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Will Prop. 8 End California’s Democracy?

Prop 8 trial

Rick penned this op-ed to take a broad view at what implications today’s hearing at the California Supreme Court on standing may have on the entire political process in general. Stay tuned to P8TT later today for coverage of the hearing. Coverage starts at 8:30 AM PST -Adam

Cross-posted at

By Rick Jacobs

Foes of marriage equality will make a ludicrous argument before the California Supreme Court on Tuesday. They will assert that anyone who has the money to put an initiative on the ballot in California and then sufficient funds to advertise its way to passage, whether relying on facts or fear, has special “standing” before the law.

This hearing is not about Prop 8, but about the role of special interests and the wealthy in our democracy. California Governor Hiram Johnson paved the way for a people’s initiative process in 1911 – exactly 100 years ago. The idea then was that the people could petition to vote, thus going over the heads of big business interests that virtually owned Sacramento. Then, it was the railroads. Today, it’s Kaiser, Blue Cross, Chevron, PG&E, Amazon or anyone else with unlimited funds.

But the initiative process was corrupted over the decades. What began as a fine tool for the people to have their say became the “initiative industrial complex” funded and fueled by the very special interests whose control over government the initiative process should check.

Here’s how it works. In 2008, the sponsors of Prop 8 had a maximum of six months to gather 694,354 petition signatures of California citizens to put the measure on the ballot. In order to assure enough valid signatures are submitted, at least a million would have been obtained. This cannot be done online. The task is so difficult that the last time an initiative qualified without using paid signature gatherers—those fine people you see outside of grocery stores with stacks of petitions—was 1982.

According to a recent report from the non-partisan Center for Governmental Studies, “Large contributions, wealthy individuals and high spending organizations dominate elections, stripping initiatives of their grassroots origins. One recent California election cost over $330 million, and wealthy contributors of $1 million or more gave two-thirds of all monies received by initiative committees.”

The initiative process is so tainted that campaign consultants and even the signature gathering firms themselves often promote ballot measures because it’s good for their businesses.

Indeed, at this writing, has already spent $5.25 million to put a referendum on the June 2012 ballot that would exempt Amazon from collecting sales tax, even though retailers with a physical presence in this state – WalMart, BestBuy, Target and everyone else—has to do so whether they sell online or in person. Amazon seeks to buy a law that benefits it and it alone.

Five years ago, the Courage Campaign tried to put an initiative on the ballot to reform the initiative process, but we could not raise the money to do so. If that sounds ironic, it is.

What does all of this have to do with Prop 8 and Tuesday’s hearing? Everything and more.

Here’s the practical application of the Prop 8 sponsors’ argument. Suppose PG&E succeeded in qualifying a ballot measure that benefitted only PG&E. And suppose it spent millions of dollars on that self-interested campaign and won. Imagine that PG&E used lies and deception to win, that there was no funded opposition because big companies have unlimited funds with no checks on them (Amazon is trying this right now). And then suppose that an aggrieved party, perhaps a ratepayer, sued to overturn the law that PG&E bought and paid for.

By the time of the suit, assume the governor, attorney general and other statewide office holders have clearly realized that the public has been duped and that PG&E should not be defended by the state, that to do so would contravene the elected officials’ duty to those who elected them.

Guess what? If the proponents of Prop 8 win on Tuesday, PG&E would be entitled to appeal that law all the way to the Supreme Court, even if it lost in lower court and the state chose not to defend the law. This big business would have the legal standing to fight for a law that it paid to put in place.

By the way, PG&E did all of the above in June 2010. It narrowly lost its ballot fight, but it could just as easily have won.

Do we really want the crooked initiative process to open itself to anyone with money not only being able to contort and lie, but then to have special rights in courts that you and I do not have?

The irony about this whole matter is that the folks at who put Prop 8 on the ballot used the infamous frame, “Gays and lesbians should have equal rights, but not special rights.” In their terms, that must mean that gays and lesbians should not have the equal right to marry, but should have the special right to argue cases that others don’t.

If the State Supreme Court grants standing to, not only will millions of lives remain in limbo as the merits of the Prop 8 case are decided, but the state of California will have made its final descent into feudal politics, one in which the rich can buy laws and a place in court while the rest of us just stand idly by and watch the California Dream fade into the sunset.


  • 1. peterplumber  |  September 6, 2011 at 7:44 am

    I originally posted this on another thread, before Rick's article was posted here, but this comment belongs attached to Rick's article.

    We must remember that today's court case is not about Prop 8 and same sex marriage, although the outcome will have great impact on this case.
    What today's hearing is about will have long term effects in California for the initiative and referendum process. I am not of fan of the I & R process in general, so I am hoping for "no standing", but with regard to Prop 8, I am hoping for standing so the case can go to a higher court for an official stamp of "Unconstitutional".
    Personally, I do not believe a sponsor of an initiative should have standing after the official ballot vote on the initiative. No matter the subject of the initiative. That whole process is flawed. It may have worked in the early days, before mass communication, but the public, in general, is not educated enough to be voting on law in general and specially constitutional changes. The general populace simply does not understand the long term implications of some of the things put to vote in ballot measures.

  • 2. dwpiper  |  September 6, 2011 at 7:47 am

    Having read the briefs submitted to the California Supreme Court, I find it difficult to conceive of the possibility of the Court recognizing the proponents of an initiative having any special right to act on behalf of the State. I just hope the Court sees it the same way…

  • 3. RocheDen  |  September 6, 2011 at 7:58 am

    @PeterPlumber – There is another case that will serve the interests of the gay and lesbian community by requiring a Supreme Court decision with regard to equal rights to marriage. (It has been brought by a lesbian in the Northeast who was required to pay over 300K in estate taxes even though she was married legally to her spouse that died.) A ruling that the proponents of Prop 8 have 'standing' in this case would be an awful outcome for all citizens of California including the gays and lesbians.

  • 4. Ken L  |  September 6, 2011 at 8:07 am

    At issue is not whether the ballot proponents have standing at all, but whether they have standing to appeal. The proponents already were given an opportunity to defend the law at the trial court level. Prop 8 has received a hearing at the trial court level.

    I am surprised that this editorial has omitted this important piece of information and it further perpetrates that the by not giving the backers of Prop 8 standing in appellate court, that elected officials can circumvent the will of the people. This is not the case.

    The backers had an opportunity to defend the law in trial court. This case is only about whether the state has a right to say that they don't want the case to go any further beyond the trial court determination. There are many reasons why a state would not want to have an appellate court ruling on case. In fact, the state might actually agree with the backers of a proposition, but do not want the precedent of an appellate court ruling which would require other court's to follow the same precedent. Whether to appeal a case should be left in the hands of the government, not a private party.

  • 5. Michael in Oregon  |  September 6, 2011 at 8:12 am

    Good luck today! I am trying to find the website for the trial today. Does anyone know what the address is?

  • 6. Michael in Oregon  |  September 6, 2011 at 8:16 am

    ugh….Just saw the link in the email from AFER. Sorry !

  • 7. Reformed  |  September 6, 2011 at 8:22 am

    Due process has already played out. Elected officials decided not to appeal and that is to me the equivalent of appealing with the intent of not succeeding in that appeal (without wasting the courts time). Question: If elected officials had "appealed" with the intention of solidifying the lower court ruling, would portcte position be materially different? Would they be limited to filing a "friend of the court" brief?

  • 8. Gregory in SLC  |  September 6, 2011 at 8:23 am, click on "live webcast"

  • 9. Prop 8 Trial Tracker &raq&hellip  |  September 6, 2011 at 8:32 am

    […] in court when the governor of California and the attorney general decline to do so. As Rick wrote in an op-ed this morning, the ruling, which is required to come within 90 days from today, could have broad […]

  • 10. Ronnie  |  September 6, 2011 at 8:40 am

    Subscribing & sharing……

    Wisconsin Rep. Tammy Baldwin Enters Race for Senate, Would Be First Out Gay Senator: VIDEO

    [youtube tkjldDw2nB0&list=FLDVVpbKWtxZQirssNF5bbHw&index=2&feature=plpp youtube]

  • 11. Gregory in SLC  |  September 6, 2011 at 9:05 am

    1 hr to go for hearing….in meanwhile. more census dissection.

    "Salt Lake City not so Conservative?"

    p.s…why is this in the "entertainment" section?! DOH!?

  • 12. Regan  |  September 6, 2011 at 9:47 am

    What happened to the protection of a minority from the tyranny of a majority? Gay people, globally and historically are a PERPETUAL minority.
    And there has been nothing more tyrannical than the kinds of discriminatory laws that have denied HUMAN rights, let alone civil and equal ones.
    Unlike special interests in which it is sometimes a matter of culture, tastes and class: this is about laws fueled specifically by animus and libel against gay people.
    Who are a part of all classes, tastes and cultures.

    Seriously, the Constitutional protection that guarantees this, should have nullified Prop. 8 to begin with.
    Perhaps a legal scholar or someone better versed in Constitutional law can clarify.

  • 13. Ann S.  |  September 6, 2011 at 1:54 pm

    It was a very interesting hearing today.

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