfaces in Maine, Heads to Washington

- Defending Wins on Same-Sex Relationships

- Fixing the Initiative Process

- Other Ballot Issues in November

TABOR Resurfaces in Maine, Heads to Washington

The right wing anti-tax movement has seen repeated failures in recent years, yet they are again promoting anti-tax ballot initiatives in Maine and Washington. So-called TABOR ("Taxpayer Bill of Rights") initiatives would, if approved, create a rigid spending formula that would cripple those states' capacity to provide services like education, health care, emergency services, and public safety.

In Maine, TABOR failed at the ballot in 2006 but is back again this year with the backing of the conservative groups Maine Heritage Policy Center (which also supported it in 2006) and Maine Leads, which is under investigation for violating campaign finance laws by hiding the identity of its funders. Behind the I-1033 TABOR initiative in Washington, is the ubiquitous Tim Eyman - referred to by many progressives and conservatives alike as a “professional initiative salesman,” who personally profits from his prolific ballot initiative career. Anti-TABOR forces are branding the message "Vote NO on Tim Eyman's I-1033."

Even as communities are postponing and canceling road work because of a lack of funding, Maine voters face an additional anti-tax measure that would reduce funding to roads by cutting the state's excise tax for new and hybrid vehicles. This would be a big tax break for those able to afford a new car, but would force many communities to raise local property taxes to make up for the lost revenue, leading a broad-based coalition called Maine Can Do Better to deem it a similar threat to state prosperity as TABOR.

TABOR's Disastrous Record in Colorado: TABOR passed in Colorado in 1992, leading to terrible results, including large declines in K-12 funding, higher education tuition rates, and hindering the state's ability to address the lack of medical insurance coverage for many children and adults (see our past Dispatch on "TABOR's Disastrous Record in Colorado"). While voters in Colorado partially repudiated TABOR at the ballot in 2005, the legacy of over a decade of TABOR's effects live on in a state ranked one of the lowest levels in K-12 education, drop-out rates, and immunization rates, among other problems.

TABOR uses a rigid formula restricting spending levels based on a simplistic calculation tying spending to population and the consumer price index (CPI). When health or education costs rise more than the specific CPI inflation calculator (as they have in recent years), states have to cut services and programs.

How Coalitions are Fighting TABOR: Broad coalitions of education advocates, health care organizations, community groups, unions and even chambers of commerce have united in both Washington and Maine to oppose to the TABOR measures. The No on I-1033 campaign has highlighted the lessons from Colorado and produced videos detailing personal stories about the likely effects of TABOR. In Maine, the No on TABOR II campaign is emphasizing how TABOR will undermine state efforts to recover from the recession and the campaign brought a number of Colorado Republicans to the state to talk about the damage TABOR did in Colorado.

Defeating TABOR initiatives in Washington and Maine will help stop any trend toward more of these ballot initiatives in the future. In fact, since 2005, TABOR has failed to be enacted in all 28 legislatures where it was introduced, but according to the Ballot Initiative Strategy Center (BISC), any TABOR victories in 2009 could encourage several state legislatures or signature collection campaigns to put it on the 2010 ballot -- the most likely candidates being Arizona, California, Colorado, Florida, Michigan, and Missouri.

While recent polls in both Washington and Maine show narrow leads for the TABOR initiatives, anti-TABOR leaders in both states express confidence that the broad-based coalitions speaking out on its devastating potential effects will win out on election day, as they have repeatedly in other states around the country.

Resources:
Progressive States Network - The Taxpayers' Bill of Goods
No on I-1033
Washington State Budget & Policy Center - Toxic Twins: I-1033 Mirrors Colorado's Corrosive TABOR
No on TABOR II and Maine Can Do Better
Maine Center for Economic Policy - TABOR in Maine
Ballot Initiative Strategy Center
The Bell Policy Center - TABOR
Center for American Progress, TABOR
Center on Budget and Policy Priorities - TABOR: A Threat to Education, Health Care, and Social Services
The Tax Policy Center - "The Economic Effects of TABOR

Defending Wins on Same-Sex Relationships

In contrast to 2006, when the anti-relationship equality movement was on the offensive with a spate of constitutional amendments banning all forms of state recognition for same-sex couples, this year, conservatives are on the defense, having to go to the ballot to try to rollback significant legislative advances in both Washington state and Maine legalizing same-sex unions.

Marriage Equality on the Move: In the 2009 legislative session, four state legislatures (ME, NH, VT, CT) passed bills that were signed by their governors to include same-sex couples in their respective state's civil marriage law. In Washington, since the state introduced its first nondiscrimination bill 20 years ago and passed it in 2006, the legislature has followed up year after year with additional relationship protections that add heft to domestic partnership protections. In both Maine and Washington, conservatives took to the ballot referendum process to rollback those gains:

In Maine, after the crushing blow of Prop 8, by which California voters rejected their state supreme court's ruling to allow civil marriages for same-sex couples, voters are well poised to turn the tide by becoming the first state to defend marriage at the ballot box.
In Washington, voters will be faced with Referendum 71 and decide whether to approve the state legislature's recent expansion of the domestic partnership law to protect couples' right to care for each other, especially in times of crisis.

Deceptive Tactics by the Right Wing: As noted above, initiative campaigns are under fire for ethics violations for fraudulent signature gathering processes. In Washington, signature gatherers for Referendum 71 were caught on video lying to citizens about the law and used deceptive signature petitions in order to trick people into signing their petitions.

While conservative groups like National Organization for Marriage (NOM) are funneling money into Maine, it is a hard sell to argue that the sky will fall with "traditional marriage" surviving quite well in next door Massachusetts with its own marriage equality law (which has existed for over five years). Using the same PR firm as was used in California, the anti-marriage equality campaign is recycling the same threat, that allowing this law to stand would mean altering the eduction system to "promote homosexuality." But a recent poll shows that the public isn't buying it: roughly 62 percent of respondents said they do not believe gay marriage will be taught in public schools if the law is allowed to take effect.

Setting the Stage for Equality Fights in 2010: If marriage equality supporters protects their victory in Maine, that will leave only Rhode Island left to solidify New England as a region for equal civil marriage laws. And while NOM's website talks about fighting marriage equality in "the Northeast and West Coast," they don't seem to want to mention that state legislators refused to repeal civil marriage equality as established by the Iowa Supreme Court or that just this past year, Wisconsin Governor Doyle signed domestic partnerships into law, highlighting that "pro-traditional family" arguments are failing, even in the heartland. In New Mexico, for example, Governor Richardson has pledged to put the domestic partnership issue on the legislative agenda for the 30-day budget session, and other states are moving to enact protections where legally feasible (some states ban any recognition, no matter how small, for same-sex relationships).

Resources:
Maine No on 1 campaign
Washington Approve R-71 campaign
The Task Force - Marriage/Partner Recognition
Human Rights Campaign - about marriage and relationship recognition
Ballot Initiative Strategy Center - LGBT issues on the ballot
Williams Institute at UCLA - economic analysis on Maine - economic analysis on Washington

Fixing the Initiative Process

The high-profile fights on TABOR and relationship equality in both Washington and Maine show how the initiative process has been hijacked in recent years by monied interests, often using the same right wing front groups to try to undermine progressive goals -- and at the least to force progressives to waste money defending them.

As the Ballot Initiative Strategy Center and others have documented, fraud and deception have become all too common in the signature gathering process for state initiatives. Reform of the process is desperately needed to fix the system and assure that initiatives reflect real grassroots concerns and not just those of elite right wing interests playing games with the ballot process.

As we detailed in our Dispatch Reforming the Ballot Initiative Process: Making Direct Democracy Work, there are a number of disclosure and anti-fraud measures that, if enacted, would prevent these kinds of abuses of the ballot initiative process.

Resources:
Progressive States Network - Reforming the Ballot Initiative Process: Making Direct Democracy Work
Progressive States Network - Right Wing Fraud Derails Tax Revolt
Ballot Initiative Strategy Center - Signature Reform Guidelines
Ballot Initiative Strategy Center - The Campaign Finance Reform Blind Spot

Other Ballot Issues in November

While likely to get less national attention, there are other important initiatives on state ballots around the country. BISC has a roundup by state here, but a few key state decisions include:

Bond and Investment Measures: As a likely prelude to 2010, both Maine and New Jersey are moving large bond measures to invest in the state:

In Maine, there is a $71 million bond issue for improvements to highways and bridges, airports, public transit facilities, ferry and port facilities, including port and harbor structures that will make the state eligible for over $148,000,000 in federal and other matching funds.
In New Jersey, a proposed bond act would authorize $400 million in funds to acquire and develop lands for recreation and conservation purposes, preserving farmland, buying flood-prone or storm-damaged properties, and historic preservation projects.

Slate of Texas Constitutional Amendments: A number are non-controversial, but a few would have real impact, including:

Streamlining and equalizing the appraisal process for property taxes;
Protecting public access to beaches on the Gulf of Mexico;
Restricting eminent domain by limiting state and local governments use of eminent domain to promote economic development; and,
Establishing the "National Research University Fund" to dedicate $500 million in a fund to turn seven Texas universities into top Tier 1 research institutions.

Other Ballot Initiative Issues: Additionally, Maine voters will be asked to weigh in on:

Repealing the state's 2007 school consolidation law, which exempted many urban areas and led to opposition in rural parts of the state.
Another initiative would legalize medical marijuana in the state, following fourteen other states that have legalized medical marijuana for the treatment of a host of health problems such as HIV/AIDS, cancer, hepatitis C, and Alzheimer's disease.

Pennsylvania Supreme Court Election: Given the recent history of business groups engineering the takeover of state high courts, there are high stakes in Pennsylvania where ideological control of the high court, currently divided 3-3 between business and consumer-labor friendly judges, will be decided by elections on November 3rd. Labor unions in particular have made the race a priority in both get-out-the-vote and campaign funding decisions.

Resources:
Maine No Bad Roads: Vote No on 2
Progressive States Network - Corporate Influence on State Supreme Courts Show Need for Reform

Reforming the Ballot Initiative Process: Making Direct Democracy Work

Christian Smith-Socaris — Mon, 20 Oct 2008 14:27:22 -0400

Direct democracy through popular intiatives and referenda began a century ago as a grassroots, progressive reform aimed at circumventing corrupt legislatures and increasing civic involvement. The long history of this reform indicates that in the whole this experiment in direct popular participation in the legislative process has been successful as an avenue for passing populist policies that maintains the favor of the public over time. However, throughout this history there have also been attempts, sometimes successful, to manipulate the process and the electorate into passing legislation that would not garner majority support had voters possessed an accurate conception of its content and effect. This Dispatch covers the threats to direct democracy from fraud, manipulation, and a lack of accurate information regarding ballot measures, as well as reforms that can bolster the integrity of initiative and referendum campaigns.

Direct Democracy Under Siege: Increasingly in recent years, a small group of wealthy individuals and powerful interest groups on the Right have been using deception and secrecy to push measures that undermine the interests of the vast majority of people. Often using a menagerie of shadow organizations to hide their identity, these actors manipulate the process in multiple ways: they cloak their financial backing of ballot campaigns, they misrepresent the content and purpose of measures through misleading ballot titles and descriptions, and they commit fraud in the signature gathering process to qualify for the ballot. At every stage the ability of voters to make a well informed choice that reflects their true positions on an issue is undermined and the ability of direct democracy to serve the citizens is diminished.

The extent of these problems grows as the money spent in support and opposition to ballot measures increases rapidly. In 2006 the dozen most expensive campaigns generated a total of $329 million in spending. The most expensive campaign, a renewable energy proposal in California, saw over $150 million in spending alone.

The Ballot Initiative Entrepreneurs of the Right

There are actually a relatively small group of wealthy individuals and rogue signature gathering organizations that work with conservative organizations to push a handful of pet policies around the country. Sometimes they have a vested economic interest in the policy and sometimes they are ideologically driven. Primarily they push measures that attack workers and consumers for the benefit of the few. Two examples illustrate the contours of this problem.

Ward Connerly - A one man crusade against civil rights protections: Perhaps no individual has demonstrated more zeal in manipulating the initiative process to pass policies that are far removed from mainstream opinion than Ward Connerly. Beginning with California Proposition 209 in 1996, he has waged a campaign against any recognition of race in state policies across the nation. And throughout his years pushing measures that gut affirmative action requirements, he has never let the unpopularity of his views get in the way. Instead of convincing voters of his views through persuasion, in state after state he has used fraud to gather signatures in order to qualify for the ballot - misleading voters on the content of the measures, such as convincing voters at a civil rights rally to sign the petition by saying it will "end discrimination," and employing signature gathering organizations that consistently manufacture the signatures they need to qualify.

Connelly's drive to dismantle affirmative action state by state has not abated, but after years of dirty tricks progressives have learned that his use of deception is his biggest vulnerability. This year Connelly tried to put his anti-civil rights measures on the ballot in five states, but in the end his measures qualified in only two. In Arizona, PSN board member, Rep. Kyrsten Sinema, spearheaded a citizen campaign to scrutinize the nominating petitions, which had been circulated by another perpetual bad actor - National Ballot Access. Sinema organized 1,000 volunteers to scrutinize the signatures. In the end over 100,000 suspect signatures were discovered and rejected due to the grassroots effort. Now activists are suing Connelly for fraud and his campaign in Arizona is dead.

National Ballot Access - Making a buck by subverting democracy: National Ballot Access (NBA) is a young organization run by two principals, Mary Edith "Edee" Baggett and Heidi Verougstraete, whose alleged history of signature fraud goes back a dozen years. Having cut their teeth on pro-gambling ballot initiatives and then moved on to tax payer "bill of rights" (TABOR) initiatives, they have recently been retained by Ward Connelly. Just this year this toxic partnership has result in allegations of voters being told they were signing an unrelated petition on eminent domain, and rejected signatures, as well as a referral by the Secretary of State to the State Supreme Court in Oklahoma. Missouri has seen similar accusations of signature gatherers lying about the petition that voters are being asked to sign.

A Failure of Disclosure

The primary weakness in the ballot initiative process that opens the door for manipulation and deceit is a lack of mandatory disclosure. This problem infects multiple aspects of the process:

The content of ballot measures are often obscured by deceptive language and titles, or as described above, signature gathers actively lie to those whose signatures they are soliciting.
The funding for ballot campaigns is shrouded.
The voters are directly manipulated by misleading claims and advertising that distort the content and effect of the measure.

Shrouding donors and misleading voters are also combined when ballot measure proponents or opponents use front organizations with misleading names - such as Citizens for "Blank" to describe a committee completely funded by a single corporation or corporate association.

Voters' Competence Undermined: Voters use many pieces of information to determine whether or not to support a particular ballot measure. Some research the proposals extensively and make informed, reasoned judgments about each measure's worthiness. Others merely rely on interest groups who they trust to make the assessment and follow their recommendations. Still others rely on the media and advertising by proponents and opponents to inform their decisions. When these types are information are limited or voters are fed misinformation, their ability to vote in their own interests is greatly diminished.

This is referred to as a lack of voter competence. And while in a perfect world every voter would be able to educate themselves thoroughly about every measure, research shows that voters with have accurate information about who supports and opposes an initiative vote in a similar manner to individuals with more extensive knowledge. Knowing this, it becomes clear that accurate information about ballot measures and those that support or oppose them are essential to fair ballot campaigns.

Restoring Integrity to Direct Democracy Through Increased Disclosure and Fraud Prevention

Donations to campaigns for political office can be regulated because there is an opportunity for quid pro quo arrangements between donors and candidates, however, initiative campaigns are not vulnerable to the same sort of corruption. Therefore regulating ballot campaign finances is impermissible on First Amendment grounds. Given this restriction the most important reforms for ballot campaigns are to prevent fraud and increase the information voters have to make a reasoned choice.

The following recommendations and best practices have been developed by the Ballot Initiative Strategy Center (BISC).

Thwarting Signature Fraud: Signature fraud consists of both deceiving voters into signing petitions that they don't support, and adding false entries to pad nominating petitions. The widespread nature of these practices became evident during the 2006 campaign to pass TABOR measures in several states, and there has been a significant upswing in this type of behavior in the last few years. BISC has released a comprehensive set of signature reform guidelines that includes:

Regulating Petitioners - Require petitioners to register with the Secretary of State, and to swear lawful gathering of the signatures; only allow voters to fill in the petition; pay petitioners by the hour, not per signature.
Establish Clear Rules - Specify exactly what constitutes signature fraud or forgery, and what the consequences of such crimes are; establish notary requirements; mandate the form of any petition.
Transparency - Give the public access to the petitions.
Accountability - Establish clear accountability for the people who run the campaigns and signature gathering operations through fraud and conspiracy statutes.

If states have clear rules and methods of keeping petitioners accountable, it becomes less likely that fraud will be attempted and when fraud occurs there is a better chance it will be detected and punished.

Mandating Comprehensive Disclosure: While progressives have been active in building campaign finance regulations that prevent corruption, there has been comparatively little work done to enhance ballot campaign disclosure. Yet, disclosure is essential if voters are to get the information they need to competently assess their position on these measures. In particular, knowing who is supporting a ballot campaign is vital for most voters to make an informed choice. This is also true with respect to interest groups themselves as well as the media - they need access to information on the supporters of a measure in order to adequately inform others.

As mentioned earlier, just knowing the name of a committee supporting or opposing a measure is often not very helpful. A committee named Citizens for Prop X doesn't reveal anything about who is behind the measure. What is most helpful is knowing the actual donors - individuals, corporations or other organizations - that are funding the campaign. Few states require comprehensive disclosure. Even in states that require ballot committees to identify their donors, wealthy individuals and groups can often create non-profits or other entities to shield their identities.

However, there is no substantial restraint on mandating disclosure from all donors to a ballot campaign and all spending in support or opposition to the campaign. The only restrictions needed are for individuals who only spend a nominal amount to support the campaign, and for people with a credible fear of retaliation for expressing their views. California has mandated comprehensive disclosure of all donations to ballot initiative campaigns spending more than $1,000 [CA Code Section 82013]. Access to campaign information is so thorough and well presented in that state that I was able to determine in less than 30 minutes that the largest individual donor from New York State (where PSN is located) to the main ballot committee for Proposition 8, which restricts marriage to opposite sex couples, works as a teacher in a Catholic school in the Hudson Valley. This teacher gave nine donations totaling $1,100. Washington stands out for its disclosure practices and easy access to information as well.

Facilitating Public Access to Ballot Campaign Data: Beyond a simple failure to mandate timely and comprehensive disclosure of donations and spending, the biggest impediment to an informed electorate is poor access to the data once it is disclosed. BISC has a thorough assessment of the best practices for giving the public access to ballot campaign data which focus on the following areas:

Timely filing and posting of campaign finance disclosure data, including mandatory electronic filing and stiff penalties for late filing.
Ensuring data quality through clear requirements to provide complete data on not just name, address and donation, but also occupation and employer.
Adequate presentation of the data that includes summary information, various search and sorting options, raw data for researchers to download, and easy to navigate disclosure websites.

Each of these reforms will decrease the power of monied interests to deceive voters and force special interests to be democratically accountable-- exactly the goal of those who created the ballot initiative process in the first place.

Direct Democracy is a Powerful Tool for Driving a Policy Agenda

The rightwing has been very astute in using campaigns to further their agenda. We are all aware of the power that ballot initiatives highlighting right wing social policies (principally anti-same-sex marriage measures) had to drive turnout in the last presidential election. It is not implausible that the national ballot measure campaigns that conservatives waged put President Bush over the top in 2004. These campaigns are also currently an effective way to evade contribution limits in many states, though rigorous disclosure requirements can and should temper the effectiveness of this tactic.

While reform of the initiative and referendum process is sorely needed in the majority of the 24 state with initiatives and popular referenda, it is important to recognize that direct democracy has also been essential to enacting important progressive reforms such as publicly financed elections in Maine and Arizona, clean energy policies, and minimum wage increases in multiple states. If progressives can reform the process in states with weak regulations and disclosure requirements, the attractiveness of ballot measures to monied interests will be greatly diminished, but the utility of initiatives for progressive reformers will remain.

Ballot Campaigns have been used to effectively drive policy agendas and energize the grassroots, both within and across states. However, reform of the process is desperately needed to stop these campaigns from being used as a way to deploy deception and secrecy in passing laws that a well informed electorate would not support. By mandating rigorous disclosure and clamping down on ballot measure fraud, progressives can reinvigorate the initiative and referendum process as an important instrument in the reformer's toolbox.

Resources

Ballot Initiative Strategy Center
Initiative and Referendum Institute at the Univ. of Southern California
California Law Criminalizing Deceptive and Fraudulent Petition Practices
Washington Ballot Measure Disclosure Website
Ballot Initiative Strategy Center - The Impact of the Ballot Initiative Process in America
Ballot Initiative Strategy Center - Signature Reform Guidelines
Ballot Initiative Strategy Center - The Campaign Finance Reform Blind Spot
Garrett & Smith - Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy
John G. Matsusaka - For the Many or the Few