Foes of marriage equality will make a ludicrous argument before the California Supreme Court on Tuesday, Sept. 6. 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 about five 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 grocery stores with stacks of petitions -- was in 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, Amazon.com 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 benefited 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, and 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 that 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 ProtectMarriage.com 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 ProtectMarriage.com should have the special right to argue cases that others don't.
If the State Supreme Court grants standing to ProtectMarriage.com, 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.
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