Wednesday, January 6, 2016

The California Legislature Can Ask What Californians Think About Citizens United

The California Supreme Court ruled earlier this week that the California legislature had authority to put on the general election ballot the nonbinding, advisory question whether Congress should propose, and the legislature ratify, a federal constitutional amendment overturning Citizens United.

The court said that the measure fell within the state legislative authority:

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.

Still, there are no actual plans to put the measure on the 2016 ballot--at least not yet. The legislature previously directed that the measure go on the 2014 ballot; that decision was before the court. Now that 2014 is over, you might think the case was moot. But if so, you'd be wrong: the court said it should address the question, notwithstanding the lack of plans to put the measure on the ballot, because the legislature might direct that the measure go on a future ballot (apparently in the spirit of capable-of-repetition-but-evading-review).

http://lawprofessors.typepad.com/conlaw/2016/01/the-california-legislature-can-ask-what-californians-think-about-citizens-united.html

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