BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Norma J. Torres, Chair
BILL NO: SB 1272 HEARING DATE: 4/22/14
AUTHOR: LIEU ANALYSIS BY: Frances Tibon
Estoista
AMENDED: 4/8/14
FISCAL: YES
SUBJECT
Campaign finance: advisory election
DESCRIPTION
Existing law authorizes each city, county, school district,
community college district, county board of education, or
special district to hold an advisory election on any date on
which that jurisdiction is permitted to hold a regular or
special election for the purpose of allowing voters within the
jurisdiction, or a portion thereof, to voice their opinions on
substantive issues, or to indicate to the local legislative body
approval or disapproval of the ballot proposal.
This bill requires the following advisory question to be placed
on the statewide ballot at a special election consolidated with
the statewide general election on November 4, 2014:
"Shall the Congress of the United States propose, and the
California Legislature ratify, an amendment or amendments to the
United States Constitution to overturn Citizens United v.
Federal Election Commission (2010) 558 U.S. 310, and other
applicable judicial precedents, to allow the full regulation or
limitation of campaign contributions and spending, to ensure
that all citizens, regardless of wealth, may express their views
to one another, and to make clear that the rights protected by
the United States Constitution are the rights of natural persons
only?"
This bill contains the following legislative findings and
declarations:
A. The United States Constitution and the Bill of Rights are
intended to protect the rights of individual human beings.
B. Corporations are not mentioned in the United States
Constitution and the people have never granted constitutional
rights to corporations, nor have we decreed that corporations
have authority that exceeds the authority of "We the People."
C. In Connecticut General Life Insurance Company v. Johnson
(1938) 303 U.S. 77, United States Supreme Court Justice Hugo
Black stated in his dissent, "I do not believe the word
'person' in the Fourteenth Amendment includes corporations."
D. In Austin v. Michigan Chamber of Commerce (1990) 494 U.S.
652, the United States Supreme Court recognized the threat to
a republican form of government posed by "the corrosive and
distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have
little or no correlation to the public's support for the
corporation's political ideas."
E. In Citizens United v. Federal Election Commission (2010) 558
U.S. 310, the United States Supreme Court struck down limits
on electioneering communications that were upheld in
McConnell v. Federal Election Commission (2003) 540 U.S. 93
and Austin v. Michigan Chamber of Commerce . This decision
presents a serious threat to self-government by rolling back
previous bans on corporate spending in the electoral process
and allows unlimited corporate spending to influence
elections, candidate selection, policy decisions, and public
debate.
F. In Citizens United v. Federal Election Commission , Justices
John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and
Sonia Sotomayor noted in their dissent that corporations have
special advantages not enjoyed by natural persons, such as
limited liability, perpetual life, and favorable treatment of
the accumulation and distribution of assets, that allow them
to spend huge sums on campaign messages that have little or
no correlation with the beliefs held by natural persons.
G. Corporations have used the artificial rights bestowed upon
them by the courts to overturn democratically enacted laws
that municipal, state, and federal governments passed to curb
corporate abuses, thereby impairing local governments'
ability to protect their citizens against corporate harms to
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the environment, consumers, workers, independent businesses,
and local and regional economies.
H. In Buckley v. Valeo (1976) 424 U.S. 1, the United States
Supreme Court held that the appearance of corruption
justified some contribution limitations, but it wrongly
rejected other fundamental interests that the citizens of
California find compelling, such as creating a level playing
field and ensuring that all citizens, regardless of wealth,
have an opportunity to have their political views heard.
I. In First National Bank of Boston v. Bellotti (1978) 435 U.S.
765 and Citizens Against Rent Control/Coalition for Fair
Housing v. Berkeley (1981) 454 U.S. 290, the United States
Supreme Court rejected limits on contributions to ballot
measure campaigns because it concluded that these
contributions posed no threat of candidate corruption.
J. In Nixon v. Shrink Missouri Government PAC (2000) 528 U.S.
377, United States Supreme Court Justice John Paul Stevens
observed in his concurrence that "money is property; it is
not speech."
AA. A February 2010 Washington Post-ABC News poll found
that 80 percent of Americans oppose the ruling in Citizens
United.
BB. Article V of the United States Constitution
empowers and obligates the people of the United States of
America to use the constitutional amendment process to
correct those egregiously wrong decisions of the United
States Supreme Court that go to the heart of our democracy
and the republican form of self-government.
CC. The people of California and of the United States
have previously used ballot measures as a way of instructing
their elected representatives about the express actions they
want to see them take on their behalf, including provisions
to amend the United States Constitution.
BACKGROUND
Past Advisory Elections : While existing state law explicitly
authorizes cities, counties, school districts, community college
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districts, county boards of education, and special districts to
hold advisory elections, there is no explicit authorization, nor
is there a statutory prohibition, for a statewide advisory
election. While statewide advisory elections are uncommon, in
at least two other instances in California's history, one or
more statewide advisory measures have appeared on the ballot.
At a statewide special election in June 1933, voters rejected
Propositions 9 and 10, which asked the voters whether the
Legislature should divert gasoline tax revenues to the general
fund to pay off highway bonds. These two measures were put on
the ballot by the Legislature. Additionally, at the November
1982 Statewide General Election, voters approved Proposition 12,
a measure that urged the United States government to propose to
the Soviet Union that both countries agree to immediately halt
the testing, production and further deployment of all nuclear
weapons, missiles and delivery systems in a way that could be
checked and verified by both sides. Unlike this bill, however,
the advisory question decided by the voters in 1982 was placed
on the ballot by initiative.
Subsequent to the voters' approval of Proposition 12 in 1982,
the California State Supreme Court ruled in American Federation
of Labor v. Eu (1984) 36 Cal.3d 687, that placing advisory
questions before the voters was not a proper use of the
initiative power, because "an initiative which seeks to do
something other than enact a statute-which seeks to render an
administrative decision, adjudicate a dispute, or declare by
resolution the views of the resolving body-is not within the
initiative power reserved by the people." In that case, the
Court ordered an initiative measure which sought to compel the
Legislature to apply to Congress to hold a constitutional
convention to adopt a federal balanced budget amendment to be
removed from the ballot. The Court's decision in American
Federation of Labor did not, however, rule on whether it was
permissible for the Legislature to place an advisory question
before the voters.
COMMENTS
1. According to the Author : The United States Constitution
and the Bill of Rights explicitly intend to protect the
rights of individual human beings as indicated by the phrase
"We the people" in the preamble to the Constitution. But in
the case of Citizens United v. FEC (2010), corporations have
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been granted the same rights as people and free speech is
now being equated with money, especially as it pertains to
political and campaign donations. And in February 2010
Washington Post-ABC News poll found that 80 percent of
Americans oppose the U.S. Supreme Court Citizens United
ruling. The most recent Supreme Court ruling is McCutcheon
v. FEC which was handed down April 2, 2014 and decided that
it is permissible for individuals to make limitless
contributions to federal campaign and federal candidate
committees.
However, it is important to note that Corporations are not
mentioned in the Constitution, nor have The People ever
granted Constitutional rights to corporations and money does
not equal speech as stated by United States Supreme Court
Justice Stevens in the case Nixon v. Shrink Missouri
Government PAC (2000) that "money is property, it is not
speech."
Given that 80 percent of Americans oppose the Citizens United
Ruling and are likely to be equally opposed to the
McCutcheon ruling, SB 1272 would advance the efforts to
reverse the Supreme Court's ruling in the Citizens United v.
Federal Elections Commission and other applicable judicial
precedents, including McCutcheon v. Federal Election
Commission .
SB 1272 would add an advisory question to California's
November 4, 2014 asking the people: "Shall the Congress of
the United States propose, and the California legislature
ratify, an amendment or amendments to the United States
Constitution to overturn Citizens United v. Federal Election
Commission (2010) 558 U.S. 310, and other applicable
judicial precedents, to allow the full regulation or
limitation of campaign contributions and spending, to ensure
that all citizens, regardless of wealth, may express their
views to one another, and to make clear that the rights
protected by the United States Constitution are the rights
of natural persons only?"
2. Citizens United v. FEC : In January 2010, the United
States Supreme Court issued its ruling in Citizens United v.
Federal Election Commission (2010) 558 U.S. 310, a case
involving a nonprofit corporation (Citizens United) that
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sought to run television commercials promoting a film it
produced that was critical of then-Senator and presidential
candidate Hillary Clinton. Because federal law prohibited
corporations and unions from using their general treasury
funds to make expenditures for "electioneering
communications" or for communications that expressly
advocated the election or defeat of a candidate, Citizens
United was concerned that the television commercials
promoting its film could subject the corporation to criminal
and civil penalties. In its decision, the Supreme Court
struck down the 63-year old law that prohibited corporations
and unions from using their general treasury funds to make
independent expenditures in federal elections, finding that
the law unconstitutionally abridged the freedom of speech.
3. Congress Has Been Notified . Last session, the Legislature
approved AJR 22 (Wieckowski & Allen), Resolution Chapter 69,
Statutes of 2012, which called upon the United States
Congress to propose and send to the states for ratification
a constitutional amendment that would overturn Citizens
United . Given that the State of California already has gone
on record in support of an amendment to the United States
Constitution to overturn Citizens United, it is unclear what
would be accomplished by a statewide advisory election that
was not already accomplished through the passage of AJR 22.
4. Prior Legislation : AB 644 (Wieckowski) of 2013 would have
required a statewide advisory vote on the November 2014
General Election ballot on amending the United States
Constitution to address campaign financing issues. That
bill was set for hearing twice in the Assembly Elections and
Redistricting Committee, but was pulled from agenda at the
request of the author.
AJR 1 (Gatto) of 2013, currently in Senate Judiciary, 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.
SCR 2 (DeSaulnier) of 2012, proposed that the people of the
State of California vote at the next statewide general
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election on the question of whether to call a convention to
revise the California Constitution. The measure was never
set for hearing.
POSITIONS
Sponsor: Money Out, Voters In (MOVI)
Support: 1698 Individual Citizens (Petitions)
Beach Cities Democratic Club
CALPIRG
Free Speech for People
Rebuild the Dream
West LA Democratic Club
Oppose: None received
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