June 2016 Primary – Propositions

 

Prop 50 – Suspension of Legislators; Legislative Constitutional Amendment

Prop 50 came about after three Senators – Ron Calderon, Roderick Wright, and Leland Yee were all accused of committing serious felonies. It is a legislative constitutional amendment, meaning the legislature (40 Senators and 80 Assembly Members) voted to place this proposal before the voters for approval. Tallying votes in both houses, 104 legislators support the proposal and 5 oppose it. As of this writing there has been almost no money spent in support or in opposition of this initiative[1]. For a comparative look at the amazing dollars spent on 2014 initiatives and the success that money brought see this link[2]. Ironically, because of the small amount of money surrounding this proposition, its largest backer appears to be assembly member Ian Calderon, a close relative of former Senator Ron Calderon[3].

While we think it’s irrelevant to the proposition, since both sides have used the scurrilous nature of the Senators’ alleged wrongdoing to justify their positions with a somewhat misleading gloss, here are the facts: Calderon who was allegedly caught on tape accepting a bribe from an undercover FBI agent is presently awaiting trial[4]. Leland Yee was also ensnared in an FBI sting along with several others and convicted of accepting cash and arranging for illegal gun shipments. Following his eventual guilty plea, Yee received a 5 year prison sentence[5]. Wright too was convicted and sentenced to 90 days jail time for committing perjury related to his residence requirement[6]. Wright resigned from the senate to avoid an impending expulsion vote (Id.).

Prop 50 addresses the uncomfortable reality that in the rare instances where elected officials are charged with a serious crime there exists a period of time where they are charged but not yet convicted. What to do? The legislature has a remedy of expulsion (essentially impeachment) but that effects a permanent removal of the official – not necessarily a fair outcome if the officials have yet to be convicted. On the other hand, despite the absence of a conviction, the public understandably might be uncomfortable with such people legislating. When the legislature was faced with the disturbing allegations around Calderon, Wright and Yee, they essentially invented a never-before used remedy; they immediately suspended all three. The problem is that despite being suspended, all three candidates were entitled to continue to collect pay because they were not expelled. The legislators passed Prop 50 to change that rule[7].

The argument opposing this measure is largely a rambling missive of histrionics about corruption. Somewhat more helpful is the sole Editorial we found opposing the measure by any major press organization – the L.A. Times[8]. The Times’ Editorial board argues that suspending a legislator only accused of a crime violates that legislator’s federal and state due process rights – except that one doesn’t seem to fly. Those important constitutional rights don’t say that individuals can’t be deprived of liberty or property, only that a fair system must be in place to enable such a retraction of individual rights[9]. It seems to us that there is a threshold of probable liability that could justify legislative action suspending a member’s right to legislate and right to be paid. We think that if the charges prove false, the member will likely be entitled to recover the lost monies, but we don’t feel that the vote itself is violative of the member’s due process rights. Indeed, the process of voting and the supermajority required for the suspension to pass would be the “due process” afforded to the legislator.

They also argue that suspensions could be used for political gain. While true, we think that danger is no more true with suspension than it is with expulsion (which has long been part of our system). Presumably, elected officials will not misuse the procedure and if they do, we will vote them out of office. We do think a related problem is legitimate. During the term of suspension the constituents of the elected official will essentially be unrepresented. We find that troubling. However, weighed against the reality that constituency being represented by (in this case) a member charged with bribery, one with gun-running and bribery, and another with perjury (which necessarily means the lie is both intentional and material), we think suspension is probably the lesser of two evils. We feel it is appropriate to rely upon the legislature to use this new tool responsibly and only in extreme circumstances; though concededly we’d feel better if those limited circumstances were spelled out in the legislation – they are not. Our expectation that the legislature will be circumspect in ordering suspension is not totally baseless – these suspensions in 2014 mark the first time that power was used and the last time the related power of expulsion was used was back in 1905[10]. We think that’s a pretty good track record of restraint on the part of the legislature. Add to that the 2/3 supermajority required to accomplish the suspension and we feel that mischief is unlikely.

While this proposal isn’t perfect we think it offers sufficient safeguards to merit approval. We think it is a responsible way to handle an uncomfortable reality – the ambiguous period of time between when a legislator is charged with a serious crime and when they are actually convicted and removed from office.

Recommendation: Solid Yes.

[1] https://ballotpedia.org/California_Suspension_of_Legislators_Amendment,_Proposition_50_(June_2016); and see http://www.fppc.ca.gov/ (no group reaching reporting threshold).

[2] http://ww2.kqed.org/news/2015/03/09/big-money-won-all-its-bets-on-2014-california-propositions/

[3] http://www.latimes.com/politics/la-pol-sac-essential-politics-prop-50-california-ballot-htmlstory.html

[4] http://www.latimes.com/local/politics/la-me-pol-calderon-20150222-story.html

[5] http://www.latimes.com/local/lanow/la-me-ln-yee-sentence-20160223-story.html

[6] http://www.latimes.com/local/political/la-me-pc-convicted-felon-roderick-wright-to-resign-from-state-senate-20140915-story.html

[7] http://www.lao.ca.gov/BallotAnalysis/Proposition?number=50&year=2016

[8] http://www.latimes.com/opinion/endorsements/la-ed-proposition-50-20160420-story.html

[9] http://law.justia.com/constitution/us/amendment-14/37-due-process.html

[10] [10] http://www.lao.ca.gov/BallotAnalysis/Proposition?number=50&year=2016

 

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