by David Gastwirth
This week’s Road to the White House examined the merits and criticisms of an upcoming California ballot measure, Proposition 35 – the “Californians Against Sexual Exploitation Act” (CASE) Initiative. Coming into the panel, I really could not understand how there could be strong opposition to tougher sanctions against perpetrators of human trafficking – both the commercial and sexual forms. The initiative would more than double maximum prison sentences, increase fines, allocate more resources to victims, toughen monitoring and reporting requirements for sex offenders, and improve training for law enforcement professionals. Additionally, Prop 35 would shield victims of human trafficking from prosecution for criminal offenses they perpetrate under duress – such as prostitution – and prevent the sexual history of victims from being introduced in legal proceedings. And the list of seemingly “good” things that the ballot measure would do goes on and on.
My thoughts quickly turned to a frustration that I have had with California since I arrived from the East Coast: the preponderance of ballot measures and the state’s seeming obsession with direct democracy. After all, the endless stream of television commercials both championing and deriding ballot measures that span the spectrum of integers and letters is dizzying. This election, in addition to Prop 35, I am being asked to weigh in on the termination of the death penalty, modification of the “three strikes” law, establishment of mandatory food labeling, imposition of limits on corporate and union political contributions and political fundraising, and enactment of two different tax increases aimed at generating additional education resources. There are several other state ballot measures . . . and I didn’t even get to Los Angeles County’s Measure B, which would mandate condom usage in adult films. The full length of the voter guide to this year’s state measures approaches 150 pages! One of today’s panelists remarked that ballot measures can be a burden for voters; I must agree.
There is no shortage of critics when it comes to direct democracy, particularly its California manifestation. The Economist produced a special report on the topic in April 2011, focusing on how the proliferation of ballot measures in California set the stage for the state’s precarious financial situation. Andreas Kluth offers the following perspective: “For what is unique about California is not its set of challenges (pupils, pensioners, prisoners, to list just the Ps), which differ in scale but not in kind from those elsewhere. It is its brand of democracy….” Proposition 13 – a dramatic taxation reform measure passed by a 2-1 margin in 1978 – is credited (read: faulted) with setting the stage for the modern era of governance in California, both for its substantive impact on public finance (a highly centralized system of funding) and profound influence on the political process (renewed interest in ballot measures as a mechanism of policy influence). One statistic reported in the article is quite telling: the total cost of California ballot measures in a given election went from $9 million to $127 million in the decade following Prop 13. Kluth concludes: “The initiative culture as it exists in California today may thus resemble James Madison’s worst nightmare. Passions are inflamed rather than cooled. Confrontation replaces compromise as minority factions battle one another with rival initiatives.” Pulitzer Prize-winning author David Broder echoes these sentiments in Democracy Derailed: Initiative Campaigns and the Power of Money (2000: Harcourt). Broder takes particular exception to the escalating costs of getting a measure on the ballot – “the cost is so great that, with rare exceptions, only the wealth can apply” (p. 68). So much for empowering democracy.
But I hate to be so negative about direct democracy. I strongly support the movement’s high ideals and efforts to foster an engaged citizenry. And when in Rome, do as the Romans do (rephrased for this purpose, when in Troy, do as the Trojans do). The University of Southern California boasts several of the leading scholars of direct democracy in the world (including Provost Elizabeth Garrett), and its Gould School of Law is home to the Initiative and Referendum Institute (IRI). A 2004 piece in the Annual Review of Political Science co-authored by John Matsusaka, President of IRI and Charles F. Sexton Chair in American Enterprise at the USC Marshall School of Business, addresses some of the key questions and controversies surrounding direct democracy. Some of the findings are quite surprising. For example, they conclude that average voters can, in fact, obtain the information they need to make informed decisions about ballot measures, and exposure to ballot initiatives may facilitate greater political engagement. Additionally, moneyed interests, most notably business groups, do not enjoy a clear advantage in passing ballot initiatives (although money does have a demonstrable effect when combating measures and money is critical in the petitioning process). Other interesting ideas presented in the paper are that ballot measures (or the threat thereof) have a strong indirect effect on policy by motivating legislative behavior and that taxation and spending restrictions passed via direct democracy are not linked to the issuance of debt.
Turning back to the case of Prop 35, I still wondered: Is California – specifically its legislature – so dysfunctional that it could not muster the political (bipartisan) will or professional competency to pass a piece of legislation that seemed so reasonable and necessary? Or are Californians so impulsive and impatient – or maybe distrustful of their traditional institutions of government – that they think they must put the law to popular vote in a time, place, and manner that they see fit? I’ll be honest, the idea that Prop 35 resulted from immense concern and commitment on the part of Californians – or a small group of backers of the measure, more specifically – never even entered my mind.
I very much looked forward to hearing from the panelists, which included Chris Kelly, Founder of Safer California Foundation & Former Chief Privacy Officer of Facebook, D’Lita Miller, Trafficking Survivor & Family Support and Outreach Coordinator of Saving Innocence, and John Vanek, Retired Lieutenant of the San Jose Police Department Human Trafficking Task Force. At first glance, it was quite unclear to me who would serve as the dissenting voice. But John Vanek, a member of the U.S. Department of Justice’s Anti-Human Trafficking Planning Committee and leading human trafficking educator, made a strong case for opposition to Prop 35. Most notably, he called Prop 35 “a shotgun approach to a complex issue.” Some of the criticism he outlined included the lack of statutory language mandating jail time for human traffickers, the impractical (in terms of adequacy of time and appropriateness of venue) training requirements, and the conflation of “sex predators and those who exploit for commercial gain; both terrible acts, but two very different things.”
The list of opponents to the measure is quite illuminating, ranging from several of the state’s leading newspapers to the Exotic Service Providers Legal Education and Research Project (which authored the official opposition statement). The reasoning for that these groups provide is rather interesting. After lamenting the increased enforcement and litigation costs associated with the measure, the Exotic Service Providers Legal Education and Research Project says the following on their anti-measure website:
“Rather than working with sex worker communities to stop real human traffickers, far-left ‘feminist’ radicals and far-right religious conservatives promote the flawed Proposition 35. They hope voters who read ‘trafficking’ will be deceived into supporting their futile crusade against the ‘world’s oldest profession’ by further criminalizing people connected with consensual adult prostitution.”
The Los Angeles Times emphasizes different points in their denunciation of Prop 35. The paper points to past precedent in suggesting that California’s government has the capacity to craft effective human trafficking legislation: “There is plenty of evidence that California’s Legislature is too timid or cowardly to deal with a variety of problems, but human trafficking is not one of them.” The piece goes on to elucidate why a ballot measure – compared to the legislative process used for related human trafficking laws – is particularly ill-conceived:
“These laws were adopted after hearings and testimony, consultation with law enforcement and legal experts, drafting and redrafting. They are designed to take apart the problem systematically and in the context of other criminal laws. Although they deal with separate aspects of the trafficking problem, together they form a comprehensive and — importantly — evolving approach.
Ballot measures, by contrast, are notoriously inflexible, engrafting into law provisions that cannot be changed — without yet another initiative — as drafting flaws come to light, experience provides useful guidance and data pile up to show which practices are effective and which simply make us feel good.”
My unequivocal support for Prop 35 quickly turned into extreme frustration for substantive dimensions of the initiative and the initiative process itself. In the panel discussion, John Vanek commented that the panel represented his first interaction with the sponsors of Prop 35, and remarked that he would have liked to discuss some of his issues with the ballot sponsors at an earlier stage of the process. This shocked me. Here we have a law enforcement professional from one of California’s largest cities with deep policy expertise on this very specific issue that was not even consulted in the crafting of the proposed legislation. And then it hit me. Maybe the ballot measure results from the entrepreneurial quest (for power, fame, or moral high ground) of a rich guy – Chris Kelly of Facebook, to be more specific. According to the latest figures, he has donated $2.36 million – nearly 5X that of the next most generous donor, a law enforcement group – to the cause.
The New York Times published a story on October 16, 2012 with the title “California Ballot Initiatives, Born in Populism, Now Come From Billionaires.” The Economist special report traces the roots of this phenomenon: “Proposition 13 had made Mr Jarvis a celebrity. He graced magazine covers and made a cameo appearance in ‘Airplane’, a 1980 film. Hollywood types, Silicon Valley tycoons and other big egos took note and started their own initiatives.” Some of the most expensive ballot measure examples are clearly driven by financial self-interest. For example, Microsoft billionaire Paul Allen financially backed the passage of Referendum 48, which provided his newly-acquired Seattle Seahawks with $300 million in public funds for a stadium. In fact, Broder reports that Allen even donated $4 million for the state to hold the special election. In this year’s crop, Prop 33, described by the Los Angeles Times as a “billionaire’s attempt to influence public policy,” stands out as a classic case of entrepreneurial ballot measure politics with a business interest. George Joseph, head of California’s 4th largest car insurance provider, has donated more than $16 million to change rate setting criteria through the initiative process. Arnold Schwarzenegger gave $2 million in gifts to help pass Prop 49 – a 2002 measure which expanded public funds for after-school programs. According to Dan Morain, this performance bolstered Schwarzenegger’s political prospects by directly connecting him to public policy in the eyes of the public. But Broder asserts that ballot measures, even those like Prop 35 that seem altruistic, humanitarian, or unselfish, are the product of highly motivated, wealthy individuals; “Whether their motivations were financial or ideological, they had mounted this Populist warhorse and were riding it hell-for-leather to achieve their own purposes” (p. 167).
So where does Chris Kelly and Prop 35 fit into this? Do we have a case of a wealthy individual trying to flex his financial muscle to gain notoriety or demonstrate power? Thad Kousser, a political scientist from UCSD, offers the following analysis of Kelly’s efforts in The New York Times article: “It could be something that makes Chris Kelly say: ‘Hey, I brought you this initiative. It was backed by 80 percent of the people, and this is going to help launch my career.’” Chris Kelly clearly has political aspirations; he stepped down as Facebook’s Chief Privacy Officer to launch his unsuccessful bid for the 2010 Democratic nomination for California Attorney General. But Chris Kelly also clearly has a passion for the issues addressed by Prop 35. While still at Facebook, he worked with New York State lawmakers to craft legislation that would have reduced Internet-facilitated sex crimes. According to Laurel Rosenahll of The Sacramento Bee, Kelly tried to gain legislative support in California for tougher Internet monitoring and regulations for sex offenders. When the effort stalled, Kelly joined forces with Daphne Phung, a longtime activist and founder of California Against Slavery. Further efforts as passing legislation proved futile; Rosenhall says that Assemblyman Tom Ammiano, Chairman of the Public Safety Committee, took particular issue with the free speech implications, and “Legislators under pressure to downsize the state’s prison population were not interested in taking on measures that could lead to longer sentences.” As a result, Prop 35 was born.
Money plays a prominent role in politics today. Just as the panel was discussing Prop 35, Donald Trump took to Twitter to announce his $5 million contribution to President Obama’s preferred charity in exchange for the release of his college records. But Chris Kelly is not another Donald Trump. Trump tries to use his financial largesse to inject himself into politics, but he is too afraid to “put his money where his mouth is” and actually run for public office. Donald Trump’s actions poison the well. Chris Kelly tried to work with California legislators and actually ran for Attorney General. Thus, I do not think that Chris Kelly is trying to drain the well. For better or worse, the initiative has become an integral part of how public policy gets made in California. It would be naïve to believe that money – and people who possess lots of it – would not play a prominent role in this dimension of governance. And, as the research shows, wealthy individuals may succeed in getting measures on the ballot, but money often does not translate into voter approval.
California General Election, November 6, 2012 Official Voter Information Guide
The people’s will by Andreas Kluth via The Economist, April 20, 2011
Democracy Derailed: Initiative Campaigns and the Power of Money by David S. Broder, Mariner Books, 2001
Initiative and Referendum Institute (IRI)
DIRECT DEMOCRACY: New Approaches to Old Questions by Arthur Lupia and John G. Matsusaka, Annual Review Political Science 2004. 7:463–82
Proposition 35: A shotgun approach to a complex issue by John Vanek via No on Proposition 35 – The CASE Act on WordPress.com
Additional Resou[r]ces via No on Proposition 35 – The CASE Act on WordPress.com
ESPLERP Project Inc.
Los Angeles Times ENDORSEMENT: No on Proposition 35, October 10, 2012
KCET Presents Election 2012 – Who’s Funding Prop 35, the Human Trafficking Initiative? Prop 35 Funding: Total Contributions, by Donor
California Ballot Initiatives, Born in Populism, Now Come From Billionaires by Norimitsu Onishi via The New York Times, October 16, 2012
Prop. 33 is billionaire’s attempt to manipulate public policy by Michael Hiltzik via Los Angeles Times, October 21, 2012
KCET Presents Election 2012 – Who’s Funding Prop 33, the Auto Insurance Pricing Initiative? Prop 33 Funding: Total Contributions, by Donor
Schwarzenegger Got Tribal, Union Funds for Prop. 49 by Dan Morain via Los Angeles Times, September 6, 2003
Many California ballot measures spurred by legislative inaction by Laurel Rosenhall via The Sacramento Bee, September 10, 2012