Silicon Valley venture capitalist Tim Draper’s initiative to split California into three states, being marketed as Cal 3, qualified for this year’s November ballot. The idea is problematic.

What the three proposed California’s would look like. Credit: Los Angeles Times graphics

But before we dive in to the what if’s of what happens after it passes, or the big if that is if it passes, it needs noting that there is a strong chance that this could not be on November’s General Election ballot even though it received the number of signatures necessary to qualify.

That’s because this initiative is ripe for pre-election review by the California courts, according to McGeorge professor and elections expert Mary-Beth Moylan. And not only is it ripe for review by the courts, but she thinks the likelihood of the courts throwing the initiative out – that is, removing from the ballot – is very high. Here’s her reasoning for that, from an interview that she gave to KCRA 3 News in Sacramento:

The California Constitution gives people the initiative power to make laws. This isn’t really enacting a law. This is attempting to alter the boundary lines of the State of California and to create essentially two new states … The California Constitution itself says that the boundary lines for California are those that were set at the time of the 1849 (state) constitution. Any attempt to change that provision, I think, would amount to a revision, which people don’t have power to make revisions. The only way the constitution of California can be revised is if the Legislature sets a constitutional convention or proposes revisions to the people.”

The first question that comes to mind is, if this initiative passes, could California actually split into three states? The short answer is yes, but I’d be remiss if I didn’t say that there is a very wide gulf between could happen and would happen.

Article IV, Section 3 of the U.S. Constitution reads: “no new States shall be formed or erected within the Jurisdiction of any other State … without the Consent of the Legislatures of the States concerned as well as of the Congress.” So, the constitutional ability to split California exists. There is even precedent for a state to be created by splitting off from another state.

In 1863, West Virginia became a union state after delegates from Union-supporting counties in the northwestern part of the wanted to break off from the Confederate state of Virginia. Should all the necessary hurdles be cleared, splitting California “would be the first division of an existing U.S. state since the creation of West Virginia” according to John Myers at the Los Angeles Times. But the circumstances are worth emphasizing here. The creation of West Virginia happened during the Civil War when a portion of a Confederate state decided to leave and join the Union. These circumstances are not at play today.

That leads to the Congressional hurdle, which appears to be insurmountable given the current Congress, assuming the initiative passes in November. The three proposed states are divided up along existing county lines. When you look at which counties are in each proposed state, it looks like the U.S. Senate would easily add three more Democratic Senators (in addition to current Senators Feinstein and Harris), a proposition that would not go over with Republicans.

But, for the sake of argument, say the initiative passes, Congress approves, it clears every legal hurdle it faces, and California indeed splits into three states. Can Cal 3 deliver on the benefits it says passing the initiative will reap? Let’s take a look at a couple:

  • Lower taxes – The promise is that “Cal 3 would encourage each state set lower tax rates.” For one, taxes are not mentioned at all in the proposed initiative that was submitted. So to claim that the initiative encourages the new states to lower taxes is dubious. Further, there’s no guarantee that elected officials in Northern California (likely to be predominantly from the San Francisco Bay Area and Sacramento) or in California (predominantly from Los Angeles) would set tax rates lower than they are currently.
  • Local Identity, Autonomy, & Diversity – The promise is “Rather than being managed remotely – and ineffectively – from Sacramento, each state will have the autonomy to make choices based on the most pressing needs and opportunities closest to home.” Considering that 56 of the Legislature’s 120 members come from either Los Angeles County or the Bay Area (19 members of the Senate and 37 members of the Assembly) it’s fair to be concerned that other parts of the state aren’t having their voices heard when weighed against the clout of these two dominant urban population centers. But again, the way Cal 3 divides California doesn’t do much to ease that concern. The new California would be dominated by elected officials from Los Angeles over those from the other central coast counties and Northern California would be dominated by Bay Area and Sacramento electeds over those from the rural north of the state.

There will definitely be money on both sides of this fight. Tim Draper, obviously, support is it and Democratic consultant Steve Maviglio is leading the effort to oppose and has been doing so for months. While there is definitely enough sentiment supporting the idea to split up California that Draper thinks it’s a worthwhile use of time and money, I don’t the votes – at the first step of passing the initiative or at the second step of getting the votes in Congress to sign off on this – for the plan to come to fruition.

This post was updated as of 8:45am on 6/14/17 to include a quote from McGeorge Professor Mary-Beth Moylan on the likelihood of the initiative holding up to legal challenges.

The Lobbyist/Legislative Staffer Dynamic with Chris Micheli and Erinn Ryberg (transcript)

https://soundcloud.com/capimpactca/the-lobbyistlegislative-staffer-dynamic-with-chris-micheli-and-erinn-ryberg

Today’s podcast is a conversation between two familiar voices here on CAP·impact – veteran lobbyist Chris Micheli and veteran capitol staffer (turned lobbyist since recording) Erinn Ryberg – talking about one of the most critical dynamics in the California Legislature, the working dynamic between legislative staffer and lobbyist.

The two walk through how that dynamic plays out over the course of California’s legislative process, from bill introduction through the committee process to the floor. They talk about how different offices will staff bills differently, and how that can affect the dynamic between staff and lobbyist.

It’s a freewheeling conversation that takes a comprehensive look at how to establish a solid working relationship between staffer and lobbyist, and how the power dynamics between lobbyists, staffers, and members play out in California’s legislative process.

It’s been a while since we’ve heard from our two Legislative and Public Policy Clinic students, Michelle and Keri. While there isn’t a new interview with them up … yet, there is an update on their bill, AB 1784.

Last week – June 1 to be specific – was the house of origin deadline in the California Legislature. That means that any bill introduced in the Assembly needed to be passed off of the Assembly floor, and any bill introduced in the State Senate needed to passed off of the Senate floor by the end of business on June 1.

I’ll let this tweet from Assembly Member Brian Maienschein tell you what the fate of AB 1784 was in the State Assembly.

If anything, Asm. Maienschein is underselling the support for the bill, which passed the Assembly with a vote of 78-0 with no abstentions.

It’s first stop in the State Senate is the Senate Committee on Human Services. But before we get to that next hurdle, we’ll check back in with our intrepid bar exam studiers on the lead up to the floor vote in the State Assembly.

 

 

 

Influences Shaping California Legislation (transcript)

https://soundcloud.com/capimpactca/influences-shaping-california-legislation

Today’s topic is influences shaping legislation in California.

Influencing legislation is a pretty complicated business, and there isn’t any particular model to basically predict whether a bill that is introduced in the California legislature will become law, and if so, what sort of form it would actually take. What we do know is that there are a number of different influences that impact and shape legislation in the state of California.

Our discussion today is looking at some of those factors that are worthy of our consideration, especially in light of developing any sort of legislative advocacy strategies.

When capital observers look at whether legislation will make it through the process, they look at a couple of initial questions. What is current law? That is obviously a legal question. What should be the law? That could be both a policy and/or a fiscal question. And then naturally, what are the politics of that situation that will impact the legislation? That’s naturally a political question.

All of these will have an influence on the shape of the legislation but there are a half a dozen or so particular factors that could impact and form legislation.

Those factors include:

  • The legislator’s political party affiliation
  • The needs and interests of the legislator’s district and constituents
  • The position of Leadership – the Assembly Speaker and the Senate Pro Tem
  • The position of interest groups that are either particularly friendly or unfriendly with the legislator
  • The legislator’s personal philosophy
  • How that legislator’s colleagues might vote on a bill
  • What ties does the legislator have with the bill’s author? Are they from the same party? Geographic regions? Etc.
  • The rules affecting the bill – rules in the house of origin, both houses, and certainly constitutional or statutory rules.
  • The Governor’s position on the bill

I go into more detail about how each of these influences can factor in to whether or not a bill becomes law in the podcast. I hope you enjoy.

Early returns are in from yesterday’s primary election here in California. Below is a recap of some key statewide races and some of the key Legislative and Congressional races with my thoughts on what last night’s results mean for the election in November. Unless otherwise noted, all the numbers referenced are courtesy of the hard work of the team at the Los Angeles Times (as of 10:00am) which has a running tracker of election results in California.

Governor

Lt. Governor Gavin Newsom (D) and businessman John Cox (R) advance to the General Election. While Cox has the support of President Trump and can self-fund his campaign. Newsom, who has been running for the job since 2015, has a sizeable war chest and California’s demographics on his side.  Democrats outnumber Republicans in California by nearly 2 to 1 (closer to 1.77 to 1), and as of May 21, there are more No Party Preference voters in California than Republicans. Newsom is currently ahead of Cox by a little under 300,000 votes, despite sharing the ballot with three other major Democratic candidates. Despite what President Trump thinks, I’d expect Newsom to strike Lieutenant from his job title and become California’s next Governor in November.

U.S. Senate

2018’s U.S. Senate race will be a repeat of 2016 as two Democrats will face off in November. Incumbent U.S. Senator Dianne Feinstein has a sizeable advantage in terms of campaign cash and name ID over former State Senate Pro Tem Kevin De Leon, as evidenced by Senator Feinstein garnering 3.89 times as many votes as De Leon. This looks to be a replay of the Hillary/Bernie fight in 2016. I’d expect Senator Feinstein to keep her job.

Insurance Commissioner

Steve Poizner looks to be the first major No Party Preference candidate to make it to the General Election under California’s Top Two rules. Granted Poizner has previously held the Insurance Commissioner post and was formerly a Republican. Should Poizner be successful in his bid for Insurance Commissioner, he may be paving the way forward for more moderate Republicans looking to make an impact at the statewide level. He’ll face off against Democratic State Senator Ricardo Lara in November. Less than 25,000 votes currently separate the two, but Lara did have competition from fellow Democrat Asif Mahmood. This will be an interesting race to watch come November.

Gas Tax Proxy Fight

State Senator Josh Newman faced a recall election for voting in favor of the gas tax increase last year, and it appears that his yes vote will cost him his job. Voters favored the recall to the tune of 59% and will send former Assembly Member (and opponent of Josh Newman in the 2016 State Senate race) Ling Ling Chang to the State Senate to replace him.

The recall was viewed by many as a proxy fight for the upcoming repeal of the gas tax that will be on the ballot in November. Results here indicate that the new taxes and fees that are guaranteed to go to fixing California’s roads and bridges are in jeopardy with momentum currently favoring the repeal effort.

#MeToo at the Ballot Box

SD 32 Special Election – In the Special Election to fill out the rest of former State Senator Tony Mendoza’s term (he resigned earlier this year just before his colleagues were going to vote to expel him) came in third. In the primary election to determine who will take the seat for the new term, Mendoza is in fourth and more than 6,400 votes behind second-place finisher Bob Archuleta.

Special Elections in AD 39 and AD 45 – Democrat Luz Rivas came out ahead in the special election to replace Raul Bocanegra, who resigned last year. Rivas also came in first in the primary election for the next term.  Similarly, Jesse Gabriel (D) came in first in the special election and primary election to take over for Matt Dababneh, who also resigned.

AD 58 – Asm. Cristina Garcia (D) came in first in her primary, with Republican Mike Simpfenderfer close behind her in second. Garcia just returned to the job after taking an unpaid leave of absence from her position while allegations of sexual harassment against her were investigated. The investigation determined those allegations to be unfounded, although that result is being appealed.

The Fight to Flip the House

CD 10 – Democrats have been eyeing Rep. Jeff Denham’s seat as one to flip for as long as he’s held it, and an overabundance of Democratic candidates in the district could lead to them being shut out of the general election. Democrat Josh Harder currently sits in second, but leads Republican Ted Howze by 850 votes. The combined vote total for Democratic candidates was 31,308 – 6,600 more than Denham received. Had Democrats coalesced around just Harder instead of fielding six candidates, Denham would be biting his nails instead of Harder.

CD 22 and 25 – Incumbent Reps. Devin Nunes (R – CA 22) Steve Knight (R – CA 25) look to be safe. Both pulled in over 50% of the votes last night. Although Katie Hill, currently in second against Rep. Steve Knight, can coalesce the party support and get a boost from voters looking to put more women into office, she could give the incumbent a run for his money.

CD 39, 45, 48, 49, and 50 – These races in Orange and San Diego counties were where Democrats faced the serious possibility of having no candidates in the General Election, despite these districts going for Hillary Clinton over Donald Trump in 2016. That’s because a glut of Democratic candidates nearly created a circular firing squad situation. Instead, it appears Democrats will have candidates on the ballot in November in each of these races. CD 39 and 49 are open seats and will be very competitive. The races in CD 48 and 50 feature embattled incumbents and should also be competitive. Of these five races, Rep. Mimi Walters (R) in CS 45 seems the safest, but all of these will be closely contested races and could be key in determining control of the U.S. House of Representatives.

 

In preparation for today’s Primary election in California – PSA: Don’t forget to vote – we are releasing a quick background of each of the Constitutional Officers and what they actually do in the California government.

Today, we are covering California’s Governor. Our current governor is Edmund G. Brown, known more commonly as Jerry Brown.

Most voters know about the Governor and some of the basic duties he or she has, however, there are some interesting lesser-known powers held by the Governor.

First, the Governor’s most well-known duty is signing into law bills passed by the California State Legislature. However, in contrast to the President of the United States, the California Governor has a pocket signature, meaning if the Governor fails to sign or veto a bill within the time allotted, the bill is passed and automatically becomes law without his or her signature. Conversely, the U.S. President has a pocket veto.

Obviously, the Governor has the power to veto bills passed by the California State Legislature. Vetoes can only be overruled by a two-thirds vote in both houses of the Legislature. He or she can also can also “line item veto” specific items within a bill or the state budget while leaving other items intact.

It is very rare that a Legislature will override the Governor’s veto. In California, “A veto override is a full-frontal assault on a governor’s authority, […] the political cost of taking on a governor usually far outweighs the policy gain that would come from overriding their veto,” said Thad Kousser, a political science professor at the University of California, San Diego. The last time the Legislature overruled a Governor’s veto was during Governor Brown’s first administration in 1979, where the Legislature overruled Governor Brown’s veto to give state workers a 14.5% pay hike.

The California Constitution allows for the Governor to assign and reorganize functions among executive officers and agencies and their employees, unless the executive officers are elected. The Governor is also granted the power to control the militia and pardon people facing conviction in California. Of course all of these powers are subject to statutory limitations made by the California Legislature.

The Governor must also report to the Legislature each calendar year on the condition of the State – known as the State of the State address – and may make recommendations on future legislation. These recommendations happen regularly, such as when Governor Brown spearheaded the campaigns for a Rainy Day Fund for the next economic recession in 2014.

Within the first 10 days of each calendar year, the Governor is legally required to submit a balanced budget to the Legislature. In turn, the Legislature is legally required to adopt a balanced budget by midnight on June 15 of each calendar year.

Molly Alcorn contributed to this post.

 

 

 

An In Depth Conversation on Capital Lawyering Courses (transcript)

https://soundcloud.com/capimpactca/an-in-depth-conversation-on-capital-lawyering-courses

Today’s post is the final post in my series on the Capital Lawyering coursework offered at McGeorge School of Law. My previous posts in this Capital Lawyering series have looked specifically at the Intro to Capital Lawyering  – soon to be called Capital Lawyering and Policy Making – and Lawmaking in California courses offered at McGeorge. To close out the series I sat down with Jon Wainwright and we talked about some of the different specifics of the courses.

For example, we talk about the background of the adjunct professors who teach McGeorge’s Capital Lawyering courses. Intro to Capital Lawyering/ Capital Lawyering and Policy Making is taught by the former Chancellor of the California Community College system, Tom Nussbaum. My co-teacher of the Lawmaking in California course is the Legislative Counsel, Diane Boyer-Vine.

We also talk about what makes the Capital Lawyering coursework unique compared to more traditional law school courses. One example of that uniqueness is that the Lawmaking in California course isn’t held at the law school’s campus, but rather at the State Capitol, and Jon and I trade anecdotes about how being in the Capitol towards the end of session can make the dynamics in the building more interesting for students.

It was a fun conversation and an interesting way to wrap up my series on Capital Lawyering. If you are thinking about going to law school, and are also interested in working in or around California’s state capital, be it in the California Legislature, or at a lobbying firm, or in house at a company or trade association, or a State Agency, I encourage you to listen to this series of podcasts.

In preparation for California’s upcoming Primary election, we are releasing a quick background of each of the Constitutional Officers and what they actually do in the California government.

Today, we are covering California’s Lieutenant Governor, currently Gavin Newsom.

Former California Lieutenant Governor, and former California Governor Gray Davis, had this to say about the job, “There’s no denying that the official responsibilities of the lieutenant governor are more modest than some other constitutional offices – the English call it an ‘heir and a spare.’”

Similar to the Vice President of the United States, the Lieutenant Governor is President of the Senate but can only cast a vote to break a tie. This is an uncommon occurrence. The last two times it was used were in 1996 in favor of a Domestic Partners Registry over same-sex marriage and in 1975 in favor of legalizing certain previously outlawed adult intimate relations. Also, during an absence of a Governor such as absence from the state, death, resignation, or impeachment, the Lieutenant Governor will act as Governor.

The Lieutenant Governor also serves as the chair on several boards such as the three-member State Lands Commission, a rotating position with the State Controller, and the California Commission for Economic Development. He or she also sits on several boards, such as the University of California Board of Regents, California State University Board of Trustees, California Ocean Protection Council, and the California Emergency Council.

The Lieutenant Governor also has the implied power of the bully pulpit. So while the official duties of the LG are limited to Acting Governor when the Governor is absent and casting a tie breaking vote in the Senate, the LG can use their position to argue for their preferred policies. For example, Newsom authored the Report on the State of Higher Education in California in order to promote a new education policy. He also vocally supported the legalization of recreational marijuana in 2013.

However, even current Lieutenant Governor Gavin Newsom has joked about the irrelevance of the job, borrowing a joke from former Secretary of State John Kerry, describing the position as “Wake up every morning, pick up the paper, read the obituaries, and if the governor’s name doesn’t appear in there, go back to sleep.” Others agree with the sentiment. “With all due respect to that office, anybody who holds it has a fate almost worse than death,” said Larry Gerston, a political scientist at San Jose State.

Since the state’s birth in 1850, only two Lieutenant Governors have been elected governor. The remaining Lieutenant Governors who rose to Governor were due to an absence of an elected Governor. The last Lieutenant Governor elected to Governor, Gray Davis, was recalled and replaced by Arnold Schwarzenegger.

Molly Alcorn contributed to this post.

In preparation for California’s upcoming Primary election, we are releasing a quick background of each of the Constitutional Officers and what they actually do in the California government.

Today, we are covering the California Attorney General.

The current Attorney General is Xavier Becerra who was appointed by Governor Jerry Brown to finish the term of U.S. Senator Kamala Harris after her election to U.S. Senate in 2016.

The Attorney General is classified as the chief law officer of the State and is sometimes colloquially referred to as California’s “Top Cop.” The Attorney General is required to see that the laws of the State are uniformly and adequately enforced. They have direct supervision over every District Attorney, Sheriff, and other law enforcement officers. Whenever any law of the State is not being adequately enforced in any county, the Attorney General must prosecute any violations of law of which the superior court has jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney.

The Attorney General represents the People of California in civil and criminal matters before trial courts, appellate courts and the Supreme Courts of California and the United States. He or she also assists District Attorneys, local law enforcement and federal and international criminal justice agencies in the administration of justice.

It is also the duty of the Attorney General to manage programs and special projects to detect and crack down on fraudulent, unfair and illegal activities that victimize consumers or threaten public safety. A well-known example of this being Megan’s Law, which requires a publicly available registry of specified sex offenders.

The Attorney General, like the Secretary of State, is also involved in the State Ballot Measures.  Once a proposed initiative measure has been written, the proponents of the initiative must submit a draft of the proposed initiative measure to the Attorney General. He or she will then prepare a circulating title and summary of the main purpose and points of the proposed initiative measure as required by the California Elections Code § 9001(a). The Attorney General also initiates a public review process for the measures and submits the measure to the houses in the Legislature.

Molly Alcorn contributed to this post.

In preparation for California’s upcoming Primary election, we are releasing a quick background of each of the Constitutional Officers and what they actually do in the California government.

Today, we are covering California’s Secretary of State. California’s current Secretary of State is Alex Padilla, who was elected in 2014.

While some other Constitutional Officers have clear parallels at the Federal level, such as Governor and Lieutenant Governor, the California Secretary of State (SOS) has little similarity to the U.S. Secretary of State. The Federal Secretary of State is appointed, rather than elected, and is responsible for serving as the President’s principal adviser on U.S. foreign policy, conducting negotiations relating to U.S. foreign affairs, supervising the Foreign Service of the United States, and other foreign policy work. The California SOS has none of these powers. Their duties are solely related to the State of California.

As the chief elections officer, the California SOS tests and approves all voting equipment for security, accuracy, reliability and accessibility. The SOS also ensures election laws and campaign disclosure requirements are enforced. He or she also provides information to the public via voter information pamphlets on upcoming ballots and other elections within the state.

For example, Padilla championed the Power Search (and made it available in Spanish), which is a user-friendly search engine that accesses state-level campaign contributions ranging from 2001 to the present as reported to the SOS. Padilla also started the full online California Voter Registration system to increase voter registration through easy accessibility.

He or she is responsible for providing the public information on how to file a statewide ballot initiative. Upon request by the ballot initiative proponents, the SOS will review the measure with respect to form and language clarity and submit for a fiscal analysis. Once the measure is submitted to the SOS with signatures, the office will then review signatures to verify their validity. Once the signatures are determined valid, the SOS will notify the proponents and county elections official and submit as eligible for the ballot.

The SOS also registers businesses in the state and commissions notaries public. He or she also keeps the state’s key documents including the Constitution and Great Seal, and keeps the state archives.

The Business Programs Division of the SOS’s office registers and authenticates business entities and trademarks in California. Business must register within the state for tax purposes and other legal reasons. Trademarks, while registered in the United States Patent and Trademark Office, must be brought to the state government for review by attorneys and state officials for approval.

The Notary Public Section appoints and commissions eligible notaries public, who are state officers that certify and witness signatures on official documents. A notary public in California must go through training and registration through the Secretary of State’s office.

Molly Alcorn contributed to this post