California voters looking forward to voicing their outrage toward the controversial Citizens United U.S. Supreme Court decision are out luck. Proposition 49, a measure asking voters to advise Congress on whether or not to pass laws nullifying corporate personhood and unlimited corporate campaign donations, will no longer appear on the November ballot as originally scheduled after the California Supreme Court intervened.
Though the California Supreme Court’s majority decision does not get overly specific as to why Prop 49 will not appear on the ballot, the gist is that the justices felt that “opinion” questions had no place alongside legally-binding propositions. “If the Legislature wants to commission Gallup to do a poll on Citizens United v Federal Election Commission, I see no problem with that,” said Justice Goodwin Liu. “But there is a difference between doing that and doing what the Legislature has done here.”
The Court also indicated that having an “advisory” proposition undermines the United States’s distinction of having a representational democracy rather than a direct democracy. To be fair, however, state ballot measures are specifically a way of circumventing representational democracy with a direct democracy alternative.
Only one judge out of six, Chief Justice Tani Cantil-Sakauye, disagreed with taking the Proposition off the ballot. She believed it would have been beneficial to see the official breakdown of voters on such a hotly contested issue. “By the majority’s action, the Legislature will be deprived of knowing in a timely manner where the voters stand on the issue, perhaps influencing what further steps the Legislature will take,” she wrote. Although Justice Cantil-Sakauye agreed that the legal grounds for the particular proposition were nebulous, she thought it should remain on the ballot and have its legalities questioned after the vote.
Critics of Prop 49 have accused Democrats of putting this issue on the ballot merely to increase voter turnout in November, knowing that this issue appeals to their base. Meanwhile, some proponents of Prop 49 are calling this ruling a case of the judicial branch protecting its brethren. “It’s pretty chilling when the judicial branch cancels an election where the people are likely to vote against the judicial branch,” said Derek Cressman, a campaign finance reform activist with the group Money Out Voters In.
Michele Sutter, head of the (presumably now defunct) Yes on 49 campaign is not oblivious to the hypocrisy. “It is unbelievable, in fact unbearable, that the Court would find that unlimited ‘money speech’ by artificial persons and corporations is the order of the day while actual speech by actual voters is to be outlawed,” Sutter said.
However, even some opponents of the Citizens United verdict were against putting Prop 49 on the ballot. They worried that by putting something on the ballot that only amounted to a symbolic gesture, voters would lose faith in democracy. Democrat Governor Jerry Brown hesitantly agreed to let it on the ballot initially, explaining, “We should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect.”
Certainly, it would be discouraging if an overwhelming number of Californians rejected corporate personhood only to see no Congressional action following the vote, but it would likely highlight a flaw in the current democratic system rather than deterring people from participating altogether. If representational legislators are unwilling to follow up on the collective wisdom of their constituents, they should at least have to justify their oppositional stances.