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Overturn Citizens United Initiative

Elitist “Ballot Clutter” Objection to Overturn Citizens United Initiative Rings Hollow—Ernest Canning

UPDATE: In a June 8 letter to the California State Senate Gov. Brown announced that he would allow SB 254 to become law without his signature. Thus, it appears the California electorate will have the opportunity to vote on this issue during the November general election.

Following a 6-1 California Supreme Court ruling establishing that it had a right to place advisory measures on the ballot, the California Legislature passed SB 254, the “Overturn Citizens United Act” by wide margins (26-12 in the Senate and 51-26 in the Assembly).

The measure seeks to have the California electorate weigh in on a straightforward question:

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 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 corporations should not have the same constitutional rights as human beings?

The idea of placing this issue before the California electorate did not sit well with the state's largest newspaper, the Los Angeles Times. In a lead editorial, the corporate-owned paper urged California's Democratic Governor Jerry Brown to veto the measure. It argued that the title was misleading because the measure, of itself, would not actually overturn the Citizens United decision. The Times then repeated the remarks made by Gov. Brown when, in 2014, he allowed a similar measure to proceed sans his signature: “We should not make it a habit to clutter our ballots with non-binding measures, as citizens rightfully assume that their votes are meant to have legal effect.”

Both arguments are elitist. They suggest that ordinary citizens lack the ability to understand that no one state has the power to amend the U.S. Constitution. The "ballot clutter" argument suggests that voters lack the ability to distinguish this monumentally important ballot proposition from the numerous corporate-funded special interest ballot measures that frequently appear during general elections in California.

Brown’s and the Times observations are at odds with the language and history of the California Constitution.

Applying the precept set forth by James Madison in the Federalist No. 49 (“the people are the only legitimate foundation of power”), several delegates to California’s 1849 constitutional convention succeeded in replacing language that recognized the right of the people to “make their opinions known” to their elected representatives with a “right to instruct” their representatives on any given issue.

The “right to instruct” language was adopted over the objection of an elitist delegate who insisted that a legislator “should have the discretionary power to judge of what will best meet the interests of his constituents -- the great mass of whom may be ignorant of the reasons for or against the measure.” But, as countered by another delegate to the 1849 convention, California's representative democracy is not a system of periodically elected philosopher kings. The people’s “right to instruct,” the delegate argued, ensures that a legislator “represents the will of those who elect him.” That “right to instruct” language has been retained throughout California's history.

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As revealed by the California Supreme Court in Howard Jarvis Taxpayers Assn. v. Padilla (2016), Brown’s assumptions were also at odds with historical precedent -- especially as it relates to the right of the electorate to issue non-binding instructions to California’s Congressional delegation to press for an amendment to the U.S. Constitution.

For example, in 1891 -- 17 years after it first passed legislation urging California’s Congressional delegation to support a U.S. Constitutional Amendment that would provide for the direct election of U.S. Senators -- the Legislature voted to place an advisory measure on the 1892 ballot. The advisory measure called for the electorate to express their opinion on whether they supported or opposed “the election of United States Senators by the direct vote of the people.” It also mandated that the results be submitted to the President, Congress and every state in the Union.

The result was clear and unambiguous -- 93% of the electorate favored what, after passage of similar ballot measures in Nevada and Illinois, ultimately became the 17th Amendment to the U.S. Constitution.

What the California Legislature understood then, and appears to understand now, is that a vote on such a ballot measure, while not binding, can be compelling. If, as is likely, the "Overturn Citizens United Act" were to be passed by an overwhelming super-majority (80% or more according to a recent Bloomberg poll), it would amount to a clear and unambiguous “instruction” to the California Congressional delegation—support a U.S. Constitutional Amendment or face removal from office during the next election cycle. This would send an especially powerful message to the rest of the nation given that California is its most populous state -- more populous than Canada.

The “ballot clutter” argument rings especially hollow given the substantive content of this proposed advisory measure.

There hasn’t been a decision of equal infamy to Citizens United since 1857 when the Court decided Dredd Scott v Sanford. In Scott, the Court ruled that African-American slaves and their descendants could never be considered "citizens." They were but chattel. The Southern slave master thus had a right to demand the return of his "property" should his property make the very human decision to escape.

Where human beings were denied the rights of citizens in ScottCitizens United extended to artificial, intergenerational constructs (corporations, both foreign and domestic) rights that the framers of the U.S. Constitution had intended only to apply to the living, breathing human beings.

In structure, corporations are top-down totalitarian constructs. Yet, just six of these totalitarian entities -- media corporations -- now control 90% of what Americans see, hear and read. By equating money with speech and expanding the right of “free speech” to corporations, the Court has extended to the billionaires at the pinnacle of those totalitarian constructs a power that is denied to ordinary citizens, whose voices can be drowned out by a relentless stream of corporate propaganda (aka political ads).

Corporate “free speech” destroys the core purpose of a “free press”—ensuring the public’s right to know. The mere presence of the "Overturn Citizens United Act" on the ballot can serve to overcome that. It affords ordinary citizens the opportunity to be heard, loud and clear!


Ernest Canning