Yes on 57

I’ve been avoiding Proposition 57 because, without having read the text of the law yet, I assumed it would require cross-referencing with the penal code, and I wanted to set time aside to do that.

I was wrong; it does not require such cross-referencing, because it’s actually very, very simple.

Prop. 57 does three things:

[a] anyone in prison for a nonviolent felony is eligible for parole *consideration* after completing the full term for their primary offense.

[b] The Dept. of Corrections and Rehabilitation (“Corrections”) can award good behavior credits.

[c] When kids between the ages of 14-18 commit crimes, instead of being automatically transferred to adult court if the prosecutor follows the procedure needed to do it, will only be transferred to adult court *if a juvenile court agrees to the transfer* after considering the behavioral patterns and social history of the minor.

Prop. 57 is on the ballot at the behest of our Governor, who put it there as part of an attempt to change criminal procedure in the s tate, partly for the purposes of finding a way to comply with a federal court order to reduce prison overcrowding. There’s a good argument that the proposition violates the California Constitution, which requires that initiative propositions be confined to a single subject; the parole-related provisions were tacked on to the juvenile justice change after the initiative was initially submitted, and they don’t really address the same issue. Still, the California Supreme Court said it didn’t violate the single subject rule, and so it’s on the ballot. 🙂

In order to understand the effects of these changes, it’s helpful to look at what happens now. 🙂

===How do criminal sentences and parole currently work?===

Currently, California has two different sentencing schems: “indeterminate sentencing”, in which convicts are sentenced to a variable-length term with a defined minimum and no defined maximum (eg, “25 years to life”), and “determinate sentencing”, in which people are convicted to a fixed term. Prior to the late 1970s, California *only* had indeterminate sentencing, but the stte adopted a determinate sentencing scheme for most offenses during the late 1970s.

For people sentenced to indeterminate sentences, after the *minimum* term is served, the parole board conducts a hearing and considers whether to let the guy out or not. Some people get out; some people don’t get out. The people who don’t get out have another hearing in a couple of years (the length depends on various things). Some people (notoriously Charles Manson and his friends) go to hearing after hearing after hearing and never get out.

For people sentenced to determinate sentences, there is no parole hearing; they automatically get out when their term ends. Furthermore, many non-violent felons serving determinate sentences are currently released at *half* of their prison sentence due to the implementation of a federal court order requiring California to reduce criminal overcrowding.

Some people are sentenced to multiple consecutive sentences because they commit multiple crimes. Consider, for example, someone who was arrested for possessing heroin with intent to sell, but who also had in his possession an amount of cocaine sufficient for personal use. If convicted of *both* offenses, he would be sentenced to two consecutive sentences: one for the heroin, one for the cocaine. As both would be determinate sentences, he would not be eligible for release until he’d served all of both.

=== What does Prop. 57 do to parole? ===

Under the terms of Prop. 57, nonviolent criminals who are sentenced to multiple consecutive sentences because they have been convicted of multiple crimes will be eligible for parole as soon as they have served the time required for their *primary* offense. So, in the example above, the guy would get out when he w as done serving t he time for possessing heroin with i ntent to sell.

=== What are the arguments for and against this part of the proposition? ====

The primary argument *for* this is: the state is under federal court order to reduce prison overcrowding. We’re *not* going to do that by building new prisons (because there’s no money and insufficient political support), and this is one of the lowest-impact ways we can come up with to reduce prison populations: let nonviolent criminals who are in for a long time out earlier.

The primary arguments *against* this are: this will let dangerous criminals loose on the streets of California, and this *in effect* means the criminal isn’t being punished *at all* for his lesser crimes – by punishing him only for the primary crime, the state is allowing him to get away with the other crimes.

The official argument against claims the proposition will reduce sentences for people convicted of raping an unconscious victim, human sex trafficing, lewd acts against a fourteen year old, and other terrible crimes. This is true, but *only* because *existing law* defines these crimes as nonviolent – the initiative doesn’t define nonviolent, it uses the existing definition under state law. That definition can be changed by the legislature at any time.

=== How do early release credits work today? ===

Under state law, inmate sentences can be reduced by a certain amount (it differs among category of crime) for prison labor, participation in education programs, and good behavior. Some prisoners are not eligible due to the nature of their crime.

=== What does Prop. 57 change? ===

Prop. 57 changes the Constitution to allow good behavior credits (which are currently authorized by statute). This will have the effect of increasing the number of people who are able to get them, as it allows Corrections to determine eligibility by regulation (instead of eligibility being spelled out in statute).

=== What are the arguments for and against this part of the proposition? ===

There are two arguments for: (a) we need to reduce prison overcrowding, and (b) rewarding inmates for good behavior, participating in education and training programs, and working *encourages them to do these things*, which both improves management of the prisons AND increases their rehabilitative effect.

The arguments against are: (a) it will let dangerous criminals out on the street, and (b) by extending eligibility to people convicted of various horrible crimes, it reduces the punishment for those crimes, and that’s unfair to their victims and dangerous to the public.

=== How do juvenile justice transfers currently work? ===

Under current law, children aged between 14 and 18, who are accused of cimmitting crimes after they turned 14, are automatically transferred to adult court if they are accused of committing murder or sex offenses with special circumstances, are automatically transferred if a prosecutor alleges that they have a significant criminal history or if they are accused of particular crimes, or they can be transferred via a hearing in front of a juvenile court judge. In 2015, according to the LAO’s analysis, less than 100 juveniles were transferred to adult court via a judicial hearing, and between 500 and 600 juveniles were sent to adult court total.

=== What does Prop. 57 do? ===

Prop. 57 eliminates *all* automatic transfers to adult court and only allows transfers after a hearing in front of a juvenile court judge.

=== What are the arguments for and against this part of the proposition? ===

The arguments for is that allowing a prosecutor to make the decision on their own doesn’t provide sufficient procedural protection to determine whether a juvenile is competent to be tried as an adult.

The argument *against* is that this will allow vicious children to continue to be prosecuted by the juvenile system, which will coddle them and prevent them from learning the lessons needed to keep them from becoming vicious adult criminals.

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For me, the case for the third part is compelling: allowing *prosecutors*, on their own without judicial oversight, to decide that children should be tried as adults is a terrible process. It vests the power to decide someone’s *competence* in the hands of a person whose job it is to *prove their guilt*; it creates an inherent conflict of interest and undermines the integrity of the process.

I’m neutral on the first and second part. I’m not screaming for this reform the way I am screaming for other reforms, *and* I’m not opposed to itt; we really do need to reduce our prison population, and reducing sentences for nonviolent offenders, while providing an incentive for both good behavior and participation in rehabilitative programs seems like it’s a great way to do that.

I’m voting yes.

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Yes on 62

Proposition 62 would repeal the death penalty and replace it with life in prison without parole. It would require that those sentenced to life without parole work while in prison, and increase the percentage of their wages which could be spent on victim restitution.

It absolutely conflicts with another measure on the ballot, Proposition 66 (which streamlines the death penalty process). If both pass, the one which gets more ‘yes’ votes will go into effect. Accordingly, if you are voting in favor of Proposition 66, you should *under no circumstances* vote in favor of Proposition 62.

I know that I cannot be even-handed on this one, so I’m not even going to bother trying,

It is immoral for me to kill a man who does not present an active, current threat to me or the people I love, no matter how angry I am at him, and no matter how much he may have hurt me or those I love in the past.

It is immoral for me and a bunch of my friends to kill a man who does not present an active, current threat to us or the people we love, no matter how angry we are at him, and no matter how much he may have hurt us or those we love in the past.

It is immoral for me and the thirty million residents of the state of California to kill a man who does not present an active, current threat to us or the people we love, no matter how angry we are at him, and no matter how much he may have hurt us or those we love in the past.

For me, the only moral vote on this measure is a ‘Yes’ vote.

Criminals sentenced to live in prison without the possibility of parole do not present an active, current threat to anyone other than their fellow criminals and their jailers.

Thus, the death penalty is profoundly immoral: it is the taking of a life motivated not by the desire to protect from an imminent threat, but rather from the desire to carry out *vengeance*.

I understand that I am in the minority on this issue, and I know that polls say this measure is going to fail. That’s a shame; it’s a moral indictment of the people of my state, and it makes every citizen complicit in a moral crime. But it’s a clear issue: if the moral offense is not clear to you, I do not know how to persuade you.

All I can do is vote Yes, and encourage you to join me.

No on 66

Proposition 66 makes a set of changes to the *government code* and to the *penal code*. Broadly speaking, these changes are intended to streamline the appeals process for someone who has been convicted of a crime and sentenced to death.

Proposition 66 inherently conflicts with another measure on the ballot, Proposition 62, which repeals the death penalty. If both propositions pass, the proposition which gets the larger number of Yes votes will take effect. Accordingly, if you are voting for Proposition 62, you should *under no circumstances* vote for Proposition 66.

—The changes Proposition 66 would make—

* Proposition 66 would explicitly state that *victims of a crime* have a right “to have judgments of death carried out within a reasonable time”, thereby giving victims of crime a recognizable, legal interest in the execution of the person convicted for the crime.

* It would require that all executions be carried out within five years of conviction, and require the state court system to adjust its procedures to make sure this happens

* It would allow the state, the sentenced criminal, or the victims of the crime to sue to enforce the time limit if, for some reason, the appeals process is taking too long. (It’s not clear as a practical matter what the remedy would be when a victim sues to force appeals to move faster).

* It would require that all executions be carried out within 30-60 days of the conclusion of the appeals process

* It would require the Supreme Court to appoint random attorneys to handle appeals for indigent death penalty convicts

* It would change the rules so that any petition for habeas corpus (essentially, an attack on conviction or sentence) be heard *by the court which heard the original case*

* It would require that any habeas petition be brought within one year, unless a court finds that a preponderance of the evidence (whether or not admissible at trial) shows either actual innocence or ineligibility for the death penalty

* It would prohibit a stay of execution for consideration of a habeas petition brought outside the one year, unless a court finds that there is a “substantial claim” of actual innocence o r ineligibility.

* It would require trial courts to resolve habeas petitions within two years of filing

* It would limit issues on appeal to issues raised at trial, except for ineffective assistance of trial claims

* It abolishes special housing for death row inmates and distrubutes them across the general population

* It requires death row inmates to perform prison labor, and directs that 70% of their wages be spent on restitution fines or orders

* It exempts rules and procedures adopted pursuant to Prop. 66 from the Administrative Procedures Act

* It says that *only* the original court can hear claims that the method of execution is unconstitutional

* If a federal court finds a method of execution unconstitutional, it requires that Corrections adopt a new, constitutional method, within 90 days.

* It prohibits any medical licensing board from revoking the license of a doctor who assists the department in carrying out executions

* It makes some hyper-technical changes to the operational rules for the state’s habeas resource center (which provides assistance to indigent criminals).

— There are a bunch of changes there, and mentally, I broadly classify them as follows:

* Some of the changes are directed at streamlining the process and making it run faster (carrying out executions within five years, carrying out executions within 30-60 days of the end of appeals, requiring habeas petitions to be brought within a year and resolved within two years, and requiring speedy adoption of new processes if an execution protocol is deemed unconstitutional).

* Some of the changes are directed at ensuring that only the original trial court is hearing new cases, which presumably both makes things faster (the original trial has the context and already understands the situation and thus doesn’t have to be brought up to speed) and reduces variability in outcomes which might arise as a result of things being heard in different courts

* Some of the changes are directed at making life harder for the death-sentenced, by abolishing death row and requiring the convicts to work

* Some of the changes are directed at increasing victim involvement in the process

* One of the changes cannot be understood without understanding a wide swath of California legal procedure and is included in the measure for reasons I don’t understand.

— Streamlining the process nad making it run faster —

This is the main goal of Proposition 66, and it’s the thing which gets the most discussion in the campaign. *If we are going to streamline the process*, these provisions generally make sense, although one of them is actually impossible to carry out and has a very “Knut commanding the waves to stop” feel about it. (There’s simply no way that a federal court, having ruled the existing execution protocol invalid, will confirm that a new protocol is valid within the ninety day limit set by this proposition – the federal courts don’t work that fast, and the proposition can’t command a federal court to act within a specified period of time. Accordingly, it’s impossible for Corrections to comply with this requirement).

Whether or not you think we should streamline the death penalty really depends on beliefs you bring to the conversation that are not grounded in this proposition per se. If you’re opposed to the death penalty, of course, you should be opposed to streamlining. If you think that criminals have too many rights and are too protected by the state, streamlining makes sense.

For me, on this question, the issue is: can streamlining be carried out in a way that does not decrease the likelihood thatactual innocence will be uncovered? Executing an innocent man, for whatever reason, is a travesty and a stain on the honor of the state; we should go to great lengths to avoid it.

It’s hard to tell. The measure does allow actual claims of innocence to be brought at any time – but by requiring the execution within a short period after the end of appeals and making it harder to get a stay of execution for such claims, it reduces the amount of time for evidence of innocence to be found (which is a real issue in cases that are based on, for example, lying informants). That said, it’s *already* the case that death-sentenced convicts have the best chance to get their claims of innocence heard and analyzed, because there’s a vast army of volunteers interested in helping, and that’s unlikely to change.

The other issue is whether the time limits are realistic. Which is to say: one to two years to hear a case may simply *not be enough time* given the speed at which our system normally operates, and commanding it to operate faster without ensuring that more resources are made available does not seem likely to be successful.

— Requiring only the original trial court to hear new cases —

From what I can tell, these provisions exist under the theory that having the original trial court hear any new cases will result in those cases taking less time because the original trial court is already familiar with the evidence.

But that’s a double-edged sword, because if the claim is *actual innocence*, then the original trial court is way less likely to approach the new evidence with an open mind; the court’s familiarity will incline it to prejudge the new evidence – not through any venality of the court, but through standard human psychology.

— Making life harder on the death-sentenced —

Proposition 66 would abolish death row and send the death-sentenced to the general population. The idea behind this, on some level, is that death row is too *easy* on the death-sentenced.

There may be something to that.

And yet … putting the already death-sentenced in the general population is a *terrible idea*. It’s a terrible idea *for the other inmates* because the death-sentenced have no incentive to behave reasonably in the general population. They’re *already sentenced to die*; what more can the state do to them? What leverage do the wardens have, either carrots or sticks, to motivate good behavior?

It’s a bad idea; it’s guaranteed to lead to problems with prison security.

— Increasing victim involvement in the process —

I don’t understand what the practical effect of these changes is. I mean, say an appeal runs past five years, and the victim’s family sues; what’s the remedy? An order from one court to another court telling it to go faster? How is that enforced?

One answer to this is that the court hearing an appeal could be ordered *to dismiss the appeal* in furtherance of the rights of the victim. But it’s hard to imagine that happening, because that would clearly violate the appellant’s due process rights *under the federal constitution*.

So this set of provisions strike me as being rhetorical sugar whose practical effect is unclear but likely close to nonexistent.

— Stepping outside the Administrative Procedures Act —

The Administrative Procedures Act is a piece of legislation which enforces rules for how state agencies are supposed to operate *procedurally*. It includes rules that have to be followedd when new procedures or regulations are adopted; I do not know the specifics of California procedure law, so I don’t know what the rules are.

Proposition 66 exempts from the APA any regulation or procedure adopted pursuant to Proposition 66.

It’s not clear to me *why*. I assume there are elements of the APA which are perceived as slowing down the process, and so the authors of the initiative want to prevent those parts of the APA from operating, and it’s probably easier to just prvent the entire thing frmo operating than it is to try to piece out which parts to keep and which parts not to.

This strikes me as being a bad idea, both because there’s no good way for anyone voting on it to know what it does *and* because it sets a precedent which will later be used to exempt other things from the APA, too.

— A summary —

There are some things in this measure which, in my mind, should give a strong supporter of the death penalty pause. It moves death-sentenced convicts into the general prison population. It involves victims in the process in a way which is unlikely to have any actual effect but which is going to harm them by increasing their involvement and then disappoiinting them in the outcome. It exempts large parts of the death penalty process from the Administrative Procedures Act, setting a bad precedent.

That *should* be enough, in my opinion, for death penalty supporters to send this measure back and ask for a new one.

I will be voting ‘No’.

No on 59

Proposition 59 is an advisory measure that expresses the sentiment of the public without being binding law.

The measure, if passed, would express the desire of the public for our elected officials to “use all of their constitutional authority” to “overturn Citizens United” and “to allow the full regulation or limitation of campaign contributions and spending” as well as “to ensure that all citizens, regardless of wealth, may express their views to one another” and “to make clear that corporations should not have the same constitutional rights as human beings.”

The official argument in favor of the initiative says that we should vote yes to help get big money out of politics and to correct the Supreme Court’s incorrect ruling in Citizens United. The rebuttal points out that the initiative does nothing because it has no force of law.

The official argument against says that the measureis a big waste of time and taxpayer dollars because (a) it has no legal effect and (b) asks California’s members of Congress to tinker with the first amendment. The rebuttal castigates the “misleading scare tactics” of the opponents and then warns that passing proposition 59 is essential to “PREVENT CORPORATIONS AND WEALTHY SPECIAL INTERESTS FROM BUYING OUR ELECTIONS”, the capitalization of which strongly implies that it’s a scare tactic.

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_Citizens United_ is a Supreme Court decision which held that the first amendment protects the right of corporations and labor unions to spend whatever they want on political campaigns, as long as those campaigns are not coordinated with official candidate campaigns. The abbreviated form of the argument is: the right to free speech and the right to freedom of the press *include* the right to buy advertising and to pay people to speak on your behalf; a limit on independent campaign expenditures is a restriction on the ability to speak, and is unconstitutional.

If you agree *as a policy matter* with the outcome of that decision, then you should vote ‘No’ on Proposition 59, as it’s a clear call for the state’s elected officials to do anything in their power to overturn it.

If, on the other hand, you disagree as a policy matter – whether or not you agree with the interpretation of the first amendment – the initiative looks tempting; the Supreme Court took the policy discussion off the table, and this initiative calls on the state’s elected officials to do what they can to amend the US constitution to put the policy issue back on the table.

That said, there are two strong reasons to *not* vote for this initiative even if you *do* despise _Citizens United_ and its outcome:

(a) it’s an advisory measure with no legal force which does nothing other than bring about political pressure;

(b) taken at face value it asks the elected officials of California to call an Article V constitutional convention, whose exercise of powers cannot be constrained.

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Looking at the two reasons to vote against, in order:

(a) it’s an advisory measure. It has no legal force. The constitution of California does not allow the voters to require its Legislators to vote a certain way, and the Constitution of the United States does not allow the voters of any state to direct federal officeholders in how to carry out their duties as such.

It has *moral* and *persuasive* authority, but probably only on those who were already inclined to behave in accordance with its provisions and who need political cover to do so in districts where they aren’t certain to be re-elected.

California has historically not used the initiative system for this kind of advisory measure; initiatives have always been actual laws or constitutional amendments. If we pass *this* advisory measure, it seems likely that there will be more, and the initiative system will become a method to poll for opinion rather than a way for the people to enact and disapprove of laws.

I think it’s a bad change to the initiative system, and would support an initiative to ban such advisory measures; it’s tempting to vote against this just on those grounds so as to send a clear “do not do this kind of thing” message to the legislature.

But (b) is more important.

——

The plain text of the measure calls upon all of California’s elected officials to use “all of their constitutional authority” to overturn Citizens United. This includes calling upon the Legislature to use its authority to call for a Constitutional Convention.

Under Article V of the US Constitution, one of the ways to amend the constitution is for 2/3 of the states to ask Congress to “call a convention for proposing amendments”.

28 states have currently done so. This measure asks the California Legislature to become the 29th. In theory, many of the 28 states are only asking for *a specific amendment*, and so too would California be; but there *is no mechanism to enforce that*.

A constitutional convention, once called, can propose *any* amendment it chooses. Those amendments must be ratified by the states, it’s true, but the last time a constitutional convention was called, it *explicitly changed the rules for ratification* and the new rules went into effect *as soon as the new rules were followed*.

A constitutional convention, in other words, cannot be constrained; it has the power to do anything it wants.

It is, therefore, a very bad idea. It is a potential revolution unconstrained by any existing rules — and, as a general rule, it’s only good to support a revolution if the current situtation is so untenable that ANYTHING would be better, or if you have real certainty that the outcome of the revoluution will be what you want and the revolutionaries will not be led astray.

I am voting no. Even though I dislike the *policy outcomes* of _Citizens United_, I don’t want to risk the potential of an unconstrained constitutional convention.

Yes on 54

When people who dislike the initiative system argue that it is a terrible system, my default argument back is that the system was intended as a failsafe by people who had fought for more than a generation to overcome effective control of the legislature by a single particularly powerful special interest, and that the initiative system remains one of the best ways to ensure that the people *always* have the power to push an agenda which politicians, for whatever reason, are unable to get behind. This argument has become somewhat less plausible as the signature collection industry has somewhat been captured by special interests, and as the cost of a statewide campaign has mounted to the point where the citizens cannot easily *pay* for a campaign to persuade one another without reliance on big donors; but it remains a useful power, even if it has been diminished.
It is particularly useful when it comes to things like Proposition 54, a populist reform of *the way the legislature does business*. The legislature would never, on its own, done what this initiative tries to do; it is too revolutionary a change to the working of the legislature for the legislature, absent a throw-the-bums-out style revolution, to pass it without external pressure. (The legislature *did* pass a version of it this year, but only as an attempt to persuade the author of the initiative to withdraw it).
Proposition 54 makes the following changes to the rules governing the legislature:
* it amends the state Constitution to say that any person attending a public meeting of the legislature may record the meeting (with audio or video) and broadcast and transmit the recordings, subject to rules regulating placement of equipment;
* it amends the state Constitution to require that, beginning January 1 2018, the Legislature itself shall record all public meetings and make the recordings available on the internet for no less than twenty years;
* it amends the state Constitution to say that no bill may be passed unless the bill, with any amendments, has been published on the internet (in its final form) for at least 72 hours before the vote on the bill, unless the Governor has specifically said that this bill is necessary to address a declared state of emergency and the legislature concurs with that assessment by a 2/3 majority vote.
* it amends the Government Code to repeal a prohibition against using recordings of the  Legislature for political or commercial purposes.
* it specifically requires the Legislature to continue to comply unless the initiative is declared unconstitutional by an appellate court, and requires the AG to act to preserve standing if the initiative is challenged in court and the AG declines to defend i t.
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The legislative analyst optimistically estimates that it will cost the legislature  about $1 million a year to record its proceedings and host the video online. I’m not sure how that was calculated, as I expect the bandwidth use to be large, AND at the end of the day, *cost* isn’t really a reason to vote for or against this measure; even the worst case scenario for costs will render them a rounding error (although given the other constitutional limits on legislative expenses, there *might* be an issue with cost-of-hosting-videos crowding out other legislative expenses).
From what I can tell, there are basically two questions to consider with respect to this initiative:
* does repealing the prohibition on political and commercial use of legislative video run the risk that committee hearings will be selectively quoted out of context in political attack ads, and thereby force politicians to increase theirr tendency to use hearings for political posturing rather than actual work? Relatedly, does the repeal on *commercial* use increase the likelihood of really crass commercialization of floor speeches?
* does increasing transparency overall serve the public good, or does it make compromise more dififcult and thereby produce less good policy outcomes?
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Let’s look at the last of those questions first, in the context of a specific provision.
Requiring that the text of a bill be available *to the legislators* for 72 hours before the vote is an obvious no-brainer — right now, the *legislators themselves* aren’t guaranteed to get copies of the text with enough notice to allow them to read the thing before voting on it, a fact which raises real questions about what the legislators are basing their votes on.
Posting it *online*, however, is a different issue. The intent seems to be to provide the public (specifically, watchdog and activist groups who have the time and staff to monitor these things) to read the bills and react to them by pressuring politicians not to vote for them in the window between publication and vote. This will increase the degree to which the legislators are responsive to the policy preferences of the activist groups doing this – whether or not that is a good idea depends on how representative the groups are of the interests of the population as a whole, and on the degree to which these groups believe in compromise in the interest of the public good.
At the level of democratic theory, this is an obvious win: the people have the right to know what their legislators are *going to do* in the name of the people, and have the right to use political pressure to keep the legislators in conformance with the will of the people.
And yet in practice, it may not work out as well as theory says it should. There is some evidence from other contexts that increasing transparency reduces the scope for compromise; and the nature of the 72-hour notice requirement is that it will allow well-funded or well-organized groups to notice and object to things while only *in theory* providing the same benefits to less well-funded and less well-organized groups. It *may* have the result of transferring more effective power into the hands of special interests.
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Looking to the first question second: one of the reasons the Supreme Court is adamantly opposed to allowing cameras in the courtroom is that it believes that snippets of recordings of oral arguments will be used, out of context, to mislead people for political purposes, and that this will result in the justices, over time, using oral arguments to posture for political purposes instead of using them as indirect ways of persuading one another. There are ways to reduce the risk of this, and prohibiting the use of such recordings in political advertisements is a good start – but it’s really not clear if such a prohibition would be constitutional; if freedom of speech means anything, it means the ability to make political arguments.
Some of the opponents to Proposition 54 have a similar fear about its effects: by explicitly repealing a prohibition in state law that prevents the use of video of legislative meetings in political ads, the proposition creates a situation where statements can be taken out of context, used to mislead, and used to punish people for making compromises.
The argument on the other side, of course, is that this is simply a way for the people to keep their agents in line, and to use documentary evidence of malfeasance to hold legislative agents accountable.
(In theory, there’s a similar argument about allowing video of legislative action to be used for commercial purposes – some company using video of the legislature to sell its goods or services would be demeaning to the legislature, but it seems unlikely; politicians aren’t held in high enough esteem for such a campaign to be effective. *More likely*, though, is someone using out-of-context snippets from a legislative hearing to attack their competition).
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I’m deeply, deeply conflicted about this measure.
I think there’s a real risk that video of legislative debate will be misused in misleading ways, and I think that the 72-hour public notice provision empowers those with the time and resources to keep track of legislation, which is a discrete, already quite priviliged, minority of the population. I think it’s a way for special interests to make it harder for legislators to escape their grasp, and it’s a way to make it easier to detect, and punish, compromise and deviaiton from the party line.
And yet.
Right now, it’s basically impossible for legislators to read what they’re voting on before voting on it (and in some cases, it’s apparently impossible for legislators to even get copies of bills before voting on them). That’s *utterly broken* as a matter of process, and it must be fixed.
So the question is: which is more important? Preventing the problems I see with the initiative, or ending the current system under which, in a very real sense, legislators can’t do their job?
I’m coming down – narrowly – on the side of the latter, and so accordingly I’m planning to vote ‘yes’. But it’s not as clear cut as I thought it was when I first heard of the initiative.

Yes on 50

Proposition 50 changes the state Constitution to explicitly allow each house of the Legislature to suspend a member (without pay) by a two-thirds vote of the house in question. Suspendded members cannot perform the duties of a Legislator (such as voting on bills) and cannot exercise the rights of a Legislator.

Under the terms of Proposition 50, in order to suspend a member, the house must pass a resolution doing so via a two-thirds majority vote. The suspension can be time-delimited, OR, alternatively, it can be indefinite, in which case it can be ended by another two-thirds majority vote of the Legislature.

Note that under the literal language of the text, the Legislature *cannot* end a time-delimited suspension early. It can provide a specified time limit, OR it can vote to reinstate, but the text does not allow a reinstatement vote if there is an explicit time limit.

—-

Currently, the state constitution explicitly allows *expulsion*. However, the *rules of each house of the legislature* allow suspension *by a majority vote*. Suspended members are not allowed to vote or take legislative actions, but they DO draw full pay.

So one part of the net effect of this ballot measure is to *make it harder for the Legislature to suspend members*, because it increases the (statutory) threshold of 50%+1 to a (constitutional) threshold of 2/3.

The other part of the net effect of this ballot measure is to deny suspended members their paycheck, thereby saving the state a small amount of money and removing the public relations problem of a Legislator getting paid while not being allowed to work.

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This proposition is on the ballot because it amends the constitutional rules governing Legislative procedure and, therefore, can only be amended by ballot measure.

The Legislature voted to put this measure on the ballot because, in 2014, three Senators were suspended after they were accused of felonies. The fact that this happened at all was politically embarassing, and the fact that the Legislators continued to get paid was even worse; and at the same time, Legislators were understandably unnerved by the discovery that a simple majority of each house could deny any legislator the ability to do their job – this hasn’t been abused in the past, but past results are not guarantees of future performance.

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As far as I can tell, there are two major issues that should influence how one votes on this measure.

[1] Should the legislature have the power to suspend, rather than expel, its members? What’s the argument for suspending rather than expelling?

I agree with the ballot pamphlet argument against that giving the legislature the power to *suspend* rather than *expel* gives the legislature the power to deny a district effective representation (because expulsion would require a new election but suspension would not). But the argument on the other side is that legislators are just as deserving of the rights of due process as anyone else, and so while it might make sense to *suspend* someone who is accused and under suspicion of grave crimes, it would be unfair to *expel* them prior to conviction.

For this, I think, it really depends on how you weigh the balance between the interests of the *people* in effective representation and the due process interest of the legislator. I’m inclined to value the people’s interest more highly, and that makes me think suspension is not a good procedure and that indicted legislators should simply be expelled; and at the same time, I recognize that this increases the risk of politically motivated spurious indictments, which could be used to deny the people effective representation almost as effectively as spurious suspensions.

[2] Is it a reasonable thing to increase the threshold for suspension from simple majority to two-thirds?

The legislature is *already* suspending memberrs, and that’s not going to stop absent a constitutional amendment banning the practice. If, like me and the arguments of the ballot handbook’s argument against, you think this is dangerous because of its potential for abuse, then you should be *in favor* of increasing the threshold – it makes suspending legislators *harder*. It’s way more difficult to abuse a power that requires a 2/3 majority threshold to invoke than it is to abuse a power that requires a simple majority to invoke.

If, on the other hand, you think the legislature is rife with corruption and that the legislature doesn’t do enough to punish its members already, then raising the threshold ought to strike you as a bad thing; it makes it harder for the Legislature to suspend members.

[3] Many people will focus on the issue of legislators getting paid while they are suspended. I agree that it’s optically bad for a legislator who can’t work to get paid; but there are other situations where osmething similar happens and, fundamentally, it’s a minor issue for the state budget. I basically think this is a red herring being used to gin up emotional support for the measure by getting people to focus on their emotions a round people getting paid for not working rather than focusing on the procedural and structural issues.

I *do* think there’s a valid *due process* question — essentially, I’m not convinced it’s fair to a Legislator to suspend their pay because they’ve been a ccused, but n ot convicted, of a grave crime. That’s not enough to get me to vote against, but it’s enough to give me pause.

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I will be voting *yes* on Proposition 50, because it makes it more difficult for the Legislature to suspend members and provides a constitutional procedure to replace the ad-hoc proceddure in the legislative rules.

A question about Caetano v. Massachusetts

Yesterday, the Supreme Court issued a two-page unsigned opinion resolving a dispute between the Commonwealth of Massachussets and Jaime Caetano, who had been prosecuted for possession of a stun gun. The Court ruled that the law prohibiting stun gun possession violated the second  amendment.

In the brief discussion, the Supreme Court dismissed an argument made by Massachusetts. Massachusetts had argued that stun guns could be prohibited under an old common-law rule allowing prohibition of items which are “dangerous per se at common law and unusual”.

That’s a fine, and reasonable rule; there’s a difference between weapons (which are protected by the second amendment) and random dangerous things (such as, say, containers of ricin, or suitcase nukes).

But where exactly does that line lie? The Supreme Court didn’t get into it, because Massachusetts had conflated “unusual” with “in common use at the time of the Second Amendment’s enactment”, a standard which result in a second amendment that functioned as the first amendment would function if it were held not to apply to the internet because the authors of the first amendment couldn’t have imagined computers.

Yet it’s an interesting and important question. What’s the line between an unprotected dangerous per se object and a protected weapon?