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.”