In theory at least, courts and ballot referenda are checks on legislative tyranny. A California appellate court has effectively done away with both by ruling that the legal requirements of a bond measure approved by voters for the state’s bullet train are merely “guidance.” … 

Six years ago voters approved a referendum authorizing $9 billion in bonds for high-speed rail construction, including language with stringent “taxpayer protections.” These stipulations were, among other things, that the state high-speed rail authority present a detailed preliminary plan to the legislature identifying funding sources and environmental clearances for the train’s first “usable segment” prior to a bond appropriation.

The legislature in 2012 green-lighted the bonds while ignoring these stipulations. The rail authority had pinpointed merely $6 billion of the estimated $31.5 billion necessary to complete the first 300-mile segment from Merced to San Fernando. Only 30 miles of environmental clearances had been certified. 

Last year Sacramento County Superior Court Judge Michael Kenny ruled that the authority “abused its discretion by approving a funding plan that did not comply with the requirements of the law.” But in July Sacramento’s Third Appellate District sanctioned the lawlessness with a decision as impressive for its cognitive dissonance as its legal afflatus.

On the one hand, the court opined that “voters clearly intended to place the Authority in a financial straitjacket by establishing a mandatory multistep process to ensure the financial viability of the project.” But then the judges ruled that the challenge to the legislature’s invalid bond appropriation and authority’s preliminary plan, “however deficient,” was in effect moot.

The court could require the authority to redo its plan, but the judges say that would be unnecessary since the Director of Finance must still approve a rigorous final plan before the authority can/spend/ the bond revenue. In other words, the law’s procedural requirements don’t matter. ….

California’s Supreme Court now has an opportunity to do what the appellate judges did not and order Sacramento to follow the bond language. At stake are the rule of law and democratic governance in the Golden State.

Key provisions of Prop 1A acknowledged by appeals court

I certainly agree that the appellate court ruling was strange in that it seemed to ignore the clear sentiment of Proposition 1A about the strength of taxpayer protections. But I don’t think the WSJ writers read the decision as closely as they should have. The appeals court ruling affirms Kenny’s basic theories about the project being unlawful — it just says he stepped in prematurely.

The appeals court that vacated Sacramento Superior Court Judge Michael Kenny’s ruling to block the project did not say that Kenny’s conclusion that the HSRA violated Proposition 1A was wrong. Instead, the decision held that a trial judge had no authority to block construction until the legislature and the High Speed Rail Authority approved a final business plan. “The scope of our decision is quite narrow,” the judges wrote in the first paragraph. The decision went on to reinforce two key protections contained in Proposition 1A—both meant to ensure that the state didn’t spend billions on initial construction only to run out of money before a financially viable train system could be built. Judge Kenny ruled that the state had to identify “sources of funds that were more than theoretically possible” in explaining how it would pay for the project’s $31 billion, 300-mile initial operating segment. He also said that the HSRA had to complete environmental reviews for the entire segment before construction could begin. The appeals court contradicted him on neither point.

The appellate court underscored that the law requires the state to establish “financial viability” for the bullet train’s first segment by adhering to a voter-approved “financial straitjacket.” It said that bond funds could only be spent after a funding plan gained approvals from the state finance department, the Joint Legislative Budget Committee, and an independent financial analyst who certified the plan’s soundness—specifically that if built as planned, the bullet train could operate without a taxpayer subsidy. The appeals court judges also agreed with Judge Kenny that the rail authority had to obtain “all the requisite environmental clearances before construction begins.”

These are shortcomings that Brown … cannot easily finesse. The state has less than $10 billion left from Proposition 1A and from federal stimulus funding. The prospect of obtaining additional federal funding from House majority leader Kevin McCarthy, a Bakersfield Republican and ferocious critic of the project, is virtually nil. And the HSRA reportedly has 10 percent of the necessary environmental clearances in hand—and a long list of lawyers lined up to fight future reviews.

Bullet train cheerleaders may be excited now, but Proposition 1A’s financial safeguards (and California’s budget problems) remain formidable obstacles.

That is from my piece last week for City Journal. The appellate ruling is now seen as a triumph for the bullet train. When the history of this fiasco is written, it will be seen as a devastating blow.

In a letter to the Sac Bee editor today, a reader claimed Alexis de Tocqueville would have supported Sacramento City Council’s decision to forge ahead with the publicly subsidized arena without a vote of the taxpayers, since city officials have analyzed the issues, and we the taxpayers are not capable of this.

“We citizens do not have time to properly analyze and decide all the issues,” Sacramento Bee reader Brian M. Boone wrote.

Booned said: “Alexis de Tocqueville, who wrote the classic ‘Democracy in America,’ noted that there are so many issues for voters in a democracy that our minds are at sea. So, elected representatives analyze the information and decide issues on our behalf after full consideration.”

Democracy and Socialism

Actually, Alexis de Tocqueville warned that modern democracy could and would be adept at inventing new forms of tyranny. And the constant push for radical equality could lead to the materialism of an expanding bourgeoisie, and to the “selfishness of individualism.”

Tocqueville worried that if despotism were to take root in a modern democracy, it would be a much more dangerous version than the oppression under the Roman emperors or tyrants of the past who could only exert a pernicious influence on a small group of people at a time.

We are nearly there.

Sacramento’s liberal elves

Gov. Jerry Brown and his PR team are working overtime trying to convince the entire country California is on the road to economic recovery, thanks to Brown’s wizardry and tax increases. He and the Legislature claim we’ve had several balanced budgets, and are swimming in surpluses.

Never mind the billions California owes to the federal government for our the state’s growing unemployment problem.

…or the half a trillion dollars in unfunded and future pension obligations… these massive debts apparently do not count.

Nor do the commitments of the $100 billion high speed rail project, the $25 billion Delta Tunnels water project, or the California Air Resources Board’s determination to rid the state of all carbon emissions.

…Or the San Francisco/Oakland Bay Bridge project, which has been under repair since 1989 and has cost more than $6 billion dollars.

But we have surpluses

“These surpluses account for massive constitutionally required increases in education spending (including $3.3 billion in the next year alone),” the Wall Street Journal’s Allysia Finley recently explained in “California’s Spending Wish List.”

Finley was referring to the recent Legislative Analyst’s Office report to the governor, which predicted a surplus of $3.2 billion at the end of the next budget year.

“The analysis also assumes that the state economy and revenues continue to grow steadily over the next decade—which is unlikely—and that the legislature won’t use the windfalls to pay down the state’s $70 billion liability for teacher pensions, which is probably not a bad bet.”

“Overjoyed by the good budget news, Sacramento’s liberal elves quickly got to work on a spending wish-list, which includes a host of pent-up desires such as universal pre-K and other child-care programs; middle-class college scholarships; a California version of Ameri-Corps; an infrastructure bank; and community college work force development programs,” Finley said. “As usual, Democrats also want to expand welfare benefits, food-stamps and the state’s earned income tax credit.”

So when the Sacramento Bee reader announces, “We citizens do not have time to properly analyze and decide all the issues,” it’s hard not to want to scream.

Remember it was also Alexis de Tocqueville who said, “The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.”

But never fear. Alexis de Tocqueville also believed, “The greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults.”

We have work to do.

By Steven Greenhut

SACRAMENTO -– Don’t you hate it when life starts to resemble one of those bleak, futuristic dystopian movies? I’m thinking of an almost unfathomable reality –- local and state governments are joining the feds in buying unmanned aerial vehicles -– drones -– to patrol the skies.

Many uses for drones are innocent enough, such as for scientific endeavors and search-and-rescue missions, but many cities are grabbing Department of Homeland Security grants to buy these devices as part of their ongoing law-enforcement efforts. Agencies want to use them to, for example, monitor the border, search for drug dealers, hunt alleged criminals and target alleged terrorists.

Records obtained by the Electronic Frontier Foundation found scores of applications from local governments for drone permits, as well as widespread patrolling of U.S. skies by military officials. We’re familiar with conspiracy theorists, who warned of “black helicopters” and a military takeover of our society. But these drones are far more advanced than helicopters -– and thousands of them might be quietly circling overhead within a few years.

The ramifications of our drone-ization

This brings to mind images of that cheesy 1987 movie, “Robocop,” in which a cyborg police officer battles thugs. These days, crime rates are at nearly historic lows, and we’re as likely to die from a meteor strike than a terrorist attack. Yet, Americans seem insufficiently concerned about the ramifications of the drone-ization of society.

Again, some uses for drones are benign -– but their widespread use by government raises serious questions.

There are some practical concerns. For instance, a Washington Post article from November found that poorly trained military contractors were making repeated blunders in operating these aircraft, leading to multiple crashes at busy airports. In other words, this video-game-like process is leading to real-world dangers.

But the biggest fear involves our freedoms. We should be able to live our lives without being constantly monitored by the authorities – unless the authorities have a specific, court-endorsed reason for the intrusion.

The Bill of Rights puts strong emphasis on due legal process and on protecting citizens from unwarranted search and seizure because those are among the cornerstones of a free society. The New York Times found that drone operators at Holloman Air Force Base in New Mexico practice their skills by tracking and spying on the occupants of civilian cars driving near the base, which is a small reminder that there is always the temptation for government to abuse its powers.

There are so many laws and regulations on the books that Americans are rightly worried about how closely the government should watch us.

The filibuster that created a national debate

Rand Paul’s 13-hour Senate filibuster, his way of demanding that the president detail his policy on killing Americans via drone strikes on U.S. soil, succeeded on several counts. The administration ultimately did respond.

The marathon of talking, which delayed the confirmation vote on a new CIA director, pushed the drone issue onto the national agenda. And it assembled the beginnings of a political coalition that defies typical partisan boundaries.

Left-leaning news site Politico saw Paul’s concern as part of an “increasingly hysterical strain of conservative thought.” MSNBC’s typically liberal viewers supported the “targeted killing of Americans” by 78 percent to 22 percent in an online poll.

On the right, Sen. John McCain mocked Paul, his fellow Republican senator, as “wacko.” The hawkish Wall Street Journal labeled Paul’s speech a rant and then lectured him: “The U.S. government cannot randomly target American citizens on U.S. soil or anywhere else. What it can do under the laws of war is target an ‘enemy combatant’ anywhere at any time, including on U.S. soil. This includes a U.S. citizen who is also an enemy combatant.”

The Journal’s editorial writers are missing something that Paul’s supporters seem to understand: If government officials are left to determine an “enemy combatant,” they will tend to draw that distinction as broadly as possible.

Then, there is the collateral damage. “[A] new study from researchers at NYU and Stanford concludes that as many 881 civilians -– including 176 children -– have been killed by U.S. drone strikes in northern Pakistan since 2004,” said Reason magazine’s Meredith Bragg and Nick Gillespie. It’s naive to think that domestic uses will always be handled without problem.

Just how much do you trust your government?

The new dividing line is the same as the old one: It’s between those Americans who, in the spirit of our founders, recognize that our own government can become a serious threat to our liberties, and those who are so trusting of government that they are willing to give it nearly unlimited powers to “protect” us.

Hence, we’re seeing coalitions of Democrats and Republicans pushing limits on states’ use of drones, just as we’re seeing coalitions of Democrats and Republicans criticizing those of us fearful about the militarization of society. In California, for instance, a bipartisan bill (Assembly Bill 1327) would place some modest limits on drone use by local agencies.

That’s a welcome sign that there might be some pushback on this disturbing mix of government power and high technology. We better push back hard and fast –- before our society more closely resembles some dark, futuristic Hollywood scenario.

Steven Greenhut is vice president of journalism at the Franklin Center for Government and Public Integrity. Write to him at steven.greenhut@franklincenterhq.org.

Commentary

MARCH 5, 2012

By JOHN SEILER

Today the Los Angeles Times is charging for visiting its site online. This is a suicide attempt that will severely damage the paper. Its parent company, Tribune Co., long has been in bankruptcy, running up $233 million in legal fees.

According to the Times’ own story:

“The Los Angeles Times will begin charging readers for access to its online news, joining a growing roster of major news organizations looking for a way to offset declines in revenue.

“Starting March 5, online readers will be asked to buy a digital subscription at an initial rate of 99 cents for four weeks. Readers who do not subscribe will be able to read 15 stories in a 30-day period for free. There will be no digital access charge for subscribers of the printed newspaper….

“Other news outlets that have begun charging for online journalism include the New York Times, the Wall Street Journal and the Dallas Morning News. Gannett, the nation’s largest newspaper company, this week announced plans to launch a similar program at 80 publications, saying it could boost earnings by $100 million in 2013.”

They don’t get it. They still don’t get it.

Since 1994, when the first decent Web browser, Netscape, became available, the newspaper business model has been doomed. People now expect basic news to be free. They also don’t want to mess around with complicated log-ins and price plans for basic news.

Paid Sites

The Times cited The Wall Street Journal as making money on its paid site. They’re enticed by the subscription figures in the following graph, from The Awl. It shows newspaper circulation from 1990-2009. At the top is the success of the Journal.

The look at the yellow line, the L.A. Times, which has declined the fastest of all — a meteor downward. The circulation decline has continued, from about 625,000 in 2009 to 573,000 today.

The Journal’s model is succeeding because the Journal offers more than basic news: It offers specialty news, on finances. People will pay money to make money. The’ll also pay money for other specialty news, such as dating and game sites. That model also is working for the Financial Times, which specializes in international business news.

If you’re a bond trader making well into the six figures a year, paying for an FT or Journal subscription is chump change. It provides crucial information you use for your business. Those publications also provide large research files for checking out potential businesses to invest in. But that model doesn’t work for publications that provide news one can get elsewhere.

As to the New York Times, it lost $40 million last year. So why imitate their business model?

As to the Dallas Morning News, starting Feb. 15, it charged $33.95 a month for a subscription and full access to its online news. That’s $407.40 a year — in tough economic times. It’s obviously too early to tell if that’s going to work. But a newspaper that once was in the top 10 in circulation in the country now has dropped to 16th — even though Dallas and Texas have seen booming population in recent years.

According to the L.A. Times story, for LAT subscriptions:

“After the initial rate of 99 cents for the first four weeks, the rate will rise to $1.99 a week in a package that also includes the Sunday newspaper. Digital-only access will cost $3.99 a week.”

So, you pay half ($1.99) a week if you get the paper edition, which means they want the ads that pay for everything plopping on your doorstep every day. That’s $103.48 a year. But if you don’t the paper version — maybe the Times’ editorials have convinced you that killing all those trees adds to global warming — then you pay $3.99 a week, or $207.48 a year. It’s not going to work.

Two Problems

There are two problems with the Times. The first is that the newspaper industry continues to erode. This is unfortunate. I’ve been in the newspaper business for 27 years now, and I lament the passing of a great industry. I’ll always be a “newspaperman.” I still get home delivery of the daily printed Orange County Register, my old paper, and the Sunday Los Angeles Times. But that’s the reality.

I don’t know many people under 40 who subscribe to newspapers. This includes smart kids in graduate school. They do everything online.

The Times’ second problem is its grating liberalism. There’s seldom a vast new government program or gigantic tax increase that they don’t support. All of their five top columnists are obsessed with tax increases, as I have detailed on CalWatchDog.com.

And as my colleague Steven Greenhut wrote today, columnist Michael Hiltzik has defended the possibly criminal fraud eco-extremist Peter Gleick perpetrated against the Heartland Institute. Gleick himself has apologized. Yet Hiltzik wrote: “But it’s Heartland, which has tagged Gleick with the epithets above, that should be answering for its nearly three-decade history of corporate shilldom.”

So, Hiltzik says it’s OK for Gleick to perpetuate a fraud. And the Los Angeles Times employes Hiltzik. So why should I believe anything written in the Times?

As to Hiltzik’s charges against Heartland: It’s public knowledge where its funding comes from. And any think tank gets its money from sources favorable to its research. How does any of that justify fraud?

$$$$$$$$$$$$$$$$$$$$$$$$$$$$

It’s also a good question how much money the L.A.Times will derive from this. Its article on the switch to paid online membership explained:

“[Media analyst Edward] Atorino said the New York Times has not sold digital subscriptions at the rate he expected. Most of the subscriptions it sells are highly discounted, diminishing the revenue gain, he said. The company does not break out its revenue for digital subscriptions.”

So no one has any idea if the main non-financial newspaper that switched to digital subscriptions actually is making money from it!

The article continues, quoting Kathy Thomson, president and chief operating officer of Los Angeles Times Media Group.:

“The Times won two Pulitzer Prizes last year, including the gold medal for public service for its coverage of corruption in the city of Bell.

“‘People are going to want to read our award-winning journalism’, Thomson said.”

People don’t care about Pulitzers and other awards. Anyway, 99 percent of the awards go to liberals. And why did it take the Times so long to report on the Bell corruption, which was going on for decades? How hard would it have been to notice that City Manager Robert Rizzo raked in $787,637 a year in salary, with 12 percent annual increases, guaranteed?

The fact is that the Times has been missing stories for years.

And whenever it does break something, its articles quickly are cross-posted to other Web sites, including newspapers that carry the Times’ news service. So, in the end, there’s no need to pay for its stories.

A better model is that of the Orange County Register, which is building up strong online loyalty, for example for their reporting on the Angels baseball team, which has a nationwide following. If you go to that site, the ads are not just local, but national and for Southern California.

“Information wants to be free” is a slogan of techno-anarchists. The Times is going to find that out — the hard way.