A disputed advisory measure on the merits of unlimited independent campaign spending may proceed to the ballot after all.
The California Supreme Court ruled 6-1 on Monday that Proposition 49, a nonbinding query to voters on whether Congress should seek to amend the Constitution to overturn the U.S. Supreme Court’s controversial Citizens United decision, is constitutional.
The measure, which was intended for the November 2014 ballot, is no longer eligible for consideration. But lawmakers are now free to pursue an identical inquiry in 2016 – as well as other advisory questions that could similarly inform the pursuit of a federal constitutional amendment.
“As a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers,” Justice Kathryn M. Werdegar wrote. “We see no evidence the drafters of the California Constitution intended to deprive the Legislature of a tool other state legislatures have long used to ensure they are truly speaking on behalf of their states in the federal constitutional amendment process.”
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Spurred on by Capitol protests that triggered dozens of arrests, the Legislature approved the advisory question in July 2014. Proposition 49 would have asked voters whether Congress should pursue, and the Legislature should ratify, a constitutional amendment placing restrictions on unlimited independent campaign spending by corporations and unions, which was protected as free speech by the 2010 Citizens United ruling.
The Howard Jarvis Taxpayers Association sued, arguing that the measure was an “illegitimate exercise of legislative power” and an effort by Democrats to drive up voter turnout in a low-key election. It was blocked by the court pending further consideration of its legality.
At a hearing before the state Supreme Court last October, Jarvis representatives asserted that the California Legislature’s access to the ballot is limited to specific instances: measures to amend the state constitution, amend a prior initiative or place a bond before voters.
The court rejected that argument completely, concluding that opponents had “identified no constitutional obstacle” to Proposition 49’s placement on the statewide ballot and upholding it as an “exercise of the Legislature’s implied power” to determine the best course of action regarding potential federal constitutional amendments.
“For the legislators of a state collectively to call on Congress for a federal amendment, or to call for a national convention, is one matter. For the people of a state, by the millions, to vote in favor of pursuing an amendment is another,” Werdegar wrote. “The solemnity of the matter to be considered justifies obtaining popular input through an equally solemn formal vote, rather than a mere opinion poll or other unofficial solicitation of views.”
In his dissenting opinion, Justice Ming W. Chin countered that allowing the Legislature to place advisory questions on the ballot would “greatly interfere” with the public’s reserved initiative right by potentially cluttering the ballot.
Lawmakers already have sufficient other means to investigate proposed federal amendments and ask Congress to act, he added, pointing to a 2014 resolution calling for a constitutional convention on the Citizens United decision.
“The Legislature should not be permitted to hijack the ballot to serve its own agenda,” Chin wrote.
Editor’s note: This note was updated at 12:44 p.m. to clarify that Proposition 49 is no longer eligible for consideration.