BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: AJR 22 HEARING DATE:
5/8/12
AUTHOR: WIECKOWSKI ANALYSIS BY:
Darren Chesin
AMENDED: 3/14/12
FISCAL: NO
SUBJECT
Constitutional Amendment: Overturning Citizens United v.
Federal Election Commission
DESCRIPTION
Existing law , pursuant to Amendment I of the United States
Constitution as applied to the states by Amendment XIV of
the United States Constitution, provides that neither
Congress nor the states may 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.
Existing law , pursuant to various rulings by the United
States Supreme Court, provides for all of the following:
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, 36; Davis v. FEC (2008) 128 S. Ct. 2759, 2772
n.7.)
Regarding 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.)
Both "contributions" to a candidate and "expenditures"
on behalf of a candidate are forms of speech protected
by the First Amendment; however, government only has a
"compelling interest" in regulating contributions, as
opposed to expenditures, because only contributions can
reasonably give rise to corruption or the appearance of
corruption. (Citizens United v. FEC 2010 U.S. LEXIS
766; Buckley v. Valeo (1976) 424 U.S. 1, 19-27, 48-49.)
This resolution makes various findings and would
memorialize the Legislature's disagreement with the
decision of the United States Supreme Court in Citizens
United v. Federal Election Commission, and would call upon
the United States
Congress to propose and send to the states for ratification
a constitutional amendment to overturn Citizens United v.
Federal Election Commission and to restore constitutional
rights and fair elections to the people.
BACKGROUND
According to the Assembly Judiciary Committee : 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
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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.
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 related 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 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
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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 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
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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.
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. Still others
would overturn Citizens United more narrowly by merely
affirming Congress' power to regulate campaign
contributions and expenditures. 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
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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. More broadly, they could
expressly advocate declaring that corporations are not
"natural persons" and therefore not protected by the First
Amendment.
COMMENTS
According to the author , AJR 22 is part of a growing
national grassroots movement to urge Congress to overturn
Citizens United v. Federal Election Commission. Three
states, Hawaii, New Mexico, and Vermont, and several cities
from New York to Los Angeles have passed similar
resolutions. As the most populous state in the country,
with the largest congressional delegation, California must
take a stand in opposition to this misguided ruling.
Corporations are not people and money is not speech. At a
time when the people's trust in their government is at an
all-time low, Citizens United further erodes the public's
faith that the people's interests will come before those of
wealthy special interests. By allowing nonstop TV airtime
for corporate-backed campaign ads while the general public
must compete with a bullhorn.
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As pointed out by Justice Stevens, "In the context of
election to public office, the distinction between
corporate and human speakers is significant. Corporations
cannot vote or run for office, can be controlled and
managed by nonresidents and their financial resources and
legal structure raise legitimate concerns about their role
in the process. Our lawmakers 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." AJR 22 will send a message that we
want Congress to perform that democratic duty.
PRIOR ACTION
Assembly Judiciary Committee: 6-2
Assembly Floor: 48-22
POSITIONS
Sponsor: Public Citizen
Support: Berkeley City Council
California Church Impact
California Faculty Association
California Labor Federation
California League of Conservation Voters
California Nurses Association
California Teachers Association
California Professional Firefighters
Common Cause
Consumer Watchdog
CREDO Action
Davis City Council
International Forum on Globalization
Laborers Local 777 and 792
Thousands of individuals (petition signatories)
Oppose: None received
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