Move to Amend Yes on 59 Response to League of Women Voter’s Position on Proposition 59

October 21, 2016

This a direct response to the League of Women Voter's statement opposing the Proposition 59 ballot initiative, written by Margaret Koster, affiliate leader for Greater Mendocino Move to Amend.

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 of Women Voters 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. (emphasis added)
  • 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).

Move to Amend Yes on 59: Advisory measures in favor of a Constitutional Amendment, with similar wording to Proposition 59, have been on the ballot numerous times in cities, counties and two states and they have all passed by large margins.  For the most part, the margin of Yes votes has exceeded the margin of victory for a candidate of either party.  Amendment advisories have passed in both traditionally Democratic and traditionally Republican districts.  The We the People Amendment, House Joint Resolution 48, has bi-partisan co-sponsorship.  It will take concerted grassroots pressure on both parties to pass an Amendment and Proposition 59 is part of the process for building that grassroots momentum.

MoveToAmend Yes on 59 readily admits that passing a Constitutional Amendment is a heavy lift. The goals of clearly establishing that Constitutional rights are human rights and that protecting free speech does not preclude regulating political expenditures directly relate to the Constitution itself and Supreme Court interpretations of the Constitution.  Amending the Constitution is the surest way of achieving these goals, difficult though it may be.

 

 

League of Women Voters:  Eliminating the corrupting influence of money in our democracy is a vital concern. Unfortunately, this vague, poorly drafted ballot measure is not the solution.

Move to Amend Yes on 59:  As a citizens advisory to California’s elected state legislators, Proposition 59 is not intended to be “the” solution.  It is part of a growing, grassroots driven movement to make clear to politicians and others the deep and widespread dissatisfaction of the citizenry with the corrupting influence of money in politics and with the enormous and growing influence of giant trans-national corporations on the legislative decision making process.  The steady erosion of the democratic process through the corrupting influence of money in elections and lobbying pre-dates the Citizens United decision.  This is why Proposition 59 refers to “other applicable judicial precedents.” 

Problems with the role of giant corporations are not limited to political spending.  A series of Supreme Court rulings since the late 1800’s have given corporations the same rights as people, enabling them to use their vastly greater resources to the detriment of We the People.  Indeed, the Citizens United ruling would not have been possible without the precedents of these prior rulings.

 

League of Women Voters: A constitutional amendment to overturn Citizens United may have appeal as a quick fix, but in reality it is a slow, laborious, costly, and potentially unsuccessful strategy.

Move to Amend Yes on 59: As women voters are well aware!  It took 75 years of political struggle and a Constitutional Amendment for women to achieve voting rights. Clearly an amendment is not a “quick fix.”  As the League rightly points out, amendments are only appropriate when “the public policy objective addresses matters of such acute and abiding importance that the fundamental charter of our nation must be changed.” The Bill of Rights enumerates HUMAN rights and the Constitution needs to be amended to make that clear. 

The Constitution codifies the basic rules by which our democratic republic operates.  As more than 100 years of Supreme Court rulings have misinterpreted the Constitutional guarantees of human rights to apply to non-human entities, it is past time to amend the Constitution to make clear that rights are for people.

The potential of not succeeding is not a valid reason for making no effort.

 

League of Women Voters: A poorly written amendment could have significant unintended consequences—not the least of which is squelching actual political speech.

Move to Amend Yes on 59: Proposition 59 is not a proposed Amendment, it is a citizens advisory.  If the League believes that the proposed Amendments currently before Congress or any Amendments that may be proposed in future risk unintended consequences, it would be helpful if they would clearly outline their concerns rather than suggesting that heartfelt citizen movements with wide support lack validity.

With regard to squelching actual political speech as an unintended consequence, this is a good example of how the League of Women Voters could helpfully participate in shaping an actual Amendment proposal.  How the League thinks this unintended consequence might come about is not clear.

 

League of Women Voters: Voters deserve a fair election system today, not years or decades from now. Instead of looking to an imagined silver bullet, we need to take broad action now, including fixing our Federal Elections Commission, expanding disclosure laws, overturning California’s ban on public financing of elections, and asking a new Supreme Court to revisit the ruling.

Move to Amend Yes on 59: Seeking to amend the Constitution does not preclude any of the other ways of achieving a fair election system the League suggests and all should be pursued. An Amendment is a modification or clarification of the basic ground rules for operating our democratic republic.  An Amendment would be followed by legislation and eventually litigation to codify how the basic principle established will be operationalized. That legislation could include the League’s suggested remedies such as fixing the Federal Elections Commission, expanding disclosure laws (which would be less vulnerable to being judicially overturned), and enabling public financing of elections.

Asking the Supreme Court to revisit a ruling is done by bringing a new case before it.  The history of the court overturning itself shows that this process is just as lengthy as the amendment process.

Just as all the problems of gaining rights parity for women were not solved by the 19th Amendment nor were most of the problems of structural inequality and racism addressed by the 14th and 15th Amendments, the imbalanced situation of money power overwhelming self governance by We the People will not be entirely solved with an Amendment clarifying that political spending is not protected as free speech and Constitutional rights are for human beings.  We are still working to gain full rights for women and to correct the wrongs growing from the heritage of race based slavery, and we will still need to vigilantly protect human rights and monitor political spending after the We the People Amendment is passed and ratified.

The Amendment effort is one part of a larger movement seeking to enhance democracy and put non-human legal entities in an appropriate status relative to democratic self-governance.  The democracy movement does and should include efforts involving legislation, litigation, education and movement building as well as seeking to amend the Constitution.

 

League of Women Voters:  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.   

Move to Amend Yes on 59: Any strategy is potentially unsuccessful. Legislative and judicial strategies should be pursued in addition to an Amendment. 

 

League of Women Voters: 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.

Move to Amend Yes on 59: Corporations lacked these “rights” for the first one hundred years of our country’s history. Corporations did quite well when they had only necessary privileges granted to them by the states in which they incorporated. Privileges or “statutory rights” can be given to for-profit or non-profit corporations via the legislative and chartering processes.  The difference is that these rights would not be considered inherent and inalienable.  Both for-profit and non-profit corporations are given existence through an act of government. This point is the crux of the matter.  Should corporations or any other entity created by government action and not an actual human being have inherent, inalienable rights or should they have statutory rights and privileges appropriate to their purpose, subject to the democratic legislative process?   

All the members, owners, shareholders and employees of for-profit and non-profit corporations have and would continue to have First Amendment free speech rights.  However, the corporation as an entity would not have separate and distinct rights.  Further, an individual can identify themselves as a representative of an organization and present the organization’s positions using their individual free speech rights. The organization Citizens United that gave the Citizens United case its name is a non-profit corporation.

Newspapers are protected by the First Amendment as press, not as “people,” so the assertion that removing corporate “rights” would harm freedom of the press is simply wrong.

The Supreme Court has previously ruled that non-profit organizations (and unions) have standing as representing their members and thus the organizations are protecting the individual Fourth Amendment rights of their members.  In a case not involving standing, privacy protections could be granted by statute or included in the chartering process.

 

League of Women Voters: In addition, this legal approach could make it impossible to charge corporations with felonies.

Move to Amend Yes on 59The longstanding legal principal of corporate personhood for purposes of following the law would not change. Corporations could still own property, sue and be sued, make contracts, etc. Proposition 59 deliberately does not use the term “corporate personhood”, but rather refers to corporations not having the same rights as human beings.

Before the Court created corporate “rights,” state legislatures passed strict laws against corporations influencing elections including charging offenders with felonies and dissolving corporations. The issue is not legal personhood per se, which gives an incorporated entity a fictional status (personhood) for legal purposes.  The issue is that since the late 19th century, when the Supreme Court held that corporate fictional persons are included in the meaning of the word person in the 14th Amendment, corporations have repeatedly usurped human rights to the detriment of actual human beings.  This long history of case law is a large part of what makes an Amendment necessary.

 

League of Women Voters: 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".

Move to Amend Yes on 59: It remains to be seen whether a narrow focus will overturn Citizens United, but a focus on Citizens United is too narrow in itself.  There are a multitude of cases having to do with corporate “rights” unrelated to money in politics which are deleterious to democratic self-governance. They include cases involving the First, Fourth and Fifth Amendments and the Commerce and Contracts Clauses.  Proposition 59 does not contain the term “corporate personhood.”  It reads “. . . make clear that corporations should not have the same rights as human beings.”

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