Initiative System Attracts Lunatics, Pranksters and Reform

Under Joe Decker’s theocratic law, shrimp, oysters, scallops, winkles and clams would become a controlled substance. Eating or peddling shellfish of any kind would render the guilty felonious, fined—$666,000 to be exact—and sent to the slammer.

“Pretty harsh,” he concedes with a shrug, “but at least it’s not the death penalty.”

In a heavier-handed take on Leviticus, Matt McLaughlin, a reclusive Orange County lawyer, submitted the “Sodomite Suppression Act” for the 2016 state ballot. It invokes unabashed fire-and-brimstone Old Testament fury, calling to legalize killing anyone guilty of “the abominable crime against nature known as buggery, called also sodomy.” Or, in less anachronistic terms, being gay. McLaughlin suggests a $1 million fine, a decade in jail or exile from the state for even a remote interest in anal pleasure. The crime of sodomy itself, he deems, should be punishable by “bullets to the head or any other convenient method.”

McLaughlin’s violent proscription against homosexuality hasn’t a chance in holy hell of landing on the ballot. But it has sparked a serious discussion about reforming California’s initiative process, which lets any registered voter with $200 and the time of day to propose a ballot measure.

It has also inspired satirical spin-offs, turning an esteemed expression of direct democracy into a platform for high-level trolling.

Decker—a full-time nature photographer, part-time rabble-rouser and lifelong San Jose resident—submitted his crustacean-criminalizing “Shellfish Suppression Act” a day after April Fool’s. Earlier that same week, activist-author Charlotte Laws filed the “Intolerant Jackass Act,” mandating sensitivity training for anyone convicted of “the abominable crime known as prejudice against sexual orientation, called also gay-bashing.”

“I think it takes the power away from [McLaughlin], to subject him to ridicule,” says Laws, a spirited pundit known for her high-profile campaign to outlaw revenge porn. “I wanted to call him out and this seemed like the best way to do that, to use speech against speech.”

Whether penned as parody or otherwise, initiative proposals are no joke. By law, they have to be treated seriously, setting in motion the momentous gears of government. Citizen-drafted bills go up for a month of public review and then to state Attorney General Kamala Harris, who—even against her will—must write an unbiased title and summary. That clears the proponents for signature gathering. With enough names—5 percent of the most recent gubernatorial electorate, or in this case 366,000 valid autographs—an initiative qualifies for the ballot. Thus, the lower the turnout, the easier it is to bring to voters on Election Day.

Revolted by the kill-the-gays bill, Harris tried to block it, asking a Sacramento Superior Court judge for declaratory relief so she doesn’t have to dignify it with a formal response, as required by the state constitution.

“If the court does not grant this relief, my office will be forced to issue a title and summary for a proposal that seeks to legalize discrimination and vigilantism,” Harris wrote in her petition.

Assemblyman Evan Low (D-San Jose) says the whole debacle of fake and far-fetched bills cheapens the democratic process. Once he heard about McLaughlin’s proposal for legalized slaughter, Low introduced a bill that would up the filing cost from $200 to $8,000. The fee, which is refundable if an initiative qualifies for the ballot, hasn’t been updated in 72 years.

“This was such an egregious example of the problems with our initiative process,” Low says. “When you have such a low barrier to entry, strange things do occur. I think the ‘kill-the-gays’ initiative really brought that to light.”

Low hopes AB 1100 will weed out people filing initiatives for their 15 minutes of fame, or something other than their intended purpose, which is to create law, amend the state constitution or recall a governor.

“On one level, we just need to modernize with the times,” Low says. “Not to mention, we have to develop trust with the electorate. If you see an initiative like [the Sodomite Suppression Act], people question the process. Trust is a non-negotiable. We need to make sure that we can maintain the spirit of democracy, uphold the integrity of the process, while keeping it accessible to the public.”

Processing citizen-led initiatives costs well over the current filing fee, even for the most wackadoodle legislative proposals. Venture capitalist Tim Draper’s initiative last year to slice the state up into “Six Californias” busied a host of analysts with the absurd, arduous task of figuring out it would impact the economy, tax base, education, social services, water supply and other factors.

“The cost is definitely more than the $200 submission fee and that includes work from the Legislative Analyst’s Office, the Attorney General’s office, the Department of Finance and numerous state and local agencies that we contact to quantify the costs,” says Nick Schroeder, a senior analyst for the Legislative Analyst's Office. “Some of it gets very difficult, in some cases impossible, to quantify."

Dialing up the fee would not only cover some behind-the-scenes costs, but also might get people to think twice about submitting a proposal with no chance of advancing to the ballot.

“Raising the dollar amount would hopefully encourage people to put forward more thoughtful proposals,” says Mark Baldassare, president of the Public Policy Institute of California. Anyone who hopes to land an initiative on the ballot has to be ready to foot the considerably higher price of collecting signatures, he adds. To drum up enough names, proponents often have to shell out $500,000 or more to professional signature-gathering firms.

Low’s suggested fee hike comes on the heels of unprecedented reforms to the initiative system, a century-old hallmark of California democracy. Last fall, Gov. Jerry Brown signed a law that allows sponsors to withdraw their initiative closer to the election. It improved transparency, requiring the Secretary of State to post online the top 10 financial donors for and against each initiative. It also called for a 30-day public review period at the start of the process and extended the signature-gathering period from 150 to 180 days. By changing the timetable, lawmakers have a greater chance to reach a compromise with initiative sponsors.

“It’s going to be really interesting to see how this works out,” Baldassare says. “Particularly for some of these complicated and high-profile initiatives, like marijuana legalization, which we’ll see moving into 2016.”

But raising fees has its own opponents, including the author of the jackass-suppression initiative. While extreme, the kill-the-gays bill will inevitably hit a dead end thanks to existing checks and balances, Laws says.

“This is one submission that is full of hatred and intolerance, true” says the Los Angeles-based author. “But I think it’s important to allow ordinary people to submit their ideas to reform the constitution or to add laws.”

The biggest problem with the initiative process, she says, is that it’s prone to influence by special interests. Reform efforts should focus on transparency, she says, not the price of entry.

“[McLaughlin] and people like him are on the fringe,” Laws says. “History is not on their side. For us, it’s really important to speak out and fight against intolerance when and where we see it, which a lot of people seem to be doing.”

Decker, of shellfish-suppression fame, agrees that early-stage initiatives have become a powerful form of political speech.

“You can’t buy that kind of marketing for $200 anywhere,” says Decker, who still runs the www.GodHatesShrimp.com domain he bought in 2004 to make a similar point about the religious right’s selective biblical interpretations.

Still, he worries that the intersection of crowdfunding, viral marketing and the accessibility of California’s initiative process could result in some questionable measures ending up on the ballot. When an Indiana pizza parlor raised nearly a million dollars last month to defend a state law emboldening them to deny service to LGBT customers, Decker thought, how hard would it be for a backers of a bigoted bill to raise money for signature gathering?

“There’s something very dangerous in that combination,” he says. “To think that we could see an initiative, maybe less extreme than this kill-the-gays bill but still discriminatory against certain people, able to use viral marketing and fundraising to push their agenda all the way to the ballot—that’s something we’ll have to think about.”

Jennifer Wadsworth is a staff writer for San Jose Inside and Metro Newspaper. Email tips to jenniferw@metronews.com or follow her on Twitter at @jennwadsworth.

14 Comments

  1. I would support a ballot measure to change the management and ownership of the San Jose Mercury News.

    David S. Wall

  2. An $8,000 initiative filing fee, is just too darn high, and frankly undemocratic and elitist. I’d rather an occasional goofball initiative gets approved for signature collection (albeit almost never reaching the actual ballot…but even if it did, the actual voters would easily deafeat it), than live under a status quo where you need access to big bucks to get the ball rolling on a new idea for a statewide initiative. The $200 filing fee should remain the standard.

    • Agreed. The financial bar has been set pretty darned high in the “legitimate” arena of pay to play legislation known as Sacramento. And has that deterred the antics of lunatics and pranksters? For the sheer ability to inflict societal and economic mayhem on California, the initiative system can’t hold a candle to our State Assembly and Senate. We’ve got speaker of the Assembly Tony Atkins insisting on full services for illegal aliens and we’re worried about the likes of Joe Decker?

      • > For the sheer ability to inflict societal and economic mayhem on California, the initiative system can’t hold a candle to our State Assembly and Senate.

        Right!

        > Broken Initiative System Attracts Lunatics, Pranksters and Reform

        I think JW wrote the wrong article.

        “Broken State Legislature Attracts Lunatics, Pranksters and Evades Reform”

        There. I fixed it.

  3. Mr. Low doesn’t get it: A century ago, California’s legislature was in the grip of the moneyed interests, and would pass legislation that helped the fatcats while hurting the average Joe. But a wave of progressive populism got the initiative, the referendum, and the recall passed, allowing the citizens to bypass the corrupt Legislature. Raising the filing fee would harm the citizenry, and privilege the moneyed interests.

    In fact, one suspects that was the motive behind Mr. McLaughlin’s cruel and bizarre proposal: to belittle our proud heritage of direct democracy by making a mockery of it, and hopefully end it altogether. And by proposing to raise the filing fee, Mr. Low is just playing into McLaughlin’s hands.

  4. You can’t be tolerate if someone’s intolerant position offends you so much, you want to avoid writing an objective summary of their position.

    Defense lawyers do it all the time for extremely dangerous criminals. And Harris doesn’t want to do it for an attorney?

    She should just resign.

    The legislative body invited all this when they changed the initiative laws recently. And now they have buyers remorse.

    The sodomite petition would have been filed if it cost 20,000. That’s less than a play toy car, and much less than a trophy wife, by a long shot, yet still buys the ears of the legislative body in a way that wasn’t possible before.

    It’s not 15 minutes of fame. It’s an entire month. 30 days.

    All they’ve really done is, is highlight Drapers opinion, that the people in Sacramento, can’t hear the public, and when they do hear them, don’t like anything the public has to say.

    Expecting people to be rational is childish.

    Try asking Putin to be rational.

    Waste of time.

    Not gonna happen.

    So be prepared to fight for everything you think is safe and protected. Otherwise you will lose it in a minute, if you can’t fight for it all the days of your life.

    Yep. That’s the bummer of life. Sorry about that couch potatoes. The American Indians learned that one the hard way. You really think it’s different today? Your neighbor will rob you. Your friend will evict you. And when Christ comes back, he’s gonna want a bag full of heads stuffed with wads of tithe money from poor widowed women.

    8,000 with a refund if they qualify?

    How about a refund if they sodmize the author of that pathetic idea?

    More like,

    2,000 max, with a partial refund after they submit 100,000 signatures, that could be applied to each version they submitted under the same general subject niche.

    Partial as in half.

    And no one apparently, is happy everyone is finally freely taking about sodomy in public.

    Have you hugged you anus today?

    Better be nice, because Iike the people in Sacramento, it’s really just there to serve you.

    All sex is lethal. Why is that not in the discussion?

    If you start eliminating each sex act one by one, you will see a decline in the rates of associated cancers for each kind of sex.

    Orientation and promiscuity are two different things. It doesn’t follow that because one has an orientation they are supposed to have sex to seal that orientation.

    You don’t marry an orientation. You marry a person, and the potentially lethal choice of marriage, is something people need to carefully determine after a long period of deliberation.

  5. I’d like to propose the same restrictions to anybody in the state legislature, put their money up for every law they propose $10,000 a crack. All their laws should be subject to being thrown out by any one judge that doesn’t like it or by the people, and they can pony up the money to defend it.

    If it’s found unconstitutional those people should immediately go to jail for violating the rights of the people!
    I’m feed up with government intrusion into my life, god given and enumerated rights listed in the The Constitution and the Bill of Rights.

    I’m just as feed up with people making up rights to something some that belongs to someone else.
    You and government have no right to force your weird agenda on people with out the consent of the majority,and should be repealed by the same majority when ever it needs to be!

  6. This is just an excuse by the elitists to supress the people. This is the lawful standard process. And it is the job of the government people to do what they are told. If they are allowed to say “hey, we don’t like this proposed initiative, do we really have to do it?” to any that they don’t like, then that isn’t the democratic process.

    Is this really abused so much that it becomes such a burden on the elitists in government to handle? Really? In the midst of the millions of hours and billions of dollars they waste continually? They want to curtail the rights of the people?

    Hey, if you want to raise it from $200 to $500, then fine. But $8000? That is the elitist Low, who thinks the politicians should make the laws, and the people should not. They are the same ones that passed bag bans (Low in particular) without EVER submitting it to a vote of the people. Not ONE of the 100+ cities with bag bans ever submitted it to their people for a vote. They are elitist snobs, who do not believe in the due process and voice of the people.

  7. How about just making it illegal to pay professional signature gatherers. I was approached just this morning by someone wanting me to sign some sort of petition and my first question was “do you get paid for my signature?”. At least the person was honest and replied “Yes sir, I do.” I moved on, having no interest in the process at that point. If people are honestly concerned about an issue, concerned enough to gather the necessary signatures on their own, I don’t see a problem. However, in addition to low filing fee and low threshold for signatures, the fact remains that those signatures can merely be purchased. Start there. That would seem to be a logical place.

    • > However, in addition to low filing fee and low threshold for signatures, the fact remains that those signatures can merely be purchased.

      Surprise!

      Twitter followers and Facebook “likes” can also be purchased. Ask Hillary.

      > How about just making it illegal to pay professional signature gatherers.

      This would discriminate against the shut-in community, the writing impaired community, the charisma impaired community, the inarticulate, the hygienically disadvantaged, etc. etc.

  8. Hey WW: it wasn’t much of a leap from all the politicians money can buy to all the initiative petition signatures money can buy, once the Warren Court ruled that pretty much everything is speech protected from government interference by the First Amendment. In fact, I’m surprised it took as long as it did to reach its current point.

  9. As far as eliminating pay for signatures goes.

    Doing so would invalidate every single signature on all future issues. Because everyone gets paid in some manner for everything they do. It’s the underlying impetus for every single action.

    The person who makes money the issue, is seeking a payoff: to feel morally superior.

    To ban payment in real terms, you would have to forbid teachers from collecting signatures on education issues.

    Off duty police officers would have to be banned from collecting signatures to get tough on crime.

    Firefighters would have to be banned from collecting signatures in favor of fire retardation. Attempting to eliminate walking out of a house covered in flames, is in fact, seeking a payment.

    The flower that blooms, wants both bees and humans to help with it’s procreation. No such thing as a volunteer flower. The goal is to disperse pollen by any means necessary.

    Paying someone to gather signatures, is just a seduction into an indoctrination that, the notions we have of free speech, where unlike Socrates, we can engage the public in the market place, without a death sentence; that it’s a cherished right …

    Pure utter fantasy.

    Complete work of fiction.

    Try it. You will, instantly, see hatred and obstruction pouring out of police officers, and a litany of other professional and paid people, dignitaries, officers, etc. Merely holding a clipboard in public is all it takes. Dare to say a word, and all hell breaks lose, before you’ve even gotten one person to listen to you for three seconds.

    The ones you do see gathering signatures, are the ones who fought past all the artificial barriers, and improvised obstructions, etc, because they were too stupid to figure out, there are easier and more respectable ways of earning money in society.

    That’s why you will only see a collection of bottom feeding rejects gathering signatures, because they have no other choice in life, but to endure endless abuse from the police officers, and other paid professionals, who are committed to the psychological abuse, of low income pedestrians.

    So by all means. Ask the question, “Are you paid”, and expect the payoff, of feeling holier than they are, because in every case, there is indeed a payment, of some kind, in some manner.

    It’s you chance to behead the morale of another human being. Put the token in your heart, walk a little taller.

    Let the person who has already spent a good deal of time fighting police officers for the right to be rejected by you in an off handed manner, grovel in the dirt where they belong.

    You will soon be a God among peasants. They will hand you, not just the keys to the city, but a little white box, as a gift from this local sherif association, who appreciate your efforts to keep dirt where it belongs.

    Open the box and you will find, the petrified tongue of Socrates, cut from his mouth after ingesting council approved poison.

    Because, when you made payment the real issue, your petition then trumped their petition, and you deftly cut the tongue from their mouth in a very literal and factual manner. The Police and Sherif, the US Postal Service, and countless others, applaud you.

  10. The protestors of the 60’s were, to no small degree, protesting with the payoff of saving their own life, of avoiding what was perceived as a factory for creating dead people and cripples. They didn’t want either to be the definition of their life, so they protested, profusely and loudly.

    The Establishment, was in fact, very powerful. Without the war, there would have been scant reason for middle class white kids to protest, and the corresponding trends of feminism and equal treatment would have been more isolated in our perception of what the sixties were all about.