BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AJR 1 (Gatto)
As Amended August 26, 2013
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Federal Constitutional Convention: Application
DESCRIPTION
This measure would submit California's application to Congress
to call for an Article V convention for the sole purpose of
proposing a Constitutional amendment that would: (1) limit
corporate personhood for purposes of campaign finance and
political speech; and (2) declare that money does not constitute
speech and may be legislatively limited.
BACKGROUND
Political speech is said to lie at the core of the First
Amendment and to receive the highest form of protection. The
United States Supreme Court has considered (however
controversially) the First Amendment to the U.S. Constitution to
protect the right to make contributions and expenditures to
support or oppose candidates or issues, as well as to use such
moneys by a candidate or committee to promote his or her
viewpoint and election. (See e.g. Buckley v. Valeo (1976) 424
U.S. 1.) Such activities have been equated to speech (or,
speech by proxy) or, alternatively, been protected under the
right of association or assembly, insofar as making
contributions or expenditures in connection with elections is
analogous to aligning oneself with certain persons or
viewpoints.
The ability of government to regulate or restrict such political
speech or campaign spending of natural persons, groups,
corporations, unions, or otherwise, has been tested repeatedly.
(more)
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For many years, the U.S. Supreme Court has drawn a distinction
between "contributions" or "in kind contributions" to candidates
or their committees, and "expenditures" by or at the behest of
candidates or committees or "independent expenditures" by
individuals or committees to expressly support or oppose an
issue or a candidate without any coordination with the candidate
or his or her committee. The test for reviewing any of these
restrictions has been the same: whether the specific regulation
is narrowly tailored to a compelling governmental interest.
Notably, in 2010, and central to this measure, the Supreme Court
decided Citizens United v. Federal Elections Commission (2010)
130 S.Ct. 876, 913. In that case, the Court struck down
limitations placed on a corporation's ability to make political
independent expenditures, holding that such limitations violate
a corporation's right to free speech and stating that the
"[g]overnment may not suppress political speech based on the
speaker's corporate identity." (Id. at 885.) In doing so, the
Court explicitly overruled its prior holding in Austin v.
Michigan Chamber of Commerce (1990) 494 U.S. 692 and part of
McConnell v. FEC (2003) 540 U.S. 93.
The following year, relying upon on the Citizens United
rationale, a federal district court, in Speechnow.org v. FEC
(2011) 599 F.3d 686, held that limits on the use of the
corporate treasury to make independent expenditures are
unconstitutional. Since then, a great amount of national focus
has been given to the rise of independent expenditure-only
political action committees, also known as "Super PACs."
Corporate treasuries can now be used to give unlimited amounts
of money to Super PACs of a corporation's choosing, either
directly or indirectly through a 501(c)(4) (which then gives to
the Super PAC without having to disclose its donors; in turn,
the Super PAC discloses the 501(c)(4) as its donor, not the
actual persons or entities donating to the 501(c)(4)). The full
impact of these "Super PACs," and of Citizens United itself, is
still unfurling, though reportedly, outside spending in federal
elections has already increased substantially-by as much as 245
percent in presidential elections, 662 percent in elections for
the U.S. House of Representatives, and 1338 percent in U.S.
Senate elections. (See Richard L. Hasen, Three Wrong
Progressive Approaches (and One Right One) to Campaign Finance
Reform (2014) 8 Harv. L. & Pol'y Rev. 21, p. 21, internal
citation omitted.)
Most recently, just last month, the Supreme Court rendered
another pivotal decision scaling back campaign finance
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regulations in McCutcheon v. FEC (2014) 134 S.Ct. 1434, by
striking down aggregate limits placed on campaign contributions
to individuals-despite the fact that the Buckley Court had
previously allowed aggregate limits given the governmental
interest in preventing evasion of base (i.e. individual) limits.
For the first time, the McCutcheon Court announced that any
regulation must specifically "target what we have called 'quid
pro quo' corruption or its appearance." (Id. at 1441.) Holding
that "the indiscriminate ban on all contributions above the
aggregate limit is disproportionate to the Government's interest
in preventing circumvention" (of the base limits, which function
as a prophylaxis to quid pro quo corruption), the Court held
that it "cannot conclude that the sweeping aggregate limits are
appropriate tailored to guard against any contributions that
might implicate the Government's anticircumvention interest."
(Id. at 1457; interestingly, the Court commented on other
anticircumvention-type regulations that might surpass First
Amendment scrutiny.)
This measure seeks to call for a federal constitutional
convention to address issues raised as a result of such
decisions. Specifically, it seeks to call the convention to
limit corporate personhood for purposes of campaign finance and
political speech and to further declare that money does not
constitute speech and may be legislatively limited.
CHANGES TO EXISTING LAW
Existing federal law , the U.S. Constitution, provides that the
Congress, whenever two thirds of both houses shall deem it
necessary, shall propose amendments to this Constitution, or, on
the application of the legislatures of two thirds of the several
states, shall call a convention for proposing amendments, which,
in either case, shall be valid to all intents and purposes, as
part of this Constitution, when ratified by the legislatures of
three fourths of the several states, or by conventions in three
fourths thereof, as the one or the other mode of ratification
may be proposed by the Congress; except as specified. (U.S.
Const. Art. V.)
Existing federal law , the U.S. Constitution, provides that
Congress shall make no law 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.
(U.S. Const., 1st Amend., as applied to the states through the
14th Amendment's Due Process Clause; see Gitlow v. New York
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(1925) 268 U.S. 652; see also Cal. Const. art. 1, Sec. 2.)
This measure would state:
corporations are legal entities that governments create and
the rights that they enjoy under the U.S. Constitution should
be more narrowly defined than the rights afforded to natural
persons;
corporations do not vote in elections and should not be
categorized as persons for purposes related to elections for
public office and ballot measures;
the U.S. Supreme Court, in Citizens United v. FEC (2010) 130
S.Ct. 876, held that the government may not, under the First
Amendment to the United States Constitution, suppress
political speech on the basis of the speaker's corporate
identity; and
Article V of the U.S. Constitution requires the U.S. Congress
to call a constitutional convention upon application of
two-thirds of the legislatures of the several states for the
purpose of proposing amendments to the United States
Constitution.
This measure would, on behalf of the California Legislature and
speaking on behalf of the people of the State of California,
apply to the U.S. Congress to call a constitutional convention
pursuant to Article V of the federal Constitution for the sole
purpose of proposing an amendment to the federal Constitution
that 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.
This measure would declare that it constitutes a continuing
application to call a constitutional convention pursuant to
Article V until at least two-thirds of the legislatures of the
several states apply to the U.S. Congress to call a
constitutional convention for the sole purpose of proposing an
amendment to the federal Constitution that 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.
This measure would declare 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.
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COMMENT
1. Stated need for the bill
According to the author:
In Citizens United, a deeply divided Supreme Court held that
corporations are due the same free-speech rights enjoyed by
natural persons. The decision spawned "Super PACs," which
have flooded unlimited corporate money into federal elections.
During the 2012 election cycle alone, millions of dollars were
contributed to Super PACs with the hopes of electing
particular candidates to office while defeating others and
seeing certain initiatives codified into law while pushing
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
[percent] 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 this 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.
Approximately 160 individuals from varying backgrounds and
perspectives (teachers, veterans, small business owners,
scientists, engineers, lawyers, peace officers, college
students, and retirees) across this state have written in
support of this measure and appealing to this Committee to pass
AJR 1. Almost every letter describes an overwhelming loss of
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confidence in the democratic process, stating concerns with
corruption of elected officials because of outside money
influences of special interests and corporations, expressing
frustration that their voices (and issues important to them) are
not being heard by their representatives, and insisting that
they will not be heard absent a change to the law through the
constitutional convention process. For these individuals, this
resolution is not a partisan issue but, rather, represents to
them the only viable option to restore fairness and any
semblance of trust in the American form of representative
government. For some, this bill represents the single most
important measure before their state representatives.
2. Campaign finance reforms and the major shift in U.S.
Supreme Court jurisprudence
This measure is in response to recent United States Supreme
Court jurisprudence-namely, Citizens United v. FEC (2010) 130
S.Ct. 876-which deviated from many of the Court's prior
precedents. As noted in the Background, political speech is
considered to lie at the core of the First Amendment and to
receive the highest form of protection. The Supreme Court has
interpreted this right to encompass the acts of making
contributions and expenditures in relation to the elections of
candidates or issues. Nonetheless, the area of campaign finance
law is no stranger to federal and state attempts to regulate the
spending of money in elections. Unsurprisingly, many of these
regulations have been challenged to and reviewed by the Supreme
Court as to their constitutionality.
Congressional regulations placed on money used in political
campaigns or elections (also known as campaign finance reform)
were seen as early as 1883 with the Pendleton Civil Service
Reform Act. That Act prohibited the solicitation of campaign
donations on federal property and put an end to the practice of
awarding government jobs on the basis of whether the individual
contributed a portion of his or her salary to the political
party. Further reforms followed in 1907 with the enactment of
the Tillman Act (banning corporate contributions for political
purposes), in 1910 with the Publicity of Political Contributions
Act (requiring post-election disclosure of donations to
candidates for the House of Representatives), in 1925 with
Federal Corrupt Practices Act (extending the Tillman Act's ban
on corporate contributions to in-kind contributions), in 1939
with the Hatch Act (banning contributions and participation in
campaigns by all government employees), in 1943 with the
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Smith-Connally Act (prohibiting labor unions from contributing
to campaigns during the ongoing World War), and in 1947 with the
Taft-Hartley Act (prohibiting all corporate and union political
expenditures). (See Thaler, Note: Citizens United and Forced
Speech: Why Protecting the Dissenting Shareholder Necessitates
Disclosure of Corporate Political Expenditures After Citizens
United v. FEC (Spring 2011), 17 Wash. & Lee J. Civ. Rts. & Soc.
Just. 591, 603-610.)
The more recent framework of federal campaign finance reform is
reflected primarily in the Federal Election Campaign Act (FECA)
and Bipartisan Campaign Reform Act (BCRA). In 1971, the United
States Congress first passed FECA, which sought primarily to
equalize the playing field among candidates, and in 1974 amended
it to place limits on various campaign contributions and
expenditures. FECA also significantly strengthened requirements
to disclose political contributions and expenditures. Then in
2002, Congress passed the BCRA (also known as the
McCain-Feingold Act), which amended FECA and addressed two
issues: (1) the increased role of soft money in elections
(unlimited money that could be given to political parties and
often used for candidate-related "issue ads"); and (2) the
proliferation of issue advocacy advertisements (independent
expenditure ads), and specifically what it named as
"electioneering communications" (those broadcast ads that
specifically named a candidate within a specified number of days
before an election).
The history of U.S. Supreme Court jurisprudence on the issue of
permissible versus non-permissible forms of such regulations of
political speech by various speakers (natural persons, groups,
corporations, unions, and others) is as extensive as the history
of the federal and state regulations themselves, and Citizens
United represents one of the Court's most recent, pivotal, and
arguably its most controversial, opinions.
a. The U.S. Supreme Court and campaign finance regulations
pre-Citizens United
This measure would represent the California State
Legislature's application to Congress to call for an Article V
Convention for the sole purpose of proposing an amendment to
the federal Constitution that 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. In doing so, the measure
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highlights the decision of the U.S. Supreme Court in Citizens
United, and states that corporations are legal entities that
governments create and the rights that they enjoy under the
United States Constitution should be more narrowly defined
than the rights afforded to natural persons. The measure also
includes a declaration to the end that corporations do not
vote in elections and therefore should not be categorized as
persons for purposes related to elections for public office
and ballot measures.
Some argue that this problem did not necessarily start with
Citizens United but, rather, culminated with it. Others, such
as Justice Stevens in his dissenting opinion in Citizens
United, would mark the decision as a major diversion from
prior Supreme Court jurisprudence, thereby undermining
decades' worth of holdings in campaign finance reform cases.
(See Comment 2b.)
In general, the Supreme Court has applied strict scrutiny to
laws placing limits on contributions and expenditures. At the
same time, the Court has recognized in reviewing such laws
that "[p]reserving the integrity of the electoral process,
preventing corruption, and '[sustaining] the active, alert
responsibility of the individual citizen in a democracy for
the wise conduct of government' are interests of the highest
importance" and that "[p]reservation of the individual
citizen's confidence in government is equally important."
(First Nat'l Bank v. Belotti (1978) 435 U.S. 765, 788-789,
citations omitted.)
Significantly, in 1976, in the seminal case of Buckley v.
Valeo (1976) 424 U.S. 1, the U.S. Supreme Court addressed
various challenges made to FECA, including limits on
contributions, expenditures and independent expenditures.
With respect to limits placed on contributions and in-kind
contributions, because the money was being given directly to
the candidate or a candidate committee, the Buckley Court
found that the government interest in addressing the concern
of actual or apparent "quid pro quo" corruption and in
preserving confidence of citizens in their government, was
sufficiently compelling enough to justify the regulations of
these otherwise protected activities. In contrast, with
respect to personal expenditures made by a candidate, the
Buckley Court found that such expenditures facilitated the
expression of the candidate's viewpoints and were effectively
his or her political speech and could not be limited under the
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First Amendment.
Two years later, in First National Bank v. Bellotti (1978) 435
U.S. 765, 795 the Supreme Court invalidated a state's
restriction on corporate spending to advocate for or against
ballot referenda not materially related to the corporation's
business. The Court in Bellotti relied heavily on the
principle that the corporate identity of the speaker did not
change the First Amendment analysis of permissible versus
impermissible government regulations and re-emphasized that
"the risk of corruption perceived in cases involving candidate
elections . . . simply is not present in a popular vote on a
public issue. " (Id. at 790, footnote and internal citations
omitted.) With that, the Court rejected the premise that a
corporation's ability to engage in issues could be limited to
those that were materially related to their business only.
In contrast, however, in Austin v. Michigan Chamber of
Commerce (1990) 494 U.S. 692, 660, the Court upheld a ban on
the use of corporate treasury funds for independent
expenditures in support of or in opposition to candidates in
elections, based on the governmental interest in preventing
"the corrosive and distorting effects of immense aggregations
of [corporate] wealth ? that have little or no correlation to
the public's support for the corporation's political ideas."
Over a decade later, in McConnell v. Federal Elections
Communication (2003) 540 U.S. 93, the Court, among other
things, affirmed the holding in Austin and reviewed the first
significant challenges to the BCRA. The McConnell Court
ultimately upheld key restrictions on corporate independent
expenditures, including a prohibition on the use of treasury
funds for electioneering communications (made within a certain
number of days of an election) that "refe[r] to a clearly
identified candidate." That same year, in Federal Elections
Committee v. Beaumont (2003) 539 U.S. 146, the Supreme Court
upheld, among other things, the constitutionality of law
banning direct corporate contributions to candidates or
candidate committees, as applied to a nonprofit advocacy
corporation.
As a result of these and other Supreme Court cases upholding
various campaign finance laws, before 2010, corporations were
effectively limited to creating segregated political action
committees (PACs) in order to make contributions or
expenditures in connection with elections. Under that scheme,
certain members of the corporation could be solicited to
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voluntarily donate to the corporate PAC for political
expenditures, rather than making such contributions or
expenditures through the corporate treasury. In turn, PACs,
just like individual persons, were limited in the amount that
they could make in a contribution to a candidate or an in-kind
contribution to candidate committee, and had to disclose their
contributions and expenditures as prescribed under federal
campaign finance law, as well as state campaign finance laws.
(See discussion of PACs in Beaumont, 539 U.S. at 149.)
In other words, prior to Citizens United while neither
Congress, nor the states could limit independent expenditures
of individuals, groups, or PACs, corporations themselves could
not directly engage in such campaign spending from their
corporate treasuries.
b. The U.S. Supreme Court and campaign finance regulations
post-Citizens United
In 2010, the landscape described above shifted significantly
with the Supreme Court's holding in the case of Citizens
United, which is a central point of this resolution calling
upon Congress to call for an Article V Convention.
In Citizens United, the Court reviewed a section of the BCRA
which prohibited corporations and unions from using their
general treasury funds to make independent expenditures for
speech that is an "electioneering communication" or for speech
that expressly advocates the election or defeat of a
candidate. (Electioneering communications are "any broadcast,
cable, or satellite communication" that "refers to a clearly
identified candidate for Federal office" and is made within 30
days of a primary election and that is "publicly distributed,"
as otherwise defined under federal law and regulations; 2
U.S.C. Sec. 441b.)
At issue in the case was a documentary called Hillary: the
Movie (Hillary), released by Citizens United, a nonprofit
corporation, critical of then-Senator Hillary Clinton, a
candidate for the Democratic Party's Presidential nomination.
Anticipating that it would make Hillary available on cable
television through video-on-demand within 30 days of primary
elections, Citizens United produced television ads to run on
broadcast and cable television. Concerned about possible
civil and criminal penalties for violating the federal law on
electioneering communications, the corporation sought
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declaratory and injunctive relief, arguing: (1) that law is
unconstitutional as applied to Hillary; and (2) the BCRA's
disclaimer, disclosure, and reporting requirements were
unconstitutional as applied to Hillary and the ads.
In deciding the case, however, the Court reframed the issue so
that it could reconsider the 1990 case of Austin, and relied
heavily on the principle noted in the earlier case of Bellotti
that "[g]overnment may not suppress political speech based on
the speaker's corporate identity." (Id. at 885.)
Accordingly, while it otherwise upheld the disclaimer and
disclosure requirements of the BCRA, the Court held that any
limits on a corporation's ability to make political
independent expenditures were both overbroad and too narrow to
achieve the stated governmental interests in protecting
shareholder interests and the confidence of citizens in their
government, and that these limits violated a corporation's
right to free speech. Moreover, the Court outright rejected
the premise that independent expenditures could ever lead to
corruption or the appearance of corruption in the way a
contribution could, putting finality to the issue in a way
that the Buckley Court did not. In doing so, the Court
overruled its holding in Austin and part of McConnell. (Id.
at 913.)
The dissenting opinion in Citizens United vehemently argued
that the impact of the Court's ruling was much broader than
the stated holding and arguably "threatens to undermine the
integrity of elected institutions across the Nation." (Id. at
931.) As noted by Justice Stevens, not only did the Court in
an "unusual and inadvisable" manner reframe the issue for
itself, but "[t]he majority's approach to corporate
electioneering marks a dramatic break from our past. Congress
has placed special limitations on campaign spending by
corporations ever since the passage of the Tillman Act in 1907
. . . . We have unanimously concluded that this 'reflects a
permissible assessment of the dangers posed by those entities
to the electoral process,' . . . and have accepted the
'legislative judgment that the special characteristics of the
corporate structure require particularly careful regulation,'
. . . . The Court today rejects a century of history when it
treats the distinction between corporate and individual
campaign spending as an invidious novelty born of Austin . .
. . . . . . Relying largely on individual dissenting opinions,
the majority blazes through our precedents, overruling or
disavowing a body of case law . . . ." (Id. at 930-931.)
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There has been much controversy over the Citizens United
decision in the last several years. Prior resolutions
relating to that decision have resulted in petitions with
thousands of signatures and this resolution in particular has
resulted in the submission of over 130 letters from private
individuals calling for its adoption. While California
cannot, on its own accord, undo the holdings of the U.S.
Supreme Court, this measure represents California's
application to Congress to call for a constitutional
convention to address issues implicated by Citizens United and
restore limits to the influence of corporations in the
American democracy,
3. Logistics of amending the U.S. Constitution
There are two methods by which the U.S. Constitution may be
amended: (1) the Congressional method (whenever two-thirds of
both houses deem it necessary to propose amendments to the
Constitution); and (2) the Article V convention method (on
application of the legislatures of two-thirds of the states, 34
at present). Both methods of amendment share a requirement that
any proposed amendment have to be ratified by three-fourths of
the states (38 at present) before they would be adopted.
Likewise, with respect to both methods, Congress is authorized
to choose the method of ratification-namely, by way of ad hoc
conventions called by the states for the specific purpose of
considering ratification, or by the legislatures of the states.
While the Constitution is silent on the mechanics of an Article
V convention, Congress has traditionally laid claim to broad
responsibilities in connection with this amendment method or
such as establishing setting internal convention procedures.
(Thomas H. Neale, Congressional Research Service, The Article V
Convention to Propose Constitutional Amendments: Contemporary
Issues for Congress (Jul. 9, 2012), p. 4.)
a. Runaway conventions and other unknowns surrounding the
Article V convention process
While there is a larger question in terms of whether a
constitutional amendment is the right approach to take to
address this problem (see Comment 3(c) below), there are many
questions that surround an Article V convention process,
specifically. For example, unlike with the congressional
amendment process, which is a public process in which public
hearings are held and varying interests and ordinary members
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of the public are given opportunity to get involved and help
shape policy, there is nothing to procedurally guarantee
sunshine on an Article V convention-though proponents would
argue in today's age of technology, the convention would be
broadcast broadly. Ultimately, there is no way to know with
any degree of certainty what would actually happen, as there
is no actual requirement that Article V conventions be open to
the public.
A common concern with an Article V convention involves
questions about what sort of convention is authorized by
Article V, and the possibility of a "runaway convention."
Article V itself is silent on this issue. As such, it is
feasible that a general convention could be called, which
would be free to consider any and all additions or alterations
to the Constitution. It is also feasible that a limited
convention could be called, which would be restricted to its
"call" or authorizing legislation to consideration of a single
issue, or group of specific issues, as described by the
applications submitted by the states calling for the
convention. The "runaway convention" is the concern that,
regardless of any attempts to place limits on the agenda for
the convention, the convention could move beyond its original
mandate to consider policy questions and potential amendments
not contemplated in the applications of the state legislatures
or in the congressional summons.
Proponents argue that a runaway convention is not a realistic
outcome as any amendment that results from the convention
would have to be approved by three-quarters of all states (38
states). While there is no empirical information to support
the conclusion that a runaway convention is not a risk in an
Article V convention, the proponents argue that no state
constitutional convention has resulted in such an outcome.
One individual, in support, argues that "Congress is no longer
the people's house, and it never will be again if we continue
our present course." Arguing that the Founding Fathers had
the foresight to anticipate a day in which Article V would
become necessary so that the people could "take back their
Republic through a convention of the states," the individual
argues that this is precisely what California would be doing
in passing AJR 1. "There is nothing to stop us be unfounded
fear and distrust of our own Constitution. [ . . . ] [The
Founders] knew that an Article V convention could never 'run
away.' All the convention does is propose ideas; it is up to
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the 50 states to decide if they like them enough to ratify
them. If the convention comes up with bad ideas, there will
never be 38 states willing to ratify them. There are 27
'double red' states-states in which both houses of the
legislature are Republican - and 18 'double blue' states. All
it takes is one chamber in any 13 of those [double red or
double blue] states to kill a bad amendment."
Ultimately, this measure attempts to avoid the above issues by
calling for a limited Article V convention for the sole
purpose of proposing a Constitutional amendment that would:
(1) limit corporate personhood for purposes of campaign
finance and political speech; and (2) declare that money does
not constitute speech and may be legislatively limited.
Notably, the measure also notes 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.
b. Federal inaction
Staff notes that the U.S. Congress is also currently in the
process of considering a constitutional amendment that would
restore limits on corporate campaign spending. At this time,
the resolution, S.J. Res. 19 (by Senators Tom Udall of New
Mexico and Michael Bennet of Colorado), is before the U.S.
Senate Judiciary Committee and is reportedly to be voted on as
early as next month. (Kathleen Hunter, Bloomberg.com,
Campaign-Finance Measure May Come to Vote in U.S. Senate (May
15, 2014)
[as of May 20,
2014].)
Specifically, the amendment proposed by S.J. Res. 19 would
amend the Constitution to provide that, to advance the
fundamental principle of political equality for all, and to
protect the integrity of the legislative and electoral
processes, Congress shall have power to regulate the raising
and spending of money and in-kind equivalents with respect to
Federal elections, including through setting limits on: (1)
the amount of contributions to candidates for nomination for
election to, or for election to, Federal office; and (2) the
amount of funds that may be spent by, in support of, or in
opposition to such candidates. The Constitutional amendment
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would also provide that, to advance the fundamental principle
of political equality for all, and to protect the integrity of
the legislative and electoral processes, each state shall have
power to regulate the raising and spending of money and
in-kind equivalents with respect to state elections, including
through setting limits on: (1) the amount of contributions to
candidates for nomination for election to, or for election to,
state office; and (2) the amount of funds that may be spent
by, in support of, or in opposition to such candidates.
Further, it would provide that nothing in this article shall
be construed to grant Congress the power to abridge the
freedom of the press, and that Congress and the states shall
have power to implement and enforce this article by
appropriate legislation.
Interestingly, according to the U.S. Senate, approximately
11,539 measures have been proposed to amend the Constitution
from 1789 through January 2, 2013. (See U.S. Senate,
Statistics and Lists, Measures Proposed to Amend the
Constitution,
[as of May 20,
2014].) Thus far, all of the 27 amendments to the U.S.
Constitution that have been ratified by the states since the
Constitution became operable have been the result of a
congressional amendment, as opposed to an Article V
convention.
c. Is a constitutional amendment truly the best avenue to
address campaign finance concerns?
Even if upwards of 96% of the American population, as some
letters argue, support reducing the influence of money in
elections, not all might agree that the proper avenue for
engendering this change is through a constitutional amendment.
Indeed, some scholars with expertise in this area who appear
to share concerns with the role of money in politics in the
U.S such as law professor Richard Hasen, argue that calls to
amend the Constitution are a bad idea. (See Richard L. Hasen,
Three Wrong Progressive Approaches (and One Right One) to
Campaign Finance Reform (2014) 8 Harv. L. & Pol'y Rev. 21.)
Specifically, Professor Hasen notes the potential hazards of a
constitutional amendment, which could range from declarations
overturning Citizens United (which might not go far enough to
have the intended impact to effectively rein in corporate
spending in elections and could inadequately protect the
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press); to taking away all corporate rights for all
corporations (including, presumably, media corporations and
nonprofit corporations) for all purposes; to enacting an
amendment to mandate limitations upon, or at least some
regulation of campaign spending (as this measure seeks to do).
Hasen writes:
Citizens United might be bad for our democracy, but these
approaches look like a cure worse than the disease.
Changing the Constitution is no small feat, and it is a
terrible idea to change it with broad language that could
squelch healthy political debate, limit press freedoms, and
muzzle nonprofit ideological corporations (not to mention
limit corporations in other ways outside the campaign
finance area that should make progressives squirm).
The problem goes beyond drafting to the larger issue of
placing broad power to control political speech in the hands
of Congress and state and local governments. A
constitutional grant of broad, speech-limiting power, will
be risky now, because it is hard to cabin, and riskier
later, in light of uncertainty over future generations'
political, religious, social, and moral beliefs and
preferences. In contrast, the pre-Alito incremental
constitutional development of campaign finance jurisprudence
through the Supreme Court struck a broad compromise between
those interests for and against campaign regulation is more
nimble than a blanket grant of power to congress and state
and local governments in a constitutional amendment to do
whatever they wish with campaign finance or corporate
rights. (Id. at 27-28, internal citations and footnotes
omitted.)
Proponents would likely argue that "bad" amendments would
never be ratified by a sufficient number of states. While
such an argument arguably places a great deal of faith in a
majority, in a country founded in large part on distrust of
the majority, it could be equally be argued that there is a
qualitative difference between a rule approved by a
supermajority as opposed to a majority. In fact, to this end,
the chances of an actual Article V convention going forward
and having untended consequences suggested above, are arguably
minimal, given that it is unlikely any supermajority in this
country will agree on anything in the near future.
It should also be noted that this resolution would retain its
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effect indefinitely. Thus, if AJR 1 is passed, 200 years from
now, a convention could be called if 33 other states finally
agree to do so for these purposes.
4. Corporate personhood
The Citizens United decision and its lesser-known progeny have
been widely decried by not only members of the public, but also
staunchly criticized by large numbers of constitutional and
legal scholars, organizations, elected officials, and even small
businesses - most of whom argue there is a difference between
speech by natural persons and "speech" by legally created
entities. As a result, the argument between the various sides
has greatly centered on whether all speakers, natural persons or
artificial entities, enjoy the same free speech rights under the
Constitution. That issue, in other words, has been framed
largely as one of "corporate personhood."
It is true that there are distinct differences between natural
purposes and corporations; for example, corporations cannot
directly vote in elections. Nonetheless, Committee staff notes
that, the issues of the constitutionality of particular
regulations on campaign spending aside, the question of whether
First Amendment rights are held by corporations is nuanced and
has potentially significant legal implications not just for
speakers, but listeners of speech, and could inadvertently
impact other areas of law in which corporations are treated as
persons subject to similar civil and criminal laws as natural
persons.
In an arguably balanced approach, this measure would call for an
Article V convention to amend the U.S. Constitution in part to
limit corporate personhood for the purposes of campaign finance
and political speech. In doing so, the measure declares that
corporations do not vote in elections and should not be
categorized as persons for purposes related to elections for
public office and ballot measures. Such phrasing appears to
recognize that there are some instances and some purposes for
which corporations are and should be treated as "persons" as a
matter of law.
5. Is money really never speech?
This measure calls for an Article V convention to amend the U.S.
Constitution, to among other things, declare that money is not
speech and may be legislatively limited. Notably, it is one
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thing to amend the constitution to declare that money may be
legislatively limited in elections and another to make a broad
statement that "money is not speech" and may therefore be
legislatively limited.
Proponents of AJR 1 appear to take a viewpoint along the lines
of Justice Stevens, who wrote: "Money is property; it is not
speech. Speech has the power to inspire volunteers to perform a
multitude of tasks on a campaign trail, on a battle ground, or
even on a football field. Money, meanwhile, has the power to
pay hired laborers to perform the same tasks. It does not
follow, however, that the First Amendment provides the same
measure of protection to the use of money to accomplish such
goals as it provides to the use of ideas to achieve the same
result." (Nixon v. Shrink Missouri Government PAC (2000) 528
U.S. 377, 398 (Stevens, J., concurring).)
Alternatively, it could be argued that "[s]pending money may
facilitate speech, and it is a way of expressing support for a
candidate, but it is arguably distinguishable from 'pure'
speech." (Chemerinsky, Constitutional Law, Principles and
Policies (2006) Fourth Edition, pp. 1107-1108.) Under this
viewpoint, the "contention is that the O'Brien test should have
been applied, which is protective of speech, rather than the
strict scrutiny test used by the court." (Id. at 1108; in U.S.
v. O'Brien (1968) 391 U.S. 367, 377, the Court formulated a test
for evaluating the constitutional protection for conduct that
communicates, writing that "a governmental regulation is
sufficiently justified if it is within the constitutional power
of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental
restriction on First Amendment freedoms is no greater than is
essential to the furtherance of that interest.")
The seminal case addressing this issue is Buckley, which
rejected the O'Brien standard and, in doing so, illustrates a
third viewpoint (the viewpoint most closely aligned with that of
the current U.S. Supreme Court). Namely, the Buckley Court
treated spending money in a political campaign as a form of
political speech. The Court wrote "[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. This is because virtually every means of communicating
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ideas in today's mass society requires the expenditure of
money." (Buckley, 405 U.S. at 19.) Again, as noted in Comment
2a, the Court drew a distinction between contribution limits and
expenditure limits, holding that expenditure limits restrict the
nature and quantity of speech that would occur. Whereas "a
limitation on the amount of money a person may give to a
candidate or campaign organization [involves] little direct
restraint on his political communication, for it pertains to the
symbolic expression of support evidenced by a contribution but
does not in any way infringe the contributor's freedom to
discuss candidates and issues." (Id. at 19-21.)
Support : California Clean Money Campaign; CALPIRG; California
State Grange; Consumer Watchdog; Wolf-PAC; approximately 160
individuals
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : SB 1272 (Lieu) would require the
Secretary of State to submit to the voters at the November 2014
election an advisory question asking whether Congress should
propose, and the California State Legislature should ratify, an
amendment or amendments to the federal Constitution to overturn
Citizens United, and other applicable judicial precedents, as
specified. This bill recently passed the Senate Floor and is
currently in the Assembly.
Prior Legislation :
AB 644 (Wieckowski, 2013) would have required a statewide
advisory vote on the November 2014 general election ballot as to
whether Congress should propose, and the California State
Legislature ratify, an amendment to the federal Constitution, to
reverse the Supreme Court's ruling in Citizens United and limit
campaign contributions and spending, in order to ensure that all
citizens, regardless of wealth, may express their views to one
another and their government on a level playing field. This
bill died in the Assembly Elections & Redistricting Committee.
AJR 22 (Wieckowski, Res. Ch. 69, Stats. 2012) memorialized the
California State Legislature's disagreement with the decision of
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the Supreme Court in Citizens United and stated, among other
things, that California calls upon Congress to propose and send
to the states for ratification a constitutional amendment to
overturn that decision and restore constitutional rights and
fair elections to the people.
SB 982 (Evans, 2012), among other things, would require a
corporation, as defined, to disclose to its shareholders any
campaign contributions or expenditures made in the previous
fiscal year in support of or in opposition to a candidate,
ballot measure campaign, or a signature-gathering effort on
behalf of a ballot measure, political party, or political action
committee in a fiscal year-end report, and to provide prior
notice of any such contributions or expenditures, as specified.
This bill died in the Senate Banking & Financial Institutions
Committee.
AB 2050 (Allen, 2012) would, among other things, prohibit a
domestic corporation from making any monetary contribution to
any candidate for local or state office in this state or any
other state, and to make specified disclosures when making a
monetary contribution in excess of $1,000 to any candidate for
federal office or any statewide ballot, referendum, or
initiative voted on in this state. This bill died in the
Assembly Judiciary Committee.
AB 1648 (Brownley, 2012) would have, among other things, added
specified disclaimer and disclosure requirements with respect to
certain advertisements in connection with elections. This bill
died in the Senate Rules Committee.
AB 1148 (Brownley, 2012) was substantially similar to AB 1648
and failed a 2/3 passage on the Assembly Floor.
AJR 32 (Allen, Gatto, Wieckowski, 2012) would have called upon
Congress to call a constitutional convention to amend the
Constitution to bar "corporate personhood" and declare that
money does not constitute speech. AJR 32 died in the Assembly
Judiciary Committee.
Prior Vote :
Assembly Floor (Ayes 51, Noes 20)
Assembly Judiciary Committee (Ayes 7, Noes 2)
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