California voters could instruct their members of Congress to support a constitutional amendment that would overturn the Supreme Court's ruling in Citizens United v. FEC if the California Court restores Proposition 49 to the ballot for 2016. The court has ordered a hearing on the case for October 6, 2016 at 9 AM in San Francisco.
In 2014, the California legislature placed Prop 49 on the ballot in response to more than 55,000 petition signatures, 40,000 e-mails, and 176,000 faxes from citizens.
Prop 49 reads, in full:
"Shall the Congress of the United States propose, and the California legislature ratify, an amendment or 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 the rights protected by the United States Constitution are the rights of natural persons only?"
The Howard Jarvis Taxpayer Association didn't want the people of California to weigh in about whether unlimited campaign spending is correctly viewed as free speech, so the group went to court. In a surprise move, on August 11, 2015 the California Supreme Court temporarily removed Prop 49 from the November, 2014 ballot saying it wasn't clear if the legislature had the authority to place it on the ballot.
As I pointed out at the time, the California court's move was ignorant of a longstanding tradition in American politics where voters give very specific marching orders to their elected representatives about certain issues. It also turned out that the California Supreme Court's move was ignorant of something even more profound -- the California Constitution.
As a legal brief filed by Free Speech For People on behalf of a number of public interest organizations detailed, Article I, Section 3(a) of the California constitution clearly states "The people have the right to instruct their representatives." An exploration of the history of how that section was placed into the California constitution makes clear that the framers of our state constitution envisioned this right being exercised through the legislature placing instruction measures on the ballot, just like Prop 49.
The Money Out Voters In coalition, including the the California Clean Money Campaign, CalPIRG, Common Cause, the Courage Campaign, CREDO Action, and Democracy for America, mobilized tens of thousands of Californians to ask the legislature to pass SB 1272, the Overturn Citizens United Act, which placed Prop 49 on the ballot. More than 500 people organized by the protest group 99 Rise participated in a March for Democracy from Los Angeles to Sacramento demanding a chance for the public to vote on Prop 49.
Prop 49 is based upon local instruction measures that passed overwhelmingly in Los Angeles, San Francisco, and Richmond, California. Voters in Montana and Colorado passed similar instruction measures by margins of three-to-one in 2012. Petitions to qualify anti-Citizens United instruction measures are currently in circulation in Arkansas and Washington for the 2016 ballot.
California Judge Goodwin Liu went out of his way to issue a separate, condescending opinion stating that the legislature could simply have commissioned a poll if it wanted to know how people felt about Citizens United. In response, the State Senator Ted Lieu, the legislative author of SB 1272 and now a member of Congress, has written to the California Supreme Court noting that "Members of the legislature, having been elected and having dealt with numerous polls, are in a unique position to understand the limitations of polls. ... Because we all understand that polls are not the same as a measure voted on at the ballot box and do not serve the same function, a poll is simply insufficient to convey what the Legislature wants to convey in this case."
One of the judges who ruled against Prop 49 has since retired and there are two new judges who have joined the bench. Nonetheless, for voters to have a chance to exercise the rights in the California Constitution, at least one of the judges who acted to temporarily remove Prop 49 would need to acknowledge that they were wrong in their initial conclusion that it was likely beyond the authority of the legislature to place Prop 49 on the ballot. It's hard for any human to admit they were wrong, so this case will be a real test of judicial integrity.