An initiative is on the general election ballot for November 8 to permit the people of the State of California to officially declare support for a Constitutional amendment to overturn the 2010 Supreme Court decision Citizens United v. Federal Election Commission.
The case of Citizens United overturned 100 years of election law, opened the door to unlimited campaign funding, vastly expanded corporate rights with “corporate personhood,” created modern Super PACs, and left the field of electioneering so deregulated that the political system is now flooded in anonymous “dark money” spending.
In an official opinion by The Times Editorial Board, The Los Angeles Times (LA Times) comes out against the ballot initiative. This report explores the reasoning and factual claims by the entire editorial board, finding bad reasoning, distorted facts, and internal inconsistencies.
Proposition 59 is officially titled “Corporations. Political Spending. Federal Constitutional Protections. Legislative Advisory Question. Here is the official text:
Asks whether California’s elected officials should use their authority to propose and ratify an amendment to the federal Constitution overturning the United States Supreme Court decision in Citizens United v. Federal Election Commission. Citizens United ruled that laws placing certain limits on political spending by corporations and unions are unconstitutional. Fiscal Impact: No direct fiscal effect on state or local governments.
Shall California’s elected officials use all of their constitutional authority, including, but not limited to, proposing and ratifying one or more 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 corporations should not have the same constitutional rights as human beings?
Update 1: The proposition was approved 52.9-47.1.
First, LA Times assures readers that some members of the editorial board oppose the Supreme Court decision:
Editorial writers (including the ones behind this page) have assailed the decision.
After declaring its own credibility on the subject, the paper goes on to attempt to persuade people to vote against the proposition. The editorial board inquires:
But is the decision so outrageous that it requires the radical step of amending the U.S. Constitution?
LA Times asks questions throughout the editorial. This one should be answered yes. As long as Citizens United is the Constitutional rule, all political measures necessary must be employed to make sure that the decision is overturned one way or another.
LA Times notes that the proposition has “no binding force” and legislators are “entirely free to disregard it.” In other words, the proposition does not really matter. However, if the proposition does not do anything, then the editorial board is wasting its time coming together to promote a position about it.
Obviously, the proposition matters. The proposition does something. It provides a true poll of the citizenry about unlimited campaign spending and tells those who would run for office to place this issue high on the agenda.
LA Times lists two arguments to oppose this ballot measure:
FIRST ARGUMENT AGAINST THE PROPOSITION
First, amending the Constitution is a difficult process by design, and not every unwise Supreme Court decision justifies the attempt.
Every Supreme Court decision is not implicated. The Citizens United case is not “every unwise” decision. There are plenty of those on an annual basis. Rarely do we see serious and sustained attempts to overturn the Supreme Court by Constitutional amendment. The Citizens United ruling is particularly egregious and it must be overturned for the sake of our “democracy.”
Difficult situations require more work than easy ones. If the process is so difficult, then every possible action to promote the change is needed. Contrary to the editorial board assertion, this is more of a reason to keep the ball rolling.
Hillary Clinton, for one, has made it clear that she would appoint justices likely to reconsider the ruling.
While Hillary Clinton has been consistent in opposing Citizens United, and while Hillary Clinton has fairly good credibility on this issue (unlike the TPP issue for example), electioneering money continues to flow.
Waiting for Hillary Clinton to appoint Justices who will overturn the decision and then waiting for the rule to actually be overturned is little more than a stalling tactic. If anything, a good solid poll of Californians opposing Citizens United would help pressure Hillary Clinton to keep her word and act as swiftly as possible. A “no” vote would imply less urgency.
Update 2: Hillary Clinton never got the opportunity as WLN foreshadowed here.
Even if it weren’t overturned, many of the evils for which it has become a metaphor — undisclosed “dark money” in political campaigns, for example — can be addressed by simple legislation.
No, the “evils” cannot be addressed by legislation. Most of the federal House and Senate members who receive benefits of such dark money will not be very interested in passing disclosure laws.
Even assuming Congress passes effective disclosure laws, such laws would not do very much to mitigate the underlying problem. Campaign funding money will crowd out free speech whether the money-speech has an asterisk describing who paid for it or not. Disclosure is the tiniest of bandages.
When LA Times suggests a “no” vote to reduce the urgency of the issue, and when LA Times uses language like “even if it weren’t overturned [we can handle the problem some other way]” the editorial board is skating very close to outright support of Citizens United.
SECOND ARGUMENT AGAINST THE PROPOSITION
LA Times says the proposition does not include the exact words of a Constitutional amendment. The board explains:
But that seems backward: You don’t decide that the Constitution should be amended, and then decide what the amendment should say. When it comes to amending the Bill of Rights, the exact words matter.
This is a novel idea – especially coming from a team of expert writers who work at a top newspaper. Anyone who has ever written more than a single sentence knows to think before drafting. This “backward” assessment is definitely backward.
The editorial board barrages the reader with rhetorical questions about the meaning of this phrase from the proposition: “make clear that corporations should not have the same constitutional rights as human beings.”
Would corporations lose only free-speech rights or other rights as well, such as the right to be free from unreasonable searches and seizures at their places of business or to due process of law if they were sued?
Recall that the article started out with the board opposing the Citizens United decision. Now, the board laments that corporations would “lose … free-speech rights.” Both cannot be true. If the board believes that corporations should not have been given “free-speech,” then corporations cannot “lose” free speech “rights.”
The right to be free from unreasonable searches and seizures applies to people and their property. Corporations are property. Those who own corporations retain their rights to hold corporate property free from unreasonable searches and seizures.
Due process of law applied to corporations well before Citizens United. Corporations were considered “legal fictions” – they had certain powers necessary to conduct transactions in the name of the organization. Citizens United extended “personhood” to mean Constitutional rights well beyond anything that came before. Since then, corporations now have “religious” rights to make it more difficult for employees to gain benefits of general government regulation.
The Citizens United case gave corporations the right to spend unlimited money from general funds for campaign electioneering — a sort of political tax added to prices consumers pay. Consumers have no say over the “speech.” Most stockholders have no say over the “speech.” Only a few powerful people at the top of the heap get to use this “speech.”
Modern corporate personhood — independent Constitutional rights for corporations — is the problem. Property cannot speak. Property cannot “believe.” Speaking and believing are the rights of owners. Providing such rights to property dilutes rights of living people.
Ironically, this so-called “speech” is used as a tool of censorship. For example, Proposition 59 itself was blocked from an earlier ballot because powerful money interests used their “speech” resources to sue the state.
Would nonprofit as well as for-profit corporations be affected?
To answer this question, turn it around … Did Citizens United affect nonprofits as well as for-profits? The answer is yes, as Citizens United itself is a nonprofit. Therefore, overturning the case would necessarily affect nonprofits — the very ones who often spend the dark money.
What about the 1st Amendment rights of corporations that publish newspapers or broadcast the nightly news?
The Constitution protects “freedom of speech, or of the press.” Notice these are two different things. There is no language in the Constitution that requires “the press” to be or not to be corporate. This is the very mistake that many proponents of corporate speech make — imagining a corporate speaker or equating all press with corporations.
Finally, LA Times concludes:
We share the frustration over Citizens United (the decision) and “Citizens United” (the metaphor for the outsize role of money in politics).
It does not appear so — or the board would not have made such ridiculous and convoluted arguments to convince Californians to vote against the proposition. LA Times should issue corrections.