BILL ANALYSIS Ó
AJR 1
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AJR 1 (Gatto) - As Introduced: December 3, 2012
SUBJECT : FEDERAL CONSTITUTIONAL CONVENTION: CALIFORNIA
PETITION
KEY ISSUE : Should the Legislature URGE CONGRESS TO CALL A
CONVENTION TO AMEND THE U.S. CONSTITUTION HOPEFULLY SOLELY TO
LIMIT "CORPORATE PERSONHOOD" AND DECLARE THAT MONEY DOES NOT
CONSTITUTE SPEECH?
FISCAL EFFECT : As currently in print this resolution in
non-fiscal.
SYNOPSIS
This joint resolution petitions Congress to call a federal
convention for the sole purpose of amending the U.S.
Constitution to limit corporate personhood and declare that
money does not constitute speech. This measure at least
partially arises out of the Supreme Court's extraordinarily
controversial decision in Citizens United v. FEC (2010). That
decision struck down key provisions of the federal
McCain-Feingold campaign finance reform law and, in the process,
overturned several prior decisions upholding the right of
Congress and the states to impose reasonable limits on campaign
contributions and expenditures. Controversy over the Supreme
Court's ruling in Citizens United has not abated over the years.
Indeed, national concern about the Court's ruling has
increasingly intensified with reports of "super PACS" collecting
unprecedented tens of millions of dollars from secret individual
donors - sums far exceeding what the candidates themselves
raise. This resolution is part of a national movement calling
for not just the overturning of Citizens United but for amending
the federal Constitution to enshrine the principle that there is
no such thing as "corporate personhood" for purposes of campaign
finance and political speech and to declare that money does not
constitute speech. More than a dozen resolutions proposing a
constitutional amendment have been introduced in the U.S. House
or the U.S. Senate, and this Committee last year approved AJR 22
similarly calling upon Congress to propose a narrow
constitutional amendment, as opposed to calling for a new
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untested constitutional convention. A broader version of this
resolution, AJR 32, did not pass this Committee last year due to
concerns raised that it might not be possible to affectively
limit what a Constitutional Convention, once convened, would do,
notwithstanding the resolution's laudable objective to try to do
so.
Thus this resolution differs from the alternative resolution
approved last year by the Committee in that it proposes a
constitutional convention process not used since the founding of
the nation for securing the desired constitutional amendments.
There is great debate among constitutional scholars as to
whether the convention process is an advisable route for
instituting the targeted but fundamental change sought by such
measures, given that the process has never been used since our
country's creation and there are many uncertainties regarding
how, once created, such an untested process would actually
proceed. Some scholars argue there are sufficient safeguards in
place to prevent consequences. Others worry that such an
approach unduly risks the possibility of a "run-away" convention
that could even threaten the foundational liberties upon which
this nation was founded, including the First Amendment.
Thus an evaluation of this measure is fundamentally a question
of risk analysis. While the author clearly hopes the proposed
convention would result in the single narrow constitutional
amendment he desires, and his resolution makes that objective
crystal clear, is it certain this is what would actually occur?
Regardless of one's views of the desirability of the
sought-after single amendment, this is an untested and weighty
question not triggered by the alternative procedure approved
last year by this Committee in AJR 22, and it is up to this
Committee and ultimately the Legislature to decide if the
benefits of the proposed process outweigh the risks.
SUMMARY : Seeks to petition Congress to call for a federal
constitutional convention for the purpose and hope of solely
amending the U.S. Constitution with a single amendment to limit
"corporate personhood" for purposes of campaign finance and
political speech and declare that money does not constitute
speech. Specifically, this resolution :
1)Notes that the United States Supreme Court, in Citizens United
v. Federal Election Commission (2010) 130 S. Ct. 876, held
that the government may not, under the First Amendment to the
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United States Constitution, suppress political speech on the
basis of the speaker's corporate identity.
2)Notes that, under Article V of the United States Constitution,
the Congress must, upon the application of two-thirds of the
state legislatures, call a convention for proposing amendments
to the United States Constitution.
3) Resolves the following:
a) That the Legislature of the State of California applies
to the United States Congress to call a constitutional
convention for the sole purpose of proposing an amendment
to the United States Constitution that would limit
corporate personhood for purposes of campaign finance and
political speech and declare that money does not constitute
speech and may be democratically limited.
b) That this resolution constitutes a continuing
application to the United States Congress to call a
constitutional convention until at least two-thirds of the
state legislatures apply to the United States Congress to
call a constitutional convention for the sole purpose of
proposing an amendment to the United States Constitution
that would limit corporate personhood for purposes of
campaign finance and political speech and declare that
money does not constitute speech and may be democratically
limited.
c) That this application is for a limited constitutional
convention and does not grant Congress the authority to
call a constitutional convention for any purpose other than
for the sole purpose set forth in this resolution.
EXISTING LAW :
1)Held that limits on campaign contributions are permissible,
but that spending money to influence elections is a form of
constitutionally protected free speech. Also held that
candidates can give unlimited amounts of money to their own
campaigns. (Buckley v. Valeo (1976) 424 U.S. 1.)
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2)Holds that limitations on political campaign financing
implicate the free speech rights protected by the First
Amendment; therefore, any government attempt to regulate the
financing of political campaigns must serve a compelling
government interest and be narrowly tailored to serve that
interest. (See e.g. McConnell v. FEC (2003) 540 U.S. 93, 136;
Davis v. FEC (2008) 128 S. Ct. 2759, 2772 n.7.)
3)Recognizes, as to restrictions on campaign financing, only one
interest sufficiently compelling to outweigh the First
Amendment right of free speech: preventing corruption or the
appearance of corruption. (Citizens United v. FEC (2010) 130
S. Ct. 876; SpeechNow.org v. FEC (2010) 599 F. 3d. 686.)
4)Holds that both "contributions" to a candidate and
"expenditures" on behalf of a candidate are forms of speech
protected by the First Amendment; however, holds that
government only has a "compelling interest" in regulating
contributions, as opposed to expenditures, because only
contributions can reasonably give rise to corruption or the
appearance of corruption. (Citizens United v. FEC (2010) 130
S. Ct. 876; Buckley v. Valeo (1976) 424 U.S. 1, 19-27, 48-49.)
5)Provides that neither Congress nor the states shall enact any
law respecting the establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances. (Amendment I of the United States Constitution;
applied to the states by Amendment XIV of the United States
Constitution.)
6)Provides that Congress, upon the application of two thirds of
the several states, shall call a convention for proposing
amendments to the United States Constitution, which shall
become valid when ratified by either three-fourths of the
state legislatures or by conventions in three-fourths of the
states, as either mode of ratification may be proposed by
Congress.
COMMENTS : This joint resolution petitions Congress to call a
federal convention for the purpose of amending the U.S.
Constitution, with the objective solely to limit "corporate
personhood" for purposes of campaign finance and political
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speech and declare that money does not constitute speech. This
measure at least partially arises out of the Supreme Court's
extraordinarily controversial decision in Citizens United v. FEC
(2010). That decision struck down key provisions of the federal
McCain-Feingold campaign finance reform law and, in the process,
overturned several prior decisions upholding the right of
Congress and the states to impose limits on campaign
contributions and expenditures.
This resolution is part of a national movement calling for not
just the overturning of Citizens United but for amending the
federal Constitution to enshrine the principle that there is no
such thing as corporate personhood and to declare that money
does not constitute speech. However this resolution differs
from last year's approved resolution in that it proposes a
constitutional convention process not used since the founding of
the nation for securing the desired constitutional amendments.
There is great debate among constitutional scholars as to
whether the convention process is an advisable route for
instituting the targeted but fundamental change sought by such
measures, given that the process has never been used since our
country's creation, and there therefore are many uncertainties
regarding how, once created, such an untested process would
proceed. Some scholars argue there are sufficient safeguards in
place to ensure unintended consequences would not result; others
worry that such an approach unduly risks the possibility of a
"run-away" convention threatening the foundational liberties
upon which this nation was founded.
Authors' Statement in Support : In support of the measure, the
author states:
AJR 1 is a measure which initiates a process that, under
the United States Constitution, legally binds Congress to
call a federal constitutional convention for the sole
purpose of amending the Constitution to limit corporate
personhood and declare that money does not constitute
speech, thereby overturning Citizens United v. Federal
Election Commission (2010) 130 S.Ct. 876.
During the 2012 election cycle alone, millions of dollars
were contributed to Super PACs with the hope of electing
particular candidates to office while defeating others and
seeing certain initiatives codified into law while pushing
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others to the wayside. Reports indicate that casino
magnate Sheldon Adelson spent close to $150 million alone
in an effort to defeat President Obama and elect
Republicans to Congress. In California, similar monetary
efforts endured, with over $372 million spent both
promoting and attacking the 11 ballot initiatives on the
General Election ballot. MapLight, a nonpartisan
organization that crunches numbers from the Secretary of
State, reports that the top 20 donors provided 69% of all
initiative funding.
AJR 1 is a reasonable measure that goes a step further than
just requesting Congress act to amend our federal
Constitution by utilizing the powers of the states,
outlined in Article V of the U.S. Constitution, to force
Congress to call a constitutional convention. Under this
measure, the sole purpose of the convention would be to
propose an amendment to the federal Constitution that would
limit corporate personhood for the purposes of campaign
finance and political speech. It also declares that money
does not constitute speech and may be democratically
limited. Finally, AJR 1 sets forth strict grounds for this
limited convention, explicitly stating that it not act for
any purpose other than limiting corporate personhood.
Background : In Citizens United v. Federal Elections Commission
(2010), the U.S. Supreme Court considered a provision of the
federal Bipartisan Campaign Reform Act (BCRA) of 2002, also
known as "McCain-Feingold" for its joint Senate authors. The
provision in question prohibited corporations and unions from
using general treasury funds to make "independent expenditures"
for "electioneering communications" within 60 days of a general
election or within 30 days of a primary election. At issue in
Citizens United was a controversial documentary entitled,
Hillary, which was highly critical of then-Senator Hillary
Rodham Clinton, a candidate in the 2008 Democratic presidential
primary. Citizen's United, a non-profit corporation, wanted to
make the documentary available by "video-on-demand" within the
30 days of the primary election. Concerned that the broadcast
might be prohibited by BCRA, Citizens United sought declaratory
and injunctive relief that the BCRA did not apply to the
documentary and, indeed, would be unconstitutional if applied to
the showing of Hillary. A district court denied the request.
Citizens United appealed to the United States Supreme Court.
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Citizens United originally only asked the Court to find that
BCRA did not apply to the Hillary broadcast, and would therefore
be unconstitutional as applied in its case. For example,
Citizens United argued that, as a matter of statutory
interpretation, the film was not an "electioneering
communication" as defined in BCRA. Despite the opportunity to
decide the case on very narrow grounds, the Supreme Court, under
the new leadership of Chief Justice John Roberts, instead
dramatically departed from traditional jurisprudence and asked
the parties to submit supplemental briefs on the
constitutionality of the general BCRA provisions in question,
and whether the Court should overturn parts of its earlier
opinions on this general subject (discussed below) that had
upheld the right of Congress and the states to impose limits on
corporate campaign expenditures.
After reframing the question in this uncharacteristically very
broad way, the Court then proceeded not only to strike down the
provisions of the BCRA, but it went on to overturn long-standing
precedents upholding the constitutionality of federal and state
efforts to regulate campaign financing generally. In order to
fully appreciate the unprecedented degree to which Citizens
United departed from past Supreme Court holdings it is necessary
to briefly consider some of the initial cases that treated
campaign contributions and expenditures as forms of "speech"
protected under the First Amendment.
Buckley v. Valeo . Although the courts have consistently held
that both campaign contributions and campaign expenditures are
forms of protected speech, the courts have also held that
limitations on "contributions" can only be justified by a
compelling state interest. In the seminal case of Buckley v.
Valeo (1976) 424 U.S. 1, the U.S. Supreme Court considered a
challenge to the Federal Election Campaign Act (FECA) as amended
in 1974. The 1974 amendments imposed caps on both the amount of
the contribution that an individual or committee could give to a
federal candidate, as well as a cap on the expenditures that an
individual or committee could make on behalf of a candidate. In
addition, the 1974 amendments limited the amount of expenditures
that a candidate could make from personal funds. (2 USC Section
441 (1994); 18 USC Section 608 (e) (1) (subsequently repealed).)
The Court held in Buckley that Congress could properly limit
"contributions" to candidates because such limits served a
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compelling governmental interest in preventing the actuality or
appearance of quid pro quo corruption. However, the Court
stated that "expenditures" by the candidate - or "independent
expenditures" made on behalf of, but not directly to, the
candidate - did not, in its collective judgment, create the same
likelihood of actual or apparent quid pro quo corruption.
Therefore the Court found in Buckley that Congress' action to
limit such campaign expenditures did not meet the "compelling
interest" requirement. (Buckley, supra, at 19-27, 48-49.)
Thus, the Buckley Court found, to the chagrin of many
commentators then and now, that the nexus between "expenditures"
and quid pro quo corruption was not strong enough to create a
"compelling" governmental interest for regulation of campaign
expenditures in the facts of that case.
Austin v. Michigan Chamber: However several years after the
Buckley decision, the Supreme Court recognized a compelling
interest in limiting expenditures as well as contributions. In
Austin v. Michigan Chamber of Commerce (1990) the Court upheld a
state law that prohibited corporations from using corporate
treasury funds for independent expenditures to support or oppose
any candidate for state office. It did so on the grounds that
the law served a "compelling governmental interest" in
preventing the "distortion" that is created when a corporation
can create large aggregations of wealth that bear no
relationship to the public's support of its political ideas.
The Enactment of McCain-Feingold : Although earlier Supreme
Court decisions like Austin thus permitted certain narrow
regulations of independent campaign expenditures, it was not
long before candidates, corporations, and political parties
found creative ways around the proscriptions. These efforts to
circumvent regulations produced landmark legislation in Congress
that sought to counter the most troublesome types of campaign
financing techniques. The most notable legislative achievement
was the BCRA of 2002, known as "McCain-Feingold." Although
McCain-Feingold primarily sought to regulate so-called "soft
money" (i.e. channeling contributions to candidates through
parties), it also enacted provisions banning corporate and union
financing of "electioneering communications" in designated
periods immediately preceding a primary or general election.
McConnell v. FEC : The Supreme Court first considered the
constitutionality of McCain-Feingold in McConnell v. FEC (2003)
540 U.S. 93. The complicated McConnell ruling - with the 5-4
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decision producing eight different opinions - upheld most of the
provisions of the law, including the exact provision struck down
by Citizens United only seven years later. Importantly, the
lead opinion by Justices O'Connor and Stevens reasoned that the
government had a legitimate interest in preventing "both the
actual corruption threatened by large financial contributions .
. . and the appearance of corruption." O'Connor and Stevens
noted that "money, like water, will always find an outlet," and
Congress can surely respond when groups devise schemes to
circumvent contribution limits.
Campaign Spending On Steroids?" The Reaction to the Court's
Decision in Citizens United : In dramatically overturning both
its Austin and McConnell decisions, the Supreme Court in its
2010 Citizens United decision rejected its earlier idea that
"distortion" constitutes a compelling governmental interest and
held that corporations and unions are now free to spend
unlimited amounts on "independent expenditures" -- even for
advertisements that expressly mention the candidate by name.
Commentary About Citizens United : Since the holding, Citizens
United has been roundly criticized by many political and legal
commentators because it removes virtually all limits on
corporation and union expenditures. In addition, it has also
been condemned as an unabashed and some say very ironic example
of profound judicial activism by the very justices who usually
laud judicial restraint. Professor Erwin Chemerinsky, for
example, describes the opinion as "a stunning example of
judicial activism," insofar as it not only failed to show any
deference to Congress, but also because it overturned years of
precedent. (Chemerinsky, "Who are the Judicial Activists Now?"
Los Angeles Times, January 22, 2010.)
What makes this judicial activism all the more remarkable, many
others have noted, is that, as noted above, the Court could have
decided the Citizens United case on much narrower grounds.
Indeed, Justice Stevens, quoting a prior appeals court opinion
by Chief Justice Roberts, noted that the "cardinal" principle of
the judicial process is, "if it is not necessary to decide more,
it is necessary not to decide more" - yet that is precisely what
the Court's conservative majority proceeded to do. [Citizens
United, supra at 164, Stevens, J. dissenting.)] As Professor
Richard Hasen of Loyola Law School put it "in Citizens United
the Supreme Court ignored the well-established doctrine of
'constitutional avoidance,' by which it avoids deciding tough
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constitutional questions when there is a plausible way to make a
narrower ruling based on a plain old statute." (Quoted in David
Kirkpatrick, "Lobbyists Get Potent Weapon in Campaign Ruling,"
New York Times, January 21, 2010.)
Campaign Experts from Both Traditional Parties Have Raised
Concerns About the Decision's Impact on Democracy : For example,
according to Republican campaign strategist Benjamin Ginsberg,
the decision may take more campaign control away from the
candidates and parties, as independent groups seek to shape the
issues whether the candidates or parties agree with the
characterizations or not. According to Ginsberg, the decision
"will put on steroids the trend that outside groups are
increasingly dominating campaigns. Candidates lose control of
the message [and] . . . parties will sort of shrink in the
relative importance of things." (Quoted in Kirkpartrick,
supra.) And writing in the Christian Science Monitor, Common
Cause President Bob Edgar flatly asserted that the decision was
"bad for democracy," and he called upon Congress to "respond
swiftly and forcefully to ensure that corporations do not take
over our political process." (Bod Edgar, Supreme Court's
Campaign Ruling: A Bad Day for Democracy," Christian Science
Monitor, January 22, 2010.)
The Less-Noted But Critically Important SpeechNow.org v. FEC
Decision, and the Rise of the "Super PAC" : Although it received
much less attention than Citizens United, a decision by the U.S.
Circuit Court of Appeal for the Second District, just a week
after Citizens United, has arguably had an even greater impact
than Citizens United. Some commentators contend that this
decision, coupled with Citizens United, opened the door for the
so-called "Super PACS" that were much discussed during the
recent presidential election.
In SpeechNow.org v FEC (2010) 599 F. 3d 686, a suit was brought
against the FEC by an unincorporated nonprofit association
registered as a "political organization" under Section 527 of
the Internal Revenue Code. The organization, known as
SpeechNow, only takes money from individuals and only uses the
funds collected for independent expenditures.
Unlike Citizens United, the SpeechNo.org v. FEC case did not
involve a limitation on expenditures, as such, but involved a
contribution to a political committee that only made independent
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expenditures. Nonetheless, the Circuit Court of Appeal relied
upon Citizens United, and in particular its reasoning that
limits on independent expenditures were unconstitutional because
expenditures, unlike direct contributions to candidates, did not
create any danger or perception of quid pro quo corruption, and
therefore could not serve a compelling government interest that
could justify restriction of First Amendment rights.
Following this reasoning, the court in SpeechNo.org held that
the government could not restrict contributions, whether by
individuals or by corporations, to political committees that
were only used for independent expenditures. This decision
therefore opened the door to so-called "Super PACS" or
"expenditure only" political action committees, and what
proponents of a constitutional amendment believe is the
imperative to declare that that "corporate personhood" does not
exist and money does not constitute speech.
As stated in the author's background materials, according to the
National Conference of State Legislatures, several states
enacted laws to address the post-Citizens United campaign
landscape. Arizona enacted a law which "permits corporate and
union independent expenditures, but requires such organizations
to register with the Secretary of State prior to making
political expenditures beyond a threshold amount. Subsequent
expenditures must be reported each time the total exceeds the
same threshold amount that triggered registration. It also
requires that the attribution statement on advertisements
include the name of any corporation or union that funds them.
Violations are a Class 1 misdemeanor, punishable by a penalty of
up to three times the amount of the unreported expenditure?
South Dakota, Alaska, Colorado, Connecticut, Minnesota, North
Carolina and West Virginia enacted similar laws? In
Massachusetts, an amendment was added to the 2011 budget that
requires a disclaimer on corporate-sponsored political
advertisements.
According to the author's office, during the 2012 General
Election, residents in over 150 cities voted on measures calling
for an end to the concept of corporate free speech and the
concept of money as free speech. Every measure passed. In
California, those localities included Mendocino County,
Richmond, and San Francisco. More than a dozen states,
nation-wide, have passed and transmitted to Congress symbolic
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resolutions expressing the same.
Recent Calls for an Article V Convention. The Article V
convention process has recently received increased attention as
a potential means of addressing deficiencies in our system of
federal government. For example, in the arena of campaign
finance reform, Harvard Professor Lawrence Lessig, oft-referred
to as a progressive academic, has advocated an Article V
convention that would amend the constitution to facilitate
effective campaign finance reform and thus limit what he
perceives as Congress's improper dependence upon a small group
of funders rather than "the People alone," as the framers
intended. (See generally Lawrence Lessig, Republic, Lost: How
Money Corrupts Congress-And a Plan to Stop It (2011).)
On the conservative spectrum, Tea Party supporters and
like-minded conservative advocates of limiting government power
have also strongly proposed holding an Article V convention.
For example, in 2011, the conservative Louisiana legislature
applied for a convention for the hoped-for sole purpose of
amending the United States Constitution to require that any
increase in the federal debt be approved by at least two-thirds
of the state legislatures. (See 158 Cong. Rec. S2241.) Other
states, such as Alabama, have applied for a constitutional
convention for the hoped-for sole purpose of considering a
Balanced Budget Amendment to the Constitution.
Yet not all conservative leaders have warmed to the new
convention idea. The prospect of a convention still has its
many conservative as well as progressive detractors. For
example, legendary conservative Phyllis Schlafly has stated "I
think it's a terrible idea. Who are these people who think they
could do a better job than George Washington and James Madison?
We have a wonderful Constitution and we don't want to rewrite it
or cause any discontent with the Constitution that we have."
(Philip Klein, "Is It Time for a Convention?" American
Spectator, October 2010 issue.) And Michael Uhlmann, a
political science professor at Claremont Graduate University,
has also been dismissive of the convention route, stating "I
don't take the idea seriously, and I don't think anybody else
should? Unless you can figure out a way to reincarnate James
Madison. Then I'll reconsider my position." (Id.)
The Possibility of A "Run-Away" Convention: As noted above,
Article V of the United States presents a mechanism for amending
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the Constitution when Congress refuses to do so. (See Michael
Stern, Reopening the Constitutional Road to Reform: Toward a
Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 765-66
(2011).) However, the process has never been used to amend the
constitution; "[e]very one of the twenty-seven amendments to the
United States Constitution has been proposed by the Congress
[not via a constitutional convention]." (Id. at 765.)
The primary concern regarding the process is that of a "runaway
convention"-a scenario in which the convention initiated by the
states deviates from its initially intended purpose and results
in an unforeseen change to the nation's basic governmental
structure or individuals' constitutionally protected rights.
(Id. at 766.) Given this concern, the prospect of limiting a
proposed convention to enumerated purposes-as this resolution
would do-strikes many as prudent. And that is precisely what
the author of this measure hopes occurs. The resolution
specifically states that this "application is for a limited
constitutional convention and does not grant Congress the
authority to call a constitutional convention for any purpose
other than for the sole purpose set forth in this resolution."
In background material provided by the author's office, an
argument is made that "because two-thirds of the states have to
approve the same resolution, and because this resolution
explicitly states the sole purpose of the convention, this
resolution will not initiate a 'runaway' convention."
However all would agree it is not certain this would actually be
the result. The question debated by constitutional law scholars
is whether Article V of the Constitution, which permits the
states to initiate a "Convention for proposing Amendments," may
be limited by the scope of the states' applications to hold the
convention. (See id. at 767.) The text of Article V is silent
on the matter, and there is also considerable uncertainty
regarding what, if anything, the framers intended regarding the
matter. (See Mary Margaret Penrose, Conventional Wisdom:
Acknowledging Certainty in the Unknown, 78 Tenn. L. Rev. 789,
796-97 (2011).)
Several important scholars have argued quite persuasively that
"any convention must be plenary and that application for
anything other than a general convention consequently is not
application at all; such applications count as 'zeros' in the
two-thirds tally." (Michael Stokes Paulsen, A General Theory of
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Article V: The Constitutional Lessons of the Twenty-Seventh
Amendment 103 Yale L.J. 677, 737 (1993).) And renowned
constitutional scholar Walter Dellinger has stated:
[I]t is unclear exactly who has the authority to declare
whether a given application or set of applications are, in
fact, "valid applications" for the purposes of Article V.
For example, if ? Congress called the convention and the
convention eventually produced amendments unrelated to the
purposes stated in the applications, would a court be
authorized to invalidate the amendments as "outside the
scope" of the convention? Some believe that the court would
be authorized to interpret and enforce the provisions of
Article V. (See id. at 757-58.) However, others have
expressed doubt as to whether the federal judiciary would
assert itself as an arbiter in any dispute over the Article
V convention process. (Yale Law Journal vol. 88 (1979).)
Other questions regarding the Article V convention process give
rise to uncertainty and uneasiness among commentators. For
example, in 1973 the American Bar Association Committee devoted
to evaluating the Article V convention model produced a number
of questions that are debated to this day. (Id. at 794.) These
include: "How much power does Congress have as to the scope of a
convention? As to the procedures such as the selection of
delegates? As to the voting requirements at a convention? As to
refusing to submit to the states for ratification the product of
a convention?" (Id. at 795.) Skeptics such as Harvard's
legendary Professor Laurence Tribe argue that the many
uncertainties surrounding the Article V convention process
render Article V's provisions "dangerously vague." (O'Toole,
supra.)
Scope of the Convention's Purpose in Relation to Citizens
United. This resolution would apply to Congress to call a
convention for the sole purpose of proposing an amendment that
"would limit corporate personhood for purposes of campaign
finance and political speech" and "further declare that money
does not constitute speech and may be democratically limited."
However it should be noted that the Citizens United decision
actually was not predicated upon a finding that corporations are
"people." Rather, it was based upon the proposition that the
First Amendment protects "political speech," and that the level
of that protection does not change based upon the corporate
identity of the speaker. (See Citizens United, supra, at
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896-900.) It is thus unclear whether limiting corporate
personhood would have the effect of overruling any of Citizens
United's holdings, although this would depend, in part, upon
other potential amendments related to the definition of
"personhood." In addition, Citizens United did not equate money
with speech. Rather, it noted that restrictions upon
independent expenditures have the effect of burdening expressive
acts.
Some Quick Constitution Amendment Facts : Thirty-three proposed
amendments to the U.S. Constitution have been submitted to the
States pursuant to Article V of the Constitution, all of them
upon the vote of the requisite majorities in Congress and none
by the alternative convention method sought by this measure.
Related Legislation : ACR 95 (Huber): This measure sought to
submit the question of whether to hold a convention for the
purposes of revising the California Constitution to the voters
at the next general election. Failed in this Committee on April
24, 2012.
AJR 22 (Wieckowski and Allen): This joint resolution calls upon
the U.S. Congress to propose a constitutional amendment, as
opposed to calling for a constitutional convention, to overturn
Citizens United. Resolution Chapter 69, 2012.
AJR 32 (Allen, Gatto, and Wieckowski): This joint resolution
similarly sought to petition Congress to call a federal
convention for the purpose of amending the U.S. Constitution to
limit corporate personhood and declare that money does not
constitute speech. Failed in this Committee on May 1, 2012.
REGISTERED SUPPORT / OPPOSITION :
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California Clean Money Campaign
CALPIRG
California State Grange
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
AJR 1
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