BILL ANALYSIS Ó
AJR 1
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ASSEMBLY THIRD READING
AJR 1 (Gatto)
As Introduced December 3, 2012
Majority vote
JUDICIARY 7-2
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|Ayes:|Wieckowski, Alejo, Chau, | | |
| |Dickinson, Garcia, | | |
| |Muratsuchi, Stone | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Maienschein | | |
| | | | |
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SUMMARY : Seeks to petition Congress to call for a federal
constitutional convention for the purpose and hope of solely
amending the United States (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.
EXISTING LAW :
1)Holds that limits on campaign contributions are permissible,
but that spending money to influence elections is a form of
constitutionally protected free speech. Also holds that
candidates can give unlimited amounts of money to their own
campaigns. (Buckley v. Valeo (1976) 424 U.S. 1.)
2)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. Federal
Election Commission (FEC) (2010) 130 S. Ct. 876; Buckley v.
Valeo (1976) 424 U.S. 1, 19-27, 48-49.)
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3)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 U.S. Constitution; applied to
the states by Amendment XIV of the U.S. Constitution.)
4)Provides that Congress, upon the application of two-thirds of
the several states, shall call a convention for proposing
amendments to the U.S. 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
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
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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.
In Citizens United v. FEC (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. Citizens 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 U.S. Supreme Court.
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
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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 dramatically overturning both its Austin v. Michigan Chamber
of Commerce (1990) 494 U.S. 652 and McConnell v. FEC (2003) 540
U.S. 93 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.
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
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.)
According to the author's office, during the 2012 General
Election, residents in over 150 cities voted on measures calling
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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
resolutions expressing the same.
As noted above, Article V of the U.S. Constitution presents a
mechanism for amending 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."
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0000061
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