When Gov. Gavin Newsom got back from his vacation last week, awaiting him was a bill that some see as a principled attempt to force President Donald Trump to be transparent about his personal finances and that others – including California’s last governor – see as partisan meddling that could haunt elections across the nation going forward.

Senate Bill 27 was enrolled and sent to the governor’s office on July 15 after passing the Senate 29-10 and the Assembly 57-17 along party lines. Newsom has until July 30 to act on it. Introduced by Sen. Mike McGuire, D-Healdsburg, and Sen. Scott Wiener, D-San Francisco, it would require presidential and gubernatorial candidates to release their most recent five years of tax returns as a prerequisite for appearing on the California ballot.

McGuire and Wiener reject the characterization that it is an attempt to punish Trump, who has famously feuded with California officials via the media and in court since he began his presidential campaign in 2015. Instead, they say it is an attempt to preserve democratic norms by ensuring that voters know about candidates’ financial entanglements before they become U.S. president or governor of the nation’s richest, most populous state.

It’s unclear, however, whether the measure is constitutional. Some attorneys say the Constitution has long enshrined states’ rights, including partial sovereignty, on many fronts. But the U.S. Supreme Court has held that a state cannot add additional qualifications for candidates for federal office. California’s legislative counsel cited this history in a 2017 opinion raising doubts about whether Trump could be compelled to release his taxes as a precondition of getting on the Golden State’s ballot.

Brown vetoed similar bill, cited bad precedent

In vetoing similar legislation in 2017, Brown not only questioned its constitutionality, he worried about the precedent it would set in his veto message.

“Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?” he wrote. California’s enactment would start the U.S. “down a road that well might lead to an ever escalating set of differing state requirements for presidential candidates.”

There is a recent precedent for a state seeking to limit a sitting president’s access to the ballot. In 2011, the Republican-controlled Arizona Legislature responded to unsupported, much-ridiculed claims that President Barack Obama was born in Kenya or Indonesia by passing a measure requiring that presidential candidates provide birth certificates before they could be placed on subsequent presidential ballots. The validity of the birth certificates would have been determined by the Arizona secretary of state.

But GOP Gov. Jan Brewer, a former Arizona secretary of state, vetoed the bill. “I do not support designating one person as the gatekeeper to the ballot for a candidate, which could lead to arbitrary or politically motivated decisions,” she said.

Axios reported last month that lawmakers in 25 states have introduced bills linking ballot eligibility to presidential candidates releasing their tax returns. The Nexis news database shows California to be the only state that has sent such a measure to the governor. The most progress elsewhere appears to be in Rhode Island and Maryland, where the state Senates have given their approval to such legislation.

It’s been two and a half years since Gov. Jerry Brown jolted the debate on California’s housing crisis by saying much more private-sector construction was the only realistic way to address the crisis, not the old Democratic recipe of building a relative handful of subsidized housing units that help a small percentage of those in need. “We’ve got to bring down the cost structure of housing and not just find ways to subsidize it,” he said in January 2017 in criticizing previous state policies.

Brown sought to make it much easier for home-builders to clear regulatory hurdles. In September 2017, Senate Bill 35 by Sen. Scott Weiner, D-San Francisco – which reflected the governor’s priorities – was enacted. It holds that cities could not put up new obstacles to projects with proper zoning so long as they contained at least 20 percent of units at lower price levels.

And in the last two months, Brown has signed a series of new housing measures with similar goals – most notably Assembly Bill 2923, which will make it much easier for the Bay Area Rapid Transit authority to follow through with its plan to build 20,000 new housing units by 2040 on 250 acres BART owns nears its transit stations.

Legislature renews emphasis on subsidized housing

But when it comes to Tuesday’s election and major housing initiatives, it’s back to the old Democratic playbook. Both the key measures meant to increase housing – placed directly on the ballot by votes of the Legislature – involve government-subsidized construction.

Proposition 1 authorizes the issuance of $4 billion in general obligation bonds. The biggest chunk – $1.8 billion – would go toward building apartment-type residences. $1 billion would go to loans to veterans. Both infrastructure and homeownership programs would receive $450 million each. And $300 million would go to build housing for farm workers.

The official state voting guide’s analysis estimates that this will create access to housing for 55,500 families.

Proposition 2 would allow the state to divert funds from 2004’s Measure 63 – which generates about $2 billion a year for mental health programs from an income tax surcharge on the very wealthy – to pay back over 30 years up to $2 billion in bonds to build housing for the homeless and those at risk of being homeless.

The official state voting guide’s analysis doesn’t estimate how many people would gain housing as a result. But based on Proposition 1’s estimate that $1.8 billion could create about 30,000 apartment units, $2 billion should be able to provide around 33,000 units.

Bonds would fund 88,500 units; 2 million needed

The combined net effects of the two measures: providing housing to about 88,500 families over the life of the two bond measures in a state that a 2016 McKinsey consulting group report said has a shortage of 2 million housing units.

The small increases in housing that Proposition 1 and 2 would create are consistent with the criticisms that have been made of California’s state housing policies since at least 2003. That’s when the Public Policy Institute of California released a report that said affordable housing programs focused much more on establishing a process for such housing than on actual results. It said it was “unrealistic” to think such an approach could have a significant effect in increasing affordable housing.

No recent polling has been done on Propositions 1 and 2, but they’re widely expected to pass easily. That’s in keeping with the record of bonds placed directly on the ballot by the Legislature.

As CalWatchdog

Senate Bill 35 by Sen. Scott Weiner, D-San Francisco, requires cities that have not met their affordable housing requirements to approve projects that are properly zoned, pay union-scale wages to builders and have at least 10 percent of units in “affordable” ranges.

After months of objections from Cupertino elected officials and activists, in June, the city signed off on developer Sand Hill Property Company’s plan to convert the largely empty 58-acre Vallco Mall site to a huge multi-use project with 2,400 residential units, 400,000 square feet of retail space and 1.8 million square feet of office space

Given that 98 percent of cities have been found to have an inadequate supply of affordable housing, according to a state evaluation, the Cupertino precedent seemed potentially huge.

Two months later, new developments related to SB35 appear to point in the opposite direction.

Last week, Berkeley officials rejected a plan to use the law to fast-track approval of 260 apartments and 27,500 square feet of commercial space at 1900 4th Street just east of the Berkeley Marina despite evidence presented by developer Blake Griggs Properties that it was properly zoned and otherwise met SB35’s edicts.

City tactics in fighting project have familiar ring

The tactics that Berkeley is prepared to use mirrored the ways that construction projects have been fought in California for decades: raising a variety of legal objections that could cost developers millions of dollars because of delays, even if they have little or no validity or applicability.

Berkeley planning chief Timothy Burroughs said the project could not proceed because:

• It would have been built on land designated as a historical landmark because of a Native American burial ground. As a city with its own charter government, it is given deference in protecting its history.
•  It would have considerable low-income housing but not enough housing for those with very low incomes.
•  It would have increased traffic in the area in ways not allowed by city laws.

The objections were of the sort that Weiner sought to bypass with SB35. This is why the developer warned of a lawsuit earlier in the summer after the city put up roadblocks to approval.

But in a surprising move reported last week by the San Jose Mercury-News, West Berkeley Investors – part of the group backing developer Blake Griggs Properties – has backed out of the project without explanation. The assumption of many is that it saw the hassles as outweighing the chances for success.

The Mercury-News also reported that a spokesman for Berkeley City Hall said officials would welcome it if developers chose to reactivate a previous application that had far fewer residential units – 135 – and slightly more commercial space – 33,000 square feet.

In his Sept. 4 letter rejecting the latest version of the project, the city planning chief emphasized the historical significance of the Native American burial ground. Why that significance would lose weight in planning decisions if a smaller project were being considered was not explained.

But Burroughs pushed back against the idea his city was hostile to adding housing stock. He said 910 housing units have been built since 2014, 525 are now being constructed and 1,070 are cleared and in the pipeline.

But despite these obstacles, the Vallco Town Center project has obtained a crucial go-ahead from the city of Cupertino – providing perhaps the most telling example yet of the power and scope of Senate Bill 35, the measure by state Sen. Scott Wiener, D-San Francisco, that was enacted last year with the goal of spurring new housing construction.

The developer Sand Hill Property Co. plans to build 2,400 residential units, 400,000 square feet of retail space and 1.8 million square feet of office space at the mostly vacant 58-acre Vallco Mall property (pictured), which the company acquired in 2014. Half the residential units would fall in the affordable category.

SB35 requires cities that have lagged in meeting guidelines for new housing construction to approve properly zoned projects that have at least 10 percent affordable housing units, that pay union-scale wages to construction workers, and that meet other obligations. Cupertino is one of the nearly 98 percent of state cities that have not complied with housing construction obligations and are thus subject to SB35 fast-tracking, state officials said earlier this year.

On June 22, city planners notified Sand Hill that at the end of the initial 90-day review of the project provided for under SB35, it had been found “eligible for streamlined, ministerial review.” The developer must provide additional information during a second 90-day review process, but this is considered pro forma, and Sand Hill plans to begin construction in September.

Project may spur wave of makeovers of empty malls

The project may be a harbinger of more than just SB35’s usefulness in speeding up housing approvals. It could also signal a wave of makeovers of large shopping malls in California that were the centers of local commerce and social activities for decades but which have been hollowed out by the huge growth in online retailing.

The Vallco mall, which opened in 1976, long had nearly 200 tenants. Now only a few remain, including two restaurants, a bowling alley, skating rink and fitness center. Like many other declining malls in California, it is easily adaptable to housing and multi-use conversions because it has adequate parking and already-built infrastructure linking it to roads and mass transit. The mall is next to Interstate 280, on the other side of the freeway from Apple’s immense “spaceship” headquarters.

Even by Silicon Valley standards, Cupertino is among the most expensive cities for housing. Zillow’s latest data put its average home price at $2.36 million. Average apartment rents in May were $3,398, according to Rent Jungle.

Wiener told the San Francisco Chronicle he was “thrilled” to see the Cupertino project advance. It is likely to at least triple the number of housing units considered “affordable” in the 13-square-mile city of 64,000 residents.

Nevertheless, Cupertino Mayor Darcy Paul mostly stuck to his critical views of the project in a recent interview with the San Jose Mercury-News. He defended his comment in his February State of the City address that the housing crisis was exaggerated as being “technically” correct, lamented any reduction in local control of planning and said that his opposition was in sync with his constituents.

On a related front, Paul and other City Council members have expressed interest in imposing unique per-employee taxes on Apple to help cover the costs borne by the city because of the company’s massive long-term growth. Cupertino residents may be asked to vote on the tax next year.

A similar plan made national headlines in Seattle in May when the City Council voted unanimously to impose unique taxes on large employers like Amazon and Microsoft. Council members backed off last month after a backlash from both the business community and local residents.

Senate Bill 35 – the 2017 measure authored by state Sen. Scott Weiner, D-San Francisco, that was billed as the most far-reaching response to California’s housing crisis – could be about to get its first major test in Silicon Valley, the region with the state’s most severe problem with extreme housing costs.

Under the law, cities that have failed to build enough housing to honor their obligations under state law to respond to public needs must approve properly zoned housing projects that meet certain conditions, such as having 10 percent “affordable housing” units and paying union-scale construction wages. State housing officials reported in February that nearly 98 percent of cities would be affected in some ways by SB35’s requirement that housing be fast-tracked.

Weiner’s bill was hailed by many activists, housing experts and think tanks as a potential “game changer” that could address California’s emergence as the state with the nation’s highest effective poverty rate because of the high cost of shelter. But many local elected officials have reacted with anger and dismay to their apparent loss of control over construction permitting, with a Brown administration housing official taking withering fire at a meeting with city leaders in San Diego County in early March.

Now the question of how much say local authorities still have over housing in the SB35 era is about to be addressed in Cupertino.

Voters rejected 800 housing units; now far more may be built

Last Tuesday, officials with the Sand Hill Property Co. announced that they will seek to use provisions of Weiner’s law to compel Cupertino officials to allow their company to build more than 2,400 homes on a lot that now holds the Vallco Mall. Opened in 1976, the mall – shown above in a 2017 photo – was once a vibrant commercial hub, with nearly 200 tenants. Now it has fewer than a half-dozen.

Sand Hill had proposed a multi-use project at the mall site, but Cupertino voters in 2016 rejected the plan out of fears that its housing component of up to 800 units would strain local schools and roads. Now the company wants far more housing, especially less expensive options. Its plan calls for about 1,200 of the proposed residential units to be “affordable housing” – meaning they would be set aside for families making about $85,000 or less a year. A San Jose Mercury-News analysis said this single project “would increase Cupertino’s affordable housing stock fivefold.”

“It has now gotten to a point where we do not have any confidence that this process can come to a conclusion in a timely manner,” Reed Moulds, managing director of Sand Hill, told the Mercury-News. “This housing crisis needs to be resolved in a manner that actually provides near-term solutions, and sites like this have an opportunity to do a lot of good for the housing situation.”

The project also would include 2.2 million square feet of office and retail space.

But SB35 or not, local activists are gearing up to try to persuade Sand Hill to sharply downsize the project. The Better Cupertino group has fought development of the Vallco Mall site for years. Its website bristles at attempts to limit local control of planning and even challenges the widely held view that suburban malls such as Vallco are doomed, given the steady growth in online shopping.

But the tone, at least, of city officials seems to reflect an assumption that times have changed. Cupertino Councilman Barry Chang told the Mercury-News that he didn’t see how his city could reject the application, at least if it met the standards set out by SB35.

Cupertino, home to Apple’s headquarters, has a median home price of $2.3 million as of late February, according to data from the Zillow real-estate information company. Zillow said home values have soared by more than 25 percent in the last year alone. The Rent Jungle website said that as of February, the average monthly rent of an apartment in Cupertino was $3,114.

Three times in the past 18 months, prominent journalistic organizations have questioned whether Silicon Valley has peaked. Leading off the bad-mouthing was the hometown San Jose Mercury News, which

That was followed by the London Guardian reporting in May 2017 that start-ups were increasingly likely to fail as the tech venture-capital model struggled, and by Bloomberg News reporting in September 2017 that the high cost of housing was leaving thousands of jobs unfilled.

This month, the Silicon Valley Competitiveness and Innovation Project, which is headed by the San Jose-based Silicon Valley Leadership Group, released a report on the region that was at least as bleak as the media accounts. It said Silicon Valley was still thriving and a global leader – but that it was unlikely to maintain its status as the U.S. pace-setter in creating tech jobs unless housing construction sharply increased, to end the upward spiral in rent and mortgage payments. A modest tract house can fetch more than $1 million in San Jose and triple that in wealthier suburbs. Rental costs, even in less affluent neighborhoods, are among the nation’s highest.

“The gap between job and housing growth is large and widening,” stated the report, which defined Silicon Valley as including the city-county of San Francisco, Santa Clara County and San Mateo County.

Many of the key findings were based on comparisons of where Silicon Valley stood in 2010 versus 2016. The study noted there was a 29 percent increase in payroll jobs during that span, but only a 4 percent increase in total housing units. As more people were forced to commute to Silicon Valley, the average commute lengthened by 18.9 percent over the six years.

“An average Silicon Valley commuter now spends 72 minutes commuting per day, round trip. This figure has grown marginally since last year and remains second only to the commute time of New York City workers, who spend 74 minutes commuting,” the report noted.

Region’s population fell despite economic boom

Silicon Valley saw another negative landmark in 2016. Despite a booming economy, the report cited U.S. Census Bureau population estimates showing the region had a slight decline in population.

The downbeat report came as no surprise to one former Silicon Valley resident: Santa Cruz attorney Kate Downing, who resigned from the Palo Alto Planning and Transportation Commission and moved from the city in 2016 because her family could no longer handle Palo Alto’s housing costs. She told the San Francisco Chronicle, “We’re just not building enough housing. More correctly, cities are not permitting developers to build enough housing. … I think more affordable housing would have kept us in Silicon Valley.”

Lawmakers from the region have had some success in trying to make it easier to build homes in California. State Sen. Scott Weiner, D-San Francisco, was the lead author of a bill enacted in 2017 that limits cities with bad records on new housing from preventing new projects that meet basic zoning rules.

This year, Weiner and co-authors Senator Nancy Skinner, D-Berkeley, and Assemblyman Phil Ting, D-San Francisco, have introduced Senate Bill 827. With exceptions, it would make it far easier to build small apartment-condo buildings up to 85 feet in height within a half-mile of a transit center.

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Under Senate Bill 149, introduced by state Sens. Mike McGuire, D-Healdsburg, and Scott Weiner, D-San Francisco, presidential candidates would be ineligible for the California primary and general election ballots unless they had released their tax returns for the previous five years.

If Brown signs the bill, this would mean Trump couldn’t appear on the 2020 California ballot if he ran for re-election and secured the Republican nomination – at least if he stuck to his opposition to disclosing his taxes. McGuire and Weiner insist the bill is a serious attempt to respond to Trump’s refusal to release his returns during the 2016 campaign. Republicans and some Capitol insiders see it as one more attempt to convey Trump-loathing after a legislative session which saw similar frequent displays.

Enactment of the law seems certain to trigger a legal challenge. State-imposed term limits on members of Congress were thrown out in 1995 by the U.S. Supreme Court on the grounds that states couldn’t tell the federal government who was eligible for federal office.

But so far at least, a cross-section of legal authorities believe SB149 could be upheld if it becomes law, allowing California to impose requirements beyond the present basics that a presidential candidate must be a natural-born citizen who is at least 35 and who has lived in the U.S. for 14 or more years.

Given that the requirement is not onerous and is related to qualification for office, “our research and reflection lead us to conclude that tax return disclosure laws … comport fully with the U.S. Constitution,” wrote Laurence Tribe, Norman Eisen and Richard Painter. Tribe and Eisen have histories of Democratic allegiances, while Painter was an ethics lawyer for President George W. Bush.

UC Irvine law professor Richard Hasen, considered one of the nation’s top election-law experts, said it is difficult to anticipate what federal courts might hold, given that SB 149 appears to bring elements of the U.S. Constitution into conflict. In interviews earlier this year, when the McGuire-Weiner bill first won notice, Hasen stressed the measure’s novelty: “Nobody’s tried it before.”

Tactic could be used against Sanders, Clinton

One reason for that might be political operatives’ awareness the tactic could be used against their preferred candidates in future elections.

In swing states controlled by Republican legislatures and governors like Wisconsin and Ohio, for example, attempts could be made in 2020 to deny ballot placement to candidates who had not belonged to a major party over most of the preceding year (Sen. Bernie Sanders); who had not fully complied with document requests from federal investigators (former Secretary of State Hillary Clinton) or who didn’t offer full details on business deals undertaken with donors (many candidates). As Los Angeles Times columnist George Skelton wrote, the potential for mischief is immense:

What would be next? A requirement that every candidate release a thorough health fitness report disclosing all past illnesses? Make the candidates pledge to campaign in California for at least 10 days? And how would red states retaliate? Force every candidate to disclose whether they’ve ever voted for a tax increase?

But the San Jose Mercury-News recently pointed out a detail that suggests this debate could be academic. Brown refused to release his tax returns when running for governor in 2010 and 2014. Signing SB149 and going after Trump for his refusal to do so would seem problematic at best for the governor.

The first major votes on a raft of bills meant to address California’s housing crisis could come up for a vote Friday, with the Democrats who control the Legislature eager to demonstrate they know how much extreme housing costs are harming low- and middle-income families.

Gov. Jerry Brown has often been critical of plans to add new dollars to California’s traditional method of providing affordable housing – by building subsidized units that help a relatively small number of residents. He prefers to sharply streamline the housing approval process.

But after horse-trading this year with Democrats, Brown agreed to support two affordable housing initiatives, apparently in return for support for Senate Bill 35, a measure by state Sen. Scott Weiner, D-San Francisco. It would hasten approvals for new housing units in cities that aren’t creating the volume of units mandated under state law and make it significantly more difficult for local opponents to block construction.

Unlike Weiner’s measure, both the affordable housing initiatives require two-thirds support to win passage in the Legislature.

Real-estate fee struggles to win two-thirds support

One of the measures – SB3 by Sen. Jim Beall, D-San Jose – appears to have sufficient support. It would put $4 billion in general obligation bonds before state voters next year to fund construction of affordable rental units and to fund “smart growth” projects near transit centers and other housing projects. It would also provide $1 billion to the state’s veteran home loan program, which the San Francisco Chronicle reported would otherwise run out of money next summer.

The other affordable housing initiative – SB2 by Sen. Toni Atkins, D-San Diego – appears to be in trouble. It would add fees of $75 on some real-estate transactions to provide ongoing permanent funding for affordable housing, estimated at $250 million a year. The Los Angeles Times reported that in a bid to boost support, Atkins had made changes this week to her bill to provide some of the funds it would generate to local governments. But it is unlikely to win any GOP votes in the Assembly, meaning all 54 Assembly Democrats would have to support it.

Many of the 54 have already voted this year to raise gasoline and diesel taxes and to approve a continuation of the state’s cap-and-trade emissions trading program, which also makes fuel more expensive. For those in swing districts, backing SB2 may seem risky.

“My concern is that it looks and smells like a tax,” Assemblyman Al Muratsuchi, D-Torrance, told the Times.

Prevailing wage mandate in Weiner bill questioned

Weiner’s proposal reflects the Republican view that regulatory relief is the only way to build enough housing to stabilize rents and home prices. With two-bedroom apartments renting for more than $2,000 a month in most big cities – and double that in parts of the Bay Area and Silicon Valley – there’s a growing fear among California business executives that housing costs will drive off talented workers and make it difficult to recruit new ones.

But in recent days, a new GOP talking point has emerged that takes dead aim at the idea that Weiner’s bill would accomplish much. It notes that by requiring projects that win quick approvals to use “prevailing wages” – union-level pay – those projects would be far costlier than those built with non-union crews.

Earlier this year – in a fight over another bill before the Legislature seeking to require “prevailing wages” on construction projects – the Building Industry Association estimated the mandate would add $90,000 to the cost of building a 2,000-square-foot home in California.

State housing officials say California has added about 800,000 housing units over the past decade – 1 million less than needed.