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It is not every day that state lawmakers publicly brand initiative proponents “pimps” or threaten them with criminal prosecution, but Proposition 51, the superficially appealing “Traffic Congestion Relief and Safe School Bus Act,” is not your typical initiative. The brainchild of the seemingly idealistic Planning and Conservation League (PCL), Proposition 51 re-allocates nearly $1 billion a year from the state’s general fund to pay for 45 specific projects and 17 new categories of spending oriented generally toward transportation, school buses and the environment. Although the measure is being billed as a “transportation” measure, it is opposed by virtually all of the regional transportation agencies, largely because it locks in funding for a number of low-priority projects — many of which are completely unrelated to transportation. It is not a coincidence that the PCL’s selection of projects reflects the “transportation” priorities of the initiative’s wealthy contributors, rather than those of the state transportation commissions. That is what has gotten the ire of many state lawmakers, including Sen. Steve Peace, D-El Cajon, who is actively collecting evidence to support criminal charges against PCL. These legislators claim that, as “citizen lawmakers,” Proposition 51′s organizers have violated the same statute that prohibits them from trading money for law in the Legislature. PCL admits that “we picked projects where we thought people might contribute,” but claims that its quid pro quo arrangements are legal, citing Planning & Conservation League v. Lungren(1995), 38 Cal.App.4th 497. In that case, the Third District Court of Appeal held that the statute created by Senate Bill 424 (SB 424) — a law introduced in 1991 by then-Sen. Quentin Kopp, who called such fund-raising tactics “the electoral version of ‘Let’s Make a Deal’” — unconstitutionally abridged freedom of speech by requiring a proponent of an initiative measure to certify that no dedicated appropriation has been included in the measure in exchange for a campaign contribution to qualify the measure for the ballot. Because the law was found to have burdened core political speech protected by the First Amendment, the appellate court applied strict judicial scrutiny to the legislation, which prohibited multiple entities from contributing money to qualify an initiative in exchange for the inclusion of particular appropriations. Hence, the court stated it could uphold the restriction only if it was narrowly tailored to serve an overriding state interest. Although the court agreed that the prevention of corruption, or the appearance of it, in the electoral process was a compelling government interest, it determined that SB 424 went too far to achieve that goal. Indeed, the Third District questioned whether the prohibited practices prevented corruption at all. It maintained that the concerns over corruption associated with contributions to candidates for public office were misplaced in the context of a ballot measure because the political decision makers — the voters themselves — have not been improperly influenced by large campaign contributions. Further, it stated that the quid quo pro arrangements did not invite corruption because the “ voters are made fully aware that particular appropriations are included in the measure . . . [and] can decide whether to support a measure containing specific appropriations of particular concern to special interests . . .” (emphasis added). In making such assertions, the appellate court probably did not contemplate a pay-to-play scheme as cynical as Prop 51, dubbed “California’s Most Corrupt Initiative” by the Sacramento Bee. Deceptively packaged as a people’s initiative promoting health and safety, the ballot measure includes little information that would give voters reason to know, or even suspect, that a contributions-for-appropriations exchange was at the heart of many of its specified projects. In fact, it has taken the extraordinary investigative efforts of reporters and others to discover that many of these seemingly worthwhile undertakings are actually corporate welfare in disguise. In one of several examples, a provision in the initiative earmarking $137 million to build a highway connector between Interstate 5 and State Route 56 — purportedly to “facilitate the improvement of traffic through the I-5/I-805 merge” — is, in reality, a direct payout to Pardee Homes and Pardee Construction Co., which have donated a total of $500,000 to the Prop 51 campaign. Without this substantial taxpayer subsidy, Pardee itself would be forced to pay for the construction of the connector to allow it to build an additional 3,000 homes adjacent to the connector site. Significantly, Caltrans officials have recommended against using scarce public funds for this project. Even if PCL successfully hoodwinks voters into approving this disastrous, pork barrel measure, another round of legal wrangling will surely ensue. That is because many legal experts, including the state Legislative Counsel, believe that Prop 51 violates the single-subject rule of the California Constitution, which states, “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (Cal. Const., art. II, � 8, subd. (d).) PCL asserts that the single subject of the initiative is funding for transportation-related improvements, but the measure includes appropriations for a myriad of non-transportation related items, including a charter school for the arts, conservation easements from ranchers, a music concourse, a railroad museum, child care centers, and roadside produce stands. For this reason, the Legislative Counsel stated, “[E]ncompassing funding purposes of this breadth within the subject of transportation . . . would essentially render meaningless the single-subject requirement.” We hope that California voters make such litigation moot by voting No on Prop 51. Cathleen Chapman is a pro bono policy attorney with the No on Prop. 51 Committee.

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