The Propositioners

by Tom McNichol

All the money in the world, they say, can't buy you love or happiness. And sometimes it may not even buy you an election. That was the hard lesson the Pacific Gas and Electric Company learned in June after spending more than $40 million to promote a statewide ballot measure that would have torpedoed local efforts to make publicly purchased power available to consumers. Despite a massive ad campaign that overwhelmed the modestly funded competition, PG&E's measure went down to defeat, pulling just 47.5 percent of the vote.

"Getting Prop. 16 passed wasn't going to be a slam dunk by any means," acknowledges attorney Steven S. Lucas, who worked on the account. "It was going to be a very tough election. But the outcome reflected the incredibly low voter turnout. It corresponded with the polling numbers we saw, which found that the measure would pass with a higher turnout."

Lucas - a partner in the Marin County office of Nielsen, Merksamer, Parrinello, Mueller & Naylor, which also has offices in Sacramento - is one of just a few dozen lawyers in the state working quietly behind the scenes to put together and pass - or defeat - ballot initiatives.

The business is, by all accounts, a tough one. Roughly two out of three measures on the ballot are voted down (even more if spending is involved). But those that do pass can, of course, have a huge impact on the state.

"It's a very collegial bar," says James C. Harrison, a partner with Remcho, Johansen & Purcell in Sacramento and San Leandro. "Some of that's by necessity because you deal with the same people over and over. It does not behoove anyone to burn bridges. Sometimes you're on the same side of the table; sometimes you're on opposite sides."

Still, from one election to the next, the firms that specialize in initiatives tend to lean toward one end of the political spectrum or the other. Nielsen Merksamer, for example, mostly represents the positions of business clients. (Nielsen partner Steve Merksamer was a chief of staff for Republican Gov. George Deukmejian.)

Sacramento-based Olson Hagel & Fishburn, on the other hand, tends to represent mostly Democratic or liberal clients and labor unions. (Its founder, Lance Olson, has been general counsel to the California Democratic Party since 1982.)

The flow of initiative work, according to those who have done it for awhile, is surprisingly constant; as one proposition is being brought to the attention of voters, another will almost always be in the preliminary stages.

In the drafting, lawyers may work for many months to come up with language that a sponsor can live with. The text is then submitted to the attorney general, along with a fee of $200. (Cal. Elec. Code § 9001.) But when you add in legal fees for drafting, plus the cost of polling and gathering hundreds of thousands of voter signatures to qualify the measure for the ballot, the tab can easily exceed $2 million. (And that's before the statewide campaign, when the real money gets spent.)

After filing, proponents of a ballot initiative have 150 days to circulate petitions and collect the required number of signatures (§ 9014), which is based on how many people voted in the last gubernatorial election (§ 9035; Cal. Const., Art II, § 8 (b)). Currently, that works out to 433,971 signatures for an initiative statute and 694,354 for initiative changes to the state constitution.

Gathering signatures on that scale is no job for amateurs, which is why firms farm the task out to a handful of pros, companies such as Arno Political Consultants, National Petition Management, and Kimball Petition Management. Signatures are easier to gather if a measure lends itself to a pithy summary or catchy slogan. A good example is this month's Proposition 19 - "Regulate, Control and Tax Cannabis" - which would legalize the recreational use of marijuana by adults.

"The head of our signature-gathering company said Proposition 19 was the easiest petition he'd ever done," notes Oakland attorney James Wheaton, who drafted the measure. "The whole game in initiatives is getting someone going into a theater or store to take a moment to listen to you. With this one, as soon as word got out on what the petition was about, people were flocking to the table to sign."

Once the various county election officials and the secretary of state have verified the signatures, a measure joins the lucky few that make it onto the ballot. (See Cal. Const., art. II, § 8 (c).)

But even if the measure wins, there's the chance that some court somewhere will shoot it down.

The constitutional ban on same-sex marriage that California voters adopted in November 2008 met such a fate. After being upheld the following May by the state Supreme Court (Strauss v. Horton, 46 Cal. 4th 364 (2009)), it was determined to be unconstitutional by a federal judge in August. As the Proposition 8 appeal heads toward possible resolution by the U.S. Supreme Court, its backers are represented by a passel of lawyers, including Andrew P. Pugno of Folsom, who drafted the initiative and helped qualify it for the ballot. (Pugno himself was on the ballot this month, running for a Sacramento-area Assembly seat on the Republican ticket.)

Sometimes, too, opponents will level a legal challenge against a measure almost as soon as voters approve it: Proposition 14, which abolished party primary elections, passed with a 7 percent margin in June and was hauled into court in July.

"The shelf life of an initiative is really only two years," says Lafayette attorney Barry Fadem, "because someone can come along next election and change it."

For three decades now, Fadem has had a front-row seat to all of this electoral sausage-making. Recognized nationally as an expert in the art and science of getting initiatives drafted, circulated, and qualified for the ballot, he's constantly fielding calls from a variety of wide-eyed folks with great ideas. The first thing he tells hopeful callers is: Don't think this will be easy.

"I'm very tough with the people who call me, because it's not an easy arena to play in," he says. "You hear people in the Legislature say that all you have to do is get an initiative on the ballot and it becomes law. And that's just not the case in California."

One of the first big initiatives Fadem handled was 1984's Proposition 37, which established the California State Lottery. Then partnered with veteran San Francisco political attorney Peter A. Bagatelos, Fadem helped draft the measure and also worked on the campaign. He'd been involved with electoral candidates before, but found that he preferred combining political gamesmanship with aspects of public policy.

"It was much more interesting for me to deal with initiatives than to work with political candidates," he says. "I'm a policy wonk. There are just a lot more policy implications if you're working on issues as opposed to working on a candidate's campaign, at least from a legal perspective. There's more creativity."

Often, lawyers in the initiative bar say they won't work on a campaign that advances a measure they strongly disagree with, but most also acknowledge that the universe of utterly unpalatable ballot measures is pretty small.

"I've represented ballot measures where I probably had to hold my nose a little bit," admits Bagatelos. "But I never thought it was up to me to decide the merits of the measure. I was just providing services. It's up to the people."

Frequently when lawyers work on the language of an initiative, they'll set up a kind of mini-legislative process for vetting drafts with proponents, interested parties, potential opponents, and other lawyers. But this is nothing like actually taking a bill through the Legislature.

"With the initiative process, you don't have the same tools in place that you have in the legislative process," says Chip Nielsen of Nielsen Merksamer's Marin County office. His credits include co-drafting Proposition 49, the 2002 measure that shifted $550 million in state spending to after-school programs - and launched the political career of a certain movie star named Schwarzenegger. "In the Legislature," Nielsen observes, "someone drafts a bill, and a legislative counsel determines where the [existing statutes] would have to be changed; it goes to committee and everyone gets to talk about it, make it better. With an initiative, you have a client who wants something, and they find a lawyer to write a proposition."

Without the legislative checks and balances that regular bills enjoy, lawyers working on an initiative must make sure even the tiniest of details are right, since once the measure is placed before the public it will immediately be picked apart.

"I tell my clients every word, every punctuation mark you put into the initiative - everything - will be scrutinized to a level you will not expect," says Fadem. "If an initiative has a consequence you haven't thought about, and that pops up in the middle of the campaign, you could well fail. It's got to be bulletproof." And because the near-certainty of judicial scrutiny - before and even after the election - is "part of the game," he says, "it's quite a task to take on."

Of course, a ballot initiative is as much a political document as it is a legal one, and it won't become law if it doesn't appeal to a majority or supermajority of voters. But because proponents tend to be true believers, they're rarely objective about how their measure might come across to an uncommitted or uninformed voter - especially in the face of counter-claims by the opposition. That's when a lawyer's counsel becomes crucial.

"The people behind an initiative almost always want to push the envelope in the drafting," says Oakland's Wheaton. "But that has to be tempered with the political reality that you can't write a measure that just appeals to the hard-core supporters. ...We're not writing this initiative for our friends, we're writing it for the average voter. In drafting any initiative," he says, "that's always the struggle."

Persuading skeptical voters to support an initiative, however, isn't just a matter of going on the offensive. A campaign also must fend off the inevitable attacks: that the measure is poorly drafted or entails "hidden taxes," "secret deals," or "unintended consequences." That's why it's usually easier to work against a ballot measure than for one.

"On the no side, all you have to do is raise a doubt, a question mark," says Fadem. "Or you can even say you agree with the idea behind the initiative, but attack the way it's written. You can say, 'This a great idea, but this provision would allow this and that.'

"Once you plant a seed of doubt in a California voter's mind," Fadem adds, "then the burden is really on the yes side."

Tom McNichol is a San Francisco-based freelance writer.

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