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California Continues Quixotic Quest to Cancel Citizens United

By Casey C. Sullivan, Esq. on October 08, 2015 | Last updated on March 21, 2019

California voters may be able to express their opposition to Citizens United when they go to the ballot box. The California Supreme Court seems poised to allow a public referendum, proposed by the state legislature, on whether the Constitution should be amended to overturn the Supreme Court's 2010 Citizens United decision, which removed limits on corporate and union political contributions.

Of course, the ballot measure, if allowed, would have no actual impact on the Court's decision or the U.S. Constitution. Instead, the real issue before the California Supreme Court is whether and to what extent, the legislature can place advisory measures on the ballot.

Using the Polling Booth to Poll Public Opinion

When the Supreme Court's opinion in Citizens United was released five years ago, it was highly controversial. Today, it is just widely hated. In the ruling, the Supreme Court held that political donations counted as speech protected by the First Amendment and prohibited the government from restricting independent political expenditures. Under the ruling, anyone from Bill Gates to Walmart to the AFL-CIO can give unlimited donations to so-called super PACs, who can spend that money to influence elections, so long as they do not directly coordinate with individual candidates.

That decision, along with subsequent rulings interpreting and applying it, faced wide public opposition. A June poll by CBS and The New York Times showed that 84 percent of Americans thought money had too much influence in political campaigns, 78 percent thought super PAC donations should be limited, and 54 percent believed that campaign contributions should not be viewed as protected speech.

The ballot proposal before the Supreme Court would essentially conduct a similar poll, but in an actual voting booth. With proposition 49, voters are asked to weigh in on whether the U.S. Congress should propose, and the California Legislature ratify, a constitutional amendment to overrule Citizens United. It's a purely advisory, symbolic vote. (The State of California, of course, does not have the power to introduce legislation in Congress or amend the U.S. Constitution.)

The Real Question Before the Court

Proposition 49 was proposed by the state legislature for the 2014 ballot but withdrawn after a conservative group sued. The Howard Jarvis Taxpayers Association alleged that the ballot measure was an attempt by the legislature to influence voter turnout. They argued that allowing such measures will lead to a clutter of symbolic but legally-meaningless ballot measures. We can see it now. Prop. 112: Are puppies cute? Prop. 314: Who is better, the Raiders or the 49ers?

The California Supreme Court began hearing arguments on the issue Monday and, according to the Los Angeles Times, seems prepared to allow Prop. 49 to move forward. Chief Justice Tani Cantil-Sakauye noted that cities and counties regularly have advisory measures on their ballots, while Justice Carol Corrigan indicated that such measures might be allowed under the legislature's plenary power. But, Justice Goodwin Liu noted that private citizens are prevented from using the state's initiative process for advisory measures.

If the court rules in favor of the legislature, Californians could soon officially way in on Citizens United -- and perhaps many similar issues in the future.

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