Statewide ballot measure recommendations, November 2020

Hello all of you braving the treacherous fields of 2020 to vote once again on the California propositions. A lot has happened this year that we wouldn’t have predicted, but nothing has reduced the need for a bold, empowered government ready to tax and spend more than before to ensure everyone is included in society.

In previous years, I have made my recommendations two ways: first, “utilitarian,” whether the proposition is technically doing something good or bad; second, “anticlutter” for the voter who is willing to discard something slightly good if it should never have cluttered up our ballot. This year, my recommendations don’t diverge, but one of my recommendations is ambiguous.


Here is the summary of the state measures and my recommendations, writeups below. You can use the links to jump to the writeup for a specific measure.

Prop 14Borrow $5.5 billion for stem cell researchNo
Prop 15Close corporate property tax loopholes to raise funds for schools and communitiesYes (1000x)
Prop 16Un-ban affirmative actionYes
Prop 17Restore right to vote to paroleesYes
Prop 18Give right to vote to some 17-year-oldsYes
Prop 19Decrease property taxes for older people who buy new houses; increase on people who inherit propertyNo
Prop 20Increase criminal penalties and incarcerationNo
Prop 21Allow cities to impose more kinds of rent controlYes
Prop 22Reward Uber and Lyft for exploiting workersNo
Prop 23Increase regulations on dialysis clinicsGut call
Prop 24Increase online consumer privacy lawsNo
Prop 25Uphold Legislature’s elimination of cash bailYes

Prop 14: Borrow $5.5 billion for stem cell research: No.

Biomedical research is normally an excellent target for public money, so I am surprised to be making this recommendation, but it was unavoidable when I learned what kind of clusterfuck California has allowed to be created in this program.

A history refresher: Because the most useful stem cells (at the time) came from embryos, extracting them for research was briefly analogized to abortion, and George W. Bush banned funding research with any new embryonic stem cells when he came into office. There was outcry over what therapies might never be found, and in 2004, California passed Prop 71, which borrowed money for a new research institute, the California Institute for Regenerative Medicine (CIRM) to give out in this cause. Now, after 16 years, they’re nearly out of money and want more.

But President Obama rescinded the stem cell ban as soon as he came into office, and neither Trump nor his appointees seem to have revived the issue. The NIH funds stem cell research to the tune of two billion dollars a year, which has continued to increase in the past five years. 

Is that enough? Maybe CIRM is adding a lot of value by funding more research on its own, even with the higher costs of borrowing at the state level? Well, we don’t really know. And that’s the problem. CIRM’s executive board is a morass of interlocking interests that taints the whole project and makes it impossible to trust. 

CIRM’s governing board is huge by normal standards, 29 members. 13 of them come from various universities and research institutions; 4 from life-sciences firms; 10 are disease advocates; last are the chair and vice chair. The top eight grantees, Stanford, the six UCs, and City of Hope Beckman Research Institute, have all had representation on the board since its inception. According to all outside assessments of its governance, it’s been a mess, with the board micromanaging the agency, burning through CEOs every few years, and elevating grants that staff did not recommend. While the board members are technically appointed by elected officials like the Governor, they serve for six years, renewable, and due to the extensive qualifications Prop 71 laid out for each seat, the appointers have very short lists to appoint from.

To quote the Little Hoover Commission, whose assessment the Institute of Medicine echoed in a longer report, “the lack of disinterested members … weakens the board’s ability to make sound decisions and limits the likelihood that there will be substantial debate and dissent among board members about key funding and policy decisions.” 

The evaluators recommended reforms which were not adopted — unsurprisingly, because Prop 71 requires the Legislature muster a 70% supermajority to make any changes at all, and such major changes never materialized. In effect, with its inbuilt immunity to reform, CIRM is an autonomous fiefdom that doles out public money accountable to no one but itself.

And this autonomy is by design: CIRM’s true parent is Robert N. Klein, a wealthy property developer. His son had Type I diabetes, and he seems to have realized he could invest just a few million to unlock billions of public money for what he wanted. He then personally chaired the CIRM board for its first three years. In Klein’s role bankrolling this renewal, Prop 14, he has clearly thumbed his nose at the proposals for improved governance. Instead of shrinking the board, it would now grow in size from 29 to 35. It preserves the 70% supermajority requirement. It makes changes that are cosmetic, adding programs and advisors and other feelgood activities. 

I don’t think this is corrupt; the board are not lining their pockets (although one of the former CEOs made an unseemly quick jump to work for a grantee). Presumably, they mostly like what their organization’s doing and want to keep it going. But the lack of accountability and conflict of interest mean we have no idea if their scientific prioritization makes sense. Is the money best put to use in basic research? Translational research therapies? Some mix? They abruptly pivoted to therapies about ten years ago, planning to go back to the voters for more money and knowing they would need victories to trumpet. (The treatments they achieved are narrow and minor.)

Learning about CIRM has convinced me it is probably better to fund medical research through large national bodies like the NIH, not by-states-for-states. Not that the NIH is free from politics, but they can work out priorities with less conflict of interest due to greater distance from the institutions they fund. Research funding should not have to continually calibrate itself around popularity with voters and grantees. 

Prop 14 makes it even more obvious that popularity is the criterion for its funding strategy, by legally reserving $1.5 billion of its total $5.5 billion for brain and central nervous system treatments. How do we know that is the right amount of money for such studies — or that we wouldn’t be passing up better breakthroughs and cures elsewhere? How do we know CIRM is investing in the right long-term mix of basic research and therapies, when by its own admission it has spent over half its lifespan preparing to go back to the ballot box?

And don’t forget that the bonds’ cost to the state budget is $260 million a year for 30 years. We are forgoing a lot of other opportunities for social spending to pursue this project. (They market it as “no payments for 5 years,” going all used-car-salesman, but that is just borrowing more in the long run to decrease the outlay in earlier years; and it’s just no interest payments, implying we would still be paying principal.)

We should vote against Prop 14, not because it is bad research, but because it is research-for-applause, a precedent we should not continue. If you want a ramp-up in all kinds of biomedical research, the surest route is to help bring Democrats back into power at the federal level.

Prop 15: Schools and Communities First: Yes.

The keystone of California politics for 40 years has been Prop 13 (1978), which among much else, barred property taxes from growing more than about 2% a year while the same person held the property, no matter how much value the property gained. 

There are a lot of problems with this idea — it’s the selfish masterwork of antigovernment, pro-wealth ideologues, California’s moral equivalent to Brexit — but most ridiculously, even though they touted it as protecting low-income homeowners, the Prop 13 tax benefit was never limited to actual homes. The benefit works just as automatically to shrink an owner’s tax bill whether what they own is a strip mall, or a luxury high-rise, or an oil refinery, or Disneyland. So the successful corporations that have stuck around for decades got this benefit, and kept getting more the bigger they got, until now they are paying pennies on the dollar compared to what an emerging competitor would. In almost any other state, they would pay massively more, and they would barely feel it. It is pure windfall, a giveaway.

Prop 15 would end this giveaway, bringing property taxes back up to a percentage of actual property value as it grows over time, but for commercial properties only, and exempting smaller ones. It would bring in an amount ramping up to $11.5 billion per year for us to spend on community priorities — not going to Sacramento, but to the counties, cities, and school districts that were cut to the bone in the self-inflicted catastrophe post-1978. 

Of course, not all commercial property owners are fat cats. So Prop 15 was carefully crafted to keep its burden on those who could clearly pay it — I’d say, being too gentle, but they wanted to be sure. So, if you own commercial property worth less than $3 million, you keep the tax cap. Nothing agricultural is affected, nor is anything residential, even if it’s apartment buildings.

You may have heard “expert” opinion from elected assessors arguing Prop 15 is infeasible to implement. That’s tripe. Assessors already reassess property to market value when it changes hands, and when it drops in value; they just need more staff to do the same task more often, and Prop 15 funds that staffing. For no good reason other than, probably, politics, some assessors are acting like what the vast majority of other states’ assessors do to this day, and what they themselves did within living memory, is somehow impossible. 

Prop 15 is a new first step to making California the systemically functional state it used to be. Previous tax measures have been tentative, apologetic, tied by law to specific services and expiring after a time. While we haven’t been actively defunding critical governmental functions for the past decade, we haven’t been significantly repairing them either; the budget has continually treaded water; teachers are paid a bit better but still not nearly enough; government is still not able to help people the way it should.

What’s different about Prop 15 and makes it a new step forward is that it does not earmark the funds it uses. Cities, counties, school districts will be able to decide for themselves — should we use the money to build more housing to reduce homelessness? To step up street paving and sidewalk repair? To get lead out of schools and water systems? And the funds will be permanent sources, not expiring after 10 or 20 years — the best way to build a foundation for the future. In the short term, it would be enough to severely blunt recessionary cuts over the next few years, compared to the last recession.

Property taxes are also less volatile than the income taxes the state ended up relying on post-Prop 13. So when the economy rises, we won’t have quite as big sudden windfalls again; and when it falls again, we won’t have to make such deep cuts again.

Some point to inefficiencies in government, which are real, and say therefore we should deny the government any new funds until it “gets its house in order.” Well, I say that is an express treadmill to nowhere. We’ve been trying that tactic for forty years and we’re no better off. What I see is when it is financially impossible for the government to solve problems, politicians compete for who’s the most adept and agile at making excuses for why nothing has happened. We need real investment, not a tangle of arcane prohibitions. Prop 15 is that.

Prop 16: Affirmative action: Yes.

This is a short one. In 1996 Californians amended the constitution (Prop 209) to ban the state giving any preferential treatment based on race, sex, ethnicity, etc. — banning affirmative action. 

The idea that civil rights legislation somehow leveled the playing field and made affirmative action no longer necessary is twaddle. On average, white households have generational wealth that non-white (especially Black) households lack, and that gap plays a role in disparate school district access, in college preparation resources, and in the capital of social networks. So even if individual acts of direct racial discrimination had stopped, systemic inequity would still have been perpetuating and entrenching itself. And of course individual racial discrimination hasn’t stopped. Conscious policy is needed to lead us out of our history and system of inequity; what won’t work is pretending it never happened.

I don’t know what affirmative action in schools or workplaces might look like — simple extra points on a rubric are fine but limited, and the US Supreme Court will have a say, too — but the first step is to make it possible under the constitution.

Prop 209 was understood at the time as a cry of white rage, passed by a narrow margin around the same time as measures like banning bilingual education and denying education and social benefits to undocumented immigrants. Good riddance to it.

Prop 17: Restore right to vote to parolees: Yes.

Mass incarceration in the US is a failed endeavor that has brutalized tens of millions and is ongoing. Felon disenfranchisement is part of what enabled it, closing politics off from the voices of those who had endured the prison system. California is a bit of an exception, having ended felon disenfranchisement in 1974, but I’ve met people who assumed they couldn’t vote because of sentences completed long ago. And we still deny the vote to people in prison and on parole. Prop 17 restores the vote to those on parole. Good. 

Prop 18: Give some 17-year-olds the right to vote: Yes.

This is a measure to try to further broaden the electorate and increase political interest and participation generally.

It does not simply lower the voting age: rather, it says, if you will be 18 on the day of the election in November, then you can vote in the primary elections leading up to it the same year (usually that’s March). The idea here is that young people, when they are experiencing their first election, can participate in it fully, beginning to end. Currently, by contrast, about a quarter of the population will turn 18 after a primary and before a general election. Maybe with this change, that first election will be more rewarding and keep more of them involved as they get older. Sure, let’s give it a try.

Prop 19: Decrease property taxes for older people who buy new houses; close loophole for people who inherit property: No.

This is a tricky one, with real pros and cons. It’s all about redrawing the boundaries of who gets the benefit of the Prop 13 tax cap, but this time, on the residential side.

Right now, Californian homeowners expect property taxes on their home to grow by no more than 2% a year, no matter its actual value. But they know part of the deal is that, if they buy a new house, that benefit goes away: your tax is repegged to the new home’s actual value, and the benefit only comes back slowly over time as the new home’s value rises. That does make it harder for some people to move, and this measure started life as an idea of how to loosen things up. 

Under Prop 19, pushed mostly by the California Association of Realtors, people over 55 would be able to carry over their existing Prop 13 benefit to the new home. Their tax would increase, but only to reflect the difference between the value of the old place and the new place. So if you’ve been paying on an artificially low, capped value of 200,000, but it is really now worth 500,000, and you buy a new place that’s 700,000, instead of your assessment jumping of 200 to 700, it would only jump from 200 to 400 (adding the difference between 700 and 500). You would only get to do this three times in a lifetime, and people under 55 could use the benefit if they had a severe disability or were displaced by disasters or wildfires. (There is a version of this benefit now, but it’s mostly limited to people moving to less expensive homes within the same county, and only once in their lives.)

Of course, this change is a tax cut, and it costs a shit-ton of money. Back in 2018, the realtors tried to pass it on its own, as a straight giveaway, and it failed miserably (Prop 5). So this time, for a new bite at the apple, they’re actually paying for this giveaway by closing a different unjust tax cap — that received on inheritances. In 1986, California voters “enhanced” Prop 13 by letting parents leave property to children without a tax increase, and it didn’t matter how many homes or whether they lived in them. (For anything not a principal residence, the benefit was limited to the first $1 million.) In 1996, this was extended to grandparents and grandchildren. 

Prop 19 reverses most of this, so we would no longer shovel quite as much tax money on people who already have huge intergenerational wealth. It would completely reassess (i.e., end the tax cap on) residences coming to heirs when it’s not their principal residence. Even for principal residences, it would cut the benefit so it only kicks in fully for homes worth less than $1 million. That change raises a lot of money, enough to pay for their giveaway to older movers — and then some, it turns out.

The realtors have marketed the proposition as devoting new revenue from these taxes to fire protection, but it’s not as simple as that. Property taxes normally go primarily to local governments (cities, counties, schools), and the state only gets money through indirect upward effect on other taxes. Prop 19 dedicates the funds that go to the state to fire protection, and lets the rest stay local. Surprisingly, the local funds are substantial — the LAO estimates a few hundred million a year to schools, and a similar amount to cities, counties, and other districts. The amount going to CalFire at the state level would only be in the tens of millions.

That Prop 19 raises significant funds for strapped local governments gave me pause and made me wonder if it might be a good thing, even if I find it distasteful on principle that it raises, if I have it right, about $1.5 billion from rich people and then gives about $1 billion of that to other mostly-rich people. You might decide the net new money is a good enough reason to vote yes. But I didn’t.

First, it is a good rule of thumb to distrust measures pushed by corporations or, in this case, industry groups (realtors) for their own profit. Second, I wonder how certain the estimated net new money can be. The LAO are excellent analysts, but tax estimates are especially tricky, and I suspect heirs might find it easier to make an inherited home a “principal residence” for tax purposes than one would assume. (For example, people with multiple homes could make sure they leave each home to a different heir so each of them can claim the benefit. And who knows how good the enforcement is to begin with.) Finally, while Prop 19 reduces the extra-obscene benefits to heirs, it would greatly increase the absolute number of people benefiting somewhat from a capped tax rate, so it may do double-duty as a gambit to make it harder to reform Prop 13 for real in the future.

Prop 19 may seem to make Prop 13 fairer by making it harder for older people to lose the tax cap, but that tax cap was never fair to begin with, giving as it does so much more to wealthier homeowners than to less wealthy ones, and to homeowners than to renters. Prop 13 was always a cynical ploy to slash and burn a tax that in practice scaled up with income, but then to cry that it was all to protect the poorer people who got perhaps a hundredth of the benefit. 

Even if all you care about is revenue available to local governments rather than good government issues — the “utilitarian” perspective I sometimes highlight — I don’t trust that promise in this case. From both perspectives, I cannot recommend making the regressive Prop 13 benefit broader and more complicated at the request of a benefiting industry.

Prop 20: Increase criminal penalties and incarceration: No.

Mass incarceration was always a brutal, racist, unjust enterprise, its causal connection to falling crime (if that could even justify it) in dispute. California used to be in the forefront of the mass incarceration movement with three-strikes and other laws, but we have slowly reformed a chunk of those laws, even if much more needs to be done. 

One of the last decade’s reforms the voters passed was Prop 47 (2014), which reduced penalties for many nonviolent crimes (especially kinds of larceny, like shoplifting and bad checks, and personal possession of small amounts of illegal drugs), making them misdemeanors instead of felonies. Another was Prop 57 (2016), which made parole more of a possibility for nonviolent felons where it had previously been almost impossible. 

Cops and prosecutors told spooky stories about Prop 47 making these minor crimes unpunishable and epidemic, and this Prop 20 both increases penalties on some of those crimes (creating new categories of crimes like “organized retail theft”) and reduces the kinds of parole that Prop 57 created. 

I could trot out better statistics, but the main thing that should make you vote against Prop 20 is that its primary funding comes from the California Correctional Peace Officers Association — in other words, the prison guard’s union. (And second place, with hundreds of thousands instead of millions, the campaign of Devin Nunes, GOP congressman and Trump dignity wraith.) They should be laughed off the stage.

Prop 21: Allow cities to impose some kinds of rent control: Yes.

We’re back again for another round at reforming Costa-Hawkins, the 1995 law that was intended to phase out local rent control. 

Costa-Hawkins eliminated the ability for cities to control rent for “new construction,” defined as 1995 or younger in most cities, so that eventually all buildings would be “new.” In older construction, rent has to be able to grow with inflation, and it can be changed however the landlord likes if the unit is vacated and a new tenant comes. Finally, cities can’t rent-control single-family homes or condominiums, period.

Prop 21 would not impose rent control but would repeal much — not all — of Costa-Hawkins, so that cities could enact more rent control if they want. So what it leads to will depend on local politics: local rent control only exists now, in its limited form, in jurisdictions accounting for about a fifth of the state population. (More fruitfully, there was statewide rent control from last year, but allowing rises of 5% plus inflation, also not on all buildings, and it expires in 2030.)

Unlike the proposition two years ago that eliminated Costa-Hawkins in full and would have let cities make any kind of law, Prop 21, from the same backer, allows more rent control but with some guardrails around policies generally viewed as worse ideas, and which are likely unpassable anyway. Under Prop 21, new construction becomes controllable once it turns 15 years old, on a rolling basis, so rental stock will have time to better pay off the initial investment. A city can control a unit’s rent even through its going vacant, but a landlord has to be able to raise rent by at least a certain amount on it (15% over three years). And single-family housing and condos are controllable if the owner owns three homes or more total, so as to bring in professional and corporate landlords but not people renting out their in-law unit or vacation home. 

Rent control is not a cure for the housing crisis overall — adding supply is essential to that cure — but is still a matter of economic fairness and justice. Rent control moderates the human cost of the housing shortage by preventing people from being displaced due to rent rises. Think of the damage to society and to the economy from unnecessary evictions: since landlords rarely feel that damage directly, it’s like pollution, a harm that the market won’t stop on its own because of where the incentives lie, and must instead be regulated. Rent control under Prop 21 may have a slight downward effect on construction of new housing, but major reforms to increase construction of new housing would be desperately needed either way. I believe the tradeoff is worth it.

Prop 22: Reward Uber and Lyft for exploiting workers: No

Prop 22, written and funded by Uber, Lyft, and DoorDash, would write new employment law specifically for them. 

This is in the wake of AB5, which the Legislature passed last year, making it much harder for employers to routinely classify their employees as contractors. AB5 has had its critics from a range of industries it affected, but Prop 22 only undoes it for app-based rideshare and delivery companies. (AB5 hasn’t taken effect on them yet either, as they’re fighting it tooth and nail in court.)

If AB5 takes effect on them, the app companies will not have to give employees regular hours but will have to pay them minimum wage after car expenses (which eat a lot of the drivers’ take), break time, overtime, and sick leave; and for full-timers, possibly health insurance.

Prop 22 would replace that arrangement with a sort of contractor-plus situation: minimum wage for time spent driving but not waiting; some limited help with health insurance and on-the-job injuries; and mandatory rests after 12 hours (unpaid). And of course, drivers would keep having to pay the self-employment tax.

Its writers want this arrangement set in stone: they require the Legislature come up with a seven-eighths majority to ever amend it. This is likely an unprecedented barrier for an initiative statute to impose, recently at least. And seven-eighths isn’t the threshold to repeal it — the Legislature couldn’t repeal it regardless, as amendments have to stay “in furtherance of its goals” — but, for example, if it turns out there was an unnoticed loophole that made some of its employee benefits less available, the Legislature would need that much unanimity to enact any fix. For context, right now there are 17 Republicans in the Assembly and 11 in the Senate; a reform could be blocked by 11 Assemblymembers alone, or 6 Senators alone.

Now, it is indeed possible that requiring drivers be employees will increase the price of the services, reducing demand and decreasing employment. But I think this has to happen sooner or later and it might as well be now. Uber and Lyft have been losing ridiculous amounts of money on their operations since they started — Uber last year lost 20 cents for every dollar it spent, Lyft over 40 cents. This is not stupidity, but risk-taking: the investors are making massive bets that will pay off immensely if one of these things happens:

(a) they become the monopoly and jack up the price;
(b) they roll out fully driverless cars and fire their workers; or 
(c) they figure out how to pay their workers much less than now. 

And they do pay poorly now: after car expenses, the estimate of their (elusive) true hourly wage after expenses is $11-16/hour, frequently below local or even state minimum wage, and that too is highly variable, with many drivers earning much less. Their huge turnover indicates a human cost not fully reflected in the wage — stress, accidents, insomnia.  The only “innovation” these companies have offered is outsourcing the job of exploitation from middle managers to apps, making drivers struggle alone without support trying to work out how to best please the algorithm.

Even if the business model were sustainable, we must stop, as a country, falling for the old canard “they pay poorly, but at least they’re jobs.” The New Deal showed us that when everyone gets a decent minimum wage by force of law, everyone has more to spend and our economy comes out healthier with more jobs than otherwise. We don’t accept subminimum wage for coal miners; neither should we for cab drivers. And we should not let large corporations recraft employment law to their own convenience.

Prop 23:  Increase regulations on dialysis clinics: Gut call.

My apology to readers, but I don’t think there’s enough objective information out there to make a solid case for a yes or a no on this proposition. It’s down to how willing you are to trust the proponents’ judgment.

This is a proposition regulating dialysis clinics, put on the ballot by the union SEIU-UHW. Its most impactful provision would be to require each clinic have a physician on site and ready to intervene with patients all the time it’s operating. Currently, each clinic must have a physician as medical director, but they don’t have to be present all the time. The idea here is that dialysis is a stressful physical process with many complications, and physicians are better able to assess and respond to emergent health issues.

Its other components: require clinics to report infections to a state database; ban them from refusing patients based on the kind of insurance they have; and require they provide notice and receive state approval before closing.

Unfortunately, on the physician presence issue, there is little research to be found on just how much it would improve safety. In the past the same unions have lobbied for minimum numbers of nurses per patient, and there was some evidence that might help, but that’s not on the ballot here. If most of the physician’s responses would boil down to “call an ambulance,” as a nurse could do, it seems possible it might only be an incremental improvement. And there are real downsides if physician coverage is not a must: on top of the costs of hiring them, it risks being a misallocation of social resources. After all, most physician care is active intervention, like making diagnoses or performing treatments, not sitting around waiting for something to happen. Even if cost were not an issue, would these physicians be better serving society in the hospitals or clinics that would otherwise have them? Why does it need to be physicians in particular and not, say, nurse practitioners?

The other parts of Prop 23 are more minor and incremental in context. On reporting, they already report infections to a federal database. On payment source discrimination, private companies can be expert at getting more commercial patients without formally discriminating; and on closures, whatever the law says, it would be difficult practically and constitutionally for the state to actually ban the closure of a business if there is a plausible financial case to be made for it.

If it seems strange that this is on the ballot at all, it’s an outgrowth of labor relations. The unions will have threatened something like, “If you don’t give us concessions so we can more effectively unionize your clinics, we’ll put this measure on the ballot and you won’t like it.” They didn’t get the concessions, so here we are. 

The vexing part is that the dialysis companies really are much worse political actors than the unions — they reap obscene profits and have such huge market share they are near-monopolies. I have little confidence in them to keep appropriate safety standards, or not to lobby forcefully against better standards. And getting them unionized is a good thing: unions don’t merely negotiate salaries and benefits, but make workplaces more communicative and less dictatorial, and make democracy more stable by being a countervailing political force to business. But this specific choice the unions have made to put safety standards on the ballot, as some combination of leverage and symbolism, strikes me as a bad policy precedent.

(I supported the much more aggressive Prop 8 two years ago, which had a similar backstory; but that was a fundamental reform to the dialysis business model that would have essentially turned these companies into regulated utilities — which is what you do with monopolies, classically.)

So if you feel like these staffing standards are probably an objective improvement, and worth the risk of slightly fewer physicians or costlier care, and you don’t care too much about how the sausage gets made, you should probably vote yes.

If your stronger feeling is wanting patient safety standards not to be up to voters, or mistrust of how useful the proposed standards really are knowing the underlying intention of this ballot measure, then you should vote no.

Prop 24: Increase online consumer privacy laws: No.

The story of Prop 24 is the story of a rich man with strong opinions using the ballot initiative system to effect change, possibly for the better, on online privacy. The key question is, does he know what he’s doing?

There’s a recent law which allows proponents of a measure to withdraw it if the Legislature passes a different law they find sufficient. At the time, I thought that would be an improvement by reducing the frequency of ballot measures. Now, I’m not so sure. (It has clearly been abused in some cases.) 

In 2018, the Legislature passed the California Consumer Privacy Act increasing personal data protections after negotiating with advocacy organizations and the tech industry, but also with real estate developer and online privacy advocate Alastair Mactaggart, who was threatening to use his millions to put something stronger on the ballot. Of course he and others seek to improve on the CCPA, and this year he was not satisfied, so he did put this on the ballot. 

Prop 24 would tinker with the CCPA, mostly making it stricter, though not entirely. I’ll run through its main changes, but keep in mind that a number of the criticisms of Prop 24 seem to center on it’s not strong enough, which may be true, but some of their preferred measures would not be passable by the Legislature at this point. It’s conceivable that the measure is enough of an advance compared to current law, and compared to what’s achievable otherwise, to be worth passing, so that’s what I’m going to be looking for.

The new rights Prop 24 adds would include companies having to comply with consumer requests to:

  • Use any sensitive personal data they hold (SSNs, passwords, health info) only to the minimum necessary to provide the good or service
  • Not to share their data (vs. now under CCPA, they can tell companies not to sell them)
  • Correct personal data on file

On the enforcement side, it creates a new agency just to enforce state consumer privacy laws, instead of the justice department, and requires it to be funded at $10 million a year. It also increases penalties for violations, and removes some ways companies can avoid being fined. On the other hand, it slightly increases the threshold defining “big business” that is subject to these laws (100,000 customers instead of 50,000).

The Electronic Freedom Foundation takes no position on the measure, saying it includes many partial steps forward, but acidly listing a number of flaws, many of which seem to be simple sloppiness. (The ACLU is in opposition, mentioning some of the same flaws.)

To his credit, Mactaggart does not want the new law set in stone as Uber/Lyft want theirs; the text allows the Legislature to further amend the law to further its purposes, with a simple majority. So as intended, most of the obvious faults could possibly be ironed out after passage; or, where the problem is it doesn’t go far enough, the Legislature could do more if and when the necessary political coalition is assembled.

But where the measure really falls flat on its face is the implementation of that amendment power. Majority amendments have to further the purposes, sure, that’s normal. But the “purposes” section of the measure is ridiculously long: I count 770 words over 23 paragraphs. Every aspirational principle you could think of is on there, some straightforward, many likely to conflict with each other, some of them approaching inscrutability, such as “Consumer privacy and the development of beneficial new products and services are not necessarily incompatible goals.” How on earth are judges supposed to take this laundry list as coherent instructions when they are asked to decide if a new law is compatible with Prop 24? For example, one paragraph makes it a “purpose” to allow consumers to opt out of data-sharing; might that not jeopardize the more ideal stronger reform in the future, requiring data collection to be only on an opt-in basis?  Who knows.

Sometimes professional advocates do unfortunately get wrapped up in their aspirations and make the perfect the enemy of the good. But Prop 24 is not good enough; it’s half-baked. It should be sent back to the kitchen.

Prop 25: Uphold Legislature’s elimination of cash bail: Yes.

In 2018, the Legislature took a historic move to make California the first state to do away with cash bail. This was a great idea, as all countries but the US and the Philippines have done away with cash bail as a relic of the age of blood money; how much money you can raise on short notice has nothing to do with your risk of violence or flight pre-trial, and paying bail impoverishes families and widens the racial gap. 

But there was a big problem with this reform. Originally, it was the collaboration of a raft of advocacy organizations, like the ACLU, the Ella Baker Center for Human Rights, and the California Public Defenders Association. But after a long process, their version was completely rewritten at the behest of Governor Brown and others shortly before passing. Originally, it would have recognized that most misdemeanors and many felonies do not warrant pretrial jailing at all (fleeing trial is difficult these days). As amended, it required the creation of county-by-county “risk assessment tools” that try to predict someone’s risk of reoffending — taking into account factors that are often themselves the result of, and correlated with, racial injustice, like housing, or arrests without charge. 

Most of the advocates, feeling the new system was likely to keep discriminating in a different way, with the pseudo-objective face of computer algorithms, dropped their support from SB10, but it passed anyway. Few were happy with the outcome, but it meant the bail bond companies — a major source of lobbying for the current system that enriches them — would literally have to shut down in California, and the fight for fairer pretrial detention could continue.

So of course the bail bond companies had to come in and throw a wrench into everything. Facing demise, they spent millions to put this on the ballot, which is a referendum on SB10 as a whole. While we wait for the election, SB10 is frozen and can’t go into effect; cash bail is still a thing. 

This puts us voters in the uncomfortable position of needing to affirm a highly flawed “reform” in order to end cash bail and leave room for further reforms. 

(Confusingly for voters, even though the bail bond companies put Prop 25 on the ballot, they are the funders of the No on 25 campaign, because here, “no” means “the voters reject SB10” and “yes” means “the voters uphold SB10.” So if you want to end cash bail, vote Yes on Prop 25.)

A few equity organizations have now come out and said the cure is worse than the disease, that SB10 would be more inequitable and harder to reform than the current system, and accordingly said No on 25. Their arguments smack of making the perfect the enemy of the good — in fact it will be an extremely helpful step to remove the money and lobbying power of the bail bond companies from the conversation. According to the LAO, the new system is likely to lock up fewer people total than the old. And while future risk assessment systems may smuggle in racial disparities, let’s not forget the huge racial disparity of the wealth gap that cash bail takes into account first and foremost.

Also, the current critics from the left are not representative of those advocates who were in the driver’s seat fighting for the better version of SB10 to begin with. Of the nine original sponsor organizations, most of which disgustedly dropped their support for SB10 toward the end, five are nevertheless recommending Yes on 25, including the California Public Defenders Association. The ACLU has said it is neutral; two are keeping quiet; only one of the nine has come out for No. (Human Rights Watch, the loudest No voice I’ve seen, was not among the nine, and looking at committee analyses, it only shows up on the long list of SB10’s supporters months into its legislative process.)

And because the main message of the No on 25 campaign is a law-and-order one, its “coalition” filled with cops and prosecutors (and unfortunately a financially compromised NAACP), it is almost certain that a “No” result, repealing SB10, will be heard in Sacramento as “don’t change anything, the voting public are scared and on the verge of changing their minds about criminal justice reform”. We’re living in a state that just finished its first post-George-Floyd session by scuttling all the major police reforms that were on the legislative agenda; progress toward truer justice is always hard won and must be held onto tightly. Yes on 25.

2 comments / Add your comment below

  1. Thank you for this thorough and clear analysis. I prefer it to the arguments/rebuttals in the official Voter Information Guide. In particular, I appreciate the background on SB10 and Prop 25.


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