Proposition 59

Proposition 59 Advisory Question – Overturn of Citizen’s United

Perhaps the most fascinating and least effective issue on November’s ballot is an “advisory question” being posed to voters about a proposed effort to undermine the rationale behind the Citizens United decision that clarified the rights of groups and businesses to provide unlimited amounts of money to finance issue-ads in campaigns. The intrigue is not limited to the text of the provision. Rather, the drama starts in 2014 when the original version of this provision was slated to be voted upon – don’t recall seeing it? You didn’t. That’s because the Howard Jarvis taxpayer’s group filed a lawsuit and successfully blocked the provision from reaching the voters. An interesting exercise of power if you think about it[1]. Having initiated the stay, in January of this year our State’s High Court issued a substantive ruling. In yet another twist, the court noted that by the time it rendered the decision, the original issue – the initiative the proponents wanted to place on the ballot in 2014 – was moot. It nevertheless decided the case because the question posed was sufficiently important that it warranted action: Does the state’s constitution, which allows for a host of direct initiatives, also allow for non-binding advisory questions? Questions that revolve around federal issues? In a carefully reasoned and detailed opinion, a six to one majority of the State Supreme Court ruled that the answer is yes[2]. The answer is best described by the court itself, but generally we would explain it as follows: Unlike the federal government, which is limited to the specific powers granted to it, state powers are plenary – meaning they stretch more broadly to encompass anything, so long as they don’t bump up against a particular legal prohibition expressly limiting the state’s power. Among those plenary powers is the power to “investigate” in unusual ways. The High Court found that this broad power includes the right to investigate how it should address federal questions – especially constitutional amendments, which can involve some direct state action (like calling for a constitutional convention). So, the Court concluded that California has the power to issue a non-binding resolution of the kind found in proposition 59.

Remember though that the court was answering a question that had become moot. So, before this advisory question could reach your ballot, new action was needed. In 2016, the state legislature passed a new law. Interestingly, the Governor did not directly endorse this act, but ultimately allowed it to go to the voters without his signature[3].

So, after two years of legal analysis, the creation of new Supreme Court precedent on the powers of State legislators, we now need to decide how to answer our legislators’ actual question:

Should our state legislature attempt to undermine the holding of the Citizens United decision?

Citizens United:

If you listen to most pundits you would believe that this Supreme Court decision equated money with speech. Well, that’s not entirely right. The reality is that many courts have long made that observation. Citizens relies on a 1976 case that holds “a ‘restriction on the amount of money a person or group can spend on political communication during a campaign . . .’necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” (citing Buckley v. Valeo, 424 U.S. 1, 19 (1976). It is hard to argue with that logic since our system requires money to place messages into most mass-media mechanisms. It is equally hard, though, to argue that if you have no ability to regulate the funds that a group, corporation, or other aggregation of people can expend, you provide a very powerful tool for lobbyists and special interests. Indeed, arguably, it is Buckley’s very observation that leads to the problem. When groups are allowed to aggregate monies and expend them on speech, the result can be a fire-hose of information that can’t be countered by most individuals with their limited financial resources. In other words, it is the very fact that money is closely connected with political speech in this country that leads to the political problems with Citizens United.

To their credit, the legislators that have placed this question on the ballot have identified this distinction. Rather than attack the speech aspect of Citizens the proponents attack the conclusion that the same speech protections provided to “real” people should also apply to groups and corporations. They have asked if our local representatives should attempt to secure a constitutional amendment aimed 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 corporations should not have the same constitutional rights as human beings”

Truthfully, we are not big fans of constitutional amendments. We are kind of “scaredy cats.” Our fear is that once you start amending this key document, it gets too easy to modify. However, we are also mindful that our political system is becoming increasingly detached from the people is seeks to represent and we do think that money in politics is a primary contributor to that problem. Fighting this problem isn’t something new; politicians have been talking about it for years, with both Donald Trump and Bernie Sanders being the most recent incarnations of folks who bemoan the problem[4]. We like Clinton’s suggestion of passing a rule under the SEC’s authority requiring public companies to disclose political spending[5] – we think that is smart from both a business and a political standpoint. Still disclosure of spending is unlikely to dramatically curtail it, much less address the other political problem associated with money in politics: that is essentially drowns out individual participation. Sanders and Clinton both back a constitutional amendment to overturn the effects of Citizen’s United. We had trouble discerning an actual position by Trump on what to do about the case except that in some instances he has been very critical of the case itself and resulting super-pac money (at a time when said money and resulting speech was being aimed at him)[6].

No major candidate (to our knowledge) backs public funding of elections. We have long thought that a strong case can be made for full or partial public funding of elections[7].   That said, even in that theoretical world, without concurrent restrictions on spending from outside the system, we are dubious of the effectiveness of such systems at ensuing a level playing field of ideas. So, we are left with the question posed by legislators here: Should state officials begin the very long and arduous road toward amending the constitution to strip away the constitutionally protected right of free speech (at least in some sense) from fictitious people (i.e. corporations, groups, associations etc.) while keeping it for individuals. We think the idea has some merit.

If this doesn’t sound like a rousing endorsement of the idea, you are reading our analysis correctly. First, we think that substantially similar attacks can be made at the state level by changing the definitions of fictitious entities (corporations etc. are generally brought to “life” by state laws). To our knowledge no one has tried that less drastic option (yes, there’s a comments section below). Second, we think another more pro-active and effective approach would be to ensure that democrats control the senate and Presidency and take advantage of the opportunity to replace the “5th” conservative vote on the Supreme Court with a more liberal judge thus setting the stage to overrule Citizens United. Still, we think it is worthwhile to “advise” our leaders that we are bothered by the effects of Citizens United and are interested in having them at least investigate the possibility of amending the constitution to address this problem. Moreover, we are concerned that a “no” vote might well be read as an endorsement (or at least apathy) towards the Citizens United ruling – we really don’t like that idea.

Recommendation: weak YES.

[1] Injunctions are generally intended to stop immediate injury. The highest-profile such judicial intervention in the context of voting occurred in the now-infamous case of Bush v. Gore. 121 S. Ct. 512 where the U.S. Supreme Court, in a 5-4 decision issued an emergency stay order stopping the Florida Supreme Court’s order directing the state to recount votes. The justification, questioned by many including this author, was that counting potentially erroneous votes posed an “imminent harm” to society. That harm? Information. Here, the issue was a bit different, the California Supreme Court, in a split decision, reasoned that actually voting on a potentially invalid referendum was damaging because it might detract from the overall political process. http://law.justia.com/cases/california/supreme-court/2016/s220289a.html

[2] http://law.justia.com/cases/california/supreme-court/2016/s220289a.html

[3] http://www.courthousenews.com/2016/06/09/california-will-vote-on-repealing-citizens-united.htm

[4] https://berniesanders.com/issues/money-in-politics/; concededly Trump has been a bit “fluid” on this issue. His current positions page lists nothing on money in politics https://www.donaldjtrump.com/positions. A summary of political positions on the issue are available here http://thehill.com/regulation/administration/269344-money-in-politics-2016-presidential-candidates

[5] http://www.bloomberg.com/politics/articles/2015-09-08/hillary-clinton-proposes-making-companies-disclose-political-donations

[6] http://www.bloomberg.com/politics/articles/2015-08-04/trump-the-developer-loves-low-interest-rates-trump-the-candidate-sees-a-bubble-

[7] http://ivn.us/2015/06/22/2016-will-make-strongest-case-publicly-funded-elections/

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  1. #1 by Scott Lehrbaum on November 4, 2016 - 1:27 pm

    I don’t think there’s any issue out there more critical to the future health of American democracy than this one, because every other decision we make as a society and a representative government flows directly from it. Citizens United effectively established the principle that powerful, monied interests have an unlimited ability to influence the direction of this country over those with lesser means. I can’t think of anything more antithetical to what this country stands for than that.

    I get the argument that you can’t separate “money” from the actions people and groups take to lobby government. For instance, some of us can afford a plane ticket to Washington and the price of a dinner with our legislator, where others can’t. But that’s a far cry from allowing the Koch brothers to contribute millions of dollars to ballot initiatives and candidate campaigns in states they don’t even live in, without even requiring them to disclose those donations. We’re essentially giving the Kochs and others like them (whatever political persuasion they may be) virtually unlimited power to make decisions for us, if it’s something they care about and are prepared to throw enough resources at. That’s not democracy, that’s oligarchy.

    There’s no doubt in my mind that the founding fathers never intended to grant unlimited power to influence the government to a select few. The world has evolved over the last 240 years, and the powerful now have tools at their disposal to vastly magnify their influence in ways the authors of our constitution never could have imagined. And I don’t believe there’s a way to course correct that in piecemeal fashion. We need a baseline clarification of our principles of free speech and what that does and doesn’t include. And I don’t think there’s any way to do that outside of a constitutional amendment.

    VERY STRONG YES ON 59!

    • #2 by politoesq on November 4, 2016 - 10:06 pm

      Your points are well taken. Here are a few counters to consider. The world has certainly changed in the last 240 years, but I would argue that many of those changes dramatically favor minority voices in the marketplace of ideas. First off both slavery and absence of women’s suffrage meant that in a very real way more than 50% of the populace had no political voice 240 years ago. Beyond that a closely aggregated and controlled press meant that individuals had very few avenues for expression. To me the better argument is not history but rather the ideal of a truly democratic society with an open exchange of ideas is guaranteed.

      There too, though it gets a little murky. Take this proposition. I would ask you how many people actually read the proposition? How about the Citizen’s United case? What do you suppose is the percentage of the population that could hold a conversation about these issues – much less choose to do so? I raise these questions because while there is certainly a level of unfairness when the wealthy can sustain a fire-hose of information by directing limitless funds at an issue one has to wonder how much of an affect that unfairness has on a populace that seems largely disengaged from politics and perpetually disinterested in any meaningful issue analysis. Put another way, if 1000 cash-infused trees of ideas fall in the forest, but nobody is listening, did they really fall?

      That said, I don’t think that corporations should be able to pool resources taken from their stockholders and direct that money toward a particular political agenda. I don’t think a corporation is really a person and so I don’t think a corporation should be afforded the deference that I’m willing to show a person and his or her personal, political expression.

      Thanks for the thought provoking comment!

  1. It’s go time | PolitoMuse

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