No on 59

Proposition 59 is an advisory measure that expresses the sentiment of the public without being binding law.

The measure, if passed, would express the desire of the public for our elected officials to “use all of their constitutional authority” to “overturn Citizens United” and “to allow the full regulation or limitation of campaign contributions and spending” as well as “to ensure that all citizens, regardless of wealth, may express their views to one another” and “to make clear that corporations should not have the same constitutional rights as human beings.”

The official argument in favor of the initiative says that we should vote yes to help get big money out of politics and to correct the Supreme Court’s incorrect ruling in Citizens United. The rebuttal points out that the initiative does nothing because it has no force of law.

The official argument against says that the measureis a big waste of time and taxpayer dollars because (a) it has no legal effect and (b) asks California’s members of Congress to tinker with the first amendment. The rebuttal castigates the “misleading scare tactics” of the opponents and then warns that passing proposition 59 is essential to “PREVENT CORPORATIONS AND WEALTHY SPECIAL INTERESTS FROM BUYING OUR ELECTIONS”, the capitalization of which strongly implies that it’s a scare tactic.

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_Citizens United_ is a Supreme Court decision which held that the first amendment protects the right of corporations and labor unions to spend whatever they want on political campaigns, as long as those campaigns are not coordinated with official candidate campaigns. The abbreviated form of the argument is: the right to free speech and the right to freedom of the press *include* the right to buy advertising and to pay people to speak on your behalf; a limit on independent campaign expenditures is a restriction on the ability to speak, and is unconstitutional.

If you agree *as a policy matter* with the outcome of that decision, then you should vote ‘No’ on Proposition 59, as it’s a clear call for the state’s elected officials to do anything in their power to overturn it.

If, on the other hand, you disagree as a policy matter – whether or not you agree with the interpretation of the first amendment – the initiative looks tempting; the Supreme Court took the policy discussion off the table, and this initiative calls on the state’s elected officials to do what they can to amend the US constitution to put the policy issue back on the table.

That said, there are two strong reasons to *not* vote for this initiative even if you *do* despise _Citizens United_ and its outcome:

(a) it’s an advisory measure with no legal force which does nothing other than bring about political pressure;

(b) taken at face value it asks the elected officials of California to call an Article V constitutional convention, whose exercise of powers cannot be constrained.

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Looking at the two reasons to vote against, in order:

(a) it’s an advisory measure. It has no legal force. The constitution of California does not allow the voters to require its Legislators to vote a certain way, and the Constitution of the United States does not allow the voters of any state to direct federal officeholders in how to carry out their duties as such.

It has *moral* and *persuasive* authority, but probably only on those who were already inclined to behave in accordance with its provisions and who need political cover to do so in districts where they aren’t certain to be re-elected.

California has historically not used the initiative system for this kind of advisory measure; initiatives have always been actual laws or constitutional amendments. If we pass *this* advisory measure, it seems likely that there will be more, and the initiative system will become a method to poll for opinion rather than a way for the people to enact and disapprove of laws.

I think it’s a bad change to the initiative system, and would support an initiative to ban such advisory measures; it’s tempting to vote against this just on those grounds so as to send a clear “do not do this kind of thing” message to the legislature.

But (b) is more important.

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The plain text of the measure calls upon all of California’s elected officials to use “all of their constitutional authority” to overturn Citizens United. This includes calling upon the Legislature to use its authority to call for a Constitutional Convention.

Under Article V of the US Constitution, one of the ways to amend the constitution is for 2/3 of the states to ask Congress to “call a convention for proposing amendments”.

28 states have currently done so. This measure asks the California Legislature to become the 29th. In theory, many of the 28 states are only asking for *a specific amendment*, and so too would California be; but there *is no mechanism to enforce that*.

A constitutional convention, once called, can propose *any* amendment it chooses. Those amendments must be ratified by the states, it’s true, but the last time a constitutional convention was called, it *explicitly changed the rules for ratification* and the new rules went into effect *as soon as the new rules were followed*.

A constitutional convention, in other words, cannot be constrained; it has the power to do anything it wants.

It is, therefore, a very bad idea. It is a potential revolution unconstrained by any existing rules — and, as a general rule, it’s only good to support a revolution if the current situtation is so untenable that ANYTHING would be better, or if you have real certainty that the outcome of the revoluution will be what you want and the revolutionaries will not be led astray.

I am voting no. Even though I dislike the *policy outcomes* of _Citizens United_, I don’t want to risk the potential of an unconstrained constitutional convention.

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