BILL ANALYSIS Ó
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: SB 254 Hearing Date: 5/18/16
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|Author: |Allen |
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|Version: |5/9/16 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Darren Chesin |
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Subject: Campaign finance: voter instruction
DIGEST
Places a measure on the Statewide General Election ballot
regarding amending the United States Constitution to overturn
the United States Supreme Court's Citizens United decision.
ANALYSIS
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.
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.
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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.
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
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 same constitutional
rights as 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, nor have we decreed that corporations have
rights separate from "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
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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 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
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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
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
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congressional action.
1)Requires the Secretary of State (SOS) to communicate the
results of the vote on the measure to Congress.
2)Waives various deadlines and other provisions of the Elections
Code so that this measure may appear on the ballot at the
November 8, 2016, General 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, General 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.
3)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 General Election, pending resolution of an
unsuccessful legal challenge to the validity of this bill.
4)Calls an election within the meaning of Article IV of the
Constitution, thereby allowing this bill to take effect
immediately upon enactment.
BACKGROUND
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
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using their general treasury funds to make independent
expenditures in federal elections, finding that the law
unconstitutionally abridged the freedom of speech.
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.
SB 1272 (Lieu, Chapter 175, Statutes of 2014), placed 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 General Election.
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
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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 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.
COMMENTS
1)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
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
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clear that corporations should not have the same
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.
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.
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2)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.
RELATED/PRIOR LEGISLATION
AJR 22 (Wieckowski & Allen, Resolution Chapter 69, Statutes of
2012), called upon the United States Congress to propose and
send to the states for ratification a constitutional amendment
that would overturn Citizens United.
AJR 1 (Gatto, Resolution Chapter 77, Statutes of 2014), called
upon 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.
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 General Election. See
"Background" section, above, for a description of the eventual
status of that measure.
PRIOR ACTION
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|Assembly Floor: |51 - 26 |
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|Assembly Appropriations Committee: |14 - 6 |
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|Assembly Elections and Redistricting | 5 - 2 |
|Committee: | |
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POSITIONS
Sponsor: California Common Cause
MOVI, Money Out Voters In
Support: American Family Voices
American Sustainable Business Council
California Clean Money Campaign
California Teachers Association
CALPIRG
Consumer Watchdog
Courage Campaign
Democracy for America
Franciscan Action Network
Free Speech for People
Friends of the Earth U.S.
Move to Amend Coalition
Public Citizen
Topanga Peace Alliance
Oppose: California Taxpayers Association
Howard Jarvis Taxpayers Association
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