State Court Joins the Party Against Reform : A Lucas-led majority defied wisdom in striking down public campaign financing.

When it comes to campaign finance reform, our two political parties often bond as a single Party of the Incumbents. A textbook example of this occurred a few weeks ago, when the California Supreme Court rejected a campaign reform measure that was supported by a majority of voters in 1986.

The characters in this tragedy for voters were Common Cause on one side, arguing for campaign finance reform, and on the other a legal team representing the Democratic and Republican parties and their Sacramento leadership. Deciding the fate of reform was a chief justice who himself is accused of taking perks from special-interest groups that appear before his Court.

At issue was Proposition 68, a Common Cause ballot initiative in favor of partial public financing, which was approved by 53% of California voters in June, 1986.

The voters that year also supported Proposition 73, which proposed to limit campaign contributions as an alternative to public financing of campaigns. Proposition 73 won by 58%, a greater majority, thus invalidating Proposition 68 under California election law.

Then, last year, a federal court struck down Proposition 73, ruling that its fund-raising procedures unconstitutionally favored incumbents. With Proposition 73’s core swept away, Common Cause asked the Supreme Court to reinstate Proposition 68.

The time for court-ordered campaign reform was ripe. Only weeks before, a Sacramento jury had found yet another senator and a top lobbyist guilty of spreading money illegally around the Capitol.

But by a 4-3 vote, the court decided to uphold the status quo. The majority opinion, delivered by Chief Justice Malcolm Lucas, was narrowly technical, given the public significance of the issue. The federal courts had left standing a secondary provision of Proposition 73, banning mass mailings by politicians using public funds. Therefore, Lucas asserted, since a part of 73 remained in effect, it still superseded all of Proposition 68.

Arguing against Proposition 68 for the Democratic-Republican team was attorney Joseph Remcho, himself a longtime lawyer for the Assembly’s Democrats. He argued, in an embarrassing stretch for someone of his background, that “in this environment where government money is scarce, we should not bring back public financing.”

Remcho did not mention that the alternative to public financing is private special interest financing. The leaders of both parties raised hundreds of thousands of dollars from special interests to pay for Remcho’s attack on public financing.

The chief justice, who cast the deciding vote, is part of the same system. Once a law partner of former Gov. George Deukmejian, Lucas replaced former Chief Justice Rose Bird in 1987 on a law-and-order pledge.

Now Lucas, who registered 76 days of junketing last year, is being investigated for trips he took to Hawaii, Bangkok and the Austrian Alps that were paid for by insurance industry groups with important cases before the Supreme Court.

Such coziness is banned by the California Code of Judicial Conduct. Judges may not receive any compensation, including reimbursement of expenses, where there is even “the appearance of influencing the judge’s performance of judicial duties.”

Is the California Supreme Court hopelessly part of the special-interest system? Not entirely. The dissenting opinion of Justice Armand Arabian, writing for Justices Stanley Mosk and Joyce Kennard, was pointed and prophetic. Arabian reasoned that those who voted for Propositions 73 and 68 first “wanted reform without the use of public funds. Failing that, they wanted reform with limited public funding. Unquestionably, they wanted reform over no reform at all.”

The cause of reform is only delayed, not destroyed. An increasingly angry public will not be stilled. The closeness of the court’s 4-3 decision also suggests that the day may not be far off when the judicial system will respond where politicians have not. As Arabian warned, “It is anomalous that both sides of the political aisle join in this successful effort to thwart the will of the people they serve. Although their fear of reform has been temporarily assuaged, they shall bear the unpropitious consequences of tomorrow.”

The case for judicial action finds an analogy in the desegregation struggles of the 1950s. In those days, Democrats and Republicans were united in acceptance of Southern segregation. A young lawyer named Thurgood Marshall dared to argue that the system denied equal representation under the law. As with white supremacy then, money supremacy today undercuts the doctrine of equal voting rights.