One of the strangest initiatives on the Nov. 8 ballot would do absolutely nothing and it should be rejected for exactly that reason. This is Proposition 59, which calls on elected California officials to do all they can to overrule the Supreme Court’s decision in Citizens United v. Federal Election Commission, holding that corporations can spend unlimited amounts of money in election campaigns.
I share the view of supporters of Prop. 59 that Citizens United was a terribly wrong decision. Corporations always could spend money in election campaigns by creating political action committees that raised funds for this purpose. Citizens United changed the law by holding that corporations can spend money from their treasuries.
Corporate spending can have a great effect in deciding elections, especially state and local races where there is less visibility and differences in spending really can matter. Also, large expenditures by corporations on behalf of candidates always create the appearance that once elected they are beholden to those who put them in office.
My hope is that the Supreme Court will overrule Citizens United and restore the law to what it was before the decision. Citizens United was a 5-4 decision, with Justice Antonin Scalia in the majority. If the late Justice Scalia is replaced by a Democratic appointee, there likely will be a majority to overturn Citizens United and once more allow restrictions on corporate spending in elections.
But Prop. 59 would do nothing to advance this goal. It calls on California’s elected officials to “use all of their constitutional authority, including, but not limited to proposing and ratifying one or more amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission and other applicable judicial precedents to allow the full regulation or limitation of campaign contributions and spending.”
To begin with, California’s elected officials do not have the authority to overrule a Supreme Court decision. Members of Congress, of course, can propose a constitutional amendment to overrule Citizens United. But I think that would be a waste of time and not a good idea. Strong Republican opposition to such an amendment — Republicans benefit disproportionately from corporate campaign spending — ensures that this will never happen.
Moreover, I worry greatly about amending the First Amendment and its protection for freedom of speech. Newspapers and other media are owned by corporations. Would a constitutional amendment risk taking away their protections under the First Amendment?
Efforts to amend the Constitution to overturn Citizens United detract attention from the many things that could be done to lessen its impact. I would favor a law that would impose much stricter disclosure requirements on campaign spending; laws that prevent corporations that do business with the government from spending money on behalf of candidates for elected office in that government; and laws that keep corporations from spending money in campaigns without the consent of the shareholders.
But Prop. 59 would do nothing to encourage those things.
California’s initiative process serves its most important purpose in giving the people a chance to act when elected officials fail to do so. But Prop. 59 does not accomplish this. It is just a way for people to express their disagreement with a Supreme Court decision.
Opinion polls can do that just fine. If this passes, I imagine a long list of initiatives disagreeing with other Supreme Court rulings. There are many that I would suggest.
Prop. 59 is well-intentioned, but it is misguided and should be rejected
Erwin Chemerinsky is dean of the UC Irvine School of Law.
