California is famous for sparking rebellions over public policy with actions that later become the law of the land.
One such undertaking was the decade-long battle whose origins are traceable to San Francisco’s embattled former Mayor, now Lt. Governor Gavin Newsom, to give same sex marriage constitutional standing which last year culminated in the U.S. Supreme Court’s historic ratification of such unions.
Now the California Supreme Court has ruled 6-1 (Justice Ming Chin dissenting) that the legislature is within its rights in calling for an advisory vote of the people to undo the landmark Citizens United decision in 2010 Citizens United v. Federal Election Commission handed down by the nation’s highest court permitting unlimited corporate and union spending in political campaigns.
This reverses a ruling in 2014 by the same court halting state action on an identical non-binding measure than known as Prop 49 to gain further public opinion on the wisdom of such an amendment until it had more time to consider its implications. The review is apparently completed.
The Citizens case has drawn fire from both Right and Left with proponents of less regulation contending that any efforts by the courts to curtail political spending is a violation of freedom of speech (the central pillar of the Supreme Court ruling) and that direct corporate contributions to candidates for federal office—still illegal—should be allowable.
To get around that prohibition organizations known as IECs or independent expenditure committees were invented to which those in support of or in opposition to candidates can make anonymous donations.
A large segment of the populace who denounced the Supreme Court’s decision maintain that opening the doors to uncontrollable spending by billionaires is not free speech and merely gives zealots with deep pockets outsized influence that is even overshadowing the will of political parties and their leadership.
Now as then, the influential Howard Jarvis Taxpayer Association has registered its strenuous opposition to the proposed measure arguing that it would merely clutter the ballot with something that has no legal force anyway.
Associate Justice, Kathryn Werdegar, who wrote the majority opinion, is an appointee of former GOP Gov. Pete Wilson.
Speaking for a nearly unanimous court, Werdegar points out that California’s Constitution, adopted in 1849, guarantees “the right (of the people) to instruct their representatives” on matters of such fundamental importance.
Joining her was the Chief Justice, Tani Cantil-Sakauye, a Brown appointee; Justices Goodwin Liu, Mariano Florentino Cuellan and Leondra Kruger, also Brown appointees; and Justice Carol Corrigan, a GOP- turned- Independent ex-Governor, Arnold Schwarzenegger appointee.
While the California court has a history of issuing more moderate rulings on some very divisive issues, the nonpartisan judicial support for such a ballot measure indicates the troubling nature of the Citizens decision which, arguably, has altered the American political process.
Although the measure would still require legislative approval, the Democratic majority in Sacramento makes it very likely it will be on the November ballot. If so we will emulate several other states that have taken similar action.
This occurs at a time when the so-called super PACS are funneling millions of dollars into the presidential campaigns of both parties which are on schedule to expend a combined total of more than $2 billion. This will easily dwarf the amounts invested in any previous presidential race.
Much of it will finance highly negative and often blatantly false advertising messages funded by legitimate though often secretive “non-profit” entities to which Citizens has given rise and are not required to identify their donors who can give them what has been appropriately labelled “dark money.”
Otherwise they operate much as super PACS do, providing only that election activity is not their principal function—a characterization which many see as only a thin disguise for their actual activities. They have become the principal source of funding for candidates who would have little incentive to continue campaigning but for their existence.
Interestingly, the current front-runner for the GOP nomination—Donald T. Trump—has derived little or no benefit from the loosening of the campaign finance laws since as he repeatedly boasts, he is completely self-funded and with more free publicity than all the other candidates combined, has little reason to date to dip into his sizeable fortune.
However that may change in the lead-up to the Iowa and New Hampshire primaries where Trump has vowed to spend “at least $2 million a week on advertising” so as “not to take any chances.” Part of this motivation could be the polls showing Sen. Ted Cruz suddenly vaulting into the lead in Iowa as the February caucuses approach.
Assuming the ballot measure is given the green light by the legislature, survives any legal challenge, and is favored by a majority of the voters, the road to ratification by all 50 states and two-thirds approval in each house of Congress is a formidable one.
Since by the time the June primary rolls around, California will in all probability remain deep Blue, monies earmarked for use here by any GOP candidates still in contention would make sense only for the purpose of affecting the delegate count needed for nomination if the contest is close at that point.
Meanwhile look for the candidates (unless you are Donald Trump) still standing after the early primaries to turn to the usual heavyweight contributors who will need to decide where best to place their bets.