Supreme Court – Page 2

A Catalog of California’s Anti-Janus Legislation

June 9, 2018 By Ed Ring 2 Comments

No state in America is as firmly in the grip of public sector unions as California. For nearly 20 years, they have exercised nearly absolute power in the state Legislature. Over the past few years, as they have slipped in and out of having a two-thirds majority, and often with the help of a few Republican legislators, they have been able to pass legislation at will, sometimes within days.

Government union power in California derives from their ability to automatically collect over $1 billion per year in dues from payroll departments of state and local agencies, combined with their ability to compel well over 1 million state and local government employees working within any of their over 6,000 bargaining units to pay these union dues.

While it is legally possible for these government employees to opt out of formal union membership and only pay so-called “agency fees,” the process to opt-out is deliberately rendered tedious and intimidating, and in any case agency fees usually are around 80% of the total dues.

The Janus vs. AFSCME case threatens public sector union power in California and dozens of other states, because, depending on the ruling, it may permit public employees to opt-out of paying any dues at all, including agency fees. But if unions made it difficult and intimidating for government employees to opt-out of paying the full union dues, i.e., if they made it difficult for these employees to get a 20% discount, imagine how difficult they’re going to make it for employees to get a 100% discount.

What the unions can do in Sacramento changes every day. But insofar as a Janus ruling could come down from the U.S. Supreme Court any day, it is appropriate to delve into a bit of wonkiness, and list every recently enacted and pending law, backed by unions, that California’s legislature is compliantly handing down in order to thwart the intent of the Janus plaintiffs.

CALIFORNIA’S ENACTED ANTI-JANUS LEGISLATION

AB-83 Collective bargaining: Judicial Council – enacted

This bill permits unionization of Judicial Council staff, something previously off-limits. Here’s what they do, quoted from their website: “The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff implements the council’s policies (italics added).” Unionized judicial council staff – what could possibly go wrong?

SB-201 Higher Education Employer-Employee Relations Act: employees – enacted

This bill permits students who have jobs at the schools they attend to unionize. This will, of course, allow the unions to collect their cut from yet another category of public payroll, but it will also offer them another avenue to indoctrinate students, since they aren’t already getting enough indoctrination from our public schools and universities.

SB-285 Public employers: union organizing – enacted

This goes straight at the heart of Janus. Layering on top of existing federal law but making it even more explicit and restrictive, this bill would prohibit a public employer from deterring or discouraging public employees from becoming or remaining members of an employee organization. Employers are already forced to be extremely careful how they communicate the pros and cons of unionization, but now they’ll be even more hamstrung, while the unions have full access to employees to argue and advocate their position. Worse, this bill would grant the Public Employment Relations Board jurisdiction over alleged violations of its provisions instead of the courts. This board, PERB for short (see footnotes; “PERB Board”), is stacked with labor activists and is very unlikely to ever rule in favor of a public employer vs. a union.

SB-550 Public school employment: meeting and negotiating: legal actions: settlement offer: attorney’s fees – enacted

In this law, from now on, if a union makes an offer to settle a dispute alleging an employer’s failure to provide wages, benefits, or working conditions, and if the employer does not accept the offer and fails to obtain a more favorable judgment, the employer must pay the union’s attorney’s fees and expenses incurred after the offer was made. Note this “loser pays” provision only applies to the employer, not the union. This legislation puts tremendous pressure on agencies to agree to union demands in order to avoid court, especially those smaller agencies, cities and counties that don’t have deep pockets like the unions.

CALIFORNIA’S PENDING ANTI-JANUS LEGISLATION

AB-1937 Public employment: payroll deductions – passed Assembly

This bill appears to be designed to prevent local jurisdictions from enacting measures that might expedite an individual employee’s decision to stop paying union dues. Reading through the introductory text of the bill, here is a key excerpt: “…the bill would authorize employee organizations and bona fide associations to request payroll deductions and would require public employers to honor these requests. The bill would authorize public employers to make rules and regulations for the administration of specified payroll deductions, subject to meeting and conferring with the applicable employee organizations.” Notice that it is the union, not the employee, who will notify the employer to start dues deductions, and notice that any rules the employer may wish to apply to the administration of union dues deductions has to be cleared (meet and confer) with the union.

AB-2017 Public employers: employee organizations – passed Assembly

Similar to SB 285, This bill broadens the definition of employer to “those employers of excluded supervisory employees and judicial council employees.” It then “prohibits a public employer from deterring or discouraging prospective public employees, as defined, from becoming or remaining members of an employee organization.” The operative words are discourage and deter, which can be quite broadly interpreted. For example, even an employer stating that an employee does not have to join a union might “deter” them from doing so. The intent of this bill is to deter employers from saying anything to employees about unionization, with no such restrictions on the unions.

AB-2049 Classified school and community college employees: payroll deductions for employee organization dues – passed Assembly

Similar to AB 1937, but even more explicit, “this bill would authorize school districts and community colleges to rely on labor unions when determining whether a request to discontinue payroll deductions for union dues is in conformity with the requirements established in the initial payroll deduction authorization.” The intent is to make it harder to get out of paying union dues by adding layers of union bureaucracy to the process.

Concurrent with ensuring the union, and not the agency, has the final say in suspending dues withholding, the unions are revising these “initial payroll deduction authorizations.”

Take a look at this photo of a union contract (below). Note how it states “this authorization shall renew annually, irrespective of my membership status,” and “a revocation must be mailed… postmarked between 75 days and 45 days before such annual renewal date.” There are at least two gotchas here. First, automatic renewal of payroll deductions “irrespective of membership status” means that someone wanting to stop paying union dues has to opt out every year. Second, if they neglect to opt-out, via mail within the exact window of time and in advance of the automatic renewal, they will have to pay dues for another year.

No wonder the unions want themselves, and not the agency, to have the ability to say whether dues will stop being withheld. In any city or county with local elected officials willing to stand up to their unions (admittedly a rare occasion), ordinances could be passed allowing an employee to simply inform their payroll department that they don’t want to pay union dues. That will be impossible under these laws.

The Hotel California Contract – You Can Check In, But Checking Out…

AB-2886 Public Employee Relations Board: Orange County Transportation Authority: San Joaquin Regional Transit District – passed Assembly

Because the above named agencies were not previously required to resolve labor disputes using the Public Employment Relations Board (PERB), this bill changes that so they will have to use PERB. By moving the dispute resolution process out of the courts and instead putting them under the jurisdiction of PERB, the unions improve the probability of winning these disputes.

AB-3034 Public transit employer-employee relations: San Francisco Bay Area Rapid Transit District – passed Assembly

This bill, similar in concept to AB 83 and SB 201, allows the unions to collect their cut from yet another category of public payroll, in this case BART supervisors, by allowing them to unionize.

SUMMARY OF ANTI-JANUS LEGISLATION

So in response to Janus, California’s unions representing public servants are doing the following:

1 – Expanding the pool of public employees eligible to join unions – AB 83, SB 201, and AB 3034

2 – Making it difficult, if not impossible, for employers to discuss the pros and cons of unionization with employees – SB 285 and AB-2017

3 – Precluding local governments from unilaterally honoring employee requests to stop paying union dues – AB 1937 and AB-2049

4 – Making employers pay union legal fees if they lose in litigation but not making unions pay employer costs if the unions lose – SB 550

5 – Moving the venue for dispute resolution from the courts to PERB, which is stacked with pro-union board members – SB 284 and AB 2886

This catalog of countermeasures to Janus is undoubtedly incomplete. A few enacted in 2017 have probably slipped under our radar, and there will be many more crafted in the coming months and years, especially if there is a strong ruling in favor of the plaintiff. But California’s unions have been doing this for years. Whether it’s charter schools, “release time,” transparency in government, charter cities, public education reform, budget and tax issues, project labor agreements, or pension reform, the agenda of the union always comes first in Sacramento.

When it comes to protecting the government union agenda in California, pro-union legislation is fast and furious, belying the more common political reality of gridlock.

* * *

FOOTNOTES

California’s Public Employment Relations Board – 2018, at least 3-2 stacked for unions

The three:

Arthur A. Krantz “represented unions, employees and nonprofits in litigation, arbitration and administrative cases, and he worked on law reform, organizing, negotiation, and strategic campaigns to effect social change. Krantz did this work as an associate and partner at Leonard Carder, LLP.” San Francisco based Leonard Carder, LLP‘s home page states: “As one of the oldest and most renowned law firms representing labor unions and employees, Leonard Carder’s focus is to provide top-flight legal representation to the labor movement.”
Priscilla Winslow‘s “career in public sector labor law spans over 30 years, during which time she served for 15 years as Assistant Chief Counsel for the California Teachers Association where she litigated and advised on a variety of labor, education, and constitutional law issues.”
Eric Banks “served in multiple positions at the Service Employees International Union, Local 221 from 2001 to 2013, including Advisor to the President, President, and Director of Government and Community Relations.”

The other two:

Erich Shiners: “Prior to his service on the Board, Erich Shiners represented and advised public agency employers in labor and employment matters, including many cases before PERB. Most recently he was Senior Counsel at Liebert Cassidy Whitmore.” Liebert Cassidy Whitmore represents itself as California’s preeminent public management employment law firm with over 80 attorneys in five offices.
Mark C. Gregersen‘s “career in public sector labor relations spans over 35 years. Prior to his appointment to the California Public Employment Relations Board, he has served as director of labor and work force strategy for the City of Sacramento and director of human resources for a number of California cities and counties.”

REFERENCES

Funding the Post-Janus Fight Against Government Unions, May 2018

Janus vs AFSCME Ruling Imminent – What will Change?, May 2018

A Post-Janus Agenda for California’s Public Sector Unions, February 2018

After Janus, Will Union Grassroots Members Assert their Political Voice?, December 2017

How Can Local Officials Prepare for the Upcoming Janus vs AFSCME Ruling?, October 2017

Filed Under: Top Stories Tagged With: Janus vs. AFSCME, Supreme Court, unions

A Post-Janus Agenda for California’s Public Sector Unions

March 3, 2018 By Ed Ring 8 Comments

“If you do not prevail in this case, the unions will have less political influence; yes or no?” Kennedy asked. “Yes, they will have less political influence,” Frederick answered.
– an excerpt from the Janus vs. AFSCME trial, quoted in the Washington Post, February 26, 2018

This past week the U.S. Supreme Court heard arguments in the Janus vs. AFSCME case. Mark Janus, a public employee in Illinois, is challenging the right of unions to charge “fair share” fees, because he disagrees with the political agenda which he claims his fees help pay for.

What if government unions were accountable to their members? What if the politics of these unions mirrored the politics of the members? Would Mark Janus still want out?

It’s already possible for public employees to “opt-out” of paying that portion of their dues that fund explicitly political activity, although in practice the unions typically make that opt-out process very difficult. But Mark Janus is arguing that all dues paid to public sector unions are political, because the consequences of collective bargaining in the public sector impact taxes, government debt, budgets and spending priorities. He is arguing that the agenda of public sector unions, including collective bargaining, is inherently political.

In reality, saying all public sector union activity is inherently political is itself an understatement. In California, public sector unions spend about $300 million per year on explicitly political activity – funding political campaigns, political action committees, and lobbyists. But they spend at least another $700 million every year not just on collective bargaining – which for government workers is inherently political – but on education campaigns that attempt to influence voters on countless political topics.

Equally important is the influence California’s public sector unions wield that doesn’t derive its power from how much money they can spend, but from the fact that elected officials come and go, but the union hierarchy is permanent. Public employees who want to advance in their careers do not cross these unions.

Government unions are so powerful that only a very aggressive outcome in the Janus ruling will suffice to significantly undermine their power in California. The court must rule that union membership must be renewed annually via a transparent opt-in process. Only then will these unions become accountable to their members.

If there is an aggressive ruling in the Janus case that truly forces public sector unions to become accountable, imagine how it may affect the political agenda of these unions. One may hope it would ignite a civil war within these unions. Even in California, for example, about 40% of public school teachers identify as conservatives. Among public safety employees, a majority identify as conservative. Yet these unions are the power behind a state legislature ran by the most liberal politicians in the history of the United States.

Just for a moment, consider what these unions could do, if their leadership was committed to making California a land of opportunity again:

A PRO-WORKER AGENDA FOR CALIFORNIA’S PUBLIC SECTOR UNIONS
(if they actually cared about ALL of California’s working families)

1 – Restore the balance in California’s colleges and universities so that the ratio of faculty to administrators is 2 to 1, instead the current ratio wherein administrators often outnumber teachers.

2 – End all discrimination and base college admissions purely on merit. Expand STEM curricula so it represents 50% of college majors instead of the current 20%.

3 – Enforce the Vergara reforms so it is easier to retain quality public school teachers and easier to fire the incompetent ones. Eliminate barriers to charter schools.

4 – Restructure the penal system to make it easier for prisoners to perform useful public services. For example. along with working the fire lines during fire season, they could work all year clearing dead trees out of California’s forests. Use high-tech monitoring devices to reduce costs. Reserve current prisons only for the truly incorrigible.

5 – Scrap the High-Speed Rail project and instead use the proceeds to add one lane to every major interstate highway in California.

6 – Use additional High-Speed Rail funds to complete plant upgrades so that 100% of California’s sewage is reused, even treated to potable quality.

7 – Pass legislation to streamline approval of the proposed desalination plant in Huntington Beach, and fast-track applications for additional desalination plants, especially in the Los Angeles basin.

8 – Spend the entire proceeds of the $7 billion water bond, passed overwhelmingly by Californians in 2014, on storage. Build the Los Banos Grandes, Sites and Temperance Flat reservoirs, adding over 5 million acre feet of storage to the California Water Project. Pass aggressive legislation and fund aggressive legal actions and counter-actions, to lower costs and enable completion of these projects in under five years.

9 – Permit slant drilling to access 12 trillion cubic feet of natural gas deposits from land-based rigs along the Southern California coast. Build an LNG terminal off the coast in Ventura County to export California’s natural gas to foreign markets. Permit development of the Monterey Shale formation to extract oil and gas.

10 – Permit construction of “generation 3+” nuclear power plants in geologically stable areas of California’s interior. Permit construction of new natural gas power plants.

11 – Repeal AB32 and SB375 and make it easy for developers to build homes on the suburban and exurban fringes, instead of just “in-fill” that destroys existing neighborhoods.

12 – Require California’s public employee pension funds to invest a minimum of 10% of their assets in infrastructure projects as noted above. They could issue fixed rate bonds or take equity positions in the revenue producing projects, or a combination of both. This would immediately unlock approximately $80 billion in construction financing to rebuild California’s infrastructure. At the same time, save the pension systems by striking down the “California Rule” that prevents meaningful pension reform.

These reforms would lower the cost of living in California, at the same time as they would create resource abundance and hundreds of thousands of high-paying jobs.

It is encouraging to think that the Janus ruling will reduce the political influence of public sector unions. But another possibility is equally tantalizing, that Janus will force unions to become accountable to their members. This, in turn, could be reflected in these unions fighting, for a change, to help all Californians.

To expect public sector unions to pursue the agenda outlined above is fanciful. But if California’s public sector unions were as committed to that pro-growth agenda as they are to their current agenda which is bankrupting California’s cities and counties at the same time as it obsesses over race, gender, and environmentalist extremism, they could probably get all of it done. And no other special interest could do this.

Only California’s public sector unions have enough power to successfully take on their current allies; the environmentalist lobby, the trial lawyers, and their puppet masters, the leftist oligarchy. No other special interest could take on these profiteers who have gotten filthy rich spouting leftist tripe, while they impoverished a generation of Californians.

Post Janus, it is time for a civil war within public sector unions. Using, hopefully, their option to not opt-in, it is time for public servants who care about ordinary Californians to make their voices heard.

Edward Ring is an analyst with the California Policy Center, which he co-founded in 2010. He is a prolific writer on the topics of political reform and sustainable economic development, and has been interviewed, published or quoted by the Wall Street Journal, Forbes, the Economist, Die Zeit, the Los Angeles Times, Politico, and other media outlets.

Filed Under: Top Stories Tagged With: Ed Ring, Mark Janus, Public Schools, Supreme Court

What Janus v. AFSCME could mean for California

February 27, 2018 By Jon Coupal 7 Comments

On Monday, the United States Supreme Court heard the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. For California taxpayers, the potential impact is huge.

The issue is straightforward: Does public-sector unionism violate the First Amendment rights of workers who do not want to join a union?

The lawsuit was brought by Mark Janus, a resident of Illinois and an employee of the state as a child-support specialist. Because Illinois is not a right-to-work state, he was required to pay agency fees to the local chapter of the American Federation of State, County, and Municipal Employees. In short, he was forced to associate with an organization with which he disagreed. A fundamental part of the First Amendment’s right of association is the right not to associate. As Thomas Jefferson noted, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.”

No one is watching the case more closely than Rebecca Friedrichs, the California teacher who brought a similar right-to-work challenge here in California. Her case also went the United States Supreme Court where it was widely believed she would prevail. Regrettably, the untimely death of Justice Antonin Scalia left the high court deadlocked in a 4-4 tie. With the arrival of Scalia’s replacement, constitutionalist Justice Neil Gorsuch, the days of forced unionism for public employees may be numbered.

The Janus case presents the identical issue as the Friedrichs case and, even though it involves a public employee from Illinois, there is no dispute that a ruling in Mark Janus’s favor would have the same binding effect in California as if Rebecca Friedrichs had prevailed in her action against the California Teachers Association.

If the court rules for the plaintiffs in Janus, state and local government employees in the 22 states that are not right-to-work jurisdictions will no longer be forced to subsidize unions as a condition of their employment. Rather, they will be free to join the organizations of their choice or not to join at all. The same applies to their contributions of money. In short, Janus may very well resurrect employees’ rights to free speech and association, as well as restore political balance by preventing public-employee unions from spending money collected from workers who may be opposed to the union’s political agenda.

And that latter point is key.

In California, public sector unions are without question the dominant political force. With their ability to extract hundreds of millions of dollars annually from their members, they are able to set the political agenda (which usually includes big employee compensation packages) and are able to defeat even modest reforms in education, welfare and criminal justice. Moreover, their prodigious campaign spending allows them to rent politicians who will make sure that the collective bargaining agreements that are executed with the unions favor the unions to the detriment of taxpayers who must pay for all this largess. The business community and taxpayer interests in California enter every political battle at a disadvantage from the start.

It doesn’t take a seer to predict what will happen in California if the plaintiffs in Janus prevail. The experience in other states which have opted for right-to-work status has been dramatic. When union membership is optional, union membership — and forced union dues — decrease. It is very likely that the political strength of California’s public sector unions will diminish if public employees no longer have to pay dues. At that point, interests that favor lower taxation and a positive business climate might finally be able to have their voices heard.

Jon Coupal is president of the Howard Jarvis Taxpayers Association.

This article was originally published by the Southern California News Group

Filed Under: Top Stories Tagged With: Janus v AFSCME, Supreme Court, unions

Violating the Constitution that created it

December 21, 2016 By Gary M. Galles Leave a Comment

The political left’s responses to Donald Trump’s surprise Electoral College victory has led to many proposed “improvements” in that institution, ironically illustrating one of the main issues determining the outcome — what philosophy would guide judicial appointments.

Trump indicated that he would appoint justices that would honor the Constitution as the supreme law of the land. That would comport with our founders, expressed in Federalist 78, that “It will be the duty of the judicial tribunals … to guard the Constitution and the rights of individuals.” That was at odds with Hillary Clinton’s intent to appoint “living Constitution” jurists, who prefer subsequent judicial interpretations they like over the Constitution itself, whenever they conflict, effectively re-writing the Constitution.

So left-leaning legal scholars have illustrated their preferred means of Constitutional redefinition to produce their desired results via Electoral College “reform” proposals.

Kenneth Jost, author of the Supreme Court Yearbook, argues, “The electoral college is enshrined in the Constitution, but that doesn’t make it constitutional.” He arrives at that internally inconsistent conclusion because “The Supreme Court established the principle — ‘one person, one vote’ — in 1964.” But that is not in the Constitution. It is a much later court invention, now being used retroactively to define part of the Constitution unconstitutional. The fact that our founders did not find that so when they wrote and adopted the Constitution is simply ignored.

University of California, Irvine, Law School Dean Erwin Chemerinsky, a leading liberal Constitutional interpreter, takes the same theme further. He argues that “the text of the Constitution is modified by its amendments,” so the Electoral College allocation of votes should be declared unconstitutional as violating the constitutional amendments [citing the 5^th Amendment] that guarantee equal protection of the law.” This, despite the fact that adopters of the Bill of Rights in 1791 clearly found no unconstitutionality in the Electoral College from the 5^th Amendment. Neither were earlier examples of popular vote winners who lost in the Electoral College asserted to be unconstitutional. Chemerinsky, as Jost, builds his case not on the Constitution, but upon “The Supreme Court long has held,” followed by some ruling that twists the Constitution and can now be interpreted as at odds with the Electoral College, plus the claim that the redefined constitutional meaning should now trump the Constitution.

Neither of these prominent challenges to the Electoral College relies on the Constitution. Arguments are instead grounded in previous “The Supreme Court has held” rulings that deviated from consistency with the clearly understood original meaning of the Constitution. This is, in fact, such a common approach in “living Constitution” jurisprudence that scholars have even compiled “worst of” lists, such as Robert Levy and William Mellor’s The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

Should America be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created to protect our freedoms from abuse at its hands, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? If the Constitution’s meaning is to be so easily changed (but only when the left finds it amenable to their ends) that even “emanations from penumbras” around other rights can effectively rewrite it, why did our founders spell out such a difficult process for changing it? And why should we respect precedents from 1964 or others years long after America’s establishment, on the basis that the Constitution must be upheld, when those precedents distorted it rather than upheld it? Surely that Alice in Wonderland approach to constitutional meaning is too weak a reed to throw out the Electoral College as violating the Constitution that created it.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

Filed Under: Blog Tagged With: Constitution, Donald Trump, Electoral College, Gary Galles, Supreme Court

Pascal’s Wager – Bet On Trump

August 29, 2016 By Bill Saracino 18 Comments

Though born a few years after the official end of the Renaissance, Blaise Pascal was a true Renaissance man. He was a French mathematician, physicist, inventor, writer and top notch Christian philosopher. His most famous work is the book Pensees. The most famous item in that tome is a discourse on why it is logical and rational to live a Godly life even if you don’t believe in God.

This has become known as “Pascal’s Wager,” and can be summarized thusly: A rational person should live as though God exists. If God does not exist, you lose nothing except some worldly pleasures by believing in Him. But if God does exist, you gain eternal life by living a good life, but will suffer eternal damnation if you deny Him through a life of debauchery. (A giant hat tip to Father Lawrence at St. Francis High School long ago for patiently taking the many, many hours necessary to get this across to a bunch of thick-skulled seniors in “Apologetics” class.)

Pascal’s wager has become my fire-wall in arguing with the Kool-Aid drinkers of NeverTrump. Backed into a corner on the fact that a federal judiciary appointed by a President Hillary is a clear and present existential danger to all things conservative, the last refuge of these scoundrels is that Trump can’t be believed. They say that Trump’s list of potential Supreme Court appointees – developed with the input of the impeccably upright and conservative Heritage Foundation and Federalist Society – is a scam, that he has no intention of appointing such stellar conservatives to the courts.

This is where old pal Blaise comes in. His wager applies to the Trump v. Clinton presidential choice in this way: If the NeverTrump folks are right and I am wrong – if Trump’s court appointments would be mediocre at best and as bad as Hillary’s at worst – then we are no worse off by voting for Trump. Whether he wins or loses, we still have an awful judiciary.

However, if I am correct and the NeverTrump folks are wrong, then Trump’s court appointments will be full of young Antonin Scalias and Clarence Thomases. That represents the difference between salvation for conservatives and our values from a Trump judiciary and the gang rape of the Constitution which is certain with a Hillary-appointed judiciary. This is a wager that ought to be obvious even to the most deranged NeverTrumpster. The only rational bet, the only safe bet – vote – is for Trump.

Rational thought, however, has never been a strong point of the NeverTrump cabal, and NeverTrump-land has lately become a logic-free zone. They obsess on irrelevancies, frothing about how much rent he charges his campaign office in Trump Towers, but ignore Hillary making the State Department a giant cash laundromat for her foundation. Hillary lying to the families of the four Americans murdered in Benghazi is not as important to them as how many copies of “The Art Of The Deal” the campaign has purchased.

NeverTrump-land is inhabited by large egos and small minds, happy to play into the hands of the left-wing media to elect Hillary. No minor official who served in a previous Republican administration is too obscure not to be given breathless headlines and interviews as they denounce Trump. Any former Fourth Assistant Undersecretary to the Chief Deputy Paper Shuffler in the Department of Swamps and Sewers is guaranteed 15 minutes of fame if he or she will wax hysterical about the dangers of Trump.

The moral preening of NeverTrump is as unending as it is astounding. Conservative icon Richard Viguerie aptly described the situation as a battle between “the new puritans and Trump’s revolutionary conservatives.” The conservative grassroots workers who are rallying to Trump are not rich or famous and don’t want to be. They want to be left alone to live their lives and raise their families as they see fit – through traditional conservative American values. By supporting Trump in order to do so they have become revolutionary conservatives.

On the other side of this divide is an a group of self-appointed conservative grandees – inside the D.C. beltway, insulated, isolated from the real world. Led by Billy Kristol, Bow Tie Will and National Review magazine, NeverTrump has devolved into a group of holier-than-thou pearl clutchers. They are the new puritans, horrified that this brusque, brash brute from New York dared to rouse the rabble in fly-over country, and did so without their permission.

Kristol and Will fit Vice President Spiro Agnew’s description perfectly of “nattering nabobs of negativism” and “effete, impudent snobs.” National Review was once a great magazine, founded by conservative giants Bill Buckley and Bill Rusher. As they rail against Trump, the new puritans currently running National Review have made it largely irrelevant. By embracing NeverTrump they are ignoring one of Buckley’s most famous bits of advice. He said that when faced with a choice between less-than-perfect candidates, conservatives should always choose “the most rightward candidate with the best chance of winning.”

Hmm, the most conservative candidate with a chance of winning. That’s apparently a tough one for our new puritans.

In closing, I want to once again make clear that I am well aware of Trump’s imperfections, both as a person and as a candidate. However, none of those imperfections threaten the future of the country. Hillary appointing far-left zealots to the federal judiciary and bureaucracy absolutely does. Longtime conservative warrior and comrade-in-arms Allen Brandstater (we met in 1965 in “Youth For Reagan For Governor”) put the choice this way: “It’s between castor oil, which is unpleasant but won’t kill you and arsenic, which will.”

Bill Bennett, Secretary of Education during the Reagan years, put it a bit more elegantly: “Our country can survive the occasional infelicities and improprieties of Donald Trump. But it cannot survive losing the Supreme Court to liberals and allowing them to wreck our sacred republic. It would reshape the country for decades.”

Pascal’s wager would no doubt be on the castor oil, infelicities and all, instead of the arsenic.

Bill Saracino is a member of the Editorial Board of CA Political Review.

Filed Under: Top Stories Tagged With: Bill Saracino, Blaise Pascal, Donald Trump, Hillary Clinton, NeverTrump, Supreme Court

‘Right to Vote on Taxes’ Case Now Before California Supreme Court

July 5, 2016 By Jon Coupal 2 Comments

Last week the California Supreme Court agreed to hear a case that could determine whether the right to vote on local taxes, which is constitutionally guaranteed by both Propositions 13 and 218, will cease to exist.

The case, California Cannabis Coalition v. City of Upland, at first glance seems limited to a narrow technical question: When a local initiative seeks to impose a new tax, does the issue need to be put to the voters at the next general election or can the proponents, relying on other laws, force a special election? But in answering that question, the lower court ruled that taxes proposed by initiative are exempt from the taxpayer protections contained in the state constitution, such as the provision dictating the timing of the election.

The Howard Jarvis Taxpayers Association (HJTA), which filed the petition seeking Supreme Court review, was alarmed because the constitution’s taxpayer protections include the right to vote on taxes. If local initiatives are exempt from those protections, then public agencies could easily deny taxpayers their right to vote on taxes by colluding with outside interests to propose taxes in the form of an initiative, then adopting the initiative without an election.

The import of the case was not lost on those who dislike Proposition 13’s requirement that local special taxes – those imposed for specific purposes – receive a two-thirds vote of the local electorate. For example, backers of a tax to subsidize a new sports arena in San Diego were hoping that the lower court ruling would allow them to impose a special tax with only a simple majority vote.

Some legal scholars suggested that the lower court decision was not as far-reaching as feared by HJTA. But the fact that the Supreme Court granted review, which it does in only a fraction of cases it receives, validates the concern about the potential scope of the lower court ruling.

By way of background, the case began when the California Cannabis Coalition (CCC) circulated an initiative petition to legalize medical marijuana dispensaries in the City of Upland. The initiative requires each dispensary to pay the City an annual $75,000 tax. CCC collected enough signatures to qualify for a special election. But a provision of Proposition 218, the Right to Vote on Taxes Act, part of the California Constitution approved by voters in 1996, requires tax proposals to be presented at a general election for city council candidates. (This forces candidates to identify for or against the tax, which helps voters choose the taxpayer-friendly candidates.)

The Court of Appeal ruled that taxes proposed by a local initiative are not subject to Proposition 218. The ruling, however, was not limited to Proposition 218’s election date requirement. The Court said taxes proposed by initiative are exempt from all of 218.

HJTA, having sponsored Proposition 218, was so concerned by the decision, it offered to represent the City of Upland at no cost to take the case to California’s highest court. It was HJTA’s petition on behalf of the City of Upland that was granted.

Taxpayers of all stripes and interests will be watching this case very closely. California is already a hostile place for taxpayers so losing the right to vote on local taxes would simply be adding to the pain.

Jon Coupal is president of the Howard Jarvis Taxpayers Association — California’s largest grass-roots taxpayer organization dedicated to the protection of Proposition 13 and the advancement of taxpayers’ rights.

This piece was originally published by HJTA.org

Filed Under: Top Stories Tagged With: California Cannabis Coalition, California Constitution, HJTA, Jon Coupal, Prop 13, Prop. 218, Right to Vote on Taxes Act, Supreme Court, taxes, Upland

New Gun Laws in California Would be in Supreme Court’s Crosshairs

June 3, 2016 By Susan Shelley 6 Comments

Photo courtesy of krazydad/jbum, Flickr.

Gun owners in California recently woke up to the news that the California Senate had passed a stack of bills putting new restrictions on the use of guns.

If they all become law, you’ll need a license to sell ammunition and a background check to buy it, magazines that hold more than 10 rounds will be illegal, more guns will be classified as “assault weapons,” homemade guns will need state serial numbers, and it will be a crime to loan a gun to anyone who isn’t a family member or a licensed hunter.

Are those proposed laws constitutional?

The Supreme Court said in 2008, in District of Columbia v. Heller, that Americans have the right as individuals to keep and bear arms. The court struck down Washington, D.C.’s, “absolute prohibition of handguns held and used for self-defense in the home.”

But the Heller decision left many questions unanswered, starting with whether the Second Amendment was binding on the 50 states as well as on the District of Columbia.

When the first 10 amendments to the Constitution were ratified in 1791, nobody thought they applied to the states. Chief Justice John Marshall wrote in 1833 that if Congress had intended the Bill of Rights to bind the states, “they would have declared this purpose in plain and intelligible language.”

That understanding still prevailed at the start of the 20th century, as bank robber “Gunplay” Maxwell discovered. In 1900 he complained that Utah had denied his Sixth Amendment right to trial by jury, but the U.S. Supreme Court said the first 10 amendments “were not intended to and did not have any effect upon the powers of the respective states,” adding, “This has been many times decided.”

The Supreme Court never said the whole Bill of Rights applies to the states. Instead, there was a gradual process of selectively declaring particular rights to be “fundamental” to liberty. That makes them apply to the states through the Fourteenth Amendment, which says the states can’t deny liberty to any person without due process of law.

“Gunplay” Maxwell was ahead of his time. The Supreme Court decided that trial by jury was “fundamental” to liberty in 1968.

In 2010, two years after the Heller decision, the right to keep and bear arms was declared “fundamental” in McDonald v. Chicago.

This gradual “incorporation” of the Bill of Rights into the Fourteenth Amendment has been going on for about 90 years and has silently transferred power from state legislatures to federal courts. For example, in 2011 the Supreme Court struck down a California law that banned the sale of violent video games to minors. The justices said California had not shown the court a “compelling” reason to have a law that infringes the First Amendment rights of video game creators.

Soon, California may have to show the court a “compelling” reason for laws that infringe the Second Amendment rights of gun owners.

For 90 years, the justices have invented balancing tests and “scrutiny” levels to guide decisions in these cases, but it remains what Justice Felix Frankfurter called it in 1947: “merely subjective.”

Does California have a “compelling” reason to require background checks for ammunition purchases? One justice may think so, but another may find the reason “only rational.” Five votes for “compelling” would uphold such a law, while five “only rationals” would be enough to strike it down.

Over the next decade, Second Amendment rights will be profoundly affected by the personal values of the justices appointed by the president who’s elected this November.

The NRA made an early endorsement and started the fight before June.

Filed Under: Top Stories Tagged With: gun control, guns, McDonald v. Chicago, Supreme Court, Susan Shelley