Op-Ed: Why shouldn’t California voters get to weigh in on Citizens United?

Got an opinion about the U.S. Supreme Court’s ruling in Citizens United vs. Federal Election Commission? Feel free to weigh in, just not on the November ballot.

The California Supreme Court has lodged a preemptive strike against one method of fighting that decision by ruling that Proposition 49 should not be placed on the 2014 general election ballot. Proposition 49 is an advisory measure that would urge Congress to propose a constitutional amendment to overturn the Citizens United decision.

What’s Citizens United? In 2010, the U.S. Supreme Court ruled in that case that corporations (and other “artificial entities”) have a 1st Amendment right to spend unlimited sums of money to support or oppose political candidates. The court found that corporations must be treated the same as living, breathing humans for purposes of making campaign expenditures that are independent of candidates and political parties; the only government interest sufficient to uphold limits on spending is corruption, defined narrowly as quid pro quo corruption; and independent expenditures cannot, as a matter of law, give rise to quid pro quo corruption.

Many people, myself included, thought Citizens United was flawed for many reasons. It has without doubt ushered in an era of big spending by outside groups seeking to influence the outcome of campaigns. Artificial entities are free to raise and spend boundless amounts of money to elect or defeat candidates.

Proposition 49 would have asked Californians whether Congress should propose, and the Legislature should ratify, a constitutional amendment overturning Citizens United. The Legislature voted to place this nonbinding, advisory opinion proposition on the ballot. The Howard Jarvis Taxpayers Assn., a powerful anti-tax group, sued to remove it, arguing that the Legislature lacks the authority to put advisory measures on the ballot.

It is entirely fair to ask whether the electoral ballot should be used for advisory measures. It can lead to crowded ballots, voter confusion (what is mere advice and what makes law?) and frustration (“I voted to overturn Citizens United, why didn’t it happen?”), and the expenditure of time and resources. The ballot isn’t for public interest polls, huffed a spokesman for the Jarvis group. He may be right.

On the other hand, there is an argument that using the ballot for symbolic purposes is, at times, desirable. The results of ballot measures give all of us — voters, politicians and lawmakers — important information about the public’s sentiment.

But regardless of how that question is ultimately decided, Proposition 49 should have stayed on the ballot until the court reaches a final answer.

A five-member majority of the California Supreme Court disagreed. The court relied on a 1984 opinion in which it had removed an advisory initiative from the ballot. Initiatives get on the ballot as a result of gathering signatures from the voters. Proposition 49 was placed on the ballot by the Legislature and, thus, isn’t an initiative. Hence the court’s 1984 case does not necessarily dictate the outcome of this case.

Using that decision, the court concluded that the harm of allowing Proposition 49 on the ballot as its merits are being decided outweighs the benefits of allowing people to vote on it. The court said the Legislature could simply direct the placement of a version of Proposition 49 on a future ballot, if such measures are held to be valid.

But as Chief Justice Tani Cantil-Sakauye wrote in the lone dissent, the majority incorrectly weighed the benefits and burdens here. The state Supreme Court has typically held that constitutional and other challenges to ballot measures should be resolved after, not before, elections. Indeed, California courts typically lean in favor of allowing ballot measures to go forward and then ruling on their validity afterward. Doing otherwise could, as the court ruled in a 1982 case, “disrupt the electoral process by preventing the exercise of the people’s franchise.”

And, really, what is the great harm caused by allowing Proposition 49 to remain on the ballot? As the chief justice pointed out, it seems unlikely that voters would be particularly befuddled by the advisory nature of Proposition 49. Nor would the short measure lead to overcrowding of the ballot. If the court later concludes that advisory measures are improper, it would be easy enough to preclude the Legislature from using Proposition 49 for any purpose. This is not complicated.

However, taking Proposition 49 off the ballot could cause some damage. Voters will not be able to weigh in, at least on the ballot, on the propriety of a constitutional amendment overturning Citizens United.

For now, if you object to Citizens United and want to call for a constitutional amendment to overturn it, use the phone, you’re not allowed to use the ballot.

Jessica A. Levinson is an associate clinical professor at Loyola Law School in Los Angeles and vice president of the Los Angeles Ethics Commission. She blogs at PoLawTics.lls.edu; Twitter: @LevinsonJessica

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