Monday, September 24, 2018




          If there’s a theme to Steve Poizner’s independent campaign for state insurance commissioner, it might be “back to the future.”

          Poizner, a former Silicon Valley entrepreneur who held the office four years and ran it in a more nonpartisan fashion than anyone since insurance commissioners became elected officials in 1988, always said his office should be independent of political parties. Now he’s trying to make that into reality.

          In fact, insurance issues rarely concern big social causes like abortion, guns and immigration. Where they sometimes intersect with politics, as in race-related red-lining, climate change or health insurance company mergers, insurance regulators need to be scrupulously fair and even-handed.

          But Poizner could not eliminate politics in his earlier go-‘round, forced to pick one party or another if he wanted any electoral credibility. That was before voters created the top-two primary system in a 2010 ballot proposition, a change that led him to re-register with no party preference last year. In June he became the first independent to win a statewide California primary in more than a century.

          He topped Democrat Ricardo Lara, a soon-to-be-termed-out state senator from Los Angeles, by just over 31,000 votes, but faces Lara again this fall. Even though one August poll showed Poizner six points ahead of Lara, the ex-commissioner has no easy task in trying to win one more term in his old office. For a second Democrat won more than 813,000 primary votes and Lara is likely to pick up most of them.

          Lara has also been highly visible in the Legislature, especially lately. He’s been an activist in the sanctuary movement to protect non-criminal illegal immigrants from deportation. He authored a new law prohibiting insurance companies from cancelling or failing to renew homeowner policies in fire areas and their immediate surroundings for one year after a state of emergency is declared. And more.

          But the Poizner campaign represents a landmark. It’s common for the 25 percent-plus of California voters who are registered Republican to gripe about one-party government in Sacramento, and the marginally larger corps of no-party-preference voters often voices the same complaint.

          But Democrats have such a large voter registration plurality with more than 44 percent of all registered voters that it would take a remarkable candidate to break their stranglehold on statewide offices.

          Poizner might fit that bill. Even though he conducted an unsuccessful primary election run for governor in 2010, he now presents himself not as an ambitious politician, but as a problem solver taking care of everyone, no matter their political inclinations.

          “You don’t want to be tied to one political party or the other,” he said in an interview. “When you’re tied to one, all kinds of things come up. I got political pressure when I was commissioner, but I won’t name names. My four years there tells me when you have business before the Department of Insurance, it should be about protecting consumers and making sure they have lots of positive, healthy choices when shopping for insurance.”

          Poizner adds that “I could say something similar about lots of other state agencies, too, like the controller and the secretary of state.”

          But everyone now running for those offices has a strong party affiliation. One reason, of course, is that it costs a lot of money to run statewide campaigns, even for secondary offices. Few can get that cash without a strong party connection. But Poizner made a fortune estimated at as much as $1 billion by founding and later selling two high-tech companies and has so far kicked a total of $500,000 into his campaign and raised about $1 million more from others.

          If Poizner can win, it’s just possible California might get started toward some kind of alternative to the two extremely ideological major political parties. Up to now, there has been no credible alternative.

          Says Poizner, “It’s been incredibly liberating to be independent. Both parties are not problem solvers. But I just want to run and serve again, and the open primary system we now have in California might just allow me to do that.”

    Email Thomas Elias at His book, "The Burzynski Breakthrough, The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit




          “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” -- 8th Amendment, United States Constitution (part of the Bill of Rights)

          Less than two hours after Gov. Jerry Brown signed California’s landmark new “no cash bail” law, the Republican candidate to become the state’s top lawyer pronounced it illegal, unconstitutional.

          This came even before the billion-dollar bail bond industry – likely to become extinct under the new law – began a campaign to qualify a 2020 referendum to cancel the measure.

Here’s what the GOP’s attorney general candidate Steven Bailey quickly said: “As recently upheld by the 11th Circuit (federal) Court of Appeals, the right to bail is a constitutional right and replacing it with problematic ‘risk assessment’ instruments denounced by over 115 civil rights groups (would) threaten the fundamental principles of freedom and equal justice under the law.”

Bailey, a retired El Dorado County Superior Court judge, followed one line of attack opponents of “no cash bail” will use against the new system, due to take effect one year from this week unless the referendum qualifies for the ballot and causes at least a temporary suspension.

Other arguments against the new law will surely come from bail bondsmen, who have thrived for centuries under the current system, giving rise to countless bounty hunters like the legendary Duane (Dog) Chapman, subject of a long-running reality TV show.

          Under the current system, criminal defendants lacking the full amount of their bail can often pay a bail bondsman 10 percent of the amount in cash, with the bondsman providing the rest. Bounty hunters enter when defendants jump bail and the 90 percent paid by bail bondsmen gets forfeited.

Also, many defendants put up homes and other property to secure their bail, while others borrow from friends and relatives.

          If opponents of eliminating cash bail repeat Bailey’s claim that it is a constitutional right, they will almost certainly lose in every court. For the Eighth Amendment says nothing about a right to cash bail, only that it cannot be “excessive.” A system evaluating flight risk and potential danger to the public does not amount to a demand for large sums of money, thus appearing to pass constitutional muster.

          Nor did the 11th Circuit decide just as Bailey claimed. Instead, the Atlanta-based court ruled valid in mid-summer a local law in Calhoun, GA guaranteeing a bail hearing within 48 hours of arrest. That doesn’t say cash bail is a must.

          So it would likely be a mistake for other lawyers to follow the implicit advice of the attorney general hopeful.

          In fact, the idea of ending cash bail has been around for decades. Brown first advocated it in his 1979 State of the State speech to the Legislature, almost forty years before making it reality.

          “Today,” he said, “California reforms its bail system so that rich and poor alike are treated fairly.” His comment echoed arguments of advocates who long maintained the rich easily go free while awaiting trial, but when the poor face similar charges, they often languish months or years away from home and family.

          Amplified Lt. Gov. Gavin Newsom, the Democratic candidate for governor, “A person’s checking account balance should never determine how they are treated under the law. Cash bail criminalizes poverty…”

          While cash resources will supposedly no longer have a role in pre-trial release, critics of the new law maintain it gives too much power to judges, empowered to order accused persons held however long it takes to adjudicate their cases.

          That means money will still have a role, even if it’s used only to hire competent and influential lawyers. The indigent accused, often represented by overworked public defenders or court-appointed attorneys, won’t be able to marshal the same kind of campaign for freedom as the wealthy.

          In a sense, the new system will be a lot like the current post-verdict sentencing system, where court officials recommend a sentence and generally see their recommendations followed, with lawyers sometimes able to influence their findings.

          This may not be fair, but it has survived every constitutional challenge. Most likely, so will California’s new no cash bail system.

    Email Thomas Elias at His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit

Monday, September 17, 2018




          Something has changed in California politics as the political class gets serious about this fall’s statewide election: Despite what has lately amounted to single-party rule in America’s most populous state, there’s a new insecurity in the air.

          That’s because of two successful recall moves against incumbent officials in the June primary, the defeats of Palo Alto Judge Aaron Persky and Democratic state Sen. Josh Newman of Orange County.

          Suddenly politicians and judges have been served notice that their constituents are watching, something they find easy to forget while doing everyday business in the state Capitol, county courthouses and city halls all around the state.

          In Persky’s case, recall was predictable from the moment he handed down an extremely lenient six-month jail sentence to former Stanford University swimmer Brock Turner, convicted of digitally penetrating a drunken, unconscious woman. The sentence led to fury from all sides of the political spectrum, and now all judges are newly aware that they don’t hold office by some sort of fiat, but serve at the pleasure of the people, who can express displeasure by knocking them out of office.

          In Perksy’s case, the vote wasn’t even close.

          Newman’s recall was different. Like most Democrats, he voted last year in favor of the 12-cent-per-gallon gasoline tax increase that now faces its own possible cancellation via a November ballot measure.

          While the campaign against Newman repeatedly accused him of helping impose the gas tax, not merely a relatively small increase in it, any kind of tax increase was bound to stick in the craw of his constituents, who had sent Republicans to Sacramento for many years before Newman narrowly won election in 2016. It did, and those constituents dumped him unceremoniously.

          “I think that the threat (of recall) is sort of by itself sufficient to change the legislative conversation,” Newman told a reporter afterward.

          Maybe so, but the threat of recalls has been around since 1913. In those 105 years, only six have succeeded, the most spectacular the 2003 dumping of then-Gov. Gray Davis and his replacement by movie muscleman Arnold Schwarzenegger.

          That track record caused most of the political class to disregard the recall threat and proceed almost however they liked, making backroom deals like those that spurred sponsors this summer to pull back three proposed initiatives that had already won enough public support to qualify for a November yes-or-no vote.

          But now those same people are at least looking to see if anyone’s gaining on them. The same is true for pols wanting to move up: The June results put them on notice that promotions would depend on performance. The best example of this was Republican Assemblyman Rocky Chavez of Oceanside, who hoped to finish in the primary’s top two in the 49th Congressional District race to replace retiring Republican Rep. Darrell Issa.

          But Chavez voted frequently with Democrats during his Sacramento tenure and Democrats wanting to turn Republican voters against Chavez made sure they knew he sometimes voted with Democrats. Their ads claimed Chavez ran for the Legislature claiming he wouldn’t vote for new taxes. “On spending your money and costing you more, Rocky Chavez’ broken promises will knock you out,” said their ad.

          That was backed up with specific Chavez votes. Always before a solid vote-getter, Chavez finished well out of the running in June, leaving the 49th as a seat Democrats realistically hope to flip.

          To politicians, all this seems bad, undesirable. But not to voters. It’s almost as if a window has been opened and constituents now are seeing for the first time what the folks they vote for do in office.

          Similarly, legal professionals and most law professors around the state and nation opposed the Persky recall on grounds that judges should have complete independence. Not so, said voters in usually liberal Santa Clara County. They said judicial independence is fine, but only if it produces sentences that seem reasonable.

          All of which has contributed to a new aura in the state’s politics and courtrooms, one that sees the elected for the first time in many years worrying about how they are perceived by their electors.

    Email Thomas Elias at His book, "The Burzynski Breakthrough, The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit




          Folks with little faith in California voters have won at least a partial victory this year. For decades, since the great Progressive (a tag worn a century ago mostly by moderate Republicans) Gov. Hiram Johnson created the ballot initiative, critics have railed against direct democracy, claiming an uninformed public often makes major mistakes.

          After decades of griping about “budgeting by initiative,” those skeptics managed to get a law passed in 2014 allowing legislators to change or eliminate initiatives even after they’ve qualified for the ballot, so long as initiative sponsors agree to it.

          Voters will see the first results of that law this fall: A significantly shorter ballot than they would otherwise have encountered, even though 11 measures remain up for public decisions.

          Yes, voters will make thumbs up or down choices on issues from $17 billion in proposed bonds to rent control and repeal of last year’s gasoline tax increase. They will still get to determine whether veal calves, pigs and chickens get more rights than they now enjoy and whether folks over 55 will be able to carry their Proposition 13 property tax limits across all county lines when they sell their homes, instead of just some.

          But voters will not get to make decisions about consumer privacy or soda taxes or even who will pay to clean up leaded paint in homes built since 1951.

          Instead, sponsors who gathered enough voter signatures to put initiatives on those issues before the voters made deals with state legislators and their ballot measures vanished.

          So a ballot that could have been much more interesting disappeared in the face of compromises that satisfied big-money interests but might not have pleased the mass of voters.

          The farthest-reaching of these compromises involved Internet consumer privacy. Under new rules signed into law by Gov. Jerry Brown just two hours after they passed the Legislature, Californians now have a right to know what information Internet giants like Google and Yahoo and eBay and Amazon have about them. They can also prohibit companies from selling that information and can ask companies to delete their information after they learn what’s been gathered.

          That’s a far cry from the ballot initiative which this new law replaces, which would have forced companies to get consumer permission to gather, maintain and sell information on what Internet searches individuals make, what they buy on the ‘Net, what products they look at but don’t buy and much more.

          Consumers can only sue in the case of a large leak of information, not over individual exposures.

          This was an example of compromise of the sort intended by lawmakers who created the new system for removing initiatives after they qualify. It probably headed off a campaign that would have cost companies and consumer groups $50 million or more. Too bad for the television, radio, newspaper and direct mail companies that would likely have gleaned most of that money.

          Another compromise removed an initiative run by major paint makers aiming to force the state to loan the companies up to $2 billion for removal of paint that contains lead in 10 cities and counties that won a lawsuit against Sherwin-Williams, du Pont and others. The initiative was withdrawn in exchange for legislators pulling three bills that would have penalized the companies even more.

          And there were soda taxes. Makers of carbonated drinks had qualified an initiative that would have raised the vote-percentage threshold for passing any new local tax, but agreed to pull it off the ballot in exchange for a new law placing a 13-year moratorium on any new soda taxes.

          The result is a ballot that’s far from the longest ever seen by California voters, but still lets them make important decisions on issues like spreading rent control more widely and lowering gas taxes a bit. But it also isn’t quite the ballot it could have been, as three key choices were gone even before campaigns on them could get started.

    Email Thomas Elias at His book, "The Burzynski Breakthrough, The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit

Monday, September 10, 2018




          There is little doubt about it: President Trump has not forgiven California for voting against him by a margin of more than 3 million votes, thus costing him the bragging rights of a popular vote victory.

          His most effective, potentially long-lasting way of punishing this state comes down to one question on the Census his administration will run starting less than 18 months from now:

          Trump and his secretary of commerce, Wilbur Ross, say they will for the first time in 60 years ask every person questioned by the Census – required every 10 years by the U.S. Constitution – whether he or she is an American citizen.

          This question was abandoned after the 1960 Census because it led to so many obvious undercounts of immigrants in the surveys for several decades before that.

          Now Trump wants to bring it back because he wants an undercount of immigrants, especially in California. An undercount would be absolutely assured by the presence of the citizenship question in part because Trump and Ross promise no confidentiality to respondents. Anyone who admits not being a citizen would be subject to actions by federal agencies including the often-dreaded ICE – Immigration and Customs Enforcement.

This would surely punish the state Trump resents most by depriving it of billions of dollars in federal grant money all through the 2020s. If it also led to California losing a seat or two in Congress, that too would be fitting punishment in Trump’s obvious view.

          It’s true California’s appointed attorney general, Xavier Becerra, sued five months ago trying to keep the question out of the Census, but that action has slim chance for success as the Constitution says nothing about what questions the Census should include or omit. Times change, the Founding Fathers seemed to understand, so Census questions will, too.

          If Becerra’s lawsuit, which has been joined by other states fearing undercounts, like New York and Illinois, were to fail, Gov. Jerry Brown or his successor will be presented with a unique opportunity, maybe even a legacy maker.

          For if the question is included, and the governor wants California to keep getting the full $100 billion-plus it now receives in federal support for everything from roads to sewers to police and fire protection, the state must respond with a big effort to convince undocumented immigrants they should participate and not hide from Census takers when they start knocking on doors around the nation.

          That’s because much federal money is not doled out according to how many citizens live in a state or city or political district, but rather by how many people live there.

          That’s critical for California because it hosts more than 3 million of the nation’s estimated 10 million-plus illegal immigrants. Even if they can’t vote, they still seek emergency health care, they still drive local roads and highways, their children still attend public schools, they still use water and they still need help after natural disasters like fires, floods and earthquakes.

          All those services are supported at least in part by federal funds drawn primarily from income taxes, of which California has long paid more than its fair share.

          Every 10 years, California mounts a loud campaign to convince illegal immigrants to let themselves be counted. That task will be harder than ever this time because of the citizenship question and the lack of confidentiality which has been part of previous Census efforts.

          Brown and his successor will need to create a large agency to pursue this effort aggressively, possibly hiring as many temporary advocates as the Census will hire temps of its own to carry questionnaires into millions of homes.

          If the current and future governors don’t do that – and Brown needs to start immediately – they risk an undercount that would see Californians’ tax money that should come back here go to other states like Virginia and Tennessee and Montana and the Dakotas, where numbers of the undocumented are minimal.

          If Brown starts a major effort right away, even though it’s not in the current budget, he could go down in history as the man who began saving California from Trump’s attempted non-violent vengeance – a legacy he could carry proudly the rest of his life.  

     Email Thomas Elias at His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, go to




          For months, the concept of a Western regional electricity grid advanced steadily through the Legislature, pushed by Gov. Jerry Brown and a phalanx of financial and utility giants including investor Warren Buffett and the AES electric generating firm, operator of 127 power plants.

The regional grid was to span the full Pacific Coast, plus interior states like Wyoming, Idaho and Nevada. California would cede control of its own electric transmission system to a new board named at least in part by utilities and other generating companies.

The fox would run the henhouse, with California consumers likely to be prime victims again, as they were the last time this state gave control of its power supply to outsiders – the 1998 deregulation plan that led to rolling brownouts for almost a year during the energy crunch of 2000 and 2001.

          But Brown pushed hard for it, determined to create as many solar thermal power plants as possible. California already has several of these, the most visible at Ivanpah, just across the state line from Nevada a few miles west of the I-15 freeway south of Las Vegas.

          This plan is not dead yet. It could put California power customers at the mercy of out-of-state companies analogous to the disgraced and now-defunct Houston-based Enron Corp.

          The grid change was merely delayed, not killed, in the just-ended legislative session, even though it deserved to die. “We will continue this important discussion next year,” said Democratic state Senate President Pro Tem Toni Atkins as she at the last moment denied the bill, known as AB813, a vote by the full Senate after it passed through several committees.

          This pernicious plan was pushed by some companies that actually were peripheral players in the energy crunch which eventually sent executives of Enron and several other big power companies to prison. It probably was shelved because no one knew just how much it would cost Californians. Among those behind it were Duke Energy and Buffett’s Berkshire Hathaway Companies and their subsidiary PacificCorp., the largest electric utility in the Pacific Northwest. Both were players during deregulation and the disaster that followed.

          Also behind it were green organizations like the Environmental Defense Fund and the Natural Resources Defense Council, which want renewable energy expanded quickly no matter what it costs consumers. They allied with owners of huge solar thermal plants like BrightSource Energy and SunPower Corp.

          It was a tough alliance to beat in lobbyist-infested Sacramento. But the regional grid appeared to lose steam at almost the last possible moment before the latest two-year legislative session ended at midnight Aug. 31. That was when consumer lawyer Mike Aguirre, formerly the elected city attorney of San Diego, released scores of Brown administration emails acquired via the state’s public records law. They showed Brown’s administration and the state Public Utilities Commission withheld a fiscal impact report on the regional grid.

          Legislators normally demand such a report before passing far-reaching laws, but went along without it for months until Atkins finally acted. A fiscal report was supposed to come at midsummer, but on the day it was due, an administration representative informed the Senate Appropriations Committee there would be no report.

          Aguirre described the emails as leaving “a trail to the governor and the PUC president (Michael Picker, a former Brown aide).”

          Meanwhile, backers of the regional grid insisted it would allow California solar plants to sell renewable energy cheaply into other states, undermining demand for power generated with fossil fuels like oil, coal and natural gas.

          This would benefit the companies backing the plan and be greener, but probably would raise prices for Californians. No one explained why excess energy generated in California sunshine can’t be saved in large batteries for later use.

          The bottom line: The alertness of one lawyer and Atkins’ apparent response to it quite possibly saved Californians from a repeat of the energy crunch, where California-produced power was sent out of state, some of it getting sold back here at hugely-inflated prices. But this may only be a respite, so consumer advocates must remain ready to resist the idea again and again until it finally dies.

     Email Thomas Elias at His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, go to