Prop. 93: Nunez's Term-limits Scam
BIG-CITY, COASTAL DEMOCRATIC leaders are selling it, but landlocked, rural Republican voters are its likely buyers. Large state-employee unions are feverishly bankrolling it, but union households are ambivalent toward it. The Republican governor who used to oppose it now supports it, while GOP lawmakers who hotly denounce it will happily accept its future benefit to them.
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Thanks to Attorney General Jerry Brown, who approved its bizarre title, it's billed as "Limits on Legislators' Terms in Office" on the February 5 ballot. Despite its misleading title, the measure would all but guarantee that 18 state senators and 24 state Assembly members — more than one-third of California's extremely unpopular Legislature — could cling to office for another four and six years, respectively.
Welcome to the paradox that is Proposition 93 — a stealth measure that's got voters so confused that many of those planning to vote for it don't know it would, for the first time, significantly weaken term limits in California.
"This is a public policy that people don't know the details about," says Mark Baldassare, president of the nonpartisan Public Policy Institute of California, a pollster attuned to how California voters think. Although term limits are wildly popular with Californians, ignorance about how they actually work is widespread, with just 1 percent of likely voters "able to identify the total amount of time legislators can serve right now"— 14 years. Says Baldassare: "Only 1 percent!"
According to multiple polls, Californians' views on term limits are in dramatic conflict with what they plan to do on February 5, thanks to carefully designed, confusing double meanings in Prop. 93. While voters overwhelmingly support existing term limits, which since 1990 have confined legislators to six years in the Assembly and eight years in the Senate, these same voters are now leaning toward approving Prop. 93.
One study by the nonpartisan Center for Governmental Studies predicts that if this initiative passes, the average legislator will serve four more years than he or she does now — and legislators' terms will return to the average time in office before term limits took effect.
All this is the consequence of one of the slickest confusion-peddling campaigns in election-season memory, in a state known for purposely confusing ballot measures. If Prop. 93 passes, 42 termed-out legislators — 34 this year and eight in 2010 — would get to run again, in safe seats designed to return all incumbents to office. Seventeen of them, including state Senators Gil Cedillo and Gloria Romero of Los Angeles, would end up serving a total of more than 14 years in office — some for as long as 18 years. (And historically vociferous term-limits supporter and Republican state Senator Tom McClintock of Thousand Oaks would get to stay for 26 years.)
Part of the voter ignorance is due to the California media, who have for months dramatically underplayed the fact that one-third of the termed-out Legislature — a consistently unpopular body of 120 politicians with a 41 percent approval rating — could overstay. Only a handful of references to the 42 hangers-on in the Legislature showed up in California newspaper coverage this month — and the legislators were almost never identified by name (Click here to download a PDF file listing all 42 legislators who could run again).
Moreover, California's chief legislative analyst, Elizabeth Hill, glosses over their bid for self-preservation in her supposedly nonpartisan description, stating in the mildest possible terms that Prop. 93 would let "some current" legislators serve for longer than 14 years.
"Frankly, I don't think I ever counted the number," admits Michael Cohen, director of state administration at the Legislative Analyst's Office, which specializes in mind-numbing number crunching but didn't bother figuring out how many legislators would get to stay beyond 14 years. "It's not a majority, but it's a significant number," Cohen says. "It was a judgment call on our part. Clearly, there was complexity."
THE SLICK-TALKING HEAD of this campaign is longtime Democratic Party operative Gale Kaufman, a Sacramento power queen who is also consultant to the measure's most visible beneficiary, Assembly Speaker Fabian Nunez, a Los Angeles Democrat. Kaufman first unveiled the measure last February. On paper, it appears at first to be a limit on term limits: The current 14-year span would be replaced with a 12-year span, and instead of making politicians split those years between the Assembly and the Senate, as is now the case, it would allow politicians to do their entire stint in one house.
But the trick here was the fine print: A "transition period" clause allows incumbents — McClintock, Nunez & Co. — to serve 12 years in their current house, regardless of how many years they've already been in Sacramento. Some of them have been there, well, practically forever, like 16-year Sacramento shuffler and Assemblywoman Betty Karnette of Long Beach, who first entered the Assembly in 1992, then went to the Senate in 1996, then back to the Assembly in 2004. If Prop. 93 passes, she'll be able to do 20 years in Sacramento — second only to McClintock's 26.
Proponents insist Prop. 93 is about "striking a balance between having new legislators with fresh ideas but also ones who spend long enough in one house to be effective."
But by far the greatest benefit is to lame-duck California Speaker Nunez, who was elected in 2002 and who without Prop. 93 would be forced to run for state Senate if he wants to stay in Sacramento. Under Prop. 93, however, he'd no longer be a lame-duck speaker taking a fall from power, forced by term limits to run against others for state Senate. Instead, he'd get to run for a shoo-in seat, staying six more years in the Assembly — which would grant him political longevity and tremendous new power.
Yet unlike Nunez, in the bizarre fuzzy math Kaufman and others built into Prop. 93, Don Perata, the Democratic leader of the state Senate, would have remained a lame duck. He's been a senator for two and a half terms, entering the Senate from the Assembly in 1998 to fill out the remaining half-term of a departed Democrat. The math could give a voter a headache, if any of them were paying attention, but suffice it to say that Perata's 12 already-served years would, under Prop. 93, have barred him from running again.
But not so fast! That's where Kaufman and other operatives did their most creative work, after realizing they were helping one-third of the Legislature to blow past term limits, but had cut out Senate leader Perata. Deep in the February 5 ballot measure is what can only be called the Perata Special Rule, ultra-fine-print affecting one guy among almost 38 million Californians. Under the special rule, the extra half-term Perata served in the Senate simply would not be counted, allowing him to run again, along with his pals.
"If Nunez and Perata weren't being termed out, this wouldn't have been on the ballot," says term-limits advocate Kevin Spillane, a political consultant who is leading the anti-93 campaign. "It's been a corrupt process from the very beginning. This is all about very selective language to get voters to do the exact opposite."
Emboldened by the voter confusion, Nunez and Perata are directly overseeing a money-drenched push to buy themselves this extra time in power: The two most active political action committees financing it are controlled by Nunez's and Perata's political consultants, Kaufman and Sandi Polka, respectively.
How much money are Nunez and Perata raking in for their career-lengthening bids? In August, Nunez asked each of the state Assembly's 47 elected Democrats to donate $50,000. At least eight Assembly Democrats — all beneficiaries if their six-year Assembly tenures are doubled — have given between $15,000 and $70,000.
The deepest pockets, writing checks ranging from $100,000 to $500,000, are the entrenched insider lobbying groups in Sacramento — Southern California Edison, the California Teachers Association, the American Federation of State, County and Municipal Employees, and the super-rich Pala Band of Mission Indians — or what pro–Prop. 93 campaign spokesman Richard Stapler, without irony, calls "organizations that understand good public policy can only be enacted with good, experienced legislators."
"What we've found is that almost all the lobbyists in Sacramento are against term limits," says Bob Stern of the Center for Governmental Studies. Term limits, he says, create unpredictability because they force out legislators with whom lobbyists have often invested thousands of hours and millions of dollars "educating."
By year's end, the combined "Yes on Prop. 93" campaigns raised more than $7 million, and a flurry of contributions so far this year has pushed the figure upward of $10 million.
GROUPS FIGHTING THE SOFTENING of term limits seem to have more varied motivations — but they oversee a campaign war chest at least as large as their opponents'. Insurance Commissioner Steve Poizner, a Republican, gave $1.5 million from his family trust. The California Correctional Peace Officers Association has given $1 million. The biggest single opponent, though, is U.S. Term Limits Inc.
The nonprofit has fiercely guarded its contributors from public scrutiny, but its most prominent donor is libertarian Howard Rich, a Manhattan real estate developer who spends millions backing his pet projects — restraining state spending, curbing eminent domain, promoting public school competition and, above all, tightening legislators' terms.
"[U.S. Term Limits Inc.] is strongly antigovernment," Stern says. "They want tons of turnover — weak legislators — and I think their goals are sincere. But Poizner is different. This is about giving him a leg-up on the  Republican nomination [for governor]. He wants to be the face of this. It's another feather in the fight for the nomination."
One of the anti–Prop. 93 camp's greatest obstacles on February 5 is Attorney General Brown. When voters elected Brown as the state's top attorney in 2006, few probably realized he would also be the state's official ballot wordsmith.
Before Brown settled on the title "Limits on Legislators' Terms in Office," and the official ballot summary explaining the measure, pollsters already knew that California voters were "highly sensitive" to the phrasing. Last April, Phil Trounstine, director of the Survey and Policy Research Institute at San Jose State University, wrote, "Voters like term limits. If they see this measure as a way for legislators to lengthen their terms, it's likely to fail. If they see the measure as a further limit on legislative terms, it stands a chance of passing."
It all came down to how the message got spun. Soon after, Brown chose a ballot title and summary that almost identically mirrored the wording suggested by the Kaufman and Nunez camp. The emphasis in the first sentence — where Trounstine says California voters get their cues — is clear: "Reduces the total amount of time a person may serve..."
"I don't think [the attorney general] was disingenuous, I just think it's favorable to the proponents," Trounstine says.
U.S. Term Limits Inc. sued Brown, arguing that he had failed to choose an accurate title and summary as required under California law, but the case went nowhere. Pollster Baldassare says of the dueling descriptions that each side sought, "I wouldn't say any of them are inaccurate, I would just say they emphasize different things."
Baldassare's polling is known for getting to the uncomfortable heart of things during election seasons, even if what he discovers is widespread ignorance among the very people who are about to vote. In 2005, the Public Policy Institute of California revealed stunning ignorance among California voters regarding how much money goes to schools. Most voters believed the largest chunks of the state budget went either to welfare or to prisons. The most money, by far, goes to public education — fully half of California's budget.
This election season, Baldassare has unearthed deep voter confusion over Prop. 93. When his Public Policy Institute wrote up its own nonpartisan summary of what Prop. 93 will actually do — not the highly spun version from Kaufman, Nunez and Jerry Brown — likely voters opposed it 66 percent to 29 percent. But seeing the massaged language from Nunez & Co., which was approved by the attorney general, voters backed Prop. 93 by 47 percent to 38 percent.
Even many independent and conservative California voters — who usually oppose the softening of term limits — are confused by the ballot language, with many believing Brown's claim that it's about "limiting" legislators' terms. "Republicans actually think that this is a reform that strengthens term limits," says Philip Blumel, president of U.S. Term Limits. "If you go into a Republican club and ask someone, 'Hey, what do you think about reducing the time in office for legislators from 14 to 12 years?,' they'll say, 'Hell, yeah!' They believe that that's what 93 does. It doesn't, and that's what we have to show people."
But because the measure lets both Democratic and Republican legislators overstay their current terms, "I am not under the illusion that Republican legislators aren't quietly hoping this will pass," says anti–Prop. 93 spokesman Spillane.
For now, many supposedly pro-term-limits GOP legislators are following the lead of Senator Dick Ackerman of Tustin, who in one breath says Prop. 93 "would just make it worse," and in the next says that if it passes, "Yeah, I might run again."
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