BILL ANALYSIS �
AJR 22
Page 1
ASSEMBLY THIRD READING
AJR 22 (Wieckowski and Allen)
As Amended March 14, 2012
Majority vote
JUDICIARY 6-2
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|Ayes:|Feuer, Atkins, Dickinson, | | |
| |Huber, Monning, | | |
| |Wieckowski | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Jones | | |
| | | | |
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SUMMARY : Memorializes the Legislature's disagreement with the
decision of the United States Supreme Court in Citizens United
v. Federal Election Commission and calls upon the United States
Congress to propose and send to the states for ratification a
constitutional amendment that would overturn Citizens United.
EXISTING LAW :
1)Holds that limitations on political campaign financing
implicate the free speech rights protected by the First
Amendment; therefore, any government attempt to regulate the
financing of political campaigns must serve a compelling
government interest and be narrowly tailored to serve that
interest. (See e.g., McConnell v. FEC (2003) 540 U.S. 93,
136; Davis v. FEC (2008) 128 S. Ct. 2759, 2772 n.7.)
2)Recognizes, as to restrictions on campaign financing, only one
interest sufficiently compelling to outweigh the First
Amendment right of free speech: preventing corruption or the
appearance of corruption. (Citizens United v. FEC 2010 U.S.
LEXIS 766; SpeechNow.org v. FEC (2010) 599 F. 3d. 686.)
3)Holds that both "contributions" to a candidate and
"expenditures" on behalf of a candidate are forms of speech
protected by the First Amendment; however, holds that
government only has a "compelling interest" in regulating
contributions, as opposed to expenditures, because only
contributions can reasonably give rise to corruption or the
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appearance of corruption. (Citizens United v. FEC 2010 U.S.
LEXIS 766; Buckley v. Valeo (1976) 424 U.S. 1, 19-27, 48-49.)
4)Provides that neither Congress nor the states shall enact any
law respecting the establishment of religion, or prohibiting
the free exercise thereof; or 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. (Amendment I of the United States Constitution;
applied to the states by Amendment XIV of the United States
Constitution.)
FISCAL EFFECT : None
COMMENTS : In Citizens United v. Federal Elections Commission
(2010), the U.S. Supreme Court considered a provision of the
federal Bipartisan Campaign Reform Act (BCRA) of 2002, also
known as "McCain-Feingold" for its joint Senate authors. The
provision in question prohibited corporations and unions from
using general treasury funds to make "independent expenditures"
for "electioneering communications" within 60 days of a general
election or within 30 days of a primary election. At issue in
Citizens United was a controversial documentary entitled,
Hillary, which was highly critical of then-Senator Hillary
Rodham Clinton, a candidate in the 2008 Democratic presidential
primary. Citizens United, a non-profit corporation, wanted to
make the documentary available by "video-on-demand" within the
30 days of the primary election. Concerned that the broadcast
might be prohibited by BCRA, Citizens United sought declaratory
and injunctive relief that the BCRA did not apply to the
documentary and, indeed, would be unconstitutional if applied to
the showing of Hillary. A district court denied the request.
Citizens United appealed to the United States Supreme Court.
Citizens United originally only asked the Court to find that
BCRA did not apply to the Hillary broadcast, and would therefore
be unconstitutional as applied in its case. For example,
Citizens United argued that, as a matter of statutory
interpretation, the film was not an "electioneering
communication" as defined in BCRA. Most notably, Citizens
United argued that the film was only available to viewers who
subscribed to "video-on-demand" and had purposefully elected to
watch it; therefore, Citizens United contended, it was not
"publicly broadcast" within the meaning of the BCRA.
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Additionally, Citizens United pointed to other facts that
allegedly made BCRA inapplicable: for example, Citizens United
argued that BCRA did not apply to nonprofit corporations and
that the content of the film, while critical, fell short of the
kind of "express advocacy" that the law targeted.
Despite these much narrower grounds upon which the Supreme Court
could have decided the case in favor of Citizens United, the
Court instead asked the parties to submit supplemental briefs on
the constitutionality of the BCRA provisions in question, and
whether the Court should overturn parts of earlier opinions
(discussed below) that had upheld the right of Congress and the
states to impose limits on corporate campaign expenditures.
After reframing the question in this way, the Court then
proceeded not only to strike down the provisions of the BCRA,
but to overturn long-standing precedents upholding the
constitutionality of federal and state efforts to regulate
campaign financing. In overturning its prior Austin v. Michigan
Chamber of Commerce (1990) 494 U.S. 652, 110 S.Ct. 1391, 108
L.Ed.2d 652 and McConnell decisions, the Supreme Court in
Citizens United rejected its earlier idea that "distortion"
constitutes a compelling governmental interest and held that
corporations and unions are now free to spend unlimited amounts
on "independent expenditures" -- even for advertisements that
expressly mention the candidate by name. Although most
immediately the decision only struck down a provision of federal
law, by implication, Citizens United arguably renders
unenforceable laws in 24 states (California is not one of them)
that impose limits on independent expenditures similar to the
BCRA provision that the Court struck down.
Since the Citizens United ruling was issued, at least two other
courts have weighed in on the issue, one seeming to extend the
reach of the ruling and the other seeming to limit it. As noted
above, Citizens United had concluded, among other things, that
"expenditures," unlike "contributions," did not give rise to
corruption or the appearance of corruption. While this appeared
to all but eliminate legislated restraints on expenditures, it
appeared to at least preserve limits on contributions. In
SpeechNow.org v. FEC (2010), however, a federal Circuit Court of
Appeal addressed the question of whether federal law could
prohibit contributions to "expenditure only" political action
committees, commonly known as "Super PACS." In SpeechNow.org,
however, the Circuit Court, citing Citizens United, reasoned
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that if independent expenditures did not give rise to corruption
or the appearance of corruption, then contributions to a
political action committee that only made independent
expenditures could not give rise to corruption or the appearance
of corruption. This decision has been followed by an increasing
number of political action committees registering as
"expenditure only," thereby eliminating any restriction on the
size of individual contributions.
If SpeechNow.org expanded the reach of Citizens United to lift
restraints on the size of contributions to "super PACs," a
decision by the Montana Supreme Court recently attempted to
limit its reach. In Western Tradition Partnership v. Attorney
General of Montana, issued on December 30, 2011, the Montana
Supreme Court upheld the state's 1912 Corrupt Practices Act,
which prohibited most forms of corporate campaign spending in
the state. The Act prohibits not only contributions to
candidates, but any corporate spending for the purpose of
promoting or attacking a candidate. In short, it prohibits both
contributions and expenditures. Banning the latter appears to
fly in the face of Citizens United, not only because it singles
out corporations, but also because it applies to expenditures as
well as contributions. Notwithstanding this seeming conflict,
the Montana Supreme Court disclaimed that it was necessarily
overturning Citizens United. Instead, it argued that Citizens
United had merely held that a specific provision of
McCain-Feingold did not rise to the level of a "compelling
interest." The Montana Court reasoned, therefore, that a state
could still limit campaign spending if it could cite a
compelling interest. To this end, the Montana Court cited
Montana's long and allegedly pervasive history of corporate
corruption and concluded that this history, along with other
factors unique to Montana, provided a compelling interest. The
long-term impact of the Montana ruling is uncertain. The U.S.
Supreme Court is currently considering an appeal, and the
opinion has been stayed in the meantime.
At the time of this writing, at least 13 resolutions seeking to
overturn Citizens United had been introduced in either the U.S.
House of Representatives or the U.S. Senate. Although all seek
to overturn Citizens United, they do so in different ways. Some
of the resolutions simply call for overturning Citizens United
without stating which of the Court's several holdings would be
overturned. (See e.g., H.J. Res. 86, introduced by Rep. Sutton;
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S.J. Res. 29, introduced by Senators Harkin et.al.) Some of the
resolutions introduced thus far proclaim, in one way or another,
that corporations are not "natural persons" and thereby not
protected by any of the rights protected by the United States
Constitution. (See e.g., H.J. Res. 90, introduced by Rep.
Deutch; S.J. Res. 33, introduced by Senator Sanders; and H.J. 88
by Rep. McGovern.) Still others would overturn Citizens United
more narrowly by merely affirming Congress' power to regulate
campaign contributions and expenditures. (See e.g., H.J. Res.
72, introduced by Rep. Schrader; H.J. Res. 8, introduced by Rep.
Kaptur.) State and local resolutions calling upon Congress to
propose and submit a constitutional amendment similarly vary in
terms of which aspects of Citizens United should be overturned.
While all of the resolutions proposed thus far have called for
overturning Citizens United, the question of which of its many
holdings should be overturned is a highly significant one. For
example, AJR 22 declares that the First Amendment was designed
to "protect the speech of free people, not corporations," and
much of the popular reaction to the decision has expressed
concern over the underlying premises that corporations are
"persons" and that spending money is "speech." Thus far
however, as noted above, the courts have held that corporate
bodies are indeed protected by the First Amendment, and by many
other Constitutional provisions as well.
Citizens United therefore did not depart from precedent when it
held that corporate campaign spending is speech protected by the
First Amendment. Where the case did depart from precedent was
in its finding that limiting independent expenditures was never
a sufficiently compelling justification for restricting speech
because, unlike direct contributions to candidates, it did not
create the danger or appearance of quid pro quo corruption.
Thus, general resolutions to "overturn" Citizens United could
mean many things. Most narrowly, they could mean restoring the
McConnell ruling thereby reaffirming Congress' power to regulate
campaign expenditures in the manner of McCain-Feingold.
Somewhat more broadly, they could mean restoring Austin and
recognizing that prevention of "distortion" as a sufficiently
"compelling" justification for government restrictions on
corporate campaign contributions and expenditures. More broadly
still, they could expressly advocate declaring that corporations
are not "natural persons" and therefore not protected by the
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First Amendment.
According to the authors, the "U.S. Supreme Court's ruling in
Citizens United v. Federal Election Commission ignored precedent
and opened the door for unlimited corporate donations advocating
for and against candidates. AJR 22 would put California's
legislature on record in opposition to this ruling and would
call upon the U.S. Congress to propose and send to the states
for ratification a constitutional amendment to overturn Citizens
United and restore constitutional rights and fair elections to
the people." The authors contend that AJR 22 is part of a
"national grassroots movement" that believes that
"�c]orporations are not people and money is not speech." The
authors also contend that people's trust of government is at an
all-time low, and that decisions like Citizens United only
"further erode the public's faith that the people's interest
will come before those of wealthy special interests." Quoting
Justice Stevens' dissent in Citizens United, the authors contend
"legislators have a compelling constitutional basis, if not also
a democratic duty, to take measures designed to guard against
the potentially deleterious effects of corporate spending in
local and national elections." The authors believe that AJR 22
will "send a message that we want Congress to perform that
democratic duty."
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0003165