Ballot Law Update: Taxpayers association, alleging a violation of political fair play, sues to keep Citizens United advisory measure from statewide ballot

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July 31, 2014

Opponents of the anti-Citizens United Proposition 49, which is an advisory question slated for the November election, filed a lawsuit on July 22, 2014, arguing that the California Constitution has no provision for an advisory referendum, allowing only binding amendments or statutes a place on the ballot. They also accuse Prop. 49 proponents of using the measure to manipulate the November election by luring liberal voters to the ballot that would not otherwise vote. Although advisory citizen initiatives have been ruled unconstitutional by previous court decisions, this lawsuit will likely shed important light on the flexibility of the California Legislature's referral power.[1]

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Proposition 49 seeks to let voters express their disapproval of the 2010 Citizens United Supreme Court ruling that established campaign spending as a form of "free speech" allowed by corporations, eliminating the possibility of restricting corporate spending in support of or opposition to candidates or ballot measures. The measure was designed to be an advisory question with no legally binding effect. Jon Coupal, president of the Howard Jarvis Taxpayers Association, which is responsible for the lawsuit, equated the measure to a government-funded opinion poll and said, "Legislative power can be exercised in numerous ways but this is not one of those."[2]

The association cited a court decision in 1984 called American Federation of Labor v. Eu as the basis for its lawsuit. This case was brought to court as a challenge to an advisory ballot initiative and ruled that there was nothing in the constitution that allowed for such a use of direct democracy. Coupal noted, "If the people can’t do it, certainly the Legislature can’t do it, either." The association's lawsuit also claims that a concealed purpose of the proposition is to induce a greater portion of the liberal electorate to vote in the November election as a maneuver to give left-leaning candidates a commanding advantage.[3][1]

Derek Cressman, director of Yes on 49, responded, "They are worried they can’t win this debate on substance so they are trying to prevent this debate from happening. It frankly looks like censorship." Supporters of the measure are convinced that the ability for corporations and businesses to spend large sums on political races destroys the value and honesty of a democratic system. They also believe that overwhelming approval of Proposition 49 would urge lawmakers to takes steps "to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another and to make clear that the rights protected by the United States Constitution are the rights of natural persons only."[2]

Secretary of State Debra Bowen (D) has called for a judicial decision to be made before August 11, the day voter information guides go into print.[4]

See also

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