Legislature May Put Advisory Measure on Ballot

Tuesday, January 5, 2016

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Legislature May Put Advisory Measure on Ballot—S.C

By a MetNews Staff Writer

The California Supreme Court yesterday gave a green light to a ballot measure seeking voters’ views as to whether Congress should call a constitutional convention to propose amendments that would restrict political contributions by corporations in federal elections.

The Legislature in 2014 voted place such a measure—Proposition 49—on the November ballot, but the state high court, acting on a petition for a writ of mandate sought by the Howard Jarvis Taxpayers Association, blocked it, to maintain the status quo.

“We now resolve the merits of Proposition 49’s constitutionality,” Justice Kathryn Werdeger said, in writing for the majority.

She declared:

“We conclude: (1) as a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers; (2) among those other powers are the power to petition for national constitutional conventions, ratify federal constitutional amendments, and call on Congress and other states to exercise their own federal article V powers; (3) although neither constitutional text nor judicial precedent provide definitive answers to the question, long-standing historical practice among the states demonstrates a common understanding that legislatures may formally consult with and seek nonbinding input from their constituents on matters relevant to the federal constitutional amendment process; (4) nothing in the state Constitution prohibits the use of advisory questions to inform the Legislature’s exercise of its article V-related powers; and (5) applying deferential review, Proposition 49 is reasonably related to the exercise of those powers and thus constitutional.”

Wording of Proposition

The ballot proposition would have read:

“Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?”

In Citizens United, the United States Supreme Court lifted restraints on corporate donations to campaigns for federal offices.

That decision, Werdegar recited, “generated considerable democratic debate,” including criticism by President Barack Obama in his 2010 State of the Union address to Congress.

Inherent Power

The Legislature had the inherent power to solicit voters’ views on whether the decision should be abrogated, she declared.

“We have since the early days of statehood recognized the act of creating a legislature imbues that body with certain implied authority characteristic of parliaments,” Werdegar wrote, proceeding to quote an 1866 state Supreme Court opinion as saying:

“A legislative assembly, when established, becomes vested with all the powers and privileges which are necessary and incidental to a free and unobstructed exercise of its appropriate functions.”

Common law parliamentary powers, she said, include the inherent power to investigate.

An investigation in this instance could lead to an exercise of influence as to a change in the federal Constitution.

Art. V

She quoted Art. V of the United States Constitution as saying, in relevant part:

“The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress....”

Werdegar explained:

“The several states have never successfully called for a constitutional convention. To date, each of the 27 federal amendments is the product of a proposal by Congress. But this does not mean state legislatures can play no part until ratification. Legislatures are instituted with the inherent power to issue resolutions…From the earliest days of the Republic, state legislatures have used that authority to press Congress to wield its own article V proposal power. Unlike the convention power, these resolutions have proven instrumental in reshaping the federal Constitution through amendment; beginning with the very first post-Bill of Rights amendment, one can find their influence underlying the Constitution’s evolution.”

She added:

“[T]he 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. While Hamilton (and many others) objected to binding instructions from the people, no similar constitutional objections attach to purely advisory votes. Legislators may solicit and consider the views of the people on fundamental matters pertaining to federal constitutional amendments, while at the same time remaining free ultimately to act differently after due deliberation with fellow members of their representative body.”

Werdegar noted at the outset of the opinion that the writ proceeding is “technically moot,” because the Legislature voted to place the measure on the Nov. 4, 2014 ballot, in particular. She remarked:

“But whether the Legislature ever has power to place advisory questions on a statewide ballot is important and undecided, and in the event we were to conclude Senate Bill No. 1272 was indeed constitutional, the Legislature could pass an identical measure directing placement of the same advisory question on a future ballot.”

The opinion was signed by Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Mariano-Florentino Cuéllar, and Leondra Kruger.

Cantil-Sakauye and Corrigan each wrote a concurring opinion, as did Justice Goodwin Liu.

Justice Ming Chin dissented, arguing that “[p]lacing advisory measures on the ballot…is no part of the legislative function and does not come within either the Legislature’s lawmaking or ancillary powers.”

The case is Howard Jarvis Taxpayers Association v. Padilla, 16 S.O.S. 29.