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E-166 - Thursday, September 19, 2019
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RECENT AURAL PLEASURE:
TRUMP TAX RETURNS: Lawsuit information page for SB 27 (McGuire and Wiener): Primary elections: ballot access: tax returns.
MONEY MATTERS: This is the space where I'll be looking at interesting contributions to party committees or non-capped "ballot measure" committee accounts affiliated with legislators. Standard contributions to candidate committees up to the 2020 limit of $9,400 for primary and general are not included.
IN TODAY'S NOONER:
Happy Thursday! On this day in 1893, New Zealand became the first country to grant women the right to vote in national elections. The United States followed 1920 after the ratification of the Nineteenth Amendment.
The consolidated Trump tax returns cases are before Judge Morrison England at the Eastern District of California in Sacramento at 10am for a hearing on the motions for preliminary injunction. It may be the only substantive courtroom argument before the March 3 ballot is finalized in December. Anyway, I'm running over there shortly and won't cover all items on my scratchpads today.
Today is one of those hearings in which I have no idea how quickly the courtroom will fill up, so I'm trying to get there as close to when it opens at 9am as possible. Today after the jump I'm re-running my July 12 item on SB 27 (McGuire and Wiener), edited.
NEWSOM PADDLES TO THE LEFT: As we've talked about here and has been widely reported elsewhere, relationships between Governor Gavin Newsom and legislative Democrats soured at the end of the legislative year. Some of it was over "goal post moving" on the vaccinations bill, a he-said, she-said version of events. The biggest frustration was over the late political push by most Central Valley water interests against Senate President Pro Tem Toni Atkins's SB 1, the "Trump defense act."
Such interests got the attention of Washington, DC Democrats including Senator Feinstein and four Valley House Dems communicated in a letter as the legislative deadlines approached. Newsom sided with the requests to oppose because of deference to the stricter California Endangered Species Act rather than the federal Endangered Species Act (ESA), which proponents of SB 1 argue is being "rolled back" with science more favorable to the incidental takings of endangered and threatened species. Opponents of SB 1's water/ESA provisions argued that two key races--CA10 (Harder) and CA21 (Cox) could come down to how California Democrats handled SB 1.
SB 1 was going to be parked as a two-year bill after a reported meeting between Newsom, Pro Tem Atkins, and Speaker Anthony Rendon. Newsom did not want it (and has said he will veto it). However, he did want a plastics reduction bill (SB 54/AB 1080) and communicated that if the Legislature sent him SB 1 and a plastics bill, he would veto the former and sign the latter to be in good graces with environmental interests.
After the 5:14pm assault in the State Senate chamber, many folks pointed fingers at Newsom for not tempering the protests after he signed SB 276 and SB 714 and nothing could be done through protests in the Capitol. Some went as far as flat out blaming him for directing the California Highway Patrol to be unusually lax to protestors, who became increasingly aggressive before shutting down the Senate for hours on the last night of the legislative year.
A whole book can be written about this legislative year and there are many sides to the various stories.
That all being said, Newsom was working back in good graces with his fellow Democrats. Yesterday, he signed AB 5 (Gonzalez), the bill addressing the SCOCAL decision in Dynamex, relating to the definition of "independent contractors" and "employees." Unlike hundreds of bills passed by the Legislature but still in the administrative "enrollment" process between the Legislature and the Governor's desk, AB 5 was fast-tracked. Rather than a large public rally-style bill signing with hundreds of labor supporters, he held a quiet signing ceremony with author Lorena Gonzalez (D-San Diego) and supporters in his office.
He was also omnipresent as The Golden State's "defender in chief" against the Trump Administration as President Trump held a fundraising swing through Palo Alto, Beverly Hills, and San Diego and as Secretary of Housing and Urban Development Ben Carson visited San Francisco and Los Angeles' Skid Row to highlight the state's homeless problem.
As this was occurring, it was announced that the Environmental Protection Agency would withdraw the waiver granted to California during the Obama Administration to allow the state to set higher fleet fuel economy standards than federal requirements. I wrote about this yesterday and, since I have to run over to the federal courthouse, won't repeat it today.
What's important is that Newsom was on several news shows over the last couple of days blasting the federal waiver withdrawal that allows California to impose higher emissions standards. In doing so, he pointed out that the majority of automakers had agreed to follow California's standards and more would but for a threat of antitrust actions by the federal government. Newsom claimed that the Trump Administration was not acting on behalf of automakers or their employees, but rather the oil industry. Trump repeatedly argues that higher emissions standards make less safe cars because they are lighter. In the end, the same number of vehicles may be made with automakers looking to reduce the weight of the average vehicle in their fleets (that's how emissions standards work, as an average within a automaker's fleet).
In short, enviros felt pretty awful around 3am Saturday when the gavel came down on the first year of the 2019-2020 legislative session. There was blame to go all around and they were even more frustrated when Newsom put his SB 1 veto threat in writing without further discussion about how it could be signed with additional tweaks next year.
Yesterday, the same enviros saw Newsom as the defender in chief of California's generally nation-leading environmental standards. Sure, there is still frustration but they say the governor blasting President Trump in the strongest non-profane words as possible. Labor came out of the day with a hard-fought victory on AB 5, an issue that will certainly be reopened next year.
While the saying is much different than used in the Pete Wilson Administration with the dominance of Democrats in the Legislature that has led to more of a foocus of divides within the party, yesterday was definitely a case of "Paddle on the right, paddle on the left, and you'll go in a straight line."
LET THERE BE FLIGHT: Yesterday, Janet Napolitano announced at the UC Regents meeting that she would step down from her post as President of the University of California in August 2020. From who I have talked to, there are conflicting sources as to whether she was pressured to step down or doing it on her own accord. Here's the quote from Cal's release:
“My time at UC has been deeply gratifying and rewarding. I have been honored and inspired every day to serve this institution alongside incredibly dedicated, passionate people,” said Napolitano, the 20th president and first woman to lead the university. “The decision was tough — and this moment, bittersweet — but the time is right.”
Her announcement made it clear that she wasn't doing it for retirement, health or family. She is expected to stay in the East Bay, as she is a tenured faculty member at Berkeley's Goldman School of Public Policy. A former Arizona governor and Secretary of the Department of Homeland Security, Napolitano will join former Michigan governor and CNN commentator Jennifer Grandholm at the school as well as Clinton Secretary of Labor Robert Reich. Napolitano was the first female President of the 10-campus flagship,
I don't think that Governor Gavin Newsom pushed her out. I know of no personal or policy beefs between the two, and pushing out a high-profile female leader in his first year seems unlikely.
However, as I have written in the last week, former Assembly Speaker John A. Pérez is currently chair of the UC Board of Regents. It was no secret that he was lobbying Governor Newsom strongly for the $2 billion included in AB 48 (O'Donnell), the preK-university bond for the March ballot. There were concerns among some that the $15 billion total ($9b preK-12 and $6 billion for higher ed) was too much for voters to swallow in March.
There was debate whether or not the package should be split into requests from voters in 2020 and 2022. Sources tell me that Pérez was fine if the amount for community colleges was reduced since they could go out for local bonds, and part of the K-14 provisions in AB 48 is the increase in allowable bond issuance from 1.25% of district assessed valuation to 2%. The result of that change is that districts who have voter-approved bonds that are unissued because they are near the existing 1.25% limit can go to the market for the borrowing. It also allows other who have already finished issuing "paper" and are at or approaching the 1.25% to seek local voter approval for additional borrowing.
Advocates for community colleges noted that the system serves around two-thirds of the higher education students, relying on local bonds benefits districts with voters more amenable to borrowing that directly affects their property taxes and those with a higher property tax base. Take the small, largely commercial/industrial cities southeast of Los Angeles. They have a high property tax base while also relatively small populations.
Meanwhile, take some of the communities most affected by wildfires. They are the opposite of the industrial cities, with a much different tax base of mostly residential, and while the state is holding K-14 districts harmless for the loss of property tax base for operational support, the tax base for service of existing or future bonds has dissipated and the extent to which the destruction will be rebuilt is still unclear.
Community college advocates note that inequity and also point to the University of California's endowments and ability to name buildings to recognize large donors. Both UC and community college advocates have valid points and, in my opinion, the California State University is relatively screwed the most, as they can't ask local voters for bonds and while having a much larger alumni base than UC, that base is on average individually less wealthy than UC's. After all, the modern CSU started as the California State Normal School and then was the California State Teachers College. CSU is absolutely critical to many sectors with a huge presence in public service professions such as public safety and health.
So, after thinking about AB 48 since the deal was unveiled at 5:17pm last Tuesday, CSU has the most to be frustrated about. I wasn't asked by anyone to write about that and most expect me to jump up and down screaming community colleges got most screwed. Indeed, community colleges serving rural communities are with the greater reliance on local borrowing. But, aside from concerns the local fee limitations on developers and the prioritization for K-12 districts that have a project labor agreement, when the AB 48 deal was cooked, the education community put on their happiest emoji in support. Nevertheless, the frustrations are found in many places.
I don't think that Pérez's lobbying on AB 48 is what forced Napolitano out. I think that his position of being in the club of former Speakers (all of whom were ex-officio Regents), however, while seen as an asset by many, also makes him less of a ceremonial chair and more of a competition as spokesperson for the University.
There were rumors before end of session that Napolitano would step down in the near future. As I mentioned above, she was granted a tenured faculty position at Berkeley when she became UC President. She has a much less taxing job awaiting her and the ability to author books and be a paid television commentator, like Granholm. That said, I don't think that her resignation was imminent and the words she chose confirms that.
I've written a couple of times since Saturday's early-morning close of the legislative year about ACA 14 (Gonzalez), the bill to provide the opportunity for voters to approve tighter control of UC's contracting out of non-teaching support work. Obviously, UC is almost always opposed to legislative infringement on its unique "trust" role in the California Constitution, originally included to minimize political influence in academe.
UC Regents chair Pérez heavily lobbied against the passage of ACA 14 in the final legislative stretch reportedly went primarily through Senate Majority Leader Robert Hertzberg (D-Van Nuys), a member of the Speaker Emeriti club and, thus, a former Regent. In that lobbying, legislators were assured that if the Legislature rejected ACA 14 and deferred to the conventional automony of UC, the system would implement many changes in policy and practice administratively.
There were clearly frustrations in the UC system over promises allegedly made by Pérez. I can't confirm that it was the final straw for Napolitano, but the timing suggests it was a factor. One thing is clear, Napolitano is not the type of leader who wants a two-headed system.
The Regents will now conduct a national search that will be interesting to follow. They'll have a search committee that includes faculty, staff and students and it will be an interesting process to watch.
One strong candidate to watch is CSU Chancellor Timothy White. Before being named to that post in 2012, he was chancellor of UC Riverside from 2008-2012.
He attended Diablo Valley College, Fresno State, and has a Ph.D. from Berkeley in kinesiology. Before UC Riverside, he was on the faculty of the University of Michigan.
He was born in Argentina. Yes, his surname is White, but that's because it was changed from Blanco.
I'm sure there will be other strong candidates and this is in no way an endorsement, but White is quintessentially California.
CAKEDAY and CLASSIFIEDS AFTER THE JUMP...
And, much to the dismay of many of my liberal friends, I believe that SB 27's requirement as it pertains to presidential candidates is unconstitutional. Of course I want to see President Trump's tax returns. Few Americans would read them but as you know, we have a crisis in journalism, and President Trump's tax returns would be great for the employment of journalists.
There is an irony about why I think it's unconstitutional considering that SB 27 passed both houses with only votes by Democrats, and that is the Supreme Court case California Democratic Party v. Jones 530 U.S. 567 (2000). The case came out the year I graduated law school and passed the bar. To think there are staffers in the Capitol who weren't born at that point makes me feel very old.
In a 7-2 decision (Stephens and Ginsburg dissenting), CDP v. Jones held that the blanket "open" primary created by Proposition 198 (1996) violated the First Amendment freedom of association of members affiliated with the plaintiff political parties, which included the CDP, California Republican Party, the Libertarian Party of California, and the Peace and Freedom Party of California.
In CDP v. Jones, the Supreme Court overturned the Ninth Circuit Court of Appeals decision upholding the law. The high Court held relied on past precedent that along with a freedom to associate comes a freedom not to associate. Under Prop. 198, qualified political parties were guaranteed a spot on the general election ballot for whoever emerged for that party from the primary election. What Prop. 198 did was allow any voter to cast a ballot to represent that party in November.
After CDP v. Jones, primary reform advocate and former lieutenant governor Abel Maldonado pushed for an alternative that would meet constitutional muster, and that was adopted by the voters as Proposition 14 (2010), placed on the ballot by the bare minimum two-thirds of both houses as SCA 4. Under the top-two primary, for state and congressional offices, any voter can cast a ballot for any candidate, regardless of party affiliation or lack thereof. The candidates placing first and second in the primary advance to the November general election.
While minor parties hate the top-two primary because it essentially locks them out of the general election for state and congressional races, there has not been found a constitutional right for parties to appear on the November ballot for those offices, and voters are free to cast ballots for a candidate affiliated with any party or not expressing a party preference.
The presidential process is not affected by California's top-two primary. In the primary election, voters aren't voting directly for a candidate. They are voting for delegates to a national party convention who have pledged support for a candidate. Often times, campaigns fizzle out after the primary and the candidate "releases" their delegates and encourages them to vote at the convention for another candidate.
In 1984, California's Democrats picked Gary Hart in their primary election as one of 26 states that did so. Jesse Jackson won Alabama and Louisiana and went on to give one of the best convention speeches of all time. Hart and Jackson withdrew during convention and former vice president Walter Mondale, who entered the San Francisco convention with the most delegates, captured the nomination. Mondale of course then lost to Ronald Reagan in a 18.2% landslide, winning only his home state of Minnesota. Hart went on to be the favorite for 1988, until that whole Monkey Business thing.
The point of all that is that voters in presidential general elections cast ballots for tickets representing parties that have met certain thresholds. In 2016, the California presidential ballot included the American Independent (for Trump/Pence), Democratic, Libertarian, Peace and Freedom, and Republican parties. However, the process of how the delegates to each party convention were left to each party.
For example, in 2020, the California Democratic Party allows voters registered with the party preference of the Democratic Party or no party preference (NPP) voters to participate. There's a whole other issue of how NPP voters casting ballots by mail get that Democratic ballot, but I've written about that before and will again. The California Republican Party, however, limits participation in the presidential primary to only voters who register with Republican Party preference.
In summary, the presidential is not top-two and it's up to the parties who is a candidate for November. While the statutory language differs for each party, the Secretary of State is required to place candidates that are generally recognized as having sufficient voter interest on the primary ballot. Of course, the vote on March 3 is cast for "presidential preference," which in turn sends delegates to convention who share a similar preference.
That's the freedom of association issue of the First Amendment applied to the states through the Fourteenth Amendment and why I believe anything beyond basic threshold of legitimacy of candidacy and the minimum qualifications set forth in Article II, Section 1 of the United States Constitution will not be upheld if it reaches the Supreme Court of the United States. Here's the old, familiar language of the Constitution, unchanged since its inception:
"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States."
Do I like that fifth paragraph of Section 1? No. I agree with Arnold Schwarzenegger that an immigrant who has been a citizen for many years should be eligible to run to lead the "nation of immigrants."Would I vote for him to be President? Depends whose on the ballot, but I certainly have liked him politically more in his post-gubernatorial years. After all, the citizenship clause was really to keep the Red Coats from running for President.
Should presidential candidates disclose tax returns? Sure. However, I don't think a state can require it as a minimum condition for appearing on the ballot, as it interferes with an association of people (members of a political party, or those a party's membership allows in for such purpose) to choose who will appear under the association's name on the November ballot. The same would be true if a Legislature said either only homeowners or renters can vote for President. In my opinion, all of these constitute a violation of the First Amendment applied to the states through the Fourteenth Amendment.
The U.S. Constitution is extremely difficult to amend, unlike the State Constitution. It's a blessing from our Founders and a curse, but it is what it is. And I think there is zero chance that Paragraph 5 of Section 1 of Article II will be amended with two-thirds of both houses of Congress and three-fourths of the state to add additional qualifications to running for President in my lifetime.
Now there are many smart lawyers in the Legislature on the Democratic side of the aisle who voted for the bill. I have no doubt they did what a majority of their constituents wanted them to do, so they did the right thing politically. Their job is that of a legislative function and not a judicial one. This is not unlike the ban on long gun sales to persons under 21, which is now in federal court. I wrote last Tuesday on that issue and concluded that it too is likely to be found unconstitutional, even though I like the bill.
Yes, I agree with both Jerry Brown, who vetoed a similar bill last year, and the California Republican Party. Remember that before you call me a commie liberal who follows talking points.
CAKEDAYS and CLASSIFIEDS after the jump...
CAKEDAY: Happy birthday to Dorian Almaraz, Jon Katz, Saulo Londoño, and Juan Novello!