California Proposition 49, Amendment to Overturn Citizens United Ruling Question (2014)
|Not on Ballot|
| This measure did not or |
will not appear on a ballot
- 1 Text of measure
- 2 Background
- 3 Support
- 4 Opposition
- 5 Media editorial positions
- 6 Lawsuits
- 7 Path to the ballot
- 8 Similar measures
- 9 See also
- 10 External links
- 11 Additional reading
- 12 References
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.
Text of measure
- "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:
- "No direct fiscal effect on state or local governments."
The proposed law read as follows:
|“||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?||”|
- 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. 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 "other applicable judicial precedents." One such ruling, mentioned in the senate appropriation committee's analysis, was McCutcheon v. FEC. 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 does 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.
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." The resolution received support from Consumer Watchdog, CALPIRG, California Clean Money Campaign, California State Grange and Wolf-PAC. Rep. 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."
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.
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.
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..."
Money Out, Voters In led the campaign in support of Proposition 49.
The following elected officials sponsored the bill in the legislature:
- Sen. Ted Lieu (D-28)
- Sen. Hannah-Beth Jackson (D-19)
- Sen. Mark DeSaulnier (D-7)
- Sen. Loni Hancock (D-9)
- Sen. Mark Leno (D-11)
- Sen. Alex Padilla (D-20)
- Sen. Norma Torres (D-32)
- Rep. Raul Bocanegra (D-39)
- Rep. Joan Buchanan (D-16)
- Rep. Matt Dababneh (D-45)
- Rep. Al Muratsuchi (D-66)
- Rep. Manuel Pérez (D-56)
- Rep. Nancy Skinner (D-15)
- Rep. Bob Wieckowski (D-25)
- Rep. Das Williams (D-37)
- California Democratic Party
- Money Out, Voters In Coalition
- American Sustainable Business Council
|“||The Legislature finds and declares all of the following:
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. 
—Michele Sutter and Derek Cressman 
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."
| Total campaign cash |
as of August 7, 2014
One ballot measure campaign committee registered in support of the initiative as of August 7, 2014:
|Committee||Amount raised||Amount spent|
|Yes on 49 Money Out, Voters In||$10,000||$0|
The following were the donors who contributed to the campaign supporting the initiative:
|John W. Watson||$10,000|
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:
- Sen. Joel Anderson (R-36)
- Sen. Tom Berryhill (R-14)
- Sen. Anthony Cannella (R-12)
- Sen. Jean Fuller (R-18)
- Sen. Ted Gaines (R-1)
- Sen. Bob Huff (R-29)
- Sen. Stephen Knight (R-21)
- Sen. Mike Morrell (R-23)
- Sen. Jim Nielsen (R-4)
- Sen. Andy Vidak (R-16)
- Sen. Mark Wyland (R-38)
- Rep. K.H. Achadjian (R-35)
- Rep. Travis Allen (R-72)
- Rep.Frank Bigelow (R-5)
- Rep. Rocky Chavez (R-76)
- Rep. Connie Conway (R-26)
- Rep. Brian Dahle (R-1)
- Rep. Tim Donnelly (R-33)
- Rep. Beth Gaines (R-6)
- Rep. Shannon Grove (R-34)
- Rep. Curt Hagman (R-55)
- Rep. Diane Harkey (R-73)
- Rep. Brian Jones (R-71)
- Rep. Eric Linder (R-60)
- Rep. Dan Logue (R-3)
- Rep. Brian Maienschein (R-77)
- Rep. Allan R. Mansoor (R-74)
- Rep. Melissa Melendez (R-67)
- Rep. Brian Nestande (R-42)
- Rep. Kristin Olsen (R-12)
- Rep. Jim Patterson (R-23)
- Rep. Donald P. Wagner (R-68)
- Rep. Marie Waldron (R-75)
- Rep. Scott Wilk (R-38)
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:
|“||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! 
—Assemblyman Brian Jones and Jon Coupal 
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... 
—Loren Kaye 
Media editorial positions
- 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."
- 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."
- See also: List of ballot measure lawsuits in 2014
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." 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."
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."
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."
On August 11, 2014, however, the California Supreme Court ordered Secretary of State Bowen to remove the proposition from the ballot pending court review. Bowen asked staff to remove the measure from voter information guides.
Path to the ballot
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. 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. 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.||”|
—Gov. Jerry Brown 
The following was the history of Senate Bill 1272:
- February 21, 2014: Introduced into California Senate
- May 28, 2014: Approved by California Senate
- June 30, 2014: Approved by California Assembly
- July 3, 2014: Senate concurred with assembly's amendments
- July 9, 2014: Presented to the California Governor
- July 16, 2014: Approved for the ballot, but not signed, by Gov. Brown
- Wisconsin Amendment to Overturn Citizens United Ruling Question (2014)
- California "Corporations Are Not People" Initiative (2012)
- Colorado Corporate Contributions Amendment, Amendment 65 (2012)
- Montana Corporate Contributions Initiative, I-166 (2012)
- 2014 ballot measures
- California 2014 ballot propositions
- United States Constitution
- Citizens United v. Federal Election Commission
- History of campaign finance reform
- The Sacramento Bee, "Dan Walters: Legality of advisory ballot measures needs judicial clarity," July 28, 2014
- California Legislature, "Senate Bill 1272," accessed July 10, 2014
- Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
- SCOTUS Blog, "Citizens United v. Federal Election Commission," accessed July 10, 2014
- California Legislature, "SB 1272 Senate Appropriations Committee Analysis," accessed July 18, 2014
- SCOTUS Blog, "McCutcheon v. Federal Election Commission," accessed July 18, 2014
- California Legislature, "Assembly Joint Resolution No. 1," accessed July 10, 2014
- California Legislature, "AJR 1 Bill Analysis," accessed July 10, 2014
- San Francisco Chronicle, "California seeks constitutional convention over Citizens United," June 26, 2014
- Sacramento Bee, "Dan Walters: Democrats place pointless advisory measure on ballot, but why?," July 17, 2014
- Yes on 49, "Homepage," accessed August 7, 2014
- Post-Periodical, "State Democrats Vote to Support Ballot Measures," July 14, 2014
- Money Out, Voters In Coalition, "Homepage," accessed July 10, 2014
- Money Out, Voters In Coalition," Small Business Owners Support Overturning Citizens United," accessed July 11, 2014
- The Sacramento Bee, "Another View: Prop. 49 lets citizens have a voice," July 23, 2014
- California Secretary of State, "Campaign Finance," accessed August 7, 2014
- California Legislature, "SB-1272 Votes," accessed July 10, 2014
- The Sacramento Bee, "Lawsuit: Citizens United measure should be tossed off ballot," July 22, 2014
- Official Voter Information Guide, "Rebuttal to Argument in Favor of Proposition 49," accessed August 7, 2014
- Fox & Hounds, "A Vote Too Far: Voters Should Not “Advise” The Legislature," July 9, 2014
- The Desert Sun, "Our Voice: Direct democracy is a rich state tradition," July 22, 2014
- The Sacramento Bee, "Editorial: Brown should have vetoed advisory vote," July 18, 2014 (dead link)
- Los Angeles Times, "Anti-tax group sues to kick Citizens United advisory measure off ballot," July 22, 2014
- The Fresno Bee, "Anti-tax group sues over Citizens United measure," July 22, 2014
- The Sacramento Bee, "Calif. appeals court says Citizens United measure should stay on ballot," July 31, 2014
- Los Angeles Times, "California Supreme Court blocks Citizens United measure from ballot," August 11, 2014
- California Legislature, "SB-1272 Bill Analysis," accessed July 10, 2014
- Los Angeles Times, "Gov. Brown allows advisory ballot measure on Citizens United decision," July 16, 2014
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