Red California, Green California—how California divided on Proposition 71

California State Capitol Building, Sacramento, California

One controversial provision in Proposition 71 exempts the "Working Groups" that it sets up to decide who should get the hundreds of millions of dollars in research grants paid for with California taxpayer money from the provisions of the Bagley-Keene Act, which was passed into law in the 1970s to protect Californians from the depredations of government agencies working in secret outside of the public's penetrating gaze.

According to the pertinent part of Proposition 71, on page 5 of that constitutional initiative measure, in a section entitled "Conflicts of Interest":

"Because the working groups are purely advisory and have no final decisionmaking authority, members of the working groups shall not be considered public officials, employees, or consultants for purposes of the Political Reform Act (Title 9(commencing with Section 81000) of the Government Code), Sections 1090 and 19990 of the Government Code, and Sections 10516 and 10517 of the Public Contract Code."

Curious about the attitude today of the co-authors of the Bagley-Keene Act towards this development, this reporter contacted former State Senator Barry Keene yesterday at his office in Sacramento, California and asked him.

In light of what he perceived as the absence of any serious pre-election justification by Proposition 71 proponents of the exclusion of the Independent Citizens' Oversight Committee (ICOC) Working Groups from the provisions of the Bagley-Keene Act designed to ensure the transparency of government agencies responsible for spending taxpayer funds, Senator Keene said that those proponents should either "make the case or waive the exemption unless they can make a strong case."

Today Senator Keene sat down with California Politics Today for a longer, more-detailed discussion of how the goal of transparency he sought to provide for California citizens interested in the workings of California's government agencies is likely to be served by exempting the Working Groups responsible for deciding on the allocation of $3 billion dollars in taxpayer funds (raised by selling bonds which will cost those taxpayers at least $6 billion from future general funds to pay off) from the eponymous open government legislation that he co-authored.

After explaining something of Bagley-Keene's history, Senator Keene recounted how, more than twenty-five years ago, opponents of that legislation had argued that it would be impossible to do the public's business if the public could see what was being done in its name. Those arguments, he said, hadn't prevailed, and this open government/open meetings law, implementing basic principles of "transparency" before that term had become the ubiquitous catchphrase it is today, was passed by the legislature and signed into law.

As strong a supporter of transparency as he was then and is now, Senator Keene is not a big backer of the initiative process, which allowed for the passage of Proposition 71 and the subsequent insertion of its provisions into the California Constitution.

Senator Keene told California Politics Today that:

"Concerning Proposition 71, in my view, this is not the first time that the public has shot itself in the foot by using the initiative process to treat issues, big issues….They fasten on an issue and take it in a vacuum. The people rely on these narrowly-targeted self-serving puff-pieces of paid advertising and here the public has literally and evidently legally excluded itself, excluded its own participation in a process that permits the expenditure of billions of tax dollars….If that isn't shooting yourself in the foot, I don't know what is, and it happens at time when the state is faced with huge deficits being passed on to future generations. So there's a temptation on my part, I feel it, it's not rational I guess, but I feel it, to say the public has made its bed and now it has to sleep in it."

Reiterating the point he'd made the day before about the lack of adequate pre-election debate about the wisdom and propriety of exempting the ICOC Working Groups from the provision of the state's open meeting law, Senator Keene said that:

"Both the worst-appealing and the best-appealing ideas on their face that are typically proposed through the initiative process…deserve public debate and they deserve public consideration. If the exemption from Bagley-Keene was ever discussed, I never heard about it, and I'm probably better informed than most people, at least I try to stay well informed. So, if that's the case, if I'm correct in that observation, there are two possible conclusions that occur from that: either those in charge of oversight, the ICOC, feel a strong obligation to discuss the issue now and develop rules that optimize the transparency, consistent with their mission, or, and I say this very very reluctantly, they must be presumed to have deliberately concealed the exemption, and that would make them unworthy of the public trust.

"The ball's in their court, and, if I were an advisor to them, a political advisor, I would caution them that they should not underestimate the perils of an enraged public, of a public backlash."

Senator Keene re-visited his skepticism about the much-ballyhooed California initiative process, saying:

"What I think these circumstances shed light on is that the initiative process is potentially exploitable and that that's a weakness that's inherent in the process itself.

Asked "whether the experience here with Proposition 71 so far points to a more general threat that, let's call them 'cunning entrepreneur-attorneys,' can write their own laws, raise money to pass them through a process with slick, and possibly-deceptive, massive television advertising campaigns and then establish themselves in control of vast sums of what's essentially public money that they're then in control of. Is that a perversion of democracy?" the Senator replied:

"It is a perversion of democracy. And if you look at the Klein thing specifically, he's either exercising great leadership that stems from altruistic and idealistic convictions or there's risk that he's doing exactly the opposite and the process permits that risk. That situation's not Mr. Klein's fault; it's the public's fault and this is not the first time the process will have been exploited for personal reasons."

When reminded that the infamous 19th century leader of New York City's Tammany Hall, Boss Tweed was alleged to have famously said of such situations, "I seen my opportunities, and I took 'em," the former California legislator repeated the alleged quote and then added:

"It's done all the time. The initiative process, in my opinion, and I'm very opinionated on this subject, because I believe in representative government, is a cancer that undercuts representative government. It has made representative government in California worse, consistently, and James Madison stated that opinion clearly his Federalist Papers.

The interview with Senator Keene concluded with him providing some advice to both Robert Klein II and the ICOC and to the people of California:

Asked "if you were advising Mr. Klein, or the ICOC, what would you recommend that they do now?" Senator Keene recommended:

"That they begin putting into place proposals for public access and that they discuss those matters in public and debate those matters and to each and every extent that public access is denied that they be prepared to justify that, otherwise they're liable to have an enraged populace on their hands.

As to how he would advise the public to proceed at this point, the co-author of California's open meeting/open government/transparency statute said:

Pay attention and draw your conclusions about the reliability of those in whom you've placed the public trust and if they violate that trust prepare to seek options to reverse what's transpired.

To listen to Senator Barry Keene's remarks about the applicability of the principles of government openness and transparency embodied in the Bagley-Keene act to the exemption of the ICOC Working Groups from its provisions, as directly legislated by the voters of California last November through the passage of Proposition 71, in their entirety, click here.