California Supreme Court Orders Proposition 49 Removed From Ballot

Background: Citizens United v. Federal Election Commission

In 2010, the United States Supreme Court in Citizens United v. Federal Election Commission (2010) 558 U.S. 310 held that spending laws seeking to limit contributions for political causes by corporations, associations, or labor unions violates the free speech rights of those entities under the First Amendment. In short, Citizens United allows for unlimited political spending advocating for a specific political cause so long as it is not at the request or cooperation with a particular candidate, committee or party.

California Senate Bill 1272: Campaign Finance: Advisory Election

This year, Senator Ted Lieu (D-Torrance) authored legislation calling for California’s Secretary of State to submit an advisory question to California voters via a statewide initiative in the upcoming November 4 election. The resulting proposition was Proposition 49, which sought to poll the electorate as to whether Congress should amend the United States Constitution in light of the Citizens United decision.

Governor Brown recently allowed Senate Bill 1272 to go into effect without his signature, noting that the measure would have no legal effect whatsoever and that he was not inclined to repeat the practice of allowing for advisory measures.

(It should also be pointed out that prior to Senate Bill 1272 being enacted, California already called upon Congress to propose an amendment to overturn Citizens United when the Legislature approved Assembly Joint Resolution 22 (Wieckowski & Allen) (Resolution Chapter 69, Statutes of 2012), which called upon the United States Congress to propose and send to the states for ratification a constitutional amendment that would overturn Citizens United.)

California Supreme Court: Howard Jarvis Taxpayers Association v. Bowen (S220289)

In response to the enactment of Senate Bill 1272, the Howard Jarvis Taxpayers Association filed a lawsuit arguing Proposition 49 invalid on the grounds that voters do not have constitutional authority to weigh in on measures that do not alter state law. Late Monday afternoon, the California Supreme Court blocked Proposition 49, ordering Secretary of State Bowen to remove the proposition from November's ballot until the legal case is resolved. The legality of bringing an advisory measure to the voters will be decided pending comprehensive review by the Court and a decision is unlikely before November. In light of the impending print deadlines, this ruling has effectively ordered the initiative’s definitive removal from this year’s ballot.

In a detailed order, Justice Liu stated that since the validity of the proposition is uncertain and substantial harm could occur if an invalid measure is placed on the ballot, the ballot measure should not go forward. In the order, Justice Liu also noted, "Posing advisory questions to the electorate is at odds with the people's constitutional choice of how to structure an accountable lawmaking process."

Chief Justice Cantil-Sakauye dissented from the order, arguing that there was not a clear showing that the Legislature lacked the authority to place an advisory measure on the ballot and that there would be greater harm in removing the ballot measure than allowing it to go forward.

Posted by:

Aaron R. Maguire

Legislative Counsel & Representative

Aaron R. Maguire Legislative Counsel & Representative