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California Proposition 49, Amendment to Overturn Citizens United Ruling Question (2014)

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The California Proposition 49, the Amendment to Overturn Citizens United Ruling Question, was not on the November 4, 2014 ballot in California as an advisory question. The measure would have asked voters whether the United States Congress shall propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission and other related judicial rulings.[1]

The suggested amendment would have allowed for the full regulation or limitation of campaign contributions and spending for the purpose of ensuring 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.[1]

The California Secretary of State would have been required to communicate the results of the measure to the US Congress.[1]

The advisory question was known in the California Legislature as Senate Bill 1272 and the Overturn Citizens United Act. Sen. Ted Lieu (D-28) introduced the bill into the legislature.[1]

In late January 2016, the Legislature petitioned the secretary of state to allow the measure on the 2016 ballot.[2]

Text of measure

Ballot label

See also: Ballot titles, summaries and fiscal statements for California's 2014 ballot propositions

Ballot title:

Corporations. Political Spending. Federal Constitutional Protections. Legislative Advisory Question.

Official summary:

"Asks whether the United States Congress and California Legislature should approve an amendment to the federal Constitution overturning the United States Supreme Court decision in Citizens United v. Federal Election Commission. Citizens United ruled that laws placing certain limits on political spending by corporations and unions are unconstitutional."

Fiscal impact statement:

Note: The fiscal impact statement for a California ballot initiative authorized for circulation is jointly prepared by the state's legislative analyst and its director of finance.

"No direct fiscal effect on state or local governments."

Proposed law

The proposed law read as follows:[1]

“ Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, 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?[3] ”

Background

See also: History of campaign finance reform

Citizens United v. FEC

The United States Supreme Court's ruling in Citizens United v. Federal Election Commission (2010) held that political contributions and spending were protected as "free speech" under the First Amendment.[4] In 2012, voters in both Montana and Colorado passed initiatives by 3 to 1 majorities asking their respective delegations to the U.S. Congress to support a constitutional amendment that would effectively overturn the high court's ruling.

McCutcheon v. FEC

The ballot measure's text referred not only to Citizens United v. FEC but also to "other applicable judicial precedents." One such ruling, mentioned in the senate appropriation committee's analysis, was McCutcheon v. FEC.[5] McCutcheon v. FEC was decided on April 2, 2014 by the United States Supreme Court. The court concluded that contribution limitations on how much money a donor may contribute to candidates for federal office, political parties, and political action committees do not further the government’s interest in preventing corruption. Further, they stated that such limitations restricted participation in democratic processes and therefore violate the First Amendment.[6]

AJR 1

On June 27, 2014, Assembly Joint Resolution 1 (AJR 1) was chaptered by the California Secretary of State after passing the California Legislature. Essentially, the resolution calls for a federal constitutional convention for the purpose of proposing an amendment to the United States Constitution. The amendment, according to the legislative council's digest, would "limit corporate personhood for purposes of campaign finance and political speech and would further declare that money does not constitute speech and may be legislatively limited."[7] The resolution received support from Consumer Watchdog, CALPIRG, California Clean Money Campaign, California State Grange and Wolf-PAC.[8] Asm. Mike Gatto (D-43) stated, "I doubt our founding fathers had the free-speech rights of multinational and foreign corporations in mind when they drafted the First Amendment."[9]

A federal constitutional convention hasn't been held since the first one in 1787. Along with California, 33 other states would need to issue similar resolutions to effectively call for a convention.[9]

American Federation of Labor v. Eu

In 1984, the California Supreme Court ruled against placing initiated, but not legislatively referred, advisory questions on the ballot. The court wrote, "[A]n initiative which seeks to do something other than enact a statute - which seeks to render an administrative decision, adjudicate a dispute, or declare by resolution the views of the resolving body - is not within the initiative power reserved by the people." The ruling was prompted by a proposed citizen-initiated advisory referendum designed to compel the state legislature to ask the federal government to adopt a balanced budget amendment.[5]

Some commentators thought the ruling applied to legislatively referred advisory referendums as well. Dan Walters of the Sacramento Bee said the ruling applies "logically - and probably legally..."[10]

Support

California Yes on 49 2014.png

Money Out, Voters In led the campaign in support of Proposition 49.[11]

Supporters

Officials

All Democrats, except those abstaining or absent, voted to place the referendum on the ballot in the California Senate and the California General Assembly. No Republicans voted for the measure.

The following elected officials sponsored the bill in the legislature:[1]

Organizations

Arguments

Sen. Ted Lieu (D-28), Sen. Hannah-Beth Jackson (D-19) and other co-authors argued the following in the bill’s text:[1]

Sen. Ted Lieu (D-28), the referendum's primary legislative sponsor
“ The Legislature finds and declares all of the following:
(a) The United States Constitution and the Bill of Rights are intended to protect the rights of individual human beings.
(b) Corporations are not mentioned in the United States Constitution and the people have never granted constitutional rights to corporations, nor have we decreed that corporations have authority that exceeds the authority of “We the People.”
(c) In Connecticut General Life Insurance Company v. Johnson (1938) 303 U.S. 77, United States Supreme Court Justice Hugo Black stated in his dissent, “I do not believe the word ‘person’ in the Fourteenth Amendment includes corporations.”
(d) In Austin v. Michigan Chamber of Commerce (1990) 494 U.S. 652, the United States Supreme Court recognized the threat to a republican form of government posed by “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”
(e) In Citizens United v. Federal Election Commission (2010) 558 U.S. 310, the United States Supreme Court struck down limits on electioneering communications that were upheld in McConnell v. Federal Election Commission (2003) 540 U.S. 93 and Austin v. Michigan Chamber of Commerce. This decision presents a serious threat to self-government by rolling back previous bans on corporate spending in the electoral process and allows unlimited corporate spending to influence elections, candidate selection, policy decisions, and public debate.
(f) In Citizens United v. Federal Election Commission, Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor noted in their dissent that corporations have special advantages not enjoyed by natural persons, such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets, that allow them to spend huge sums on campaign messages that have little or no correlation with the beliefs held by natural persons.
(g) Corporations have used the artificial rights bestowed on them by the courts to overturn democratically enacted laws that municipal, state, and federal governments passed to curb corporate abuses, thereby impairing local governments’ ability to protect their citizens against corporate harms to the environment, consumers, workers, independent businesses, and local and regional economies.
(h) In Buckley v. Valeo (1976) 424 U.S. 1, the United States Supreme Court held that the appearance of corruption justified some contribution limitations, but it wrongly rejected other fundamental interests that the citizens of California find compelling, such as creating a level playing field and ensuring that all citizens, regardless of wealth, have an opportunity to have their political views heard.
(i) In First National Bank of Boston v. Bellotti (1978) 435 U.S. 765 and Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley (1981) 454 U.S. 290, the United States Supreme Court rejected limits on contributions to ballot measure campaigns because it concluded that these contributions posed no threat of candidate corruption.
(j) In Nixon v. Shrink Missouri Government PAC (2000) 528 U.S. 377, United States Supreme Court Justice John Paul Stevens observed in his concurrence that “money is property; it is not speech.”
(k) A February 2010 Washington Post-ABC News poll found that 80 percent of Americans oppose the ruling in Citizens United.
(l) Article V of the United States Constitution empowers and obligates the people of the United States of America to use the constitutional amendment process to correct those egregiously wrong decisions of the United States Supreme Court that go to the heart of our democracy and the republican form of self-government.
(m) The people of California and of the United States have previously used ballot measures as a way of instructing their elected representatives about the express actions they want to see them take on their behalf, including provisions to amend the United States Constitution.[3]
 ”

Michele Sutter, chairperson, and Derek Cressman, director, of Yes on 49 authored an opinion article responding to The Sacramento Bee's criticism of the measure's placement on the ballot:

“ You know our republican form of government is faltering when the editorial board of a leading newspaper like The Sacramento Bee objects to citizens advising our elected officials on how we want them to represent us, as Proposition 49 does in calling upon Congress to overturn the Citizens United ruling that has opened the floodgates to unlimited campaign spending.

Big money in politics is out of control. When faced with so grave a threat, citizens and legislators must use every possible tool to restore a government of, by and for the people.

Unlike the California Constitution that voters can amend directly, our federal constitution can be amended only by our elected representatives. With corporate CEOs drowning out the voices of ordinary Americans, citizens must speak out collectively so that our voices can be heard, too. Proposition 49 provides a structured debate about whether our elections should be up for sale, arguably the most pressing issue of our time. Unlike a poll or a petition, Proposition 49 allows opponents to present their side as well, and for voters to then decide.

Contrary to the editorial’s assertions, the Legislature approved Proposition 49 only after an unprecedented outpouring of public support that included more than 55,000 petition signatures, 176,000 faxes and a march from Los Angeles to Sacramento culminating in a nonviolent protest where dozens were arrested at the Capitol.

Proposition 49 follows the tradition used by the framers of the Constitution in which constituents instruct Congress to act. California has used similar ballot measures to successfully press for other amendments to the Constitution...

Proposition 49 is part of a national movement demanding that Congress take action to curtail big money in politics...

Voters who are serious about using the checks and balances of our Constitution to rein in a runaway Supreme Court and restore integrity and fairness to our elections will vote “yes” on Proposition 49. Elitists who abhor the thought of voters speaking collectively about pressing issues of the day may vote “no.” But at least we’ll all get a chance to have our voices heard. [3]

”
—Michele Sutter and Derek Cressman

[15]

Other arguments in support of the referendum include:

  • David Levine, CEO of the American Sustainable Business Council, stated, "The problem centers on which deepest pockets will dominate the spending, and whether the ideas they will promote are good for our businesses and good for the state. The resulting policies often benefit those special interests at the expense of small and medium sized businesses, our local economies, and our communities."[14]

Donors

Total campaign cash Campaign Finance Ballotpedia.png
as of August 7, 2014
Category:Ballot measure endorsements Support: $10,000
Circle thumbs down.png Opposition: $0

One ballot measure campaign committee registered in support of the initiative as of August 7, 2014:[16]

Committee Amount raised Amount spent
Yes on 49 Money Out, Voters In $10,000 $0
Total $10,000 $0

The following were the donors who contributed to the campaign supporting the initiative:[16]

Donor Amount
John W. Watson $10,000

Opposition

Opponents

Officials

All Republicans, except those abstaining or absent, voted against the referendum in the California Senate and the California General Assembly. No Democrats voted against placing the measure on the ballot.

The following elected officials voted against placing the question on the ballot in the legislature:[17]

Organizations

Arguments

Assemblyman Brian Jones (R-71) and Jon Coupal, president of the Howard Jarvis Taxpayers Association, wrote a rebuttal to Proposition 49 in the state's official voter information guide:

Assemblyman Brian Jones (R-17) voted against the measure in the California Assembly.
“ Don’t be fooled. Proposition 49 WILL NOT GET BIG MONEY out of politics. In fact, the politicians who support Prop 49 OPPOSED a voter sponsored ban on corporate contributions just two years ago.

Here is what you are being asked to say you agree with:

“Congress should change the FIRST AMENDMENT.”

Do you really trust the politicians in Washington to change the First Amendment?

Don’t be fooled!

Proposition 49 is a taxpayer-funded political campaign from Sacramento special interest groups. They want to limit freedom of speech just because they don’t agree with it. And voting for this proposition WON’T CHANGE THE LAW.

Proposition 49 is a waste of your tax dollars because it WILL NOT change the law. Even Governor Jerry Brown says your vote on this proposition will have “no legal effect whatsoever.”

Governor Brown REFUSED to sign Proposition 49 into law. He said “we should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect.”

SAY NO to using the people’s ballot for political games. Tell special interests to STOP WASTING your TIME AND MONEY.

VOTE NO ON PROPOSITION 49! [3]

”
—Assemblyman Brian Jones and Jon Coupal

[19]

Loren Kaye, President of the California Foundation for Commerce and Education, argued not so much against the content of the advisory question, but against legislatively referred advisory referendums as tools for acquiring the populace's opinion on federal issues. He asserted that there is no legal basis for advisory questions in California. He noted:

“ Nowhere by the Constitution or laws of the state is the Legislature granted the authority to place an advisory measure on the statewide ballot... The advisory measure being considered by the Legislature requires only a simple majority (and the Governor’s signature) to reach the ballot – at least by the Legislature’s rules...

Since the initiative is the People stepping into the shoes of the Legislature, and since the Legislature is given no authority to propose to the voters any measure the voters cannot propose to themselves, it seems this argument is equally apt to a Legislature’s proposed advisory measure...

It’s true that the subject of this legislation is a federal matter over which the Legislature has no jurisdiction in the first place. But given a taste of what amounts to opinion polling on steroids – with no accountability for the results – any Legislature would find the mechanism irresistible.

First, the Legislature could put popular notions to the public in generic and abstract terms, obtain voter support, and use the resulting “mandate” to roll over legitimate opposition to a legislative measure that necessarily must be more detailed...

A second and more likely abuse of this power would be to place advisory measures on the ballot with a majority vote to help goose turnout of the majority party’s base to support their candidate ticket. This would be the most cynical use of this tool, since it has nothing to do with the policy being debated... [3]

”
—Loren Kaye

[20]

Media editorial positions

See also: Endorsements of California ballot measures, 2014

Other

  • The Desert Sun: "In a statement announcing his decision, Brown said he agrees with the Legislature that the 2010 ruling that blocked limits on corporate campaign contributions was wrongly decided. The Desert Sun concurs. But, the governor added, "we should not make a habit to clutter our ballots with nonbinding measures." He should have vetoed the bill to avoid setting a precedent."[21]
  • The Sacramento Bee: "Gov. Jerry Brown had it exactly right – an advisory measure on overturning the Citizens United decision, which opened the floodgates of corporate cash into politics, will have no legal effect whatsoever and will only clutter the November ballot. But he should have taken the next logical step and vetoed Senate Bill 1272. Instead, he let it become law without his signature. That’s called trying to have it both ways – and that’s very disappointing."[22]

Lawsuits

See also: List of ballot measure lawsuits in 2014

HJTA lawsuit

The Howard Jarvis Taxpayers Association (HJTA) filed a lawsuit against the referendum's placement on the ballot on July 23, 2014. A legislatively referred advisory question is an illegitimate use of the ballot since the ballot is used for law making, according to the HJTA. Jon Coupal, president of the association, said, "Legislative power can be exercised in numerous ways but this is not one of those."[18] He also equated the referendum to a public opinion poll. Coupal cited American Federation of Labor v. Eu as the basis for the lawsuit, noting, "If the people can’t do it, certainly the Legislature can’t do it, either."[23]

Derek Cressman, director of Yes on 49, responded, saying, "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."[18]

Secretary of State Debra Bowen (D) called for a judicial decision to be made before August 11, the day voter information guides go into print.[24]

On July 31, 2014, the California Third District Court of Appeal tossed out the lawsuit in a 2 to 1 vote without comment.[25]

Michele Sutter, chairperson of Yes on 49, issued a response to the ruling. She said, "We’re delighted that voters will have a chance to collectively speak out against big money in politics with their votes. How ironic it would have been for courts to tell us that billionaire campaign spending is free speech but that Californians can’t even speak back with our votes."[25]

On August 11, 2014, the California Supreme Court ordered Bowen to remove the proposition from the ballot pending court review. Bowen asked staff to remove the measure from voter information guides and the measure was not featured on the 2014 ballot.[26]

2016 California Supreme Court decision

The state Supreme Court took the case up again on January 4, 2016, and decided by a 6-to-1 vote that the measure could be placed back on the ballot. The court ruled advisory questions may be referred to the ballot as long as there is a connection between the proposal and actions the Legislature could take in the future.

In Proposition 49's case, the court decided the referendum does relate to legislative duties because state legislatures play a role in passing federal constitutional amendments, according to the majority opinion. Justice Ming W. Chin disagreed, arguing allowing the Legislature should not be allowed to "hijack the ballot to serve its own agenda." However, he did agree that this particular measure was permissible for the ballot. Legislative lawyers have been asked to verify whether the secretary of state can place the measure on the 2016 ballot or whether the Legislature must introduce a new bill.[27]

Path to the ballot

See also: Laws governing ballot measures in California

As of 2014, California law authorizes cities, counties, school districts, community college districts, county boards of education and special districts to hold advisory questions, but there is no law authorizing or prohibiting a statewide advisory question.[28] The measure required a simple majority in the legislature. The bill was passed along partisan lines in both chambers, with Democrats voting for the referendum and Republicans voting against it. Gov. Brown (D) was required to sign the bill.[20] Gov. Brown approved the question for the ballot but did not sign the legislation as a symbolic gesture. He said,

“ [W]e should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect... Nevertheless, given the Legislature’s commitment on this issue, even to the point of calling for an unprecedented Article V constitutional convention, I am willing to allow this question to be placed before the voters.

[3]

”
—Gov. Jerry Brown

[29]

The following was the history of Senate Bill 1272:[20]

Similar measures

See also

External links

Basic information

Support

Additional reading

Footnotes

  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 California Legislature, "Senate Bill 1272," accessed July 10, 2014
  2. ↑ Election Law Blog, "CA Legislature Wants CA Supreme Court to Put Anti-Citizens United Petition on the November Ballot," January 20, 2016
  3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  4. ↑ SCOTUS Blog, "Citizens United v. Federal Election Commission," accessed July 10, 2014
  5. ↑ 5.0 5.1 California Legislature, "SB 1272 Senate Appropriations Committee Analysis," accessed July 18, 2014
  6. ↑ SCOTUS Blog, "McCutcheon v. Federal Election Commission," accessed July 18, 2014
  7. ↑ California Legislature, "Assembly Joint Resolution No. 1," accessed July 10, 2014
  8. ↑ California Legislature, "AJR 1 Bill Analysis," accessed July 10, 2014
  9. ↑ 9.0 9.1 San Francisco Chronicle, "California seeks constitutional convention over Citizens United," June 26, 2014
  10. ↑ Sacramento Bee, "Dan Walters: Democrats place pointless advisory measure on ballot, but why?" July 17, 2014
  11. ↑ Yes on 49, "Homepage," accessed August 7, 2014
  12. ↑ Post-Periodical, "State Democrats Vote to Support Ballot Measures," July 14, 2014
  13. ↑ Money Out, Voters In Coalition, "Homepage," accessed July 10, 2014
  14. ↑ 14.0 14.1 Money Out, Voters In Coalition," Small Business Owners Support Overturning Citizens United," accessed July 11, 2014
  15. ↑ The Sacramento Bee, "Another View: Prop. 49 lets citizens have a voice," July 23, 2014
  16. ↑ 16.0 16.1 California Secretary of State, "Campaign Finance," accessed August 7, 2014
  17. ↑ California Legislature, "SB-1272 Votes," accessed July 10, 2014
  18. ↑ 18.0 18.1 18.2 The Sacramento Bee, "Lawsuit: Citizens United measure should be tossed off ballot," July 22, 2014
  19. ↑ Official Voter Information Guide, "Rebuttal to Argument in Favor of Proposition 49," accessed August 7, 2014
  20. ↑ 20.0 20.1 20.2 Fox & Hounds, "A Vote Too Far: Voters Should Not “Advise” The Legislature," July 9, 2014 Cite error: Invalid <ref> tag; name "kaye" defined multiple times with different content
  21. ↑ The Desert Sun, "Our Voice: Direct democracy is a rich state tradition," July 22, 2014
  22. ↑ The Sacramento Bee, "Editorial: Brown should have vetoed advisory vote," July 18, 2014 (dead link)
  23. ↑ Los Angeles Times, "Anti-tax group sues to kick Citizens United advisory measure off ballot," July 22, 2014
  24. ↑ The Fresno Bee, "Anti-tax group sues over Citizens United measure," July 22, 2014
  25. ↑ 25.0 25.1 The Sacramento Bee, "Calif. appeals court says Citizens United measure should stay on ballot," July 31, 2014
  26. ↑ Los Angeles Times, "California Supreme Court blocks Citizens United measure from ballot," August 11, 2014
  27. ↑ LA Times, "'Citizens United' advisory measure can go on ballot, California high court says," January 4, 2016
  28. ↑ California Legislature, "SB-1272 Bill Analysis," accessed July 10, 2014
  29. ↑ Los Angeles Times, "Gov. Brown allows advisory ballot measure on Citizens United decision," July 16, 2014
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