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Just Another Day at the Office for California GOP Lawyers

by: Julia Rosen

Tue Jul 31, 2007 at 10:11:08 AM PDT


The New Yorker's Hendrik Hertzberg penned a column about the California Republican Party's attempt to siphon off what could be roughly twenty of California's fifty four consistently Democratic electoral votes.  Naturally, they are using the initiative process to try and do this.

Two weeks ago, one of the most important Republican lawyers in Sacramento quietly filed a ballot initiative that would end the practice of granting all fifty-five of California's electoral votes to the statewide winner. Instead, it would award two of them to the statewide winner and the rest, one by one, to the winner in each congressional district. Nineteen of the fifty-three districts are represented by Republicans, but Bush carried twenty-two districts in 2004. The bottom line is that the initiative, if passed, would spot the Republican ticket something in the neighborhood of twenty electoral votes-votes that it wouldn't get under the rules prevailing in every other sizable state in the Union.

The Republican lawyers behind this convoluted effort, Bell, McAndrews & Hiltachk, were deeply involved in the 2003 recall campaign against Democratic Governor Gray Davis that propelled current Republican Governor Arnold Schwarzenegger into power.

It is no surprise that the law firm created a ficticious front group, Californians for Equal Representation, to do their bidding because they have a history of it.

Julia Rosen :: Just Another Day at the Office for California GOP Lawyers
  • Dave Johnson reported in his September 15, 2006 The Huffington Post article on new MB&H client Economic Freedom Fund that other Bell, McAndrews & Hiltachk's clients include:

  • California Tribal Business Alliance-"an 'Indian Gaming' organization" whose "mission statement is 'to safeguard and enhance the success of the business enterprises of our tribal government members' ....... and 'will foster business development and coalition building with like minded government and business leaders in California.'" (Also see this.)

  • "Californians for Paycheck Protection-yet another front group-this one sponsoring a California anti-union ballot initiative (Prop. 75). (Their major funders in 2005 (go see how much) included the Chamber of Commerce and the California Republican Party.)" (Also see this.)

  • "notorious anti-environmental Congressman Richard Pombo." (See here.)

  • "big tobacco", with BM&H as "Philip Morris Outside Counsel" (See this.)

  • "A different partner at this firm, Thomas Hiltachk, filed the 'Fair Pay Workplace Flexibility Act of 2006'-a stealth attempt to get rid of California's overtime rules."

Bell, McAndrews & Hiltachk also represents the Blue Cross of California front group -- a coalition of one -- aimed at derailing movement on California's top legislative priority: healthcare.







Bell, McAndrews & Hiltachk, LLPCoalition for Responsible Health Care Reform
Main Office: Sacramento:
455 Capitol Mall
Suite 801
Sacramento, California 95814
Phone: 916 442-7757
FAX: 916 442-7759
455 Capitol Mall, Suite 801
Sacramento, CA 95814-4433
916-325-0056
info@responsiblereform.com

Two organizations. One address. Zero concern for the average Californian.

Now, just because they filed this initiative does not mean it will make it on the ballot.  They have no shot at making the Feb 5th date.  They could, if they raised the $1 million+ to pay for signature gatherers have a shot at making it on the June ballot.  That will be a very low turnout election.  We don't have any major races occurring on that date.  Yeah, I know the Migden-Leno race will be big an all, but there is no major mayor's race in LA or SF.  No constitutional officers up for election.  No Senate race.  If they do make it on the ballot, then a relatively small number of Californians could have a big impact on the presidential election.

This type of arcane rule initiative is among the hardest to pass.  It is not exactly something that grabs people.  There would be a very heavy push back from the Democrats if it looked like this was particularly viable.  I would not be surprised to see a competing ballot measure put up to try and confuse votes.  It worked wonderfully when big PhRMA put up Prop 78 to defeat Prop 79.

This will need to be something we track and see if it gets any traction.

[UPDATE by Julia] Here is an AP article on the initiative.  Arnold says that his is not involved and the CRP says the same.  I find that highly unbelievable, especially on the party's end.  Notice what Nehring has to say about it.

"We'll take a serious look at it, once it qualifies for the ballot," state Republican Party Chairman Ron Nehring said.

Not if it makes it on the ballot, but when.  This could be all a ruse to get Democrats to drop a bunch of cash to defeat it, when those dollars/resources could be used elsewhere. 
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Of course when North Carolina does this (0.00 / 0)
Everyone starts doing backflips.  Of course it's gonna be a shady process because it always is with these folks but it'll be a tricky needle to thread.

It would presumably get California a lot more presidential attention (which apparently moving up the primary was all about- how'd that go?), but it waters down the potency of "winning" California, especially given how gerrymandered the districts are.


Yes (0.00 / 0)
this is just like Delay style redistricting.  Either the whole country does it or nobody should.  Just having NC and CA join ME could change the outcome of the presidential election.

[ Parent ]
I've gone 100 rounds on the EC (0.00 / 0)
And I'm sure I'll go 1,000 more.  But if states want to change this, it has to be on the Maryland model of working towards getting 270 EV worth of states to commit to giving their EVs to the winner of the popular vote.  Because you're right, doing this piecemeal is really a bad idea.

[ Parent ]
Doing it piecemeal (0.00 / 0)
means that the first big state (CA, TX, NY, IL, maybe FL, maybe OH) to have this flips the presidential election to whichever party normally loses that state.  And does anyone see this being enacted in Texas?  Anyone?  Bueller?  Bueller?

If it passed in CA, in combination with the one-acre, one-vote Electoral College, that would pretty much be the end of any chance of a non-Republican president, which would also basically be the end of any fact-based domestic or foreign policy, given who is choosing the Republican candidates.


[ Parent ]
Hopefully for the entire world (0.00 / 0)
Democrats in California like delivering the biggest block of votes in the country.

[ Parent ]
Where are they most vulnerable? (0.00 / 0)
It's worth asking: where would this hurt the GOP the most?

I think that on the balance, we're better killing this sort of "gaming of the system", since we should "win on the merits" rather than "change the rules if you can't win within the law".  And I think winning the hearts and minds of voters in the affected states is probably the way to go.

But someone needs to research what states the GOP tends to win that have an initiative system, know the deadlines for initiatives and be ready to roll out grassroots campaigns very quickly.  This means planning now.

I can't make it to this year's YearlyKos,  but hopefully there will a session on this.  The local Calitics crew should seek out the key bloggers in states like Ohio, Florida and Arizona -- states where this kind of mischief is more likely to hurt the GOP than otherwise (I found a list of states here for anyone who wants to check).

Looking at the list, this is not something we should seek out, since if you look at the table, you will see that we are much more vulnerable to this than Those People are.  But if needed, since Democratic intensity is so much greater this year, we can at least make the GOP worry about how the Democratic grassroots might retaliate if they start pulling this one.


[ Parent ]
Earlier post on this on camajorityreport.com (0.00 / 0)
The national folks are already engaged in defeating this, so it's not going to fly under any radar. But you're right: Dems will have to go all out to defeat it.

It's one of those things that, if it sounds too good to be true, it probably is. Dems hate the electoral college, and Reeps will love the power grab.

The good news is that the Governor has severed his ties with Hilltachk.

And I'd be surprised if the June ballot turns out to be boring -- there are bundles of initiatives out there that may make it to the ballot.


Yeah (0.00 / 0)
I figured it was being tracked by the national folks, the implications are too big not to.  I know the Ballot Strategy guys know about it too.  By under the radar, I meant that there was little press about it.  Hopefully, we can get this to jump into the state press today.

Yeah it will be more exciting for the initatives than the candidates.  Three chances to make the ballot next year.  I think we should start taking bets on the final total for political dollars spent in the state.

BTW here is Steve's post on this.  He has pretty pictures.


[ Parent ]
As a backflipper (0.00 / 0)
or at least someone who noted the North Carolina situation with interest, I do agree (and did so in my post about it) that piecemeal is a bad way to go, and that the National Popular Vote offers the best chance at real electoral college reform.

But at least the NC bill went through the Legislature.  And we can defeat this in California in June, though it'll take money.  But we can certainly get everyone's attention about it.  I would imagine that the Democratic nominee would make a major push to get out the vote for this.

Everyone who resisted the NPV plan, however, must answer why enabling states to enact their own various pieces of legislation, rather than an interstate compact that doesn't take effect until it's meaningful, would somehow be an improvement.


I think this would be a great issue (0.00 / 0)
To get some of that $100 million presidential advantage spent in CA come, say, April.

[ Parent ]
I suspect that this was part of the Republican Party's strategic plan (8.00 / 2)
They've already structured their Presidential primary so that delegates to the convention are elected by Congressional District.

This fits in so perfectly that I'm sure it was drafted at the same time.

We're so far behind on our own offensive strategies that we keep playing defense. 

What have we got on the ballot?  Ending term limits and a non-binding resolution to get out of Iraq.


Howard Dean mentioned this when he was here (0.00 / 0)
in LA last month. I didn't know what he was talking about, but he seemed really upset about it and said we need to make sure it doesn't happen. 

Offense (0.00 / 0)
The two initiatives that you mentioned are for the February 5th Presidential primary ballot, not the June ballot where this one will be.

The term limit initiative doesn't "end" term limits; it allows 12 years in one house rather than 14 in two.

There's also a possibility that the referendum on the tribal gaming compacts would be on the February ballot.

The reason there aren't more initiatives that favor Dems is that we get things done via the legislative route rather than the initiative process.


Tribal (0.00 / 0)
gamings on the Feb ballot.  Really?  They must have been sig gathering hard.  I would be impressed if that happened.

I was amused by that expose article on Nunez and Perata, using the tribal compacts as an example of Perata screwing you over.  I doubt you minded that part of the article ;)


[ Parent ]
Ballot initiatives (0.00 / 0)
See here for what might be coming. 
 

[ Parent ]
Two ideas (8.00 / 1)
A three-pronged plan to attack and kill this thing:

(1) a legal challenge on constitutional grounds.  Article II, Section 1 (second paragraph) of the U. S. Constitution states:

Each state shall appoint in such a manner as the legislature thereof may direct, a number of electors ...

(My emphasis on "legislature".)  Get the legal briefs ready, but don't count on the courts.  If we win there, fine.  In the meantime:

(2) kill it at the polls

(3) an initiative, passed by the legislature and placed on the November, 2008, ballot to repeal it on the spot.


And ... (5.00 / 1)
And the name of our group to fight this should be "Californians Against A Really Stupid Idea".  Taken from Colorado, which had a similar ballot measure in the recent past, amendment 36.  Here is a link to their web site.

[ Parent ]
Do not forget: ridicule (0.00 / 0)
Actually, that was three ideas...
Ximinez: NOBODY expects the Spanish Inquisition! Our chief weapon is surprise...surprise and fear...fear and surprise.... Our two weapons are fear and surprise...and ruthless efficiency.... Our *three* weapons are fear, surprise, and ruthless efficiency...and an almost fanatical devotion to the Pope.... Our *four*...no... *Amongst* our weapons.... Amongst our weaponry...are such elements as fear, surprise.... I'll come in again.

So let me add a forth...

Law suits are good.  But for PR purposes, ridicule is a lot of fun to try, and shady Republican lawyers may turn out to be a rich, rich target.


[ Parent ]
Never Believe It Until It Is Officially Denied (8.00 / 1)
Arnold says that his is not involved and the CRP says the same.

Well, that was quick!

As for what to do.  Pass the national electoral vote compact.  People really don't like the electotal college since Florida 2000.  Pass the compact and the Rep measure is revealed as the jury-rigged, biased half-measure it is.

But, also, Airpower is right.  It's unconstitutional on its face, and thus should be kept off the ballot in the first place.

The time to sue is not afterwards, but ahead of time.  And the one to sue is AG Jerry Brown, representing SOS Debra Bowen. The SOS shouldn't be wasting time and resources on something that's illegal.  That's certainly enough in the way of standing.


Yes, (0.00 / 0)
Yes, you are right.  We should be heading to court right now, as well as using every other means possible to keep an unconstitutional initiative off the ballot. 

I meant, but did not explicitly state, that each of the three prongs of attack should be undertaken as soon as possible.  One venue should not wait for another, and none of the three should be dependent upon the success of the other.

I had not thought of the "waste of public monies" argument as far as spending time and resources on something doesn't pass constitutional muster, but let's throw that into the legal pot, too, along with anything and everything else.  It is time for a "scorched earth" attack. 



[ Parent ]
Standing & Causes of Action (0.00 / 0)
I'm not a lawyer, but it seems to me that the SOS has standing  and a cause of action for waste of public monies, while the legislature has standing and a cause of action for usurpation of its powers.  So both should sue separately, and then move that their suits be joined.

And, fast, like you said.


[ Parent ]
Not involved? (0.00 / 0)
According to the article at the New Yorker:

Nominally, the sponsor of No. 07-0032 is Californians for Equal Representation. But that's just a letterhead-there's no such organization. Its address is the office suite of Bell, McAndrews & Hiltachk, the law firm for the California Republican Party, and its covering letter is signed by Thomas W. Hiltachk, the firm's managing partner and Governor Arnold Schwarzenegger's personal lawyer for election matters. Hiltachk and his firm have been involved in many well-financed ballot initiatives before, including the recall that put Arnold in Sacramento.


[ Parent ]
Poor Tommy Hiltachk. Neglect is all he has ever known. (0.00 / 0)
These people thrive on traveling under radar.  Security through obscurity, that's the motto of the shadowy world of shady Republican law firms.

A tactic well worth investigating: how can we raise the profile of these people?  This is a tactic we're beginning to use on other issues, and I think that given the amount of "legal engineering" that's gone on here -- the recall, the extra initiative election in 2005, for starters -- we have a hook to do exactly that.

People should know who homas W. Hiltachk is, and they should be able to repeat "Bell, McAndrews & Hittachk" the way fans of the Car Talk guys can repeat the name of Click and Clack's favorite law firm:  "Dewey, Cheatham & Howe".

How will we rescue Thomas Hittachk from obscurity and neglect, and give him the attention he so richly deserves?  Only a few dollars a month can make a real difference in poor Tommy's life.  Will you help?


[ Parent ]
Frame The Bastards For Gaming The System (4.00 / 2)
It's not too early to think about how to talk about this issue.  Framing is going to matter.  So what's the "elevator speech" -- the one you tell someone who you're talking about only long enough to get to your floor?

A couple preliminary suggestions to start the conversation:

  • The Republicans can't win without gaming the system. It worked in Florida, didn't it?

  • If they can't fix the electronic voting machines, they'll fix the Electoral College instead.

  • They hired another law firm to fix another election.

I'm sure a number of you can do better.  But the key idea: make the effort into a joke.

For you who are skeptical, remember this one:

Hi! I'm from the government and I'm here to help you!

and tell me that this kind of approach doesn't work.


The "Right Wing Power Grab" Frame (0.00 / 0)
George Lakoff wrote about the "right wing power grab" frame in his book, Don't Think of An Elephant, in a chapter built around the 2003 recall election.

In December 2004 and January 2005, I picked up Lakoff's analysis and applied it to the 2004 election in Ohio, in discussions at both MyDD and DKos.

At the time, at DKos, the diaries had been going crazy over allegations of fraud in Ohio after the 2004 election, and Markos was heaping scorn on the "fraudsters."  I wrote a diary trying to show how there was something vital at issue quite aside from whether Kerry really won Ohio or not, "OHIO & Lakoff: The Right Wing Power Grab Frame".

In it I wrote:

From at least the time of Watergate onward, major forces within the GOP have beleived that they have the right to rule America, and the the Constitution is simply a hindrance.  The stealing of Carter's briefing book during the 1980 debate--as well as the never properly investigated October Suprise--were the first big electoral example. The attempt to smear Clinton in state elections before he bacame a national candidate was another piece of this same pattern. The coverup of Bush's involvement in Iran-Contra was another piece. And the two-term campaign to impeach Clinton--investigating the man to search for a crime, rather than the other way around--was a climax, of sorts. But then came Florida 2000, DeLay's unprecedented mid-term redistricting caper, the California recall, and finally election 2004, with Ohio in the center ring.

All this is perfectly consistent with the conservative Strict Father model.

In a brief telephone interview this week, George Lakoff told me, "They [Strict Father Republicans] see themselves in an all out war of good versus evil and you can use the devils own tricks against him, so that there is a no-holds-barred situation. Anything goes in confronting evil. The Democrats have assumed that the election process is not war, that it replaces war. That's why you hold elections instead of having war."

Thus, it's perfectly consistent that the GOP feels entitled to steal elections, if necessary. They are fighting the devil. All's fair in love and war. Democrats seem to recognize this sometimes, but we fail to really see how crucial it is.

In a follow-up diary, "A Fighting Faith: OH, Democracy, Lakoff & Chris Bowers" I took the argument further and linked together a number of different strains of argument.  Here's one that's particularly relevant here and now, an excerpt from a diary by Chris Bowers, "Eureka! Or How To Break the Republican Majority Coalition"

I believe it is possible to break the majority Republican coalition, which is primarily an ideological coalition of conservatives against liberals, and create a majority Democratic coalition that will last for at least two or three decades, by liberalizing / progressivizing the 10-15% of the population that is currently primarily reform minded and non-ideological (and thus has a strong tendency to support major third-party efforts). While it is currently non-ideological, this segment of the population, which has existed in large numbers since at least the 1880's, has an outlook on politics that is far more closely allied with liberalism than conservatism because of its emphasis on reform....

Our future success is not predicated upon moving to the left or the right, but rather in our ability to move from the inside to the outside in the national political frame. This is something we succeeded in doing in the past . This is something that Republicans learned immediately following the Perot movement of 1992, and executed so brilliantly in their 1994 "Contract with America," campaign. The Contract With America was filled almost entirely with reformist, rather than conservative, legislative proposals. Conservatives won, and are currently in power, because they swung the reformer vote their way, even though our coalition is a more natural fit for such voters. We can change this and set things right. Howard Dean as DNC chair is a darn good place to start.

What's happening here in California is the GOP once again trying to grab power by selling deform as reform.  It's a perfect chance for us to do as Chris suggested instead, because we have the real reform.


[ Parent ]
"We have the real reform" (0.00 / 0)
But on this particular issue, at the state level, do we have the outsider/reform position?  It seems to me- and maybe I'm just restating your point because I'm groggy- that this is more an opportunity to frame Republicans as "do anything to win, consequences to the people and democracy be damned."

[ Parent ]
The National Compact Is the Real Reform (0.00 / 0)
Effectively render the electoral college irrelevant, so that the popular vote winner is elected President--that's the real reform.

Do that by giving California's votes to the winner of the popular vote--as soon as enough states join the compact to constitute an electoral college majority.

Anything less is just a sleazy power-grab--trying to fiddle with the rules of a jury-rigged system to gain partisan advantage.

That's what we should be telling people.

And that's what the Party should be about doing.


[ Parent ]
Which is the Schwarzenegger narrative (0.00 / 0)
"Doing Democratic ideas badly." But I'm not sure if it's easy to sell, particularly since it would take a while to get the party, as an entity, turned in the national compact direction I would think.

[ Parent ]
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