Advocacy groups argue court should restore 'advisory measure' for a new Constitutional amendment to 2016 ballot...
By Ernest A. Canning on 3/13/2015, 7:05am PT  

Last year, the California State Supreme Court improperly nixed a ballot initiative meant to encourage state Legislators to support an amendment to overturn the U.S. Supreme Court's infamous Citizens United decision, according to a court brief recently filed by several state advocacy groups.

In the summer of 2014, the California state Legislature enacted SB 1272, a ballot initiative (Prop 49), asking California voters to advise whether the state's elected representatives should pursue passage of an Amendment to the U.S. Constitution that would overturn Citizens United. The advisory measure, had it been allowed on the general election ballot last year, had sought to establish that corporations are not people and that the rights enshrined in our nation's founding documents apply only to living, breathing human beings.

The effort to permit voters to weigh-in on the subject was cut short when the CA Supreme Court promptly ordered then Secretary of State Debra Bowen to remove Prop 49 from the November ballot pending full briefing and argument with respect to a legal challenge filed by the Howard Jarvis Taxpayers Association ("HJTA") --- an anti-tax organization founded by Republican Howard Jarvis.

As described on the Court's docket sheet, the state Supremes removed Prop 49 from last year's ballot based on a 1984 CA Supreme Court decision, American Federation of Labor v. Eu ("Eu"), which established "that substantial harm can occur if an invalid measure is permitted to remain on the ballot."

In Eu, the CA Supremes struck down a ballot initiative that sought "to compel California's elected representatives, on penalty of loss of salary, to apply to Congress to convene a constitutional convention for the…purpose of proposing an amendment to the United States Constitution requiring a balanced federal budget." (Emphasis added).

But, according to the amicus curiae ("friend of the court") brief, recently filed by Free Speech for People (FSP) and other advocacy groups, the Court's earlier decision in Eu does not support last year's decision to remove the Overturn Citizens United initiative from the 2014 ballot. The brief explains that the state Legislature does, indeed, have the constitutional authority to seek advisory instructions from the Golden State's electorate via the ballot.

FSP not only defends the legality of the Prop 49 initiative, as measured against both the U.S. and California Constitutions, but presents both historical and legal arguments that, if successful, could define the very essence of our (small "r") republican form of government (aka, representative democracy) --- a form of government that is guaranteed in every state by Article 4, Section 4 of the U.S. Constitution...

The State Supremes Erred

In Eu, the California Supremes struck down a proposed initiative that had sought to compel the state's elected representatives to propose a federal "Balanced Budget" amendment. The Court ruled the initiative violated Article V of the U.S. Constitution, which "provides for applications by the 'Legislatures of two-thirds of the several States,' not by the people through the initiative; it envisions legislators free to vote their best judgment, responsible to their constituents through the electoral process, not puppet legislators coerced or compelled by loss of salary or otherwise to vote in favor of a proposal they may believe unwise."

That aspect of Eu was mandated by a 1920 U.S. Supreme Court decision, Hawke v. Smith. However, as former Chief Justice William H. Rehnquist explained in Kimble v. Swackhamer (1978), there is "no constitutional obstacle to a nonbinding advisory referendum of this sort."

Rehnquist's position was applied by Idaho's Supreme Court in Simpson v. Cenarrusa (1997) which upheld the constitutionality of an advisory initiative that "instructed" but did not "compel" candidates to the state legislature and Congress to support a term-limits amendment to the U.S. Constitution.

Unlike the "Balanced Budget" initiative in Eu, FSP observes in its new brief, the "Overturn Citizens United" initiative does not "compel" the Golden State's elected representatives to do anything. To the contrary, FSP argues, it is simply a device by which the People's representatives in the state Legislature sought to bolster "the Legislature's ability to speak for [California] citizens."

The Court, in Eu, also concluded that the Balanced Budget initiative exceeded the scope of the initiative and referendum process that had been a part of the California Constitution since 1911. The sections governing that process only authorize the use of initiatives to enact laws. The authors of the 1984 Balanced Budget initiative misunderstood "the purpose of the initiative in California," according to the Eu decision. "It is not a public opinion poll. It is a method for enacting legislation."

Last year, when the CA Supreme Court directed the Secretary of State to remove the Overturn Citizens United initiative from the 2014 ballot pending further proceedings, Associate Justice Godwin Liu added a concurring opinion. In that concurring opinion, Liu proclaimed: "No specific constitutional provision authorizes the Legislature to place this kind of question on the ballot."

But the FSP amicus brief argues that Liu was wrong. There is another section of the California Constitution that expressly authorizes the Legislature to seek advisory instructions directly from the electorate. It is a section of the Golden State constitution which the Court failed to consider or rule upon in Eu. "The right of the people 'to instruct their representatives,'" the amicus brief notes, "has been a part of the State Constitution since the beginning. Article I, Section 10 of the 1849 constitution provides: 'The people shall have the right to freely assemble together, to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances.'" (Emphasis added).

Despite the 1911 adoption of the referendum and initiative process and subsequent revisions, the "right to instruct" language remains a part of the California constitution. Relying upon identical "right to instruct" language in Idaho's Constitution, that state's Supreme Court upheld a similar advisory initiative.

FSP points to numerous instances in which, even before the 1911 adoption of the initiative and referendum process, the Golden State's Legislature sought out the will of the electorate via advisory ballot measures.

Democracy's Defining Moment

Perhaps the most striking feature of the amicus brief is found in its coverage of the 1849 debate that led to the inclusion of the "right to instruct" in the California Constitution.

The "originally proposed language...provided: 'The people have the right freely to assemble together to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.'" That section was revised after a delegate to the first California convention took umbrage to the notion of "petitioning to a superior power. The same power that enables the people to govern themselves, surely gives them a right to remedy their grievances," the delegate argued.

The words "make known their opinions" were then replaced by "instruct their representatives" --- a language change that survived the protest of an elitist delegate who believed 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 and against the measure."

The core issue --- that the People are the true sovereigns --- is as pertinent today, if not more so, then it was when Thomas Jefferson first put quill to parchment to pen to the Declaration of Independence:

Governments are instituted among Men, deriving their just powers from the consent of the governed, --- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.

The notion that the right of the People is limited to nothing more than the occasional selection of a "representative" who must be blindly trusted to follow his or her conscience is not merely elitist, but --- at a time when so much of what secretly transpires inside government is controlled by corporate wealth and power --- antithetical to the essence of democracy and to the principle expressed in the Declaration of Independence that the right to "alter" government resides in the People.

As we observed shortly after it was first decided, Citizens United represents nothing less than a radical judicial assault on the very foundations of our constitutional democracy.

When Jefferson referred to the "consent" of the governed, he surely was referring to "informed consent." As Jefferson's contemporary, James Madison, astutely observed:

Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.

Given a level of stark inequality, Citizens United's affirmation of "free speech" rights to the totalitarian constructs we call "corporations", including media corporations, both foreign and domestic, provides to America's aristocracy (billionaire CEOs) the power to flood the airwaves with deceptive propaganda at the expense of the 1st Amendment's guarantee of a "free press" and the public's right to know. Even the near unanimous voices of the world's scientific community, for example, can, for many, scarcely be heard amidst the din of 24/7 fossil fuel-funded climate change denial propaganda.

But now, the California Supreme Court has the ability to help ameliorate Citizens United's adverse impact upon the scope of public discourse. If now belatedly placed on the 2016 ballot, the Overturn Citizens United initiative would afford millions of ordinary California citizens the opportunity to have their otherwise silenced voices heard, loud and clear! It will force the state's elected "representatives" to either abide by the will of their constituents or face the consequences in ensuing elections.

The California Supreme Court has been called upon to decide whether, under our form of republican government, the People are truly sovereign.

UPDATE 9/4/15: The California Supreme Court has scheduled oral argument for Tuesday, October 6, 2015.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam Vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @cann4ing.