BILL ANALYSIS Ó
SB 1272
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Date of Hearing: June 10, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 1272 (Lieu) - As Amended: May 27, 2014
SENATE VOTE : 23-12
SUBJECT : Campaign finance: advisory election.
SUMMARY : Places an advisory question on the November 4, 2014
statewide general election ballot on amending the United States
Constitution to address campaign finance issues. Specifically,
this bill :
1)Requires the following advisory question to be placed on the
ballot at the November 4, 2014 statewide general election:
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 Elections 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)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
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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 on
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 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
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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.
3)Requires the Secretary of State to communicate the results of
the vote on the advisory question to Congress.
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.
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FISCAL EFFECT : According to the Senate Appropriations
Committee, one time ballot printing/mailing costs of
approximately $275,000 - $550,000 depending on the number of
pages and based on an estimated cost per page of $55,000.
(General Fund)
The actual costs could be higher or lower depending on the
length of the title, summary, text, Legislative Analyst's
Office's analysis, proponents' and opponents' arguments, as well
as the overall size of the ballot pamphlet. Larger ballots
generally result in less printing and mailing costs per page.
The average number of pages per measure since 2008 is ten and
the minimum per measure has been five pages.
COMMENTS :
1)Purpose of the Bill : 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 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
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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 [ballot] 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)Past Advisory Elections : While existing state law explicitly
authorizes cities, counties, school districts, community
college 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 three other instances in
California's history, one or more statewide advisory measures
have appeared on the ballot. In November 1892, voters
approved an advisory measure that was placed on the ballot by
the Legislature asking whether United States Senators should
be directly elected by a vote of the people. 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. Finally, 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
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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.
3)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 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.
4)California Has Called upon Congress to Propose an Amendment to
Overturn Citizens United : 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 .
In light of this fact, the State of California is already on
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record in support of an amendment to the United States
Constitution to overturn Citizens United .
5)Arguments in Support : In support of this bill, the California
School Employees Association, AFL-CIO, writes:
Recent Supreme Court decisions like that of Citizens
United v. Federal Election Commission and McCutcheon
v. Federal Election Commission have highlighted the
dangers and inequities of identifying money as
political speech. While the Court ruled that money
takes the place of political speech for donors decades
ago, the original intent came with limits on
contribution amounts and rigorous reporting
obligations. The notion of money being speech has
been perverted into allowing those with more money to
speak louder than those without the expendable income.
These rules would be the same as suspending Roberts
Rules of Order and allowing the person who can yell
the loudest to control the meeting.
Asking the California electorate of their opinion on
whether or not an amendment to the United States
Constitution is required to reverse the Supreme Court
decisions that equate money with free speech and grant
constitutional rights and protections to incorporated
entities, allows for the dialogue for progress to
occur. Amending the United States Constitution is a
long and arduous task. Taking this initial step will
signal to the rest of the country that the debate is
ready for legislative halls and not just cable news
talk shows.
6)Related Legislation : AJR 1 (Gatto), which is pending in the
Senate Judiciary Committee, 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 further
declares that money does not constitute speech and may be
legislatively limited.
SB 1402 (De León), which is pending in the Assembly Rules
Committee, places an advisory question on the November 4, 2014
statewide general election ballot asking voters whether
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Congress should reform the nation's immigration laws.
HR 37 (Wieckowski), which is also being heard in this committee
today, states the Assembly's disagreement with the United
States Supreme Court's decision in McCutcheon v. Federal
Election Commission (2014) No. 12-536, in which the Supreme
Court struck down a federal law restricting the aggregate
amount that a donor may contribute in total to all federal
candidates and committees in an election cycle.
7)Previous Legislation : AB 644 (Wieckowski) of 2013, would have
required a statewide advisory vote on the November 4, 2014
general election ballot on amending the United States
Constitution to address campaign financing issues. AB 644 was
set for hearing twice in this committee, but was pulled from
the agenda both times at the request of the author.
AB 78 (Mendoza) of 2011, would have placed a question before
voters at the June 5, 2012, statewide primary election asking
whether the President and the Congress should create a pathway
to citizenship for certain undocumented immigrants. AB 78 was
gutted-and-amended and used for another purpose, and was never
heard in committee.
AB 2826 (Mendoza) of 2008, was similar to AB 78 of 2011,
except that the advisory question would have been considered
by voters at the November 4, 2008, statewide general election.
AB 2826 was never heard in committee.
SB 924 (Perata) of 2007, would have placed a question before
the voters at the February 5, 2008, statewide presidential
primary election asking whether the President should end the
United States occupation of Iraq. SB 924 was vetoed by
Governor Schwarzenegger, who argued that "[p]lacing a
non-binding resolution on Iraq on the?ballot, when it carries
no weight or authority, would only?divide voters and shift
attention from other critical issues that must be addressed."
AB 3 (Statham) of 1993, would have placed a question before
the voters at the November 8, 1994, statewide general election
asking whether the Legislature should send a plan to Congress
requesting the division of the state of California into three
states. AB 3 was approved by the Assembly, but was never
heard in a committee in the Senate.
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8)Bill Calling an Election : Because this bill calls an election
within the meaning of Article IV of the Constitution, it would
go into immediate effect if signed by the Governor.
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REGISTERED SUPPORT / OPPOSITION :
Support
Money Out, Voters In (sponsor)
American Sustainable Business Council
Beach Cities Democratic Club
California Clean Money Campaign
California Common Cause
California School Employees Association, AFL-CIO
CALPIRG
Democracy for America
Free Speech for People
LAX-Area Democratic Club
Miracle Mile Democratic Club
Rebuild the Dream
Robert F. Kennedy Democratic Club
Sierra County Democratic Central Committee
West LA Democratic Club
Opposition
Department of Finance
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094