Why California's Citizens United Ballot Initiative May Not Matter
By Justin Miller | Jan 07, 2016
Voters in California—the most populous state in the union—have won the right to voice their collective opinion on whether Congress should pass a constitutional amendment overturning Citizens United, the infamous Supreme Court decision that opened the floodgates to unlimited outside political spending in 2010.
The issue could make it onto the state’s 2016 ballot thanks to a California Supreme Court decision earlier this week. The court ruled that the state legislature has the authority to put advisory measures on the ballot seeking non-binding opinions from voters. The measure had initially been poised to go on the 2014 ballot, but a conservative group challenged it in court on the grounds of legislative overreach.
Since the Citizens United ruling, campaign-finance reformers have mounted a nationwide movement to overturn it via constitutional amendment. That effort has led 16 states and more than 650 localities to officially call on Congress to pass such an amendment.
The state Supreme Court’s action has drawn cheers from progressive opinion leaders.
“[A] vote by Californians in favor of an amendment that would renew the authority of local, state, and federal officials to regulate campaign fundraising and spending has the potential to send the most powerful signal yet in support of the constitutional remedy,” wrote John Nichols in The Nation.
There’s just one problem. Passing a constitutional amendment is a long and near-vertical climb in American politics. First, a two-thirds majority in both chambers of Congress would have to approve. Second, three-quarters of the states would have to ratify such an amendment at a constitutional convention. All that at a time of unprecedented political polarization.
While reform advocates have enjoyed tremendous success educating Americans about the disastrous impact of the 2010 ruling, and turning Citizens United into a household name, trying to fix it through a constitutional amendment looks an awful lot like a pipe dream. Indeed some campaign finance reformers have almost entirely given up on the idea.
Some even say the movement to overturn Citizens United has an unintended down side, in that it gives politicians cover to argue that they are pro-reform while backing a constitutional amendment that has no real chance of passing.
“I’m really skeptical of politicians who aren’t serious about it and use the phrase ‘constitutional amendment’ in order to raise money,” Zephyr Teachout, who now heads the reform-minded Mayday PAC, told the Prospect in a July interview.
Instead, there’s growing consensus within the reform movement that the best way to overturn Citizens United is by electing a Democratic president who pledges to appoint pro-reform justices to the Supreme Court. The next occupant of the White House could potentially appoint four justices. Each Democratic presidential contender has already promised to do just that.
So what does the California ruling really do to rein in money in politics? As election law expert Rick Hasen writes for the Los Angeles Times, not much.
“The California Legislature doesn't really need the voters' advice. If it did, it wouldn't have called for a constitutional convention back in 2014,” Hasen argued. He went on to quote California Supreme Court Justice Goodwin Liu’s concurrence: “It blinks reality to suggest that the Legislature—plainly aware of opinion polls showing that broad majorities of Americans are opposed to Citizens United—enacted [the ballot initiative bill] in order to investigate the citizenry's views.”
Instead, Hasen posits a political motive: “What's probably going on is that the Democratic-dominated Legislature sees an issue that is likely to excite Democratic voters and get them to the polls.”
At this point, the most the California initiative would do is drive home to politicians that broad swaths of the American electorate are fed up with the increasing influence of money in politics. Even then, it’s not clear that American politicians—who have done an awfully good job until so far of ignoring voter outrage—would do much about it.