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California Schemin'


In mid-July, Tom Hiltachk filed a ballot initiative. There was nothing particularly unusual about this, since Hiltachk is that peculiar species of Californian who makes a good part of his living in the permanent year-round industry that produces ballot measures. For a lawyer like Hiltachk, it's a great business to be in. Californians, with their love of direct democracy, are generous initiative filers: This year, through mid-November, 88 statewide measures have been filed, including ones to prohibit the state from implanting ID chips under people's skin, to regulate the confinement of farm animals, and to create a state-owned Internet poker site. Hiltachk has written dozens of initiatives, most of which never made news. But the one he filed last July thrust him into the national spotlight.

Hiltachk says he didn't think much of the initiative's prospects when he filed it; he had been trying to find money to back it for years without success. The initiative proposed changing how California allocates its 55 electoral votes, from a winner-take-all system to a method that would give one vote to the winner of each congressional district. Two weeks after filing it, however, he saw a message on his desk from someone identifying himself as Rick Hertzberg at The New Yorker. Hiltachk had never heard of Hertzberg and doesn't read the magazine. ("I just look at the message and go, 'Who the fuck is this?'") Instead of returning the message, he decided to go home for the weekend.

Three days later, a "Talk of the Town" appeared under Hertzberg's byline accusing Hiltachk of being part of a plan to steal the 2008 presidential election for the Republican Party. Within 24 hours, Hiltachk's name--little known outside political circles in the Golden State's capital--was on the tongues of political wags all over the country. Liberal websites cast the fourth-generation Sacramento native as a Rovian Svengali; venture capitalist Tom Steyer, a longtime Clinton donor, established a political committee, Californians for Fair Election Reform, to counter the initiative and gave more than $100,000. Norman Lear kicked in $50,000 and helped design Internet videos and radio ads that claimed the initiative was part of a plot to elect a Republican and prolong the war in Iraq. Hiltachk received e-mails so vile, he says, that he decided not to tell his wife about them. "Crazy, crazy stuff," he says.

Hiltachk's critics charged that, if such a measure were to pass in the enormous blue state, it could change the course of the election, giving as many as 22 electoral votes to a Republican candidate. But, sitting on the edge of a chair in a political consultant's office near the Capitol this fall, Hiltachk protests the charges that he is a partisan plotter. "I'm just a man with an idea," he says with a sardonic edge. A bit of a neat freak, he wears a crisp, blue suit, and every strand of his thin hair seems perfectly in place. He looks a decade younger than his 46 years--like a grown-up Tom Sawyer, if Tom Sawyer confined his mischief to ballot-initiative campaigns. But who is he really--a legal player in the multimillion-dollar California initiative machine or a Republican henchman out to foil the Democrats' chances in 2008?

In 1911, California adopted the idea of direct democracy and, with it, the initiative--a law or constitutional amendment that is put into force by voters, not the legislature. For an initiative to become law, it must be filed first with the attorney general's office, which gives it a title and summary. Professional signature-gatherers then attempt to secure the hundreds of thousands of signatures required to qualify an initiative for the ballot. Paying the gatherers to do that typically requires at least $2 million, so an initiative backer who cannot raise at least that much has virtually no hope of getting his measure on the ballot.

These days, state ballot measures have become a big business, with spending on initiative campaigns approaching $300 million per election cycle. Five major signature-gathering companies contract with initiative sponsors to circulate their petitions. Alongside them work a cadre of lawyers, fund-raisers, pollsters, opposition researchers, and media consultants, many of whom specialize in initiatives. All share one common concern: volume. "If I only did initiatives I agree with, I wouldn't do very many," Mike Arno, owner of a signature-gathering firm who works with Hiltachk, once told me. This is piece work: They are usually paid by the signature, by the piece of mail, by the poll, by the initiative. And filing in bulk is easy: It costs just $200 to register an initiative with the attorney general's office. With such a low barrier to entry, the attorney general is deluged with such measures, many of which touch on those two all-consuming California passions: sex and real estate. A record 152 were filed in 2005 (the year of a special election), including measures to make all real estate listings freely available to the public and to limit where sex offenders may live.

Hiltachk plays various roles in this economy, but his great impact may be as one of the most prolific writers of initiatives. In the 20 years he's been working in the initiative industry, he has drafted measures ranging from the successful "three strikes" sentencing measure to a recent failed attempt to increase tobacco taxes. He was in on the ground floor of the recall of Governor Gray Davis and helped create some of the initiatives sponsored by Governor Arnold Schwarzenegger.

But Hiltachk hasn't had the overwhelming political influence one would think the Joyce Carol Oates of initiative writers might have. Writing such measures is a lot like another California pastime--writing screenplays. Most screenplays never get sold. Of those that are sold, most are never made into a movie. And most movies aren't hits. In the same way, most initiatives never attract enough financial support to qualify for the ballot. Most of those that get funded lose at the polls. And a majority of those that are passed by the voters are either thrown out by the courts or successfully subverted. Drafting a measure that makes a lasting impact is exceedingly rare.

Realistically, the best an initiative sponsor can guarantee himself is a good amount of attention. Hiltachk once told me: "The initiative process is often more beneficial for having the public debate as opposed to any change in law or policy from the initiative itself."

Hiltachk, however, is not just some apolitical direct democracy enthusiast--he's a partisan, too. After graduating from Sacramento State and McGeorge Law School, he eventually became a partner at a law firm that has represented the California Republican Party for years.

Hiltachk readily admits that he thought the electoral-college initiative would help his party. But he also claims that it would help his state: He has long argued that, because California is a solidly blue state, it has been taken for granted in presidential elections. Before the 2004 election, he and Arno, the signature gatherer, tried to sell Republican donors on a "West Coast strategy" in which initiatives would be sponsored to change how electoral votes are apportioned in California, Oregon, and Washington. Haley Barbour, the former RNC chairman, championed the idea, but the initiative received no money. The GOP was fighting off a similar ballot initiative--backed by Democrats--to pick up electoral votes in the red state of Colorado.

In February 2007, Hiltachk decided that, with another election on the horizon, the time was right to try again. Marty Wilson, a Republican political consultant and fund-raiser here, circulated a proposal to donors around the state, and, on July 17, Hiltachk filed the initiative. After the attacks began, Hiltachk compounded the liberal conspiracy theories by refusing to say who, exactly, was funding the initiative. "When they're refusing to say who's behind the initiative," says Chris Lehane, a consultant who handled communications for the countereffort, "the rules of the game are that you can make all sorts of allegations."

But, when I spoke with him, Hiltachk revealed the reason why he refused to say who was behind the initiative: At the very moment that Hertzberg's New Yorker piece hyperventilated, "[The initiative's] backers have access to serious money," Hiltachk had yet to raise a cent. He had virtually no funding at all--a fact that he hadn't broadcast because it would make it even harder to get funding. California's Republican donors, some of whom had funded a slate of failed initiatives in the 2005 special election, were reluctant to dig into their pockets.

This reality was lost on many people outside the initiative business. A month later, Tim Russert declared on MSNBC that the initiative "is going to be before the voters of California in June of '08." At that moment, Hiltachk's measure had raised less than $5,000--and had not even been cleared by the attorney general for the collection of signatures.

On September 11, the initiative finally received a major donation--$175,000 from a mysterious new Missouri corporation calling itself Take Initiative America. But that wasn't enough money to qualify it. Hiltachk insists he did not know who was behind the gift. Two weeks later, a longtime Giuliani friend and fund-raiser, Paul Singer, revealed that he was the source of the money. This validated the Democrats' conspiracy charges. Singer's connection to Giuliani might have made the donation illegal under federal law. (State and federal officials are currently investigating.)

With too much aggravation and too little money, in late September, Hiltachk announced he was abandoning the initiative. He had billed $10,000 to the campaign, far less than he should have been paid for the amount of time he put into it. Wilson, his partner in the fund-raising effort, lost money on the thing. "Some conspiracy," Wilson says.

Hiltachk has dropped out, but the measure isn't dead. Other Republicans, including political consultant Ed Rollins and a former Giuliani fund-raiser, are raising money and slowly gathering signatures. But, once again, the case for liberal alarm isn't particularly strong: As with Hiltachk's original initiative, polls suggest that even if the new version does get enough funding to make it on the ballot, its chances of passing are minimal.

In the meantime, Hiltachk has not hatched any other conspiracies to help the GOP win in 2008. After his experience as a target of national ire, he's sticking to issues of a distinctly less partisan bent: a children's hospital bond and referenda on four Indian gaming compacts.

Joe Mathews, a reporter at The Los Angeles Times, is the author of The People's Machine: Arnold Schwarzenegger and the Rise of Blockbuster Democracy.

By Joe Mathews