Climate law foes face uphill battle, despite court ruling

Political strategists in California, asked to assess a judge's decision this week to tweak the state's ballot initiative on climate change, said the ruling could affect the November election for a small group of voters but not enough to change the final outcome.

Sacramento County Superior Court Judge Timothy Frawley ruled that a title and summary attached to the ballot measure by Attorney General Jerry Brown (D) was misleading because it used the word "polluters" to describe those subject to greenhouse gas emissions regulations under the state's climate law, A.B. 32. He threw out the word and directed Secretary of State Debra Bowen and Brown to replace it with "sources of emissions."

Proponents of Proposition 23, which would suspend A.B. 32 until unemployment recovers to 5.5 percent, hailed the decision as a victory in their effort to convince voters that the climate law would lead to more job losses and an added financial burden for the state (E&ENews PM, Aug. 3).

Operatives with an eye on the process said the revision does matter because the word "polluters" tends to conjure a negative image and would likely have given the "No on 23" campaign an easier path to defeating the measure. But the experts do not believe the decision will sway the election, unless it turns out to be a nail-biter.

"I think it does matter how it's worded, yes," said Bill Carrick, a Democratic strategist and consultant with years of experience on ballot campaigns. "The ballot title and summary certainly have an effect and can be a total deal-breaker in some cases."


Carrick added that in this case, he does not view Frawley's ruling as that sort of deal-breaker. Shaun Bowler, a professor at the University of California, Riverside, agreed, saying that in a state as big as California, you can always find voters influenced by the smallest factor.

Changed wording may prevent later legal attacks

"In an electorate our size, you can also probably find some folks who would be okay having their ballot paper printed in Klingon," Bowler wrote in an e-mail, in reference to a fictional language from the "Star Trek" television series. "My guess is more people than that would be swayed by the ballot wording, but we just don't know how many -- probably not enough to make a difference to the outcome, so I'm not sure just how big of a win this is for the backers of the proposal."

Bowler went on to suggest that the opponents of Prop 23 might be quietly pleased with the ruling because it could make rejection of the climate referendum at the polls less vulnerable to legal challenge following the election. That remark seems prescient, given a federal court decision just this week that effectively bypassed California voters on Prop 8, which banned gay marriage in California starting in 2008.

"I think it is generally better to get these disputes settled before the election because they give less scope for legal challenges," Bowler said. "In this case, that may not be great news for environmentalists, but if the measure does pass in this 'non-prejudicial language' form, it will definitely be a big signal to those who brought this suit that popular opinion is pretty supportive of environmental measures."

As for the campaign itself, Carrick said the "Yes on 23" coalition has its work cut out for it in any event because California voters have historically rejected two-thirds of the ballot measures placed before them. Voters like direct democracy, he said, but they almost reflexively side against referendums unless convinced otherwise.

Carrick also suspects the complexity of climate change and the science behind it put proponents in a hole that is already fairly deep because of the campaign's association with out-of-state oil companies and the drumbeat on the other side highlighting this fact.

Complexity and tradition lean toward 'no'

"It's just too easy to say, 'It's too complicated, I'm voting no,'" Carrick said. "California voters love the idea of voting on these things, but they are also predisposed to vote no on them."

Max Neiman, a political analyst at the Public Policy Institute of California, said the wording in this case is unlikely to have any effect because, in his view, the proposition has run into opposition even in the business community, some sectors of which have begun implementing parts of A.B. 32.

"While there might be some utility and oil company effort to push Proposition 23, I don't think there is a lot of passion in the organized business community," Neiman said, pointing to a PPIC poll that found high support for A.B. 32.

He added this caveat: "The only qualification I have to my sense of likely defeat for Prop 23 is that the November election might have a particularly strong GOP tilt for all of the obvious reasons, and that might make things closer than I expect it to be."

Others suggested that loyalty to Gov. Arnold Schwarzenegger (R), who views the climate law as a chief legacy item, could split the Republicans and help A.B. 32 advocates. And Carrick pointed out that "politically incorrect" interest groups like insurance, tobacco or oil fare pretty well when campaigning to defeat a proposition but less well when trying for votes on the positive side of the column.

"For the special interests behind a 'yes' initiative,' the track record has been pretty poor," Carrick said.

Holder urged to investigate Adam Smith Foundation

Another front in the Prop 23 war of words opened this week when a pair of senior Democrats in the California Legislature asked U.S. Attorney General Eric Holder to look into the funding behind a conservative group based in Missouri that helped put the referendum in the ballot.

In a letter dated Aug. 3, state Senate President Pro Tem Darrell Steinberg and Assembly Speaker John Pérez urged Holder to begin an inquiry into whether the Adam Smith Foundation had essentially laundered dirty campaign contributions into the anti-A.B. 32 effort from unnamed third parties.

The nonprofit group, which doesn't list a number on its website, contributed $498,000 to the California Jobs Initiative in April. The California Jobs Initiative managed the signature-gathering operation that eventually placed Prop 23 on the ballot.

"Serious issues are implicated by the use of an out-of-state organization that may be abusing its tax status to avoid having to disclose the name of its donors to a campaign that will have a profound impact on the future of California," the lawmakers wrote.

The letter says the Adam Smith group went from raising $5,000 in all of 2009 to contributing half a million dollars to the Prop 23 effort in 2010.

While the Adam Smith organization did not return an e-mail seeking comment, the spokeswoman for the "Yes on 23" campaign took a shot at the Democratic leadership in Sacramento and demanded that it take an equally hard look at funding on the other side.

"One might wonder whether the timing of the inquiry ... had anything to do with this week's Superior Court decision ordering the California attorney general to significantly amend his official Prop 23 ballot label," said Anita Mangels, spokeswoman for "Yes on 23."

Mangels also argued that the contribution from the Adam Smith Foundation was lawfully disclosed.

Click here to see the letter.

Sullivan reported from San Francisco.

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