On October 6, the California Supreme Court will consider whether to allow the state’s electorate to vote on a ballot measure that instructs Congress to overturn the US Supreme Court’s ruling in Citizens United v. FEC by passing a constitutional amendment. It’s an unusual case that asks a state judicial branch, in effect, whether voters have the right to smack the federal judiciary in the face. As someone who was jailed for protesting on the steps of the California capitol demanding a chance to hold this vote, I’m hoping the California judges will care more about the proper interpretation of their own state constitution than the public standing of their federal colleagues.
At stake in the case is whether the California legislature had the authority to place a so-called “voter instruction” measure – known as Proposition 49 – on the ballot. The California constitution states clearly that “the people have a right to instruct their representatives,” but this right has been used so infrequently that many political observers have forgotten what this means, or how it is done. Unaware of this provision in the state constitution, the California Supreme Court temporarily blocked Proposition 49 from the ballot in 2014 and is only now considering the case having been fully briefed on the merits.
It is well established that large majorities of voters disagree with the Supreme Court’s rulings that unlimited campaign spending is equivalent to free speech and that corporations are entitled to the same constitutional rights of real people. But Congress has not responded to the broad majoritarian support for a constitutional amendment that would reverse theSupreme Court, likely due to the self-interest that many incumbents have in the current system awash in big money.
More than a century ago, California voters led a national movement to overcome similar opposition that incumbent politicians had to sweeping reform. In 1892, Californians overwhelmingly supported a voter instruction measure, put on the ballot by the legislature, asking whether US senators should be elected directly by the people. At the time, US senators were still appointed by state legislators. California was the first state instruction measure on the matter, and as other states passed similar measures, Congress eventually capitulated and passed the 17th Amendment for direct election of senators.
The idea of constituent instructions dates back to the colonial period in the US. While there was never a legal enforcement mechanism, early Americans expected legislators to either follow the instructions or resign if they could not do so in good conscience. Two US Senators who went on to become president, John Quincy Adams and John Tyler, resigned their Senate seats rather than disobey their state’s instructions. California voters used instructions again in 1933, but since then the process has been largely forgotten.
After California adopted the citizens’ initiative process in 1911, the need for the older voter instruction process died away. Why would voters bother telling legislators to pass a law though an instruction measure when then could simply enact the law themselves and eliminate the middleman? For this and other reasons, the instruction process fell out of use.
However, when it comes to amending the federal constitution, voters cannot act directly themselves. Only Congress and state legislators can pass a federal constitutional amendment. Just as voters used instruction measures to help pass the 17th Amendment, voters are once again using this tool of indirect democracy to prod federal action. In 2012, voters in Colorado and Montana passed statewide instruction measures calling for an anti-Citizens United amendment by margins of three-to-one.
Should Kevin McCarthy become speaker of the House, he could find himself in an interesting position if 75 percent of his Bakersfield constituents ask him to support an amendment to the Constitution that would limit big money in politics. It is one thing for Republican legislators to oppose something when Nancy Pelosi is supporting it, but quite another for them to ignore the clearly expressed instructions from voters in their own district.
The 2014 anti-Citizens United Proposition 49 was placed on the ballot by the California legislature, just like the 1892 instruction on the direct election of senators. Direct election, however, didn’t threaten the authority of the federal judiciary, but rather weakened the power of both the state and federal legislative branches. It thus didn’t present the awkward situation of asking a state court to either block or condone letting voters repudiate the federal judiciary.
Although opposition to Citizens United runs deep, there are some reformers who balk at the idea of the people themselves actively confronting the Supreme Court. Many academics, lawyers and judges would prefer to have the court fix its own problems and maintain its institutional monopoly on constitutional interpretation rather than opening the door to a constitutional amendment process. The Framers of our Constitution intended all three branches of government to interpret and enforce the Constitution, but over time, courts have tried to claim our founding document as solely their domain.
Many legislators and their staff aren’t too keen on re-invigorating the voter instruction process in general, either. Institutional resistance to reviving the use of such ballot measures killed the idea before it even received a committee vote in 2013. But after a coalition of organizations calling itself “Money Out Voters In” mobilized more than 55,000 petition signatures and 176,000 faxes (yes, some people still use faxes), legislators took notice. When hundreds of Californians, myself included, joined a march from Los Angeles to Sacramento that culminated in a week-long sit-in where protesters from the group 99Rise were jailed daily for speaking too long at the state capitol, the legislature gave in and placed Prop 49on the ballot.
Victory was short-lived, however, as the state Supreme Court removed it months later, questioning the legislature’s authority. One justice, Goodwin Lieu (who was blocked from a seat on the federal bench by Republican filibusters), wentout of his way to mock the legislature by suggesting that rather than hold an election, they could simply commission a public opinion poll if they wanted to know how voters felt about Citizens United.
The California Supreme Court has more liberal members than the US Supreme Court. But, with approval ratings for the US Supreme Court reaching all-time lows, especially among conservatives, the California court may not want to further damage the judiciary’s reputation. Some of those California judges, such as Lieu, might hope someday to sit on the US Supreme Court themselves and will want that court to maintain some moral authority.
The California constitution is unambiguous that citizens have a right to instruct their representatives. The California Supreme Court has a chance to right its past wrongs, and should take that chance even if it means letting the people into the conversation about our Constitution.