BILL ANALYSIS Ó
SB 254
Page 1
Date of Hearing: April 27, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
SB
254 (Allen and Leno) - As Amended April 14, 2016
SENATE VOTE: (not relevant)
SUBJECT: Campaign finance: voter instruction.
SUMMARY: Places an advisory measure on the November 8, 2016,
statewide general election ballot on amending the United States
Constitution to address campaign finance issues. Specifically,
this bill:
1)Calls a special election for November 8, 2016, to be
consolidated with the statewide general election held on that
date, and requires the following question to be placed on the
ballot at that election:
Shall California's elected officials use all of their
constitutional authority, including, but not limited
to, proposing and ratifying one or more 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
SB 254
Page 2
contributions and spending, to ensure that all
citizens, regardless of wealth, may express their
views to one another, and to make clear that
corporations should not have the constitutional rights
of human beings?
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
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
SB 254
Page 3
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
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. City of Berkeley (1981) 454 U.S. 290, the
United States Supreme Court rejected limits on
SB 254
Page 4
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) Article I of the California Constitution guarantees the
right of the people to instruct their representatives,
petition government for redress of grievances, and assembly
freely to consult for the common good.
dd) 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.
ee) California's United States Senators and Representatives
would benefit from having instructions from California
voters about the United States Supreme Court's ruling in
Citizens United and other judicial precedents in taking
congressional action.
SB 254
Page 5
3)Requires the Secretary of State (SOS) to communicate the
results of the vote on the measure to Congress.
4)Waives various deadlines and other provisions of the Elections
Code so that this measure may appear on the ballot at the
November 8, 2016, election, in the event that this bill is
chaptered after the statutory deadline for a legislative
measure to appear on the ballot at that election. Provides
that if this bill is chaptered after the statutory deadline
for a legislative measure to appear on the ballot at the
November 8, 2016, election, it and any other legislative
measure placed on the ballot after the statutory deadline
shall be placed on the ballot following all other ballot
measures, in the order in which they qualified as determined
by chapter number.
5)Requires the SOS to submit this measure to the voters at the
next occurring election if the SOS is prohibited by a court
order from placing this measure on the ballot at the November
8, 2016, pending resolution of an unsuccessful legal challenge
to the validity of this bill.
6)Calls an election within the meaning of Article IV of the
Constitution, thereby allowing this bill to take effect
immediately upon enactment.
EXISTING LAW:
1)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.
SB 254
Page 6
2)Requires every constitutional amendment, bond measure, or
other legislative measure submitted to the people by the
Legislature to appear on the ballot of the first statewide
election occurring at least 131 days after the adoption of the
proposal by the Legislature.
3)Provides, pursuant to the state constitution, that statutes
calling elections shall go into effect immediately upon their
enactment.
4)Requires Congress, pursuant to Article V of the United States
Constitution, to call a convention for proposing amendments to
the United States Constitution on application of the
legislatures of two-thirds of the states. Provides, pursuant
to Article V of the United States Constitution, that a
constitutional amendment that has been proposed by Congress or
by a national convention shall become law when ratified by the
legislatures of, or by conventions in, three-fourths of the
states.
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of the Bill: According to the author:
SB 254 would place a measure on the November 2016
ballot asking voters whether California's elected
officials should use all of their constitutional
SB 254
Page 7
authority, including, but not limited to, proposing
and ratifying one or more amendments to the United
States Constitution, to overturn Citizens United v.
Federal Election Commission 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 corporations should not have the constitutional
rights as human beings.
In 2014, the Legislature approved SB 1272 (Lieu),
which placed an advisory measure on the November 2014
statewide ballot asking California voters whether
Congress should propose an amendment to the
Constitution to overturn the Citizens United v.
Federal Election Commission decision. The Court's
ruling rolled back the previous ban on corporate
spending in federal elections, opening the door to
unlimited corporate funds being spent on influencing
elections, candidate selection, policy decisions and
public debate.
According to California Common Cause, since the
Citizens United ruling was handed down, spending by
Super PACs - funded by organizations whose
contribution limits were lifted - has reached $1
billion. More than $600 million of that total has
come from just 195 donors and their spouses.
SB 254
Page 8
In response to an August 2014 challenge by the Howard
Jarvis Taxpayers Association, the California Supreme
Court ordered that the measure (Proposition 49) be
removed from the ballot while they considered whether
the legislature has the authority to place advisory
questions on the ballot. On January 4, 2016, the
Court issued its decision concluding that the
legislature could pose this particular advisory
question to the voters because it was related to
potential federal constitutional amendments. The
Court also said that since the previous bill, SB 1272,
required the measure to go on the November 2014
ballot, and since that election has now passed, the
legislature would have to pass another bill to place
it on a future ballot.
On January 19, 2016, the legislature filed a petition
with the Supreme Court requesting that they modify
their opinion and direct the [SOS] to place SB 1272's
advisory question on the November 2016 General
Election ballot without the need for the legislature
to take further action. On February 24, 2016, the
court rejected the petition. SB 254 takes the next
step to place a virtually identical measure on the
November 2016 ballot.
SB 254
Page 9
2)Past Advisory Questions, Previous Legislation, and Litigation:
While existing state law explicitly authorizes cities,
counties, school districts, community college districts,
county boards of education, and special districts to place
advisory questions on the ballot, there is no explicit
authorization, nor is there a statutory prohibition, for
statewide advisory questions. Although statewide advisory
questions are uncommon, at least eight advisory questions have
appeared on the statewide ballot in California's history.
Seven of those questions were placed on the ballot by the
Legislature (most recently in 1933). The eighth advisory
question, which dealt with nuclear disarmament, was placed on
the ballot by the initiative process and appeared on the
statewide ballot in November 1982 as Proposition 12.
Subsequent to the voters' consideration 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." The Court's
decision in American Federation of Labor did not, however,
rule on whether it is permissible for the Legislature to place
an advisory question before the voters.
As noted in the author's statement above, SB 1272 (Lieu),
Chapter 175, Statutes of 2014, proposed to place a question on
the ballot at the November 2014 general election that was
similar to the question that this bill seeks to place on the
ballot at the November 2016 election.
SB 1272 become law without the Governor's signature; in a
message announcing that he was allowing the measure to become
SB 254
Page 10
law without his signature, Governor Brown stated that "we
should not make it a habit to clutter our ballots with
nonbinding measures as citizens rightfully assume that their
votes are meant to have legal effect" and indicated that while
he was willing to allow the specific advisory question in SB
1272 to be placed on the ballot, he was "not inclined to
repeat this practice of seeking advisory opinions from
voters." As a result, the advisory question was scheduled to
appear on the ballot in November 2014, and was designated as
Proposition 49.
In August 2014, however, the California Supreme Court ordered
that Proposition 49 be removed from the ballot while it
considered the question of whether the California Legislature
had the authority to place advisory questions on the ballot.
Earlier this year, the Supreme Court ruled in Howard Jarvis
Taxpayers Association v. Padilla (2016) 62 Cal. 4th 486, that
the Legislature had the authority to place Proposition 49 on
the ballot. The majority opinion found that Proposition 49
was "a reasonable and lawful means of assisting the
Legislature in the discharge" of its powers under Article V of
the United States Constitution in connection with federal
constitutional amendments.
The Court's holding in Howard Jarvis Taxpayers Association only
addressed advisory measures that were related to potential
federal constitutional amendments. The majority opinion noted
that because Proposition 49 relates to the exercise of power
in connection with Article V, it was "reserv[ing] for another
day" the question of whether the Legislature has the authority
to place advisory measures on the ballot with respect to
questions that do not relate to potential federal
constitutional amendments.
Although the Supreme Court's decision concluded that the
Legislature had the authority to place Proposition 49 on the
ballot, the decision also noted that SB 1272 expressly
SB 254
Page 11
provided for that question to be placed on the November 2014
ballot. Since that election has already occurred, the Court
decided that the Legislature would need to pass another bill
if it wanted the advisory question to be considered by the
voters at a different election.
Earlier this year, the Legislature filed a petition for
rehearing with the Supreme Court requesting that the Court
modify its opinion in Howard Jarvis Taxpayers Association to
direct the SOS to place SB 1272's advisory question on the
November 2016 general election ballot without the need for the
Legislature to take further action. On February 24, the
Supreme Court denied that petition without comment.
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 Legislature Has Taken Steps to Overturn Citizens
United: During the 2011-2012 Legislative Session, the
Legislature approved AJR 22 (Wieckowski & Allen), Resolution
Chapter 69, Statutes of 2012, which called upon the United
SB 254
Page 12
States Congress to propose and send to the states for
ratification a constitutional amendment that would overturn
Citizens United. Additionally, during the 2013-2014
Legislative Session, the Legislature approved AJR 1 (Gatto),
Resolution Chapter 77, Statutes of 2014, which applied to the
United States Congress to call a constitutional convention
pursuant to Article V of the United States Constitution 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 would
further declare that money does not constitute speech and may
be legislatively limited.
5)Legislative Deadlines for Placing a Measure on the Ballot: As
detailed above, existing law requires measures submitted to
the people by the Legislature to appear on the ballot of the
first statewide election occurring at least 131 days after the
adoption of the proposal by the Legislature. The statutory
deadline to place a measure on the ballot for the November 8,
2016 statewide election is June 30, 2016. In order to protect
against the potential that this bill is chaptered after June
30, this bill waives that statutory deadline and various other
deadlines and provisions of the Elections Code in order to
ensure that this measure appears on the ballot at the November
8, 2016, election.
6)Arguments in Support: In support of a prior version of this
bill, California Common Cause wrote:
In 2014, recognizing the disempowering effects of
Citizens United, the Legislature placed on the ballot
an advisory measure (SB 1272, Lieu) to give voters the
chance to exercise their political voice and call for
the overturn of this decision. The measure,
Proposition 49, was set to be voted on at the November
2014 election, but the vote was temporarily enjoined
after a court challenge. Although the California
SB 254
Page 13
Supreme Court ultimately held there was nothing
improper with placing the measure on the ballot, by
the time the Court reached its decision, the November
2014 election had passed; the measure was deemed moot,
and the people deprived of their opportunity to have
their voice heard?.
SB 254 gives back to voters their chance to be heard
on Citizens United. For more than a century, the
California Constitution has provided that "the people
have the right to instruct their representatives." In
1891, Californians exercised this right by voting
overwhelmingly in favor of amending the U.S.
Constitution to provide for the direct election of
U.S. Senators.
7)Arguments in Opposition: In opposition to this bill, the
California Taxpayers Association writes:
The California Constitution guarantees that the powers
of the initiative and referendum are reserved in the
people (California Constitution, Article IV, Section
1). While the Legislature can propose constitutional
amendments, the power to legislate and pass laws via
initiative or referendum is not vested with the
Legislature.
Placing an advisory measure on the ballot-an action
not even the people can take-is not a function of the
Legislature. The Legislature has the power to engage
in lawmaking. This bill does not do that. SB 254 is
merely an advisory measure with no legal impact.
The ballot should not be used as a public opinion
poll. The power of the ballot should remain in the
hands of the people.
SB 254
Page 14
8)Related Legislation: AB 1910 (Harper), places an advisory
question relative to transportation funding on the ballot at
the November 2016 statewide general election. AB 1910 failed
passage on a 5-10 vote in the Assembly Transportation
Committee on April 18, 2016, and was granted reconsideration.
9)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 chaptered.
REGISTERED SUPPORT / OPPOSITION:
Support
American Sustainable Business Council
California Clean Money Campaign
California Common Cause (prior version)
California Teachers Association
CALPIRG
Courage Campaign (prior version)
Democracy for America
SB 254
Page 15
Free Speech for People
Friends of the Earth U.S.
Move to Amend Coalition
MOVI, Money Out Voters In (prior version)
Opposition
California Taxpayers Association
Howard Jarvis Taxpayers Association
Analysis Prepared by:Ethan Jones / E. & R. / (916)
319-2094
SB 254
Page 16