Taxpayer-Funded Lobbying Organization Loses One!

I was floored to read of the first crack in the stranglehold the Virginia Association of Counties (VACO) has on county-state politics.  Kudos to Goochland County.  I don't know how the Board of Supervisors came to the conclusion they did, but it is a pleasing development.

For a long time, I wondered how public debate always seemed to be so well-funded in favor of fatter government and getting more financial lard slathered all over its teeming bureaucrats.  Then I served a term on the Lord Fairfax Soil and Water District, and discovered that a good portion of the money we were given to fund operations was given to an organization called the Virginia Association of Soil & Water Conservation Districts (VASWCD).  Looking into it further, I discovered that VASWCD was essentially a "Taxpayer-Funded Lobbying Organization", or a "TFLO".  A large portion of the annual dues the Lord Fairfax district sent to them were used to fund lobbying efforts at the local, state, and even federal level.  I also learned that even the small bureaucracy that was the Lord Fairfax SWCD wasn't just funding VASWCD, but was also funneling cash to additional TFLO-type groups such as the Shenandoah Resource Conservation & Development (RC&D) Council.

Being a Libertarian, I objected to the District's membership in these organizations every year, because I think it is absolutely wrong for government to lobby government.  Legislators should adjust policy according to the wishes of the citizens, rather than doing so at the behest of highly-paid lobbyists who represent the 1% elite bureaucrats and politicians who presume to know what's best for the rest of us!

Unfortunately, I was the minority on the Board, and as a result the District continues to throw cash at lobbying front groups.

What VASWCD was to the Soil & Water District, the VACO is to county governments.  There are many other similar NGO's for every type of government under the sun.  The Virginia Municipal League, the Virginia Court Clerks Association, etc all have some lobbying component, and all of them are one way or another funded by taxpayers.

So VACO is the definition of a Taxpayer-Funded Lobbying Organization.  The reason that it and similar organizations should be of serious concern to every taxpayer is this:  the things they lobby for are almost always beneficial to governments and bureaucrats, and almost always detrimental to taxpayers.

County bureaucrats cannot lobby the government while on taxpayer time.  But they can do the same thing by setting up a front organization, call it an NGO, throw some taxpayer cash at it, and perform an ethical skirt-and-dodge.

Political hacks and bureaucrats should not be allowed to grab cash from the government trough, and shovel it at "non-government organizations" ("NGO's") so the NGO can then hire legions of paid lobbyists to work against the wishes of the taxpayer; government should never be given any opportunity to influence itself!

There are literally thousands of NGO's similar to VACO in the United States, and they all exist for one purpose: to get more taxpayer loot (or power) shoveled into their gaping maw.

The legislature should eliminate the ability of local and state bureaucrats or government bodies to lobby any other government body.  Membership in any NGO that lobbies (directly or indirectly) for anything that would favor the individual or originating government should be absolutely forbidden.

Republicrat Governor Squashes Third Parties

Many people are aware of how difficult it is for third parties -- such as the Libertarian Party, the Constitution Party, or the Green Party -- to get on the ballot. 

This year, it was even more difficult because of redistricting.  Virginia law requires third parties to submit petitions signed by 10,000 registered voters -- and actually closer to 15,000 because many signatures are thrown out by the State Board of Elections.

But worse, due to the legislature wrangling so long over redistricting, and then additional delays caused by waiting for the Justice Department to approve the new districts, the smaller parties lost precious time to collect those 10,000 (15,000) signatures.

The reason the district were relevant to the petition was that Virginia requires presidential petitions to include the candidates for the candidate's slate of electors. Virginia also mandates that the petition carry the name of one candidate for elector from each U.S. House district.

No one knew what the new district boundaries would be until March 14, when the U.S. Justice Department approved the new boundaries, so the minor party presidential electors were chosen based on the old districts. The State Board of Elections had been telling candidates to use the old boundaries.

Of course, petitioning for U.S. House candidates was also threatened by the uncertainty of the law.

It is not known if there were (or are) any independent or minor party candidates for U.S. Senate this year, but if there were (or are), and they started petitioning based on the old districts, they were injured also. U.S. Senate petitions, like presidential petitions, have a distribution requirement: 400 signatures per U.S. House district.

In March 2012, the Virginia General Assembly attempted to adjust petitioning requirements for the third parties and independent candidates for the time lost by making some alterations to the petitioning process, via HB 1151.  The bill said that if new U.S. House district boundaries aren't in place by the start of the even-numbered election year, petitions are valid that year whether they use the old U.S. House district boundaries or the new boundaries. The bill had an urgency clause and would have taken effect immediately upon passage.  It passed on March 2.

When Virginia Governors receive a bill from the legislature, they may sign the bill, veto the bill, or send it back to the legislature with suggested changes. When the Governor sends back a bill with suggestions, the legislature has one day to decide whether to accept the recommendation or not. If the legislature takes no action, the bill is enacted anyway; it is not vetoed.

When HB 1151 reached his desk, however, Republicrat Governor McDonnell sent the bill back to the legislature on April 9 -- at the very last minute -- and asked for changes, among them to make it effective in 2013, not immediately.  This made it utterly meaningless for third parties.

McDonnell didn't stop there -- he proposed changes so it would specifically NOT apply to any petition to place minor party or independent presidential candidates on the ballot, now or in the future.  Unfortunately, in a one-day session on April 18, the legislature agreed to the Governor's recommendation.

The changes McDonnell demanded to HB 1151 were shockingly unfair.  The Libertarian and Green Parties had already started circulating their presidential petitions based on what they were hearing from the General Assembly and the State Board of Elections.

Even though neither party had selected their presidential nominees, Virginia allows stand-in presidential and vice-presidential candidates ("substitution").  The right of substitution was established by El-Amin v Virginia State Board of Elections, a reported US District Court decision from 1989 that says the US Constitution requires Virginia to let unqualified parties, and even committees supporting an independent candidate, engage in substitution.

Under Virginia law, the window for circulating petitions is supposed to open for third parties on January 1 of a presidential election year.

So to begin with, redistricting cheated third parties out of their petitioning time from January 1 through the end of the redistricting process on March 14; then McDonnell cheated them out of additional petitioning time until April 18, when the General Assembly finalized it actions on HB 1151.

Without McDonnell's changes, HB 1151 would have compensated third parties for the nearly four months they were forced by law to sit and wait.  McDonnell's changes denied the parties the compensation they were due; and ruined any petitioning work done until that point.

Third parties have often brought new ideas into the marketplace of ideas -- oftentimes ideas that the major parties don't wish to address.  Why make it difficult for them to participate in the political process?

I was under the impression that we were all agreed that the will of the voters must be obeyed, and what you did was to throw out the will of thousands of voters who had signed their names to get the Greens and Libertarians on the ballot.

My question is why?

McDonnell's hostile action was intrinsically hurtful, and it was also hurtful for him to wait until the very last day to send in a recommendation. The action was not posted on the legislature’s web page until the afternoon of April 10.

This author spoke with Governor McDonnell twice to encourage him to sign HB 1151 as the General Assembly originally passed it; obviously to no avail.

McDonnell changed the legislation to interfere with the third parties ballot drives and to financially injure them - an act that is stupid in a third-world backwater dictatorship, but utterly insane and anti-freedom in a first-world country that prides itself on a supposed history of treating all political viewpoints as equal under the law.

As a result of McDonnell's changes, the State Board of Elections invalidated 2,000 signatures on LPVA presidential nominating petitions.  The Green Party of Virginia estimated that 1,000 of its signatures were likewise invalidated. In addition GPVA estimates that an additional 1,000 signatures obtained by another minor party, the Virginia Independent Greens, on behalf of Green Party presidential candidate Jill Stein were invalidated -- through no fault of their own.

The third parties in Virginia are interested in filing a suit to overturn the recently enacted statute.  In April, the Libertarian Party of Virginia authorized its participation in such a lawsuit; the party has been seeking a suitable local counsel to file it.

Monstrous Ruling in CA Case Challenging Top Two

SLAPP activities are alive and well.

In 2010, California voters approved Proposition 14, an initiative to put in place California's new top-two primary system. The measure was backed by business interests and rich benefactors, such as Charles T. Munger Jr.

In July 2010, six plaintiffs -- Mona Field, Richard Winger, Stephen A. Chessin, Jennifer Wozniak, Jeff Mackler, and Rodney Martin -- challenged two particular aspects of top-two in court, seeking to overturn the law.  To see a complete listing of motions in the case, check out the public access page here (Superior Court of California, San Francisco County).

The lawsuit had a great deal of merit.   Two specific areas were challenged:  (1) independent candidates couldn't have "independent" on the ballot for Congress and state office, and registered members of unqualified parties couldn't have their party label on the ballot; (2) at the time, write-in space remained on the ballot but no write-ins could ever be counted, even though the ballot did not warn voters that any write-ins would not be counted.

On the ballot label issue, 45 states permit "independent" on the ballot for independent candidates, and even California continues to permit "independent" on the ballot for presidential independents.  California allowed the use of that label ever since government-printed ballots started (in 1891) through 2010.  Three independent candidates for US House were on the November ballot in 2010 with "independent" next to their names.

Two state supreme courts, Massachusetts and Minnesota, had previously ruled the word "independent" for independent candidates cannot be banned.

Winger interviewed most of the independent California candidates for Congress and state legislature just before the June 2012 primary.  Almost all of them said they wish they could have "independent" on the ballot, since they were campaigning as independents.  Winger's interviews included Linda Parks in Ventura County and Chad Condit in the San Joaquin Valley, the two independent candidates who got the most publicity.

On the write-in half of the case, Plaintiffs' position was vindicated this year when AB 1413 passed, removing write-in space from November ballots for Congress and state legislature.  Winger wrote in opposition to that idea.  Winger called for leaving write-in space on the ballot and for requiring that write-ins for declared write-in candidates should be counted.  With AB 1413, at least the legislature acknowledged its agreement with the Plaintiffs that it was wrong to tempt voters to cast a write-in vote and then not count it.

No court precedent, until Field v Bowen, had ever upheld a state's refusing to print "independent" on the ballot.

In this author's view, it seems absurd to say the lawsuit was frivolous or against the public interest.  Yet the case law for civil rights plaintiffs protects civil rights plaintiffs unless the lawsuit has no merit whatsoever.

Wealthy supporters of the law (Munger, Abel Maldonado, David Takashima, the California Independent Voter Project, and Californians to Defend the Open Primary, etc) were worried the Secretary of State would not defend top-two vigorously enough, and were permitted to intervene in the case.

On September 24, 2010, Superior Court Judge Charlotte Woolard – in Field v. Bowen – upheld Proposition 14, a decision sustained by the State Court of Appeals almost a year later, on September 19, 2011.

Gautam Dutta, attorney for the plaintiffs,  decided not to appeal the case to the California Supreme Court.

On March 27, 2012, the intervenors, represented by the Nielsen Merksamer firm of San Rafael, California, moved for attorneys fees. In an astonishing, and monstrous decision on August 1, San Francisco Superior Court Judge Curtis Karnow, a Schwarzenegger appointee, ruled in favor of the intervenors and ordered the plaintiffs to pay $243,279.50 in attorneys fees to the attorneys for Abel Maldonado and the group supporting top-two in the 2010 campaign.

Under California law, this is not supposed to happen.  Courts aren't supposed to award attorneys' fees against plaintiffs unless the lawsuit is utterly without merit.

The attorney for the plaintiffs, Gautam Dutta, is young and he and his wife just had their first baby.  He is a sole practitioner and lives in Fremont and works at home.  He will ask for rehearing; but if that fails, an appeal is likely.  However, Dutta can't appeal without putting up a 10% bond.

One of the Plaintiffs, Richard Winger, had income last year of $6,000.   He has no pension, and his social security, after the medicare SMIB is deducted, is only $180 per month.  He is currently living on his savings, which are gradually being eaten up.

This judgment will cause him great harm.  What little money Winger has will go into the pockets of Charlie Munger, one of the richest men in California.  What sense does this make?

Charlie Munger is a multi-millionaire who is the chairman of the Santa Clara County Republican Central Committee.  He is a prominent activist in California ballot proposition politics, including in 2010, when he successfully sponsored Proposition 20, after having supported Proposition 11 in 2008.

Munger is one of eight children of Charles Munger, the billionaire vice-chairman of Berkshire Hathaway.  He has a Ph.D. in physics from Stanford University and is an experimental physicist at the Stanford Linear Accelerator Center (SLAC). The Center is operated by Stanford University for the U.S. Dept. of Energy Office of Science.  In other words, as a government-crony physicist, his earnings from government have helped him fund initiatives for fatter government (perhaps he could be described as a Taxpayer-Funded Lobbyist?).  Ironically, “Die Luft der Freiheit weht” is Stanford’s unofficial motto and translates as “the wind of freedom blows.” Apparently it doesn't blow in the direction of third parties, independent candidates, or the 43% of Califonia voters in the June election who voted against Top Two.

In 2006, Munger was a member of California's Curriculum Commission, an advisory commission of the California State Board of Education; and was married to Charlotte Lowell in 1989.  Lowell, a graduate of Harvard Law School, is an attorney with the law firm, Skadden, Arps, Slate, Meagher and Flom.

Munger's sister is Molly Munger, an attorney in Pasadena, who is leading the charge on a possible 2012 ballot initiative, the "Our Schools, Our Future" initiative, which would raise taxes to provide additional money to the state's public school districts. Ms. Munger has indicated that she is willing to fund the approximately $2 million cost of gathering the signatures to qualify the measure for the ballot.

Further Reading:

• Drew Spencer & Rob Richie @ FairVote: Are Top Two Backers Seeking to Crush Dissent in California?
• Michael Feinstein: AB1413 “Gut and Amend” Abuse Would Gut Voter Voice
• Joe Mathews:  The Cost of Taking on California "Reformers"
• Russell Mokhiber: Winger Munger and Loser Pays

So, I'm left wondering: The judge ordered attorney's fees on the basis that the case was frivolous.  If that's the case, then why did the intervenors even need to intervene.

If the lawsuit was so weak that the Plaintiffs must be sanctioned, obviously California's very capable Assistant Attorneys General would have defended it without the need for intervention.