Prop 59 - Constitutional Amendment Advisory Measure

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BACKGROUND: For background information on this measure, refer to the Legislative Analyst’s Office analysis included in the Official Voter Information Guide and the LWVCEF information on Voter’s Edge California.

League Analysis: 

History of League Action:

In 2009, the League of Women Voters of the United States filed an Amicus Curiae brief in the Citizens United v. Federal Elections Commission case, arguing that the Constitution protects the rights of individual citizens to participate effectively in the political process and allows regulation of corporate influence in elections, and that the Constitution’s text and history allow federal and state governments to impose greater restrictions upon corporations than upon individual citizens.

The League reacted swiftly and strongly against the Supreme Court’s Citizens United decision in 2010.

  • The LWVUS President testified before Congress, focusing on the importance of including tighter disclosure requirements.
  • The League urged passage of the DISCLOSE Act to counter the court’s decision.
  • In early 2012, the LWVUS board appointed a Campaign Finance Taskforce to examine legislative and constitutional efforts to achieve campaign finance reform.
  • The 2012 LWVUS Convention reaffirmed our commitment to campaign finance reform by passing a resolution that called for advocating strongly for campaign finance measures including but not limited to constitutional amendments.
  • The League expressed concern about the huge amounts of campaign spending that came from so-called independent groups, much of it from contributions that were not disclosed.
  • The League argued much “independent” spending was in fact coordinated with candidate campaigns and was therefore illegal.
  • The League pushed for enhanced disclosure of secret “dark money.”

Discussion:

This advisory measure poses important questions. Major parts of it are supported by our positions, and our positions would support overturning Citizens United. The amendments called for by the measure “to allow the full regulation or limitation of campaign contributions and spending, [and] to ensure that all citizens, regardless of wealth, may express their views to one another,” are supported by our positions. The proposed amendments would “make our political system more democratic” (a goal of the League position) by stemming the influence of excessively large contributions in the electoral process.

However, the League in the past has been concerned about the time and feasibility of constitutional amendments. Currently one party, which might likely oppose these proposed amendments, controls both state legislatures in 30 states, and also both houses of Congress. To pass, a constitutional amendment must be proposed by two-thirds votes in each house of Congress, or by a constitutional convention requested by two-thirds of the states, and in either case must be ratified by three-fourths of the states (38 states in total).

In addition, there is potential that an evolving Supreme Court may favor the more narrow arguments put forth in the League’s brief allowing regulation of corporate influence in elections and that the Constitution’s text and history allow federal and state governments to impose greater restrictions upon corporations than upon individual citizens.

Additional legislative measures in response to the public’s displeasure with money in politics may be far easier to achieve than a constitutional amendment.

The proposed amendments would enhance political equality for all citizens; ensure maximum participation by citizens in the political process; protect representative democracy from being distorted by big spending in election campaigns; and combat corruption and undue influence in government. The amendments would also include severely restricted spending by for-profit organizations spending from their corporate treasury funds.

However, the final part of the measure would have amendments “make clear that corporations should not have the same constitutional rights as human beings.”

The amendments as described could deprive corporations, including nonprofit corporations, of First Amendment rights. This would apply to the newspapers, as well as the League of Women Voters of the U.S. and the League of Women Voters of California and other nonprofits. The amendments could also permit the police to enter corporate offices (both for-profit and nonprofit) without a warrant, as they would no longer have Fourth Amendment protections against unreasonable search and seizure. In addition, this legal approach could make it impossible to charge corporations with felonies.

Some organizations, such as Move to Amend and PeopleInMoneyOut, have been campaigning to remove legal corporate “personhood”—and thus the protections of the Bill of Rights, including the First Amendment—from corporations. The LWVUS has expressly asked state and local Leagues not to cooperate or engage with these efforts.

When far more narrow legal grounds are likely to be successful in overturning Citizens United, we believe it would be unwise to support this measure. The portions about corporate personhood could amount to a very serious “poison pill".